Tuesday, May 03, 2016
"Do Public Defenders Spend Less Time on Black Clients?"
The question in the title of this post is the headline of this interesting new Marshall Project piece. Here are excerpts (with a couple of key links highlighted):
[There is a] rising awareness among public defenders that they may harbor the same hidden biases about race and ethnicity that are frequently attributed to police and prosecutors.
A growing body of research has attempted to draw links between “implicit bias” — beliefs that unconsciously drive decisions and behavior — and the racial disparities that cut across every stage of the criminal justice system, from arrest to charge to incarceration to release. One study found that black defendants in Connecticut had bail amounts 25 percent higher than comparable white defendants, and another found black defendants drew sentences 12 percent longer in federal courts.
Much of that research is focused on prosecutors, jurors, and judges, the triad that puts people away. But scholars are beginning to discuss how it also affects the work of public defenders, to the surprise of many. “I figured: we understand racism, we know our clients, we get it,” says Jeff Adachi, the elected public defender of San Francisco. But now Adachi is one of the converted, running twice-yearly all-day sessions for his staff in which they discuss how unconscious prejudices can sneak into their work. “It’s like waking up from a dream,” Jacobs recalled. Discovering research that correlated skin tone with the harshness of sentences “just made me sick.” He remembered times in the past when he defended immigrants. “I’d think, well this case isn’t as important as that of an American kid. It was a feeling of, they’re just going to plead guilty so why should I bother?”
“[Bias] might manifest in whether the defender believes in the guilt or innocence of the person they’re representing,” says Phoebe Haddon, the chancellor of Rutgers University-Camden. “Or their assessment of their fellow counsel, the credibility of witnesses, whether to take a plea bargain.”
Haddon and the American Bar Association are developing videos to push judges, prosecutors, and defenders to discuss bias, and the first features a string of judges in a rare show of penitence. William Missouri, a black retired circuit court judge from Maryland, says he studied his own sentencing patterns and found “I was biased against my own people.” He looks stricken. “Being accused of bias is like a knife slicing your skin; the cut may be shallow, but the hurt is deep.”
It goes beyond race: Cheryl Cesario, a former Chicago judge, admits that being Catholic meant that when a Catholic defendant came before her, “I would expect more from them.”
Data is scant, since multiple factors create sentencing disparities, but many defenders believe one of the main consequences of “implicit bias” is how much time they spend on cases. Their offices tend to be poorly funded and inundated with far more cases than they have time to handle. “They may expend more effort on cases in which they believe their client is factually innocent,” professors Song Richardson and Philip Atiba Goff wrote in a 2013 article for the Yale Law Journal [available here].
If they are interpreting “ambiguous evidence,” a “judgment of guilt may be cognitively easier to make because of the strong implicit association between blacks and crime.” The surrender to implicit bias is exacerbated by stress, exhaustion, and speed — “exactly the context in which public defenders find themselves.”
The research is still mostly theoretical, and the concrete suggestions tend to be vague. The video for judges suggests that they try to be more humble, slow down their work, and do more self-examination. Videos and other materials for public defenders and prosecutors will be released by the American Bar Association later this year. The association encourages all lawyers to take the Implicit Association Test, an online tool developed at Harvard University [available here].
I have long considered implicit bias to be a huge issue in he operation of the criminal justice system, but I also think there are lots and lots of (not-quite-so-controversial) biases that impact the work of defense attorneys (both public and private). In particular, based on my own experiences and watching a lot of defense attorneys at work, I often see and surmise that the involvement of passionate family members and/or firends can have a potentially huge impact on how much time a defense attorney will spend on efforts to secure a better plea deal and/or develop more mitigation arguments at sentencing. For most overworked lawyers, squeaky-wheel clients will often get more grease; but criminal defense attorneys can grow a bit numb to their clients' squeaks. But I suspect when the squeaks are coming from a defendant's family and friends, especially if those "squeaks" are respectful and help identify sound mitigating matters, it can really impact defense efforts.
An (unhelpful?) exploration of how a troubled young man gets 50 years in Mississippi prison for first felony convictions
The Clarion-Ledger is starting a series of articles titled "Blinded Justice" that will "examine how justice and punishment are dispensed across Mississippi in wildly varying ways." This first piece, headlined "50 years for first-time felon? Tyler Moore's story," tells an interesting tale of a troubled youngster seemingly getting slammed on felony burglary charges because local prosecutors seemingly got tired of his many (misdemeanor-level?) crimes. But the article does not really explore just why prosecutors ultimately were so eager to throw the book at this particular offender. Here are excerpts from the lengthy piece which, for me, raises more state sentencing questions than answers:
Tyler Moore is serving 50 years in prison. It was the first felony conviction for the 24-year-old man, struggling to beat a drug addiction and his bipolar disorder. According to the Mississippi Department of Corrections, his tentative release date is 2061. “I’ll be dead and gone by then,” said his mother, Lisa. So how does a first-time offender who pleaded guilty to burglary get 50 years in prison? This is his story....
[In] 2010 ..., [after a charge of] misdemeanor possession of marijuana paraphernalia, Brandon police knocked on the door one morning about 5 and took him to jail on a hit-and-run charge. The charge against him arose from a party where a young man claimed Moore had run his car into him. Moore denied the claim, saying the young man jumped on his hood.
On April 1, 2011, the judge reduced the charge to leaving the scene of an accident, and Moore was fined. While walking out of the courtroom that day, he muttered to someone, “You lying sack of s---.” The judge sentenced him to 10 days in jail.
The misdemeanors kept coming — contributing to the delinquency of a minor and then shoplifting when he walked out of Belk’s with a pair of sunglasses. Moore apologized to the judge and admitted he had a drug problem. He spent two days in jail, and the judge ordered drug tests for the next six months.
In August 2011, Moore’s family opted for a change in scenery, moving to Branson, Missouri.... He passed all the court-ordered drug tests. What his family didn’t know was his drug addiction now included spice, which couldn’t be detected by the tests....
As months passed, Moore grew homesick, and an old girlfriend wanted to see him. He made it back to Mississippi before Christmas. “I return and have like no money, so what do I do?” he wrote in a sworn statement. “I decide to steal out of some cars to get some money.” In a Reservoir neighborhood, he went from car to car, stealing University of Alabama floor mats, an iPod, a University of Florida gator decal and other items.
On Feb. 2, 2012, the Rankin County Sheriff’s Department arrested him and charged him with breaking into six cars.... After two weeks in jail, the judge released him on bond with the understanding he would go to a drug rehabilitation center, where he stayed 30 days. He admitted using crack cocaine, marijuana and alcohol.
A day after his release in April 2012, deputies responded to a call, where they questioned Moore about a mother saying he had sex with her 15-year-old girl. They arrested him, and he sat in jail for two weeks on a statutory rape charge. He insisted on his innocence, but he failed his polygraph test. Once again, the judge sent him for 30 days to drug rehab.
After his release, his mother witnessed an improvement. He got a job at a car dealership... [but] when his employer learned of his burglary arrest, he was fired. Devastated, he sank into depression. A psychiatrist diagnosed him with bipolar disorder and prescribed medication. His mother said her son continued to struggle and began hanging out with the wrong crowd....
On a Thursday morning, Jan. 10, 2013, Moore discovered he had 21 missed calls on his cell phone. When he talked with his mother, she told him deputies were looking for him. “They say you’ve been breaking into houses.”... That evening, deputies showed up a second time, jailing his mother, father and 14-year-old brother on accessory after the fact charges after learning he was in Louisiana.
Moore’s grandmother decided to turn him in to the Rankin County jail on Sunday, a day before his court appearance. When they arrived in Brandon, he bolted. Deputies pursued him and caught him in a Reservoir subdivision, charging him with five counts of house burglary. With his family behind bars, he confessed to the burglaries.
In a March 4, 2013, memo, the district attorney’s office gave Moore two options: He could plead guilty to auto and home burglaries and receive 50 years, or he could plead guilty to the burglaries and statutory rape, and receive 30 years. Moore refused to plead guilty to statutory rape.
Ten days later, his new defense lawyer, John Colette of Jackson, proposed to prosecutors an alternative of 25 years in prison, with 25 suspended.... In response to the 50-year offer from prosecutors, Colette told them in a July 26, 2013, email, “Nobody was killed.”
The district attorney’s office didn’t budge. Moore faced a new charge, this time of escape, after his bunkmate tried to pry open a window in the Rankin County jail. Colette spoke with the sheriff and prosecutors, who agreed to dismiss the charge.
On Aug. 5, 2013, Moore pleaded guilty to five counts of auto burglary and one count of house burglary. “I just wanted to tell everyone I hurt I’m sorry, and my family,” he told the judge. “I’m not a bad guy. I’ve made some mistakes and I’m on drugs and I ran with the wrong crowd.”... He confessed, “I don’t understand anything anymore, and I need help.”....
In keeping with the plea bargain, the judge sentenced him to 60 years in prison, suspending 10 of those years, with each sentence running consecutively. Circuit Judge John Emfinger dismissed the other burglary charges and the statutory rape charge. Because authorities recovered nearly all of the items, the judge ordered less than $300 in restitution.
Moore thought his sentences would run concurrently. “It did not seem real,” he wrote, “and to this day, it does not seem real.”... When Moore arrived at the Central Mississippi Correctional Facility, a correctional officer thought the 50 years of time were a mistake and double-checked with Rankin County Circuit Court to make sure the burglary sentences were indeed consecutive, not concurrent....
Moore's new lawyer, veteran defense attorney Tom Fortner, said the 50 years “seems like an awfully harsh sentence for a young person without a prior felony. There are a lot of people convicted for worse crimes who aren’t getting 50 years in prison.” Fortner asked Judge Emfinger to reconsider his client’s case, saying his then-defense lawyer, Colette, failed to make clear to Moore how soon he would be eligible for parole. Moore initially believed he would be eligible for parole as early as 2017, but it turned out he won’t be eligible until at least 2025. His tentative release date is 2061.
I find this case so very interesting and blogworthy because it strikes me as a a kind of Rorschach test for assessing the state and problems with modern sentencing systems. Though the article focuses on the severe sentence Moore got at the end of this story, one could reasonably complain about all the sentencing leniency he received for his considerable prior low-level offending. Similarly, though the article suggests it was peculiar and worrisome the local DA pushed for a 50-year sentence in a plea deal, one could reasonably wonder why a sentencing judge did not seem troubled by imposing this sentence. And while a 50-year prison term seems quite extreme for just a series of (minor?) burglary offenses, one could argue that this case was sentence just right if Moore can work hard to improve himself while incarcerated so as to earn parole after serving only 12 years.
Monday, May 02, 2016
The title of this post is the title of this interesting-looking new article by Jason Kreag now avaible via SSRN. Here is the abstract:
The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in private and semi-private settings as the system has become more administrative and less adversarial. Despite this vast, unreviewable power, prosecutors often rely on crude performance measures focused on conviction rates. The focus on conviction rates fails to capture and adequately evaluate the breadth of prosecutorial decision-making.
We can do better by fully implementing analytics as a tool to evaluate the prosecutorial function. This tool has revolutionized crime-fighting. Yet, it has been conspicuously absent as a tool to improve other aspects of the criminal justice system. This Article demonstrates the promise of prosecutorial analytics to improve oversight and to promote systemic interests in justice, fairness, and transparency. It offers concrete examples of how analytics can 1) help eliminate race-based jury selection practices; 2) minimize prosecutorial misconduct; 3) uncover whether undesirable arbitrary factors shape prosecutorial discretion; and 4) provide better metrics for the judiciary, practitioners, and the public to evaluate prosecutorial performance.
Digging deeply into Virginia's crowded prisons and parole paractices
A local public radio station in Virginia now has available at this link a detailed look as corrections practices in the state. The umbrella title for all the coverage is "Crowded Prisons, Rare Parole: A Five Part Series," and here are the subheadings and introductions for each part of the series:
Part One: Virginia Has Lowest Parole Rate in the Nation: It’s been more than 20 years since Virginia abolished parole, and over that time the prison population has grown to more than 30,000 people. Just over 10% of them committed crimes before the law changed, so they’re still eligible for parole, but few of them are getting out, and the state now spends more than a billion dollars a year on prisons and correctional programs.
Part Two: Secret Proceedings Offer Little Hope of Parole: Virginia abolished parole in 1995, but people who committed crimes before then — more than 3,300 of them — are still eligible, and a board of five people decides who gets out.
Part Three: Why the Parole Board Rarely Paroles: In a survey of 1,000 Virginians, 75% said the prison population is costing too much — nearly $28,000 per inmate per year. Two-thirds thought the correctional system should reinstate parole, allowing early release for those inmates who are unlikely to commit new crimes. Even people who considered themselves conservative supported that idea by a margin of two to one. Still, Republicans in the legislature oppose parole, and the board empowered to release people who were convicted before parole was abolished frees only a few inmates each year.
Part Four: Paring Virginia's Prison Population: Last year, Governor McAuliffe set up a commission to explore the possibility of reinstating parole — a system of early release for prisoners who follow the rules and are unlikely to commit new crimes. After months of hard work, the group decided not to make a recommendation. Republicans in the legislature had already made it clear they would not support parole. Instead, the commission issued a 50-page report on other ways to reduce its prison population.
Conclusion: Five Years in Prison for Pot: Lawmakers who oppose liberalizing Virginia’s marijuana laws claim no one goes to jail for possessing small amounts of the drug, but a second offense or selling pot does put people in prison. With four states now allowing businesses to profit from the sale of marijuana — and taxing those transactions, some Virginians now question the wisdom of spending nearly $28,000 a year to lock people up for using or even selling marijuana.
Justice Breyer dissents alone(!) in California capital case concerning long delays before execution
At the end of this morning's Supreme Court order list, Justice Breyer has a brief two-page dissent from the Court's decision to deny certiorari review in a capital case in which "Richard Boyer [who] was initially sentenced to death 32 years ago" requested that the Justices "consider whether the Eighth Amendment allows a State to keep a prisoner incarcerated under threat of execution for so long." Here is part of what Justice Breyer has to say:
These delays are the result of a system that the California Commission on the Fair Administration of Justice (Commission), an arm of the State of California, see Cal. S. Res. 44 (2004), has labeled “dysfunctional.” Report and Recommendations on the Administration of the Death Penalty in California 6 (2008).... It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the State. Indeed, only a small, apparently random set of death row inmates had been executed. See ibid. A vast and growing majority remained incarcerated, like Boyer, on death row under a threat of execution for ever longer periods of time....
Put simply, California’s costly “administration of the death penalty” likely embodies “three fundamental defects” about which I have previously written: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.” Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 2); see Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); see also Valle v. Florida, 564 U. S. 1067 (2011) (BREYER, J., dissenting from denial of stay); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari).
Notably, not a single other Justice joined this dissent, not even Justice Ginsburg who was along for ride a little less than a year ago when Justice Breyer wrote his anti-death penalty magnum opus dissent in Glossip. That reality reinforces my belief that death penalty abolitionists should not be especially hopeful that a majority of Justices will find capital punishment per se unconstitutional anytime soon.
Saturday, April 30, 2016
Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation
The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision. Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:
Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”
“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.
The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.
Friday, April 29, 2016
With nine months left in Obama Administration, apparently it is time for a clemency last call
Regular readers know I am a long-time critic of how modern presidents have (failed to) use their historic clemency powers and that I am not an especially big fan of how the Obama Administration and others have approached trying to do things better of late. Another frustrating piece of this story is captured by this new Politico piece headlined "Obama team making last-ditch push on commutations: Top Justice official says non-violent drug offenders are running out of time to apply for reduced sentences." Here are excerpts:
The Obama Administration is pressing hard to keep the clock from running out on thousands of federal drug convicts hoping to get their prison sentences shortened by President Barack Obama before he leaves office in January. Earlier this week, the No. 2 official at the Justice Department pleaded with volunteer lawyers working on those cases to get the commutation applications filed right away.
"Time is of the essence and the inmates who raised their hands for your assistance still need your help," Deputy Attorney General Sally Yates wrote in the unusual letter, dated Monday and obtained by POLITICO. In the message to attorneys working through a consortium known as Clemency Project 2014, Yates noted that the group has set internal deadlines for most cases as soon as Monday of next week and for other cases in mid-May. "I cannot stress how important it is [to] meet those deadlines," Yates wrote. "If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them."
Obama launched his so-called "Clemency Initiative" in early 2014, seeking to identify thousands who have served long drug-crime sentences that would likely have been shorter under current law. The effort was aimed at granting commutations to those who met certain criteria, such as being non-violent, low-level offenders. The announcement triggered a flood of clemency requests from close to 30,000 inmates — more than 10 percent of the federal prison population. The level of interest swamped the handful of lawyers in the office of the Justice Department's Pardon Attorney and overwhelmed the newly-created Clemency Project.
While the group has said nearly 4,000 attorneys were recruited to prepare applications, the process has been a tough slog, slowed by bureaucratic hurdles in obtaining paperwork and the reliance on lawyers who usually have no prior experience seeking clemency. Yates' letter to the Clemency Project lawyers says they have submitted "more than 850 petitions" thus far. That's a dramatic increase from the roughly 30 the group's lawyers had handed in about a year ago, but still far short of the number likely to yield the thousands of commutations some Obama administration officials expected at the outset.
The applications are also backlogged at the Justice Department, which had more than 11,000 commutation requests of all types pending at the end of March, according to Justice's website. In January, the Justice Department official who'd overseen the effort since the spring of 2014 resigned, complaining of a lack of resources and that her recommendations were not always being relayed to the White House. "The Department has not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president," Pardon Attorney Deborah Leff wrote in her resignation letter, obtained by USA Today through a Freedom of Information Act request.
White House Counsel Neil Eggleston said at a POLITICO Playbook Breakfast earlier this month that the Pardon Attorney's office has gotten a boost in resources and that some of the concerns Leff raised have been addressed. "The pardon attorney's office has a little more resources, which is good, and I have regular dealings with the pardon attorney directly, so to the extent that Ms. Leff was complaining about that, that was solved. Actually, it was solved before she left,” Eggleston said. “And so I think that we're moving forward in a pretty good way here."...
Last year, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) questioned whether the Justice Department had essentially outsourced its role in the process to the Clemency Project 2014 lawyers. A Justice Department official rejected that idea at the time, saying that the volunteer project — backed by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and others — was "completely separate" from Justice.
However, Yates' letter this week highlights the Clemency Project's internal deadlines and thanks the group for having "screened out ... 20,000 ineligible applicants." Critics, noting that Obama has granted commutations to some applications who did not appear to meet all the criteria, have expressed concern that some of those prisoners may have compelling cases for commutations but will be dissuaded from applying by having been screened out. In addition, in a less-noticed portion of Leff's letter, she said she had "been instructed to set aside thousands of petitions for pardon and traditional commutation."
I have got tired of being tired of hearing these stories of too many clemency applicants and too little ability to procees them all. But I will continue to note (and lament) all this, and continue to hope that Prez Obama will vindicate all the energies and excitement advocates devoted to these matters by granting at least a few hundred more commutations and some significant number of pardons before he passes on the keys to the Oval Office next January.
Thursday, April 28, 2016
Candidate Clinton promises to "institute gender-responsive policies in the federal prison system and encourage states to do the same"
Yesterday in this post I sought readers' perspectives on whether Hillary Clinton or Donald Trump would likely end up being a "better" sentencing President. Perhaps realizing I am not the only wondering on this front, today CNN published this notable new commentary authored by Hillary Clinton under the headline "Women and prison -- the cost in money and lives." Here are some extended excerpts (with one sentence emphasized):
Mass incarceration has torn families apart, impoverished communities, and kept too many Americans from living up to their God-given potential. But mass incarceration's impact on women and their families has been particularly acute — and it doesn't get the attention it deserves....
The United States' prison and jail population includes 215,000 women — nearly one-third of all female prisoners worldwide, and 800% more women than were in prison four decades ago. African-American women are more than twice as likely to be in prison than white women.
But women aren't the only ones affected when they are sent to prison. The high number of women in prison — and the long lengths of their sentences — destabilizes families and communities, especially their children. Since 1991, the number of children with a mother in prison has more than doubled. Mothers in prison are five times more likely than fathers in prison to have to put their children in foster care while they serve their sentences.
We can't go on like this. It is time we reform our broken criminal justice system. First, we need to reform policing practices, end racial profiling, and eradicate racial disparities in sentencing. Second, we need to promote alternatives to incarceration, particularly for nonviolent and first-time offenders, so families aren't broken up. We need to improve access to high-quality treatment for substance abuse, inside and outside the prison system, because drug and alcohol addiction is a disease, not a crime — and we need to treat it as such.
And third, we need to be deliberate about understanding the different paths that can land women in prison, be more attentive to women's unique needs while they are incarcerated, and do more to support women and their families once they are released. I will institute gender-responsive policies in the federal prison system and encourage states to do the same — because women follow different paths to crime than men, and face different risks and challenges both inside and outside the prison walls, and every part of the justice system, from sentencing to the conditions of confinement to re-entry services, should reflect women's unique needs.
Research shows that women's relationships ... are often a significant risk factor for becoming involved with the justice system. Most women in prison are there because of nonviolent drug or property crimes. Over 60% of them report drug dependence or abuse in the year before they went to prison. Many of them grew up in abusive households ... and they are more likely than men in prison to have experienced sexual abuse or trauma in their life before prison.
And too often, a woman and her children continue to live with the consequences even after she has served her time and paid her debt to society. Because formerly incarcerated people face limited job opportunities, an entire family is effectively punished by a woman's time in prison. "Banning the box" — preventing an employer from asking about criminal history at the initial application stage, so that individuals have a chance to compete for jobs on a fair basis — is a necessary and important step, but it isn't enough. In addition to job training and interview coaching, women returning to their communities after years behind bars need safe housing for themselves and their children, continuity of health care, and above all a supportive community....
Women and the families they support are being crushed by a criminal justice system that costs far too much — in state and federal budgets, and in lives derailed and economic opportunity lost — without making us safer. Too often, people are prejudiced against the formerly incarcerated — in employment, in housing, in everyday interactions. We say we are a nation of second chances — and it's time that we act like it.
I am, generally speaking, quite supportive of "gender-responsive policies" in our criminal justice systems, particularly because there are lots of evidence-based reasons for viewing (and sentencing) most female offenders as much lesser threats to public safety than most male offenders. That said, I am not entirely sure what specific sentencing laws and prison policies need to be changed dramatically in federal and state systems in order to make them more "gender-responsive." Should (and legally could) a Prez Clinton institute an executive order providing that federal resources earmarked for prison treatment and post-prison reentry programs must be used first for all female federal offenders before any male offenders have access to these programs?
April 28, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)
"A Legal Definition of Leadership: Understanding Section 3B1.1 of the Federal Sentencing Guidelines"
The title of this post is the title of this new paper now available via SSRN authored by Marin Roger Scordato. Here is the abstract:
This Article offers a formal legal definition of “leadership” drawn from an unusual quarter: criminal sentencing. Sentencing guidelines that include adjustments based on the extent to which a defendant was a “leader” have spawned hundreds of appellate court cases attempting to develop a thoughtful, workable definition of the term. Reviewing these cases, this Article offers 25 separate characteristics courts have found material to a legal judgment as to whether an individual has been a leader within a criminal enterprise.
Eleven of these characteristics can be organized into three categories, which operate on the boundaries of the leadership concept. The first category contains those circumstances courts have found do not, by themselves, confer leadership status. For example, courts have found that controlling property alone does not make one a leader. The second category of leadership characteristics are those circumstances that are not, in themselves, sufficient to show a defendant is not a leader. For example, there may be more than one leader in a group, so the identification of one or more other leaders in a group does not preclude the possibility of characterizing a defendant as a leader as well. A third category of leadership focuses on the external group functions of leadership, the ways in which a leader monitors and mediates the points of contact between the group as a separate entity and important elements outside the group.
The remaining 14 characteristics comprise a fourth category that resides at the center of what courts find establishes leadership status. To courts, the gravamen of leadership is the control, organization, and responsibility for other group members. Examples of characteristics in this category are that a leader inspires members to make sacrifices for the group, possesses decision-making authority within the group, carries ultimate responsibility for the group’s success, and resolves disputes within the group.
This Article concludes by noting this formal legal definition of leadership, given its basis in criminal sentencing, has generated a set of leadership characteristics all of which appear to enjoy the possibility of general applicability to a broad range of factual contexts including standard business settings, but still notes how very far the formal legal definition of leadership is from conventional definitions grounded explicitly in a moral, value-laden context.
Wednesday, April 27, 2016
Reviewing the final SCOTUS oral argument week that was full of criminal justice issues
As noted in this post last week, three of the final five cases that the Justice were scheduled to hear during this last week of the Term's oral arguments involved criminal justice issue. The highest-profile and perhaps most consequential of these cases was argued today concerning the public corruption verdict against former Virginia Gov Bob McDonnell. Thanks to the always great folks at SCOTUSblog, I can link here to two posts about the McDonnell and to single post on the two other cases heard yesterday:
Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel
A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent. Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively.
What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals:
Indiana appellate courts are authorized to independently “review and revise” sentences. Ind. Const. Art. 7, § 4; Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). This authority is implemented through Indiana Appellate Rule 7(B), which provides that the appellate court may revise a sentence if after due consideration of the trial court’s decision the appellate court finds the sentence is inappropriate in light of the nature of the offense and the character of the offender. Pierce, 949 N.E.2d at 352. As Miller shows in his brief, Indiana appellate courts have not hesitated to use this authority; he cites no less than 11 cases in which Indiana appellate courts shortened sentences in similar cases.[FN 2]
[FN 2] Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (revising 124 year sentence on four counts of child molestation to 80 years); Sanchez v. State, 938 N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts of child molestation to 40 years); Harris v. State, 897 N.E.2d 927 (Ind. 2008) (revising consecutive sentences of 50 years on two counts of child molesting to concurrent); Smith v. State, 889 N.E.2d 261 (Ind. 2008) (revising four consecutive sentences of 30 years each, a total of 120 years, to a total of 60 years); Monroe v. State, 886 N.E.2d 578 (Ind. 2008) (reducing sentence of 100 years to 50 years); Estes v. State, 827 N.E.2d 27 (Ind. 2005) (revising sentence of 267 years on 14 counts of child molesting and sexual misconduct with a minor to 120 years); Serino v. State, 798 N.E.2d 852 (Ind. 2003) (revising sentence of 385 years on 26 counts of child molestation to 90 years); Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (revising consecutive sentences of 40 years on three counts, a total of 120 years, to 80 years total); Ortiz v. State, 766 N.E.2d 370 (Ind. 2002) (revising 30 year consecutive sentences on child molesting counts to run concurrently); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190 year sentence for child molesting and related offenses to 150 years); Walker v. State, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences of 40 years on two counts of child molesting to be concurrent).
"Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records"
The title of this post is the title of this lengthy new report from the National Employment Law Project. Here is an excerpt from its executive summary:
This paper examines the significant flaws in state occupational licensing criminal background check requirements. One barrier to employment that regularly appears in state occupational licensing laws is the blanket ban, which automatically disqualifies people with certain records. As a gauge for the frequency of blanket bans in licensing laws across the nation, the ABA Inventory reports over 12,000 restrictions for individuals with any type of felony and over 6,000 restrictions based on misdemeanors. In addition, the ABA Inventory reports over 19,000 “permanent” disqualifications that could last a lifetime and over 11,000 “mandatory” disqualifications, for which licensing agencies have no choice but to deny a license.
Another aspect of the barriers facing workers with records is the prevalence of overly broad criminal record inquiries. The rationale for far-reaching inquiries is ostensibly compelling — licensing agencies seek robust information to advance public safety and health. No research, however, supports the persistent misconception that a workplace is less safe if an employee has a past record. Thus, even seemingly rational inquiries frequently operate as overly broad bans against anyone with a record.
License applicants with records face additional challenges presented by a lack of transparency and predictability in the licensure decision-making process and confusion caused by a labyrinth of different restrictions. Requirements for a single occupation vary widely across states, as do the standards applied to evaluate past offenses. Further complicating matters, the statutory language and procedures governing individual, or classes of, professions often differ from more general state licensing statutes.
Tuesday, April 26, 2016
Fascinating backstory behind big donation behind new "Criminal Justice Reform Center" at SMU Dedman School of Law
This local story out of Dallas, headlined "Deason and Koch give $7 million to SMU Dedman Law for criminal justice reform," tells an old criminal justice story from decades ago that in part explains the origins of a new criminal justice research center. Here are the details:
Dallas businessman Doug Deason was 17-years-old when he held a party at a neighbor’s house while they were gone. Booze flowed. Music was loud. Cops were called. “The couple’s son gave me a key and things got out of hand,” said Deason, who was charged with felony burglary.
Deason’s parents hired a well-connected criminal defense lawyer, who convinced prosecutors to lower the charge to misdemeanor trespassing and to agree to expunge his record if he stayed clean for a year. “A felony could have ruined my life, as I would have been forced to check that box on every school and job application,” said Deason, who is the son of Affiliated Computer Services founder Darwin Deason. “There are a lot of people who make a mistake like I did and end up paying for it for their entire life.”
That was 1979 in northwest Arkansas. Tuesday in Dallas, Deason announced that he and his family’s foundation donated $3.5 million to Southern Methodist University’s Dedman School of Law to create a legal institute that conducts innovative research and educational outreach efforts designed to promote criminal justice reform in Texas and beyond.
The Deason Family Criminal Justice Reform Center will conduct statistical and analytical studies ranging from pre-trial procedures, sentencing disparities and pre-trial diversion, abuses of asset seizure and forfeiture laws and wrongful convictions.
SMU Dedman Law Dean Jennifer Collins said the Deason gift combined with a matching $3.5 million contribution by the Charles Koch Foundation will fully fund the center, which will be located on the law school campus. “We hope this center generates statistical research that is part of the national conversation about criminal justice reforms,” Collins said. “The plan is to bring in visiting faculty members who are experts and to get students involved in research and to generate course ideas that allow students to interact with the experts.”
“This tremendous opportunity is happening only because of Doug Deason’s passion for this issue and his passion for SMU,” she said. Collins said the combined $7 million allows the law school to hire an executive director, an outreach director and additional faculty in the field....
Criminal justice experts say the center should investigate the effectiveness of prison educational and training programs. They point out that the Georgia Department of Corrections once had a program that allowed inmates to study and obtain college degrees or associates degrees in various tradecrafts while incarcerated. The recidivism rate for such inmates when they were released was less than 10 percent while the overall prison population recidivism rate exceeded 60 percent. However, the program was halted after victim’s rights groups and conservative Republican political leaders condemned the efforts as being soft on crime.
Deason, himself a Republican, said many in his own political party are shortsighted when it comes to “doing what’s right and what’s effective” in the area of criminal justice. He said the decision by Virginia Gov. Terry McAuliffe, a Democrat, to restore voting rights to 200,000 former felons who have served their entire sentences and remained clean is “awesome.”
“If they’ve paid their debt to society and taken the necessary steps, then why not give them a better chance to re-emerge into society to live a successful and dignified life,” he said.
Deason, who is the president of Deason Capital Services, has pushed Congress to reduce mandatory minimum sentences of non-violent drug offenders. The proposal passed the U.S. Senate Judiciary Committee 15 to 5. He pointed out that Texas Sen. John Cornyn voted for the bill, while Sen. Ted Cruz voted against it.
“There’s an extreme right wing that doesn’t understand this issue or they are politically afraid to do the right thing,” Deason said, which he said is ironic because he and the Koch brothers support the measure with President Obama. “I was lucky enough to get a second chance,” he said. “Other less fortunate people deserve that same opportunity.”
You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?
I have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova." As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion." I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.
I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case. This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):
More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.
"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through. I ask that you consider the man that is before you and give him leniency where you can."...
Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician. They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks. "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."
Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars. He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.
In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said. The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....
When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors. Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.
I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment. Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.
That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes. (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.) His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought separate serious criminal charge for obstruction of justice.
Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint. For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys. And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing. (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)
So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?
April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)
"Roadmap to Reentry: Reducing Recidivism Through Reentry Reforms at the Federal Bureau of Prisons"
The title of this post is the title of this new programming publication from the US Department of Justice. Here is part of its "Overview":
Each year, more than 600,000 citizens return to neighborhoods across America after serving time in federal and state prisons. Another 11.4 million individuals cycle through local jails. And nearly one in three Americans of working age have had an encounter with the criminal justice system — mostly for relatively minor, non-violent offenses, and sometimes from decades in the past. Federal prisoners are held at the Bureau of Prisons (BOP), a law enforcement agency of the U.S. Department of Justice and the country’s largest and most complex prison system — housing nearly 200,000 prisoners in 122 federally-operated correctional institutions, 13 privately-operated secure correctional facilities, and a network of more than 175 community-based centers around the country....
The long-term impact of a criminal record prevents many people from obtaining employment, housing, higher education, and credit — and these barriers affect returning individuals even if they have turned their lives around and are unlikely to reoffend. These often-crippling barriers can contribute to a cycle of incarceration that makes it difficult for even the most wellintentioned individuals to stay on the right path and stay out of the criminal justice system. This cycle of criminality increases victimization, squanders our precious public safety resources, and wastes the potential of people who could be supporting their families, contributing to the economy, and helping to move our country forward.
Under the Obama Administration, the Department of Justice has already taken major steps to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals return to their communities. In 2011, the Department established the Federal Interagency Reentry Council, a unique Cabinet-level effort to remove barriers to successful reentry. The Reentry Council, which now includes more than 20 federal departments and agencies, has developed significant policies and initiatives that aim not only to reduce recidivism, but also to improve public health, child welfare, employment, education, housing, and other key reintegration outcomes.
To ensure that all justice-involved individuals are able to fulfill their potential when they come home, Attorney General Lynch has launched a major effort to support and strengthen reentry programs and resources at BOP. These principles of reform — known as the Roadmap to Reentry — will be implemented throughout BOP, deepening and further institutionalizing the Department’s commitment to reentry. These efforts will help those who have paid their debt to society prepare for substantive opportunities beyond the prison gates; promoting family unity, contributing to the health of our economy, and sustaining the strength of our nation.
The Department has also established full-time positions to promote reentry work at BOP, the Executive Office for United States Attorneys, and the Office of Justice Programs; this includes hiring the first-ever Second Chance Fellow — a formerly incarcerated individual with deep expertise in the reentry field — to assist in development of reentry policy initiatives. BOP established a new Reentry Services Division to better equip inmates with the tools needed for success outside the prison walls, including expanded mental health and substance abuse treatment programs and improved work and educational opportunities. Through the community of U.S. Attorneys, the Department participates in reentry and diversion courts in more than 50 judicial districts nationwide. And the Department supports state, local, and tribal reentry efforts by providing resources under the Second Chance Act of 2007: the Department’s Office of Justice Programs has made nearly 750 Second Chance Act grants totaling more than $400 million, and established a National Reentry Resource Center that serves as a one-stop resource for returning citizens, advocates, and stakeholders.
April 26, 2016 in Collateral consequences, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
Monday, April 25, 2016
Deep thoughts about sentencing, sentencing rules, and sentencing rule-making
I just came across these two interesting new papers on SSRN that raise lots of interesting and deep thoughts about both sentencing outcomes and sentencing rules and sentencing decision-making:
Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework by Seth Mayer & Italia Patti
Abstract: There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement. Instead, they either try to impose disputed moral theories or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines.
This Article is the first to offer a framework to directly and effectively confront political disagreement. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy and offers reforms to enable the current system to better embody those criteria.
Rules, Standards, Sentencing, and the Nature of Law by Russell Covey
Abstract: Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice.
Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law's grander aspirations -- for determinacy, fairness, even coherence itself. Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker.
New speech by Justice John Paul Stevens reflects on Justice Antonin Scalia and the Court's constitutional work before and after Apprendi
A helpful reader alerted me to this notable new speech given today by Justice John Paul Stevens at the Washington University School of Law. The speech is titled "Some Thoughts about a Former Colleague," and much of the discussion is a review of the McMillan, Watts, Apprendi, Harris, Blakely, Alleyne and Hurst decisions from the Supreme Court over the last three decades. The speech also notes disagreements between Justices Stevens and Scalia in the Second and Eighth Amendment contexts, and concludes with some comments about original intent as a mode of constitutional interpretations.
My quick review of the speech did not lead me to find any surprising revelations, but it did lead me to conclude that Justice Stevens is pleased that, in his words, a "consensus  has developed around Apprendi's rule since it was first announced in a 5-4 decision 16 years ago." I also found quite notable that the Booker decision did not get any mention in the discussion.
SCOTUS grants cert on two new criminal cases
The Supreme Court, as previewed here, is wrapping up the oral arguments of its current Term with a considerable amount of criminal law work. And today, via this new order list, the Justices took up two new criminal law cases for its docket next Term. Here are the cases and the issues via SCOTUSblog for the two cases taked up by the Justices today:
Issue: Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award.
Issue: Whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argued here.
Sunday, April 24, 2016
Hey Prez Candidate Kasich: why can't you figure out the formula to make capital punishment work (as it does in Georgia and Texas)?
The question in the title of this post is prompted by this AP article headlined "Georgia to carry out its 5th execution of the year this week." The piece reveals that the Peach State seems to have no problem securing lethal injection drugs for schedueld executions; meanwhile Ohio now has 25(!) condemned murderers scheduled for execution, but has been unable for three years to secure drugs to carry out these executions.
I am, generally speaking, a fan of Ohio Gov John Kasich, but in this arena he has not lived up to his campaign claims that he has "the formula" to make government work again. Before I continue with bashing of my governor, here are the basic 2016 executions details via the AP story from Georgia:
Georgia plans to carry out its fifth execution of the year on Wednesday when a man convicted in the 1998 killings of a trucking company owner and his two children is set to die. Daniel Anthony Lucas is scheduled to be executed at 7 p.m. Wednesday at the state prison in Jackson. Georgia executes inmates by injecting the barbiturate pentobarbital.
Lucas, 37, was sentenced to die in 1999 for the killings of Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin, who interrupted a burglary at their home near Macon in central Georgia....
If Lucas is executed Wednesday, he will be the fifth person put to death in Georgia. That will match the record — set in 1987 and tied last year — for the most executions carried out in a calendar year in the state since the death penalty was reinstated nationwide in 1976. With eight months left in the year, it seems likely the state will set a new record this year.
His execution would also mean that Georgia has executed more inmates in a 12-month period than at any other time since reinstatement of the death penalty. Georgia has executed seven people in the last 12 months, starting with Kelly Gissendaner on Sept. 30. The only other time the state executed that many people in a 12-month period was when seven inmates were put to death between October 2001 and August 2002.
Only four states have carried out executions this year for a total of 12. Aside from the four executed in Georgia so far, six inmates have been put to death in Texas and one each in Alabama and Florida.
This DPIC list of completed 2016 executions details that Georgia and Texas are completing executions with pentobarbital, which I believe is Ohio's execution drug of choice. I know there must be all sorts of legal and practical complications that prevents Ohio officials from simply getting execution drugs from these states, but that reality does not reduce the frustrations that everyone involved in capital justice in Ohio must have as this problems continues to fester and Gov Kasich continues to spend his time traveling to country talking about having the formula to make government work better.
I am busy finishing up a little article suggesting that, for practical and political reasons, most states would generally be wise to seek to end rather than mend its broken death penalty systems. And, in part for reasons hinted in this post, I am using Ohio's modern experience with death penalty administration as exhibit one in my discussion.
Friday, April 22, 2016
Split Kansas Supreme Court, reversing itself in real time, ultimately decides that state's lifetime sex offender registration law is constitutional
In a significant ruling today in the Supreme Court of Kansas, the Court splitting 4-3 upheld the state's sex offender registration laws via an opinion in Kansas v. Petersen-Beard, No. 108,061 (Kansas April 22, 2016) (available here). This opinion has one of the strangest first paragraphs you will ever read:
Henry Petersen-Beard challenges his sentence to lifetime post-release registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).
This local article, headlined "Sex offenders win and lose in unusual rulings by the Kansas Supreme Court," explains how the court issued three rulings on these matters today and then overruled those via its final ruling in Petersen-Beard:
In an apparently unprecedented series of rulings, the Kansas Supreme Court on Friday overruled three of its own Friday opinions regarding state sex offender registration laws. In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect. But then in a fourth opinion also released Friday, the court found that those rulings were incorrect. The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.
The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions.
But for the fourth case, that district judge was replaced by the newest Supreme Court justice, Caleb Stegall. That case was also decided 4-3, with Stegall casting the deciding vote. The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.
The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders does not violate federal and Kansas constitutional protections against cruel and unusual punishment.
In the three other cases, the court ruled that offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took affect after they committed their crimes. But those rulings apparently apply only to those three offenders. Others will be governed by the fourth ruling Friday.
April 22, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)
Iowa Supreme Court requires giving reasons for even a presumptive consecutive sentence, and concurrence laments when "sentencing is given short shrift"
I helpful reader alerted me to an interesting little decision from the Supreme Court of Iowa today that makes me fell extra good going into the weekend. For starters, the majority opinion in Iowa v. Hill, No. 15–0030 (Iowa April 22, 2016) (available here), reaches the important and valuable conclusion that a sentencing court must give reasons to justify a consecutive sentence even if the law creates a presumption for such a sentence. Second, a special concurring opinion by Justice Appel cites some of my scholarship to stress the point that sentencing proceedings should generally get a lot more attention.
Here is the start of the majority opinion in Hill:
In this appeal, we must decide whether the presumption for consecutive sentences in Iowa Code section 908.10A (2013) excuses the district court from the general requirement to state why it imposed a consecutive sentence and, if not, whether the district court’s stated reason for this consecutive sentence was adequate. The defendant pled guilty to failure to comply with sex-offender registry requirements, an offense he committed while on parole for the underlying sex crime. The district court imposed a two-year prison sentence consecutive to his parole revocation and stated, “The reason for the sentence is protection of the community, seriousness of the crime, and the nature and circumstances of the offense.” The defendant appealed on grounds that the sentencing court failed to give reasons for imposing a consecutive sentence. The court of appeals affirmed, concluding the statutory presumption for consecutive sentences obviated any need to give reasons for imposing the consecutive sentence. The dissenting judge disagreed, noting section 908.10A allows discretion to impose concurrent or consecutive sentences, requiring the sentencing court to give reasons for its choice. On further review, we hold the district court must give reasons for imposing a consecutive sentence under section 908.10A and that the reasons given in this case were insufficient. Accordingly, we vacate the decision of the court of appeals, vacate the sentencing order, and remand the case for resentencing.
And here are snippets from Justice Appel's special concurring opinion in Hill:
In this era of plea bargains, sentencing is often the most critical phase of a criminal proceeding.... But too often in our courtrooms, sentencing is given short shrift by the participants. There often seems to be an assumption that the process that led to the determination of guilt is generally sufficient to inform the court of the necessary information for sentencing....
Once a lawyer has fulfilled the distinct professional responsibilities related to sentencing, the district court must exercise its discretion in setting the sentence. Even in a case that seems less consequential than other matters on a court’s crowded docket, the impact on the parties with a stake in the sentencing decision is substantial and requires a careful, thoughtful discretionary decision by the district court. Sentencing is not a time to cut corners....
The decision regarding whether sentences are served concurrently or consecutively ... is often of great moment and, as the court recognizes, must be made separately from the underlying sentence on each count. A decision to impose a lengthy prison term for the underlying crimes is not the same as the geometric increase in incarceration that may result from a decision to run sentences consecutively. In considering the distinct question of whether to run sentences consecutively or concurrently, the district court must be careful to avoid mere boilerplate recitation and demonstrate an exercise of reasoned judgment.
Just how should sentencing law deal with a truly habitual petty criminal?
This morning I came across this recent Huffington Post piece lamenting in its headline a seemingly a very severe application of Louisiana's habitual offender law: "Louisiana Man May Face Life For Shoplifting Snickers Bars: Critics say the case shows how habitual-offender laws can bully small-time crooks into pleading guilty rather than risking the consequences of a trial." To its credit, the HuffPo piece use this latest shoplifting case story to talk more generally about how severe mandatory sentencing laws can functionally place tremendous pressure on a defendant to plead guilty to try to avoid an extreme prison term.
But, rather use this story to reiterate my long-standing disaffinity for severe mandatory sentencing provisions (especially because of the often unchecked power it can place in the hands of prosecutors), I did a bit of digging into the story behind the habitual offender now in big trouble for his candy caper, and what I found prompted the question in the title of this post. Consider specifically the factual backstory reported in this local piece headlined "Accused New Orleans candy thief, facing 20 years to life, turns down deal for 4 years":
New Orleans shoplifter Jacobia Grimes, facing a possible sentence of 20 years to life for stuffing $31 worth of candy bars into his pockets at a Dollar General store, has rejected a plea offer from District Attorney Leon Cannizzaro’s office that would have seen him serve a four-year sentence as a double offender, his attorney said Friday.
The offer was the same sentence that Grimes agreed to serve when he pleaded guilty in 2010 to swiping socks and trousers in a similar shoplifting attempt. Grimes, 34, did not appear in court for a hearing Friday. He remains jailed on a violation of his $5,000 bond, having tested positive last week for opiates, cocaine, oxycodone and marijuana.
But Criminal District Court Judge Franz Zibilich again suggested to prosecutors and Grimes’ attorneys that they work out a deal for less jail time, followed by probation and drug treatment. Zibilich noted Grimes’ lengthy criminal record, which includes more than a dozen arrests since 2000. Most of the nearly nine years he has spent in prison since 2001 were the result of shoplifting convictions, records show. “I agree he has to pay the consequences, even though it’s candy. I would like to see some sort of split sentence,” Zibilich said.
However, Assistant District Attorney Iain Dover said state law may not allow it, given Grimes’ status as a potential “quad” offender under the state’s habitual offender law. “I can’t see how we get there under the law,” Dover said.
Cannizzaro’s office charged Grimes in a bill of information Feb. 3 under a state statute for theft of goods by someone with multiple convictions for the same thing. His earlier convictions elevated his alleged candy heist, on Dec. 9 at a Dollar General store on South Claiborne Avenue, to a felony. Whether Grimes would face 20 years to life if he’s convicted of the candy theft would be up to Cannizzaro’s office. State laws give prosecutors discretion following a conviction to raise the ante by filing a “multiple bill.”
His case, given the nature of the crime and the possible penalty, has gained wide attention, prompting Cannizzaro to publicly dismiss the notion that he would seek such a heavy sentence for a shoplifter. Dover argued that Grimes’ criminal record shows that slaps on the wrist don’t seem to work. “It’s not the state’s fault. It’s this guy’s fault. He’s had a chance. He’s had the opportunities,” Dover said.
Zibilich suggested that both sides could agree to go below the mandatory minimum prison sentence in a plea deal that includes treatment, so long as nobody challenged it. “Do we have to be married to every single syllable of this book?” he asked of the state’s penal code.
Grimes’ trial is scheduled for May 26. His attorneys, Miles Swanson and Michael Kennedy, have opted to forgo a jury and let Zibilich decide the case.
This only things that seems really obvious to me in this case is that even some extended stints in state prison are not working to help Jacobia Grimes stop being a petty criminal. Even recognizing that incapacitating this petty criminal via incarceration is likely not especially cost effective for the taxpayers of Louisiana, at this point what other punishment options would you suggest the prosecutor and judge seriously consider under these circumstances?
April 22, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
"Why I refuse to send people to jail for failure to pay fines"
The title of this post is the headline of this lengthy recent Washington Post commentary authored by Ed Spillane, the presiding judge of the College Station Municipal Court and president of the Texas Municipal Courts Association. Here are excerpts:
As a municipal judge in College Station, Tex., I see 10 to 12 defendants each day who were arrested on fine-only charges: things like public intoxication, shoplifting, disorderly conduct and traffic offenses. Many of these people, like Melissa, have no money to pay their fines, let alone hire a lawyer.
What to do with these cases? In Tate v. Short, a 1971 Supreme Court decision, the justices held that jail time is not a proper punishment for fine-only criminal cases, citing the equal protection clause of the 14th Amendment. But in many jurisdictions, municipal judges — whether they’re overworked, under pressure to generate revenue through fees, skeptical of defendants’ claims to poverty or simply ignorant of the law — are not following the rules. As a result, far too many indigent defendants are cited for contempt of court and land behind bars for inability to pay.
There’s another way, and I’ve been experimenting with it in my own courtroom.
There are no firm numbers nationally on how many fine-only cases end with the defendants in jail, but figures from particular jurisdictions around the country are grim, if partial. A 2014 survey by NPR, New York University’s Brennan Center for Justice and the National Center for State Courts showed that in Benton County, Wash., a quarter of people in jail for misdemeanors on a typical day were there for nonpayment of fines and court fees. (The study also found that civil and criminal fees and fines had increased in 48 states since 2010.) The percentage of jail bookings in Tulsa involving inmates who had failed to pay court fines and fees more than tripled, from 8 to 29 percent of 1,200 inmates, between 2004 and 2013, according to reporting by the Tulsa World. Eighteen percent of all defendants sent to jail in Rhode Island between 2005 and 2007 were incarcerated because of court debt; in 2005 and 2006, that amounted to 24 people per day....
Fortunately, courts and judges are not powerless to fix the system.
First, defendants must be allowed to argue economic hardship in an indigency hearing, which is Constitutionally required if a defendant says he or she can’t pay. It’s unclear how many judges skip these hearings, and practices vary from one jurisdiction to another, but Lauren-Brooke Eisen, senior counsel at the Brennan Center, says there’s no question that some judges aren’t holding them. “Sometimes it’s not always nefarious,” Eisen says. “They have very full dockets. . . . It can require overtime just to finish their docket for the day. It’s not always a deliberate decision to not hold those hearings.”...
Once a defendant proves indigency, we can also be much more creative in our sentencing than “fine or jail” (or a suspended driver’s license, a popular measure that disproportionately hurts low-income workers who can’t get to their jobs without driving). Community service at a nonprofit or government entity is one of the strongest tools judges have at their disposal; in my experience, it boosts defendants’ self-esteem and provides valuable assistance to organizations that need the help....
Judges can also sentence defendants to anger-management training, classes for first-time offenders or drunk-driving-impact panels. National research shows that alternative sentencing like teen court can reduce recidivism, and my time on the bench confirms this. One defendant in an alcohol-related case, Jeff Schiefelbein, was sent to a Mothers Against Drunk Driving victim-impact panel in 1997. He was so moved by the experience that he decided to create a designated-driver program for anyone who is intoxicated and needs a ride home. Since 1999, his organization, Carpool, has provided on average 650 rides each weekend in College Station.
And occasionally, as a judge, you can choose mercy. Roger S. was facing an $800 fine for speeding, driving without insurance or registration and driving with defective equipment. He also had terminal cancer. He wrote to me, explaining that he could not afford his treatments, much less what he owed the court. I picked up the phone and called him from court. He was a little surprised but pleased to be talking to the judge. After discussing his medical treatment and all of those costs in detail, I waived his fines because of indigency and inability to perform community service, much to his and his family’s relief....
Of course, no matter how many great alternatives judges can provide instead of jail time, if a defendant fails to come to court, he or she won’t be able to hear about them. Courts must be as accessible as possible, and that starts with allowing children to accompany their parents. One of the revelations in the Justice Department’s report on Ferguson was that children weren’t allowed in municipal court, which explains why many defendants were unable to appear. Several courts in Texas limit or don’t allow parents bringing their children, even though kids don’t present a problem in my court — maybe because we provide coloring books and toys for them to play with while their parents take care of their cases....
I used to prosecute felonies as an assistant district attorney in Brazos County. During that time, I worked for a year in the intake division. This drove home a lesson that my boss, the district attorney, had been trying to instill in me: Every case file is an individual whose rights are as important and sacred as mine or those of my family. The decision to charge or dismiss demands empathy and vigilance. Misdemeanor criminal cases provide an opportunity for a much happier outcome than most felonies because there is a genuine chance for a defendant to learn from a mistake and never set foot in a courtroom again — and keeping someone out of jail is a good way to ensure that happens. In these cases, it should be possible for defendants to resolve their cases without losing their liberty.
All judges want to uphold the rule of law in the communities we serve, but too often we can get lost in the day-to-day business of running a court; we ignore the consequences of what we do. An arrest can cost a citizen his or her job, dignity and security. Alternative sentencing is a way to achieve what we should all want: an end to criminal behavior.
April 22, 2016 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)
Thursday, April 21, 2016
Reviewing the SCOTUS week that was and the SCOTUS week to come via SCOTUSblog
In this post last Friday, I (not-so) boldly predicted this current week might be a big one at the Supreme Court for criminal justice developments. As regularly readers now know, the Justices did not disappoint. And next week may be more of the same. Helpfully, the fine SCOTUSblog folks have had all these posts to help us keep track of all the SCOTUS criminal justice action:
- Argument analysis: A quiet bench on uncounseled tribal-court convictions
- Argument preview: Growing pains in the mass incarceration and deportation movements
I do not feel too guilty cribbing all this content from SCOTUSblog because I wrote the second of these listed posts (the one with the awful pun in the title).
Federal district court declines to consider acquitted conduct at sentencing "based on the implication of Sixth Amendment guarantees"
A helpful reader alerted me to a notable new federal district court opinion handed down yesterday by Judge Mark Mastroianni in US v. Buffis, No. 13-30028-MGM (D. Mass. April 20, 2016) (available for download below). The full opinion runs only eight pages and federal sentencing fans will want to read it in full. These snippets should highlight why:
The government has filed a motion requesting the court sentence the defendant based on the totality of his misconduct. Specifically, the government is requesting the court sentence the defendant based on charged conduct for which he was acquitted by the jury, several incidents of uncharged behavior, and conduct initially charged but dismissed before trial. The superseding indictment against the defendant charged twelve counts; defendant was convicted of the first count, the twelfth was dismissed, and defendant was acquitted of counts two through eleven. The general nature of the Government’s case against the defendant involves his extortion and theft of funds, while in his role as Chief of Police for the Town of Lee....
The government advocates for legally appropriate sentencing considerations to affect the defendant’s sentence on the one convicted charge. The government’s motive, however, is to sentence the defendant based generally on its belief, after a largely unsuccessful prosecution, that the defendant is a “longtime thief and a brazen liar.”...
[B]road recognition of a sentencing court’s authority to consider acquitted conduct comes from the holding in United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam).... The wisdom of interpreting Watts, under Sixth Amendment scrutiny, as even creating an available option for considering acquitted conduct at sentencing has been often questioned....
In Watts, the Court explained that consideration of acquitted conduct is not punishment for that conduct, noting the acquittal did not technically prove innocence, but, rather, is the causal increase of sentence based on the manner of commission of the crime convicted. Watts, 519 U.S. at 154-55. Established law under Watts allows a judge to decline to consider acquitted conduct at sentencing. This court has difficulty reconciling Watts with the burden of proof and presumption of innocence standards, which align an acquittal more naturally with factual innocence than with a guileful avoidance of justice deserving of a penalty. This court, therefore, declines to consider acquitted conduct in this case based on the implication of Sixth Amendment guarantees.
Additionally, under the facts here, I am not satisfied the acquitted conduct has useful relevance to the consideration of the manner in which the defendant committed the crime for which he was convicted. This relevance of the crimes to the manner of commission is the connection emphasized by the court in Watts. 519 U.S. at 154-55. In this case the jury, by special verdict form, indicated the manner it found the defendant to have committed a single act of extortion.
Based on the jury's verdict form, the court knows the manner of commission found by the jury for the only convicted charge. None of the acquitted charges speak to the manner of commission of the extortion. Rather, the acquitted conduct would describe a motive and pattern of scheming and dishonesty to accomplish theft generally. This is unlike relying on acquitted conduct at sentencing to find that a firearm was possessed at the time of a drug crime and connected to its commission. See Watts, 519 U.S. at 154-55; Gobi, 471 F.3d at 313-14. Nor is this a situation like that of a drug case where acquitted conduct could be relevant to the manner of commission by showing the total weight of drugs involved. United States v. Putra, 78 F.3d 1386, 1388-89 (9th Cir. 1996), reversed by 117 S. Ct. 633 (1997).
Wednesday, April 20, 2016
Graphic portrayal of the sentencing price of prosecutorial misconduct in post-Katrina shooting case
As reported in this local article, headlined "Ending decade-long Danziger Bridge case, federal judge accepts guilty pleas from 5 ex-NOPD officers," today a set of significant pleas were entered in a high-profile local police misconduct prosecution that ultimately resulted in high-profile federal prosecutorial misconduct. The reprinted graphic from the piece and these excerpts from the press article highlight why this all became (like so many matters) ultimately a sentencing story:
Five former New Orleans police officers involved in the Danziger Bridge shootings after Hurricane Katrina, or the coverup that followed, pleaded guilty in federal court in New Orleans on Wednesday, taking reduced sentences and avoiding another trial after their previous convictions were thrown out.
The plea deals bring an end to a case that has stretched on for more than a decade and come to symbolize the chaos and government negligence that followed the storm. The former officers received dramatically shorter prison terms than they did after a federal jury convicted them on numerous charges in 2011. The original sentences ranged from six years to 65. Those read out in court on Wednesday ranged from 3 years to 12.
The original convictions were tossed out in 2013 by U.S. District Judge Kurt Engelhardt over the online commenting scandal that by then had engulfed the office of former U.S. Attorney Jim Letten. In his ruling, Engelhardt said the anonymous comments that Letten’s top lieutenants had been making on news websites amounted to “grotesque prosecutorial misconduct,” even though those prosecutors were not on the trial team that convicted the Danziger defendants.
On Wednesday, Engelhardt outlined guilty pleas from the five officers, all but one of whom have remained behind bars while lawyers on both sides of the case prepared for the possibility of another trial. Arthur “Archie” Kaufman has been free on bond; Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso were brought to court from prison in orange jumpsuits.
Preparations for Wednesday’s hearing took place with an unusual amount of secrecy. It was not until Wednesday morning that documents were unsealed in the court record showing that the re-arraignment and sentencing would take place. In the meantime, extra security and an overflow room had been arranged at the downtown federal court building, where family members of the victims gathered to watch the conclusion of a decade-long ordeal.
The following are the original prison terms handed down to each of the five officers, and the new terms outlined on Wednesday. All of the officers will receive credit for time served.
Kenneth Bowen: originally 40 years, now 10 years.
Robert Gisevius: originally 40 years, now 10 years.
Robert Faulcon: originally 65 years, now 12 years.
Anthony Villavaso: originally 38 years, now 7 years.
Arthur Kaufman: originally 6 years, now 3 years.
The only remaining loose ends in the Danziger case are the charges pending against Former Sgt. Gerard Dugue, who was charged with abetting the coverup and was tried separately from the other officers in 2012. Engelhardt called a mistrial after a prosecutor mentioned an unrelated case that was supposed to be off-limits, and the government has not sought to retry the case since.
Lots of interesting post-Booker guideline talk as federal defendant gets another sentencing win from SCOTUS
The Supreme Court today handed down its opinon this morning in Molina-Martinez v. US, No. 14-8913 (S. Ct. April 20, 2016) (available here), a little case about the application of plain error review of guideline calculation errors. Excitingly, because the majority opinion authored by Justice Kennedy has lots of dicta about post-Booker sentencing, and because a concurrence by Justice Alito complains about some of that dicta, Molina-Martinez is now a must-read for all sentencing practitioners.
I will likely have some further commentary about Molina-Martinez after I get a chance to read it thoroughly. In the meantime, here are a couple of key passages from the majority opinion:
This case involves the Federal Sentencing Guidelines. In sentencing petitioner, the District Court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Court of Appeals refused to correct the error because, in its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error....
The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect.
Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error....
In the ordinary case the Guidelines accomplish their purpose. They serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence. It follows, then, that in most cases the Guidelines range will affect the sentence. When that is so, a defendant sentenced under an incorrect Guidelines range should be able to rely on that fact to show a reasonable probability that the district court would have imposed a different sentence under the correct range. That probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief under Rule 52(b).
And here is the start of the concurrence authored by Justice Alito:
I agree with the Court that the Fifth Circuit’s rigid approach to unpreserved Guidelines errors is incorrect. And I agree that petitioner has shown a reasonable probability that the District Court would have imposed a different sentence in his case if his recommended Guidelines sentence had been accurately calculated. Unlike the Court, however, I would not speculate about how often the reasonable probability test will be satisfied in future cases. The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate. We should not make predictions about the future effects of Guidelines errors, particularly since some may misunderstand those predictions as veiled directives.
April 20, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)
Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity
A helpful reader altered me to a remarkable concurrence authored by Eleventh Circuit Judge Beverly Martin in In re Robinson, No. 16-11304 (11th Cir. April 19, 2016) (available here). Here is the full text of the concurrence, which serves as an explanatory preamble to a list of 110 Welch impacted cases within the circuit:
I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause. I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson. Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence. As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson. See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).
Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson. I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications. I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory). I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.
Because these cases all involve prisoners seeking collateral review of their prison terms, the Sixth Amendment does not provide them with a constitutional right to the assistance of counsel. I believe district judges may have discretion to appoint lawyers for these prisoners under the Criminal Justice Act, and federal defenders and private lawyers can take up their cases upon their own initiative. I hope many will. Indeed, I cannot help but wonder if some lawyers still working through thousands of federal clemency petitions (all of which wouls seem to have limited chance of success) might reallocate some of their energies to helping Johnson/Welch claimants on this list and elsewhere throughout the country.
"Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution"
The title of this post is the title of this notable new article by Harry Caldwell that I just saw via SSRN. Here is the abstract:
Prosecutors, whom we trust to carry out the demanding and essential business of presenting the People’s case against alleged law-breakers, are free to commit misconduct with impunity. They suffer no disciplinary repercussions for their misdeeds. The only adverse consequence facing an erring prosecutor is the extremely rare prospect of having a conviction overturned due to his misconduct. Even then the prosecutor will not be subject to any sanction: no citation for contempt, no suspension of license, no civil liability, no fine, not so much as a censure.
In an earlier article entitled The Prosecutor Prince, I proposed the creation of an independent commission empowered to investigate claims of alleged prosecutorial misconduct, and meter our discipline should the claims be warranted. As set forth in that article, the commission would be modeled after California’s Judicial Panel, which has proven effective in dealing with instances of judicial misconduct.
The purpose of this current article is not to once again make the case that prosecutorial misconduct is prevalent and represents a stain on the American justice system — that purpose has been thoroughly accomplished in the earlier article and by countless others. The two-fold purpose of this article is to revise the earlier proposal to make it more fiscally and politically viable, and to use the findings from our recently completed twenty-five-year survey of prosecutorial misconduct as support for the revised proposal.
Your tax dollars at work?: cost accounting for Aurora theater shooter James Holmes' failed capital trial
As a matter of abstract philosophy, I have struggled for decades concerning my opinion on capital punishment. But as a matter of modern public policy, I have generally concluded that the death penalty is not a great use of limited resources for most states. This new Denver Post article, headlined "Aurora theater shooting trial cost taxpayers at least $3 million: Final cost of James Holmes' trial in the Aurora theater shooting likely won't ever be known," reinforces my perspectives in this regard. Here are the details:
Jailing, evaluating and prosecuting the man who committed the Aurora movie theater shooting cost taxpayers at least $3 million, but the final expense of one of the mostly closely watched court cases in Colorado history may never be known. The $3 million tab was compiled by The Denver Post following multiple open-records requests over the past year. It covers the amount spent from 2012 through 2015 specifically on preparing for and seeing through the trial of James Holmes.
Nearly $1.6 million of the cost was covered by federal grants. When including the salaries of judges, prosecutors, sheriff's deputies and other government employees who spent most or all of their time on the case — but who would have been paid regardless — the total cost rises to more than $7 million.
And there's still a big chunk of expense missing from that amount. The state's taxpayer-funded public defenders — who represented Holmes — are not required to disclose what they spend on a case. Doing so, they say, would violate ethics rules and subject poor defendants to lower standards of attorney-client confidentiality. Generally, the office of the state public defender reports having spent nearly $2 million on death-penalty and potential death-penalty cases since July 2002, not including staff salaries.
The theater shooting trial was one of the longest in state history. Prosecutors sought the death penalty, and Holmes, who pleaded not guilty by reason of insanity, underwent two psychiatric evaluations by state-appointed experts — at a cost of more than $600,000 to the state Department of Human Services. Holmes ultimately was found guilty of murdering 12 people and trying to murder 70 more in the July 2012 attack on the Century Aurora 16 movie theater; he was sentenced to life in prison without parole in August.
While the case prompted public debates about the cost of the death penalty and mental health evaluations, the biggest expense that has been reported was for providing victims' assistance services. The Arapahoe County district attorney's office spent nearly $1.2 million on salaries for victims' advocates, travel expenses for victims to attend the trial and other costs. All of those costs were covered by a federal grant.
Arapahoe County District Attorney George Brauchler, whose office published its close-to-final cost figures last week, said the costs were about in line with what he expected. In addition to the federal grant, the state government appropriated about $500,000 to cover trial-related costs for the district attorney's office. He said more than half of what his office spent on the case was spent before the trial even began one year ago this month, and he rejected the criticism that seeking the death penalty ballooned the trial's price tag. Instead, Brauchler said the case was expensive because of the number of victims involved.
The county DA here make a reasonable point that the nature of the crime may be the reason for the considerable expense as much as the nature of the punishment sought. Nevertheless, I believe this case could and would have cost taxpayers a whole lot less if prosecutors had accepted the defense's early offer to plead guilty in exchange for an LWOP sentence. (That LWOP sentences was ultimately achieved in the end after a lengthy and costly capital trial.) Moreover, the costs here include the opportunity costs of having so many Colorado state justice officials (police, prosecutors, judges) working on this case so intensely when there surely were many other Colorado crime and criminals that might have otherwise gotten their attention.
Of course, and I think not to be overlooked in any accounting of general capital costs/benefits, Holmes' defense team likely was only willing to offer to plead guilty and take LWOP because Colorado has capital punishment on its books. Consequently, it would be unfair to suggest abolition of the death penalty will always produce massive savings in major murder cases. But, as regular readers should know, this kind of accounting leads me to suggest, yet again, that states ought to have ways to "delegate" major murders to the feds for more efficient and effective capital prosecutions.
A few (of many) older related posts (with lots of comments):
- Largest mass shooting in US history surely to become a capital case
- Offense/offender distinctions in first-cut punishment reactions to Batman mass murder
- "For James Holmes, Death Penalty is Far from a Certainty"
- You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?
- Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?
Monday, April 18, 2016
Two thoughtful reactions to the quick SCOTUS retroactivity work in Welch
As first noted here, this morning the US Supreme Court ruled in Welch v. United States that its recent significant ruling in Johnson that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague is to be applied retroactively. I provided my first reaction to the consequential Welch decision in this post, and now I can link to two other thoughtful takes on Welch:
From Steve Sady at the Ninth Circuit Blog here, "Welch: Building Blocks For Retroactively Challenging Unconstitutional Career Offender Designations"
From Steve Vladeck at PrawfBlawg here, "The Subtle But Serious Flaw in the Supreme Court's Welch Ruling"
Sunday, April 17, 2016
Would Congress be wise to pursue sentencing reform through DOJ spending limitations?
The question in the title of this post is prompted by this recent Reason piece by Jacob Sullum headlined "DOJ Accepts Decision Saying It May Not Target State-Legal Medical Marijuana Suppliers: The feds had argued that a spending rider left them free to shut down dispensaries." Here are the details:
The Justice Department has abandoned its appeal of a ruling that said federal prosecutors are breaking the law when they target medical marijuana providers who comply with state law. U.S. District Judge Charles Breyer issued that ruling last October, when he said enforcing an injunction against a state-legal dispensary would violate a spending rider that prohibits the DOJ from interfering with state laws allowing medical use of marijuana. The Justice Department initially asked the U.S. Court of Appeals for the 9th Circuit to overturn Breyer's decision but later changed its mind, and on Tuesday the court granted its request to withdraw the appeal.
That decision leaves in place Breyer's ruling, which involved the Marin Alliance for Medical Marijuana (MAMM), without establishing a circuit-wide precedent. Presumably the DOJ worried that the 9th Circuit would agree with Breyer's reading of the Rohrabacher-Farr amendment, which says the department may not use appropriated funds to "prevent" states from "implementing" their medical marijuana laws. The DOJ argues that prosecuting medical marijuana suppliers, seizing their property, and shutting them down does not prevent implementation of laws authorizing them. Breyer said that interpretation "defies language and logic."
The rider that Breyer considered expired last year, but the same language was included in the omnibus spending bill for the current fiscal year. If Congress continues to renew the amendment and other courts agree with Breyer's understanding of it, medical marijuana growers and suppliers who comply with state law will have less reason to worry about raids, arrests, and forfeiture actions, although uncertainty will remain in states where the rules for dispensaries are unclear. For the time being, that remains true in California, although state regulations aimed at clarifying the situation are scheduled to take effect in 2018.
In other words, now that DOJ has (sort-of) accepted a broad reading of the Rohrabacher-Farr amendment, this DOJ spending limitation has (sort-of) achieved indirectly what Congress has been unwilling or unable to do directly, namely authorize states and individuals to move forward with a responsible medical marijuana program without persistent concerns that DOJ may raid and prosecute participants. Of course, this spending limitation can and will expire if not consistently renewed by Congress. But still, as this Sullum piece highlights, even a short-term spending limit can end up having some real bite.
In light of this intriguing "spending limit" back-door form of congressional marijuana reform, I am now wondering if this approach should be pursued sentencing reformers/advocates growing frustrated Congress has not yet been able to pass a significant statutory sentencing reform bill. Though some clever drafting might be needed, I could imagine a provision in a federal budget bill that prohibited the Department of Justice from, say, expending any funds to prosecute a non-violent drug offender using statutes that carry any mandatory minimum sentencing term or expending any funds to continue to imprison anyone whose prison sentence would have been completed had the Fair Sentencing Act been made retroactive.
My suggestion here might ultimately be more of a Swiftian "modest proposal" than a real suggestion for how real work can get done on sentencing reform in Congress. Nevertheless, as the prospect of major federal statutory sentencing reform semes to grow ever darker with each passing week, I am ever eager to consider and suggest whatever it might take to turn the enduring bipartisan sentencing reform talk into some consequential legislative action.
An interesting perspective on Virginia's recent capital experiences
Virginia made capital headlines last week after Gov. Terry McAuliffe altered a bill passed by the state's legislature calling for use of the electric chair if the state could not obtain need lethal drugs. The headline of this Washington Post piece from last week explains his proposed alternative approach: "In a move that could jeopardize executions, McAuliffe wants to shield the identity of makers of lethal-injection drugs."
Meanwhile, this new commentary by Kerry Dougherty, a columnist for The Virginian-Pilot, provides some perspective on this execution method brouhaha and Virginia's recent experience with the death penalty. The piece is headlined "Lost in all the death-penalty drug talk is that there are only 7 men on death row in Virginia," and here are excerpts:
Last winter, state legislators came up with a solution: They said that if drugs are unavailable, the commonwealth should fire up Old Sparky. Predictably, this sparked a heated debate among politicians. Some argued that the electric chair is cruel.
Others shrugged, saying painless deaths are not the goal of the state. “I hear, ‘Oh my Lord, he might have to suffer,’ ” said the Senate’s Democratic leader, Richard Saslaw in March. “… If we don’t have the necessary drugs, then we need this bill. When you commit acts like that, you give up your right, as far as I’m concerned, to say, ‘Well, I want to die humanely.’ ”
The governor seems to disagree. “We take human beings, we strap them into a chair, and then we flood their bodies with 1,800 volts of electricity, subjecting them to unspeakable pain until they die,” McAuliffe said last week, according to news reports. “Virginia citizens do not want their commonwealth to revert back to a past when excessively inhumane punishments were committed in their name.”
McAuliffe’s language calls for the state to buy the drugs needed to put prisoners to sleep from special pharmacies. The names of those companies would be cloaked in secrecy, as they are in some other states. “All I’m doing today is providing a humane way to carry out capital punishment here in Virginia so we have options,” McAuliffe said. “If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.”
Now the question becomes, should the people’s business be conducted covertly? I can answer that: No, it shouldn’t.
Lost in all this talk about how to kill the last men on Virginia’s death row is the happy fact that there are just seven men living there. Seven. According to an NBC news report, Virginia’s death row was at its most crowded in 1995 when it housed 57 condemned prisoners. Both executions and death sentences have dropped sharply since then.
The ultimate penalty is imposed on those who commit the most heinous crimes. Last year, for instance, Virginia executed one man: The loathsome Alfredo Prieto. He killed a young couple in Fairfax in 1988, raping one of the victims as she died. The Washington Post reported that he had killed as many as seven others. One of those murders was of a 15-year-old in California while he was on the run after the double homicide in Fairfax.
I couldn’t gin up any sympathy for this predator. Neither could the governor, who refused to block his execution in October. Yet Prieto was the first man executed in the Old Dominion in more than two years.
Why all the empty cells on death row? Many reasons. But one component is certainly 1995’s “truth-in-sentencing” law pushed by then-Gov. George Allen. The measure abolished parole and closed the revolving doors on Virginia’s prisons. Suddenly a 10-year sentence meant the convict would spend most of a decade in prison. And a life sentence? It actually meant life in prison.
Given this ironclad alternative to execution, it’s become rare for a Virginia jury — or judge — to send a convict to death row. Before we get back to arguing about the death penalty, can’t we all agree that’s a good thing?
"Colorado 8th-graders caught sexting could have to register as sex offenders"
The title of this post is the headline of this notable press report which helps highlight why so many juvenile justice advocates are so concerned about the broad reach of modern sex offender laws and registries. Here are the details:
Three Colorado middle and high schools were rocked by a string of recent underage sexting scandals, prompting police investigations. If charged, the teens involved in the case — some as young as eighth-graders — could face charges of child pornography, which would require them to register as sex offenders if convicted.
The stiff penalties for sexting has sparked a debate in Colorado and other state assemblies over whether misbehaving teens should face the same punishment as child pornographers. But efforts by the Colorado Legislature to lighten the penalties have stalled.
In the sexting case at Bear Creek, a K-8 school in Lakewood, the five students involved were in eighth grade. School leaders turned to the local police after discovering that nude photos were being circulated, The Denver Post reported. Meanwhile, Colorado Springs police were contacted last Wednesday about allegations that a partially nude photo was shared among a circle of students from two other Colorado schools, Pine Creek High School and Challenger Middle School, according to KRDO news.
At this point, no charges have been filed in any of the cases, but the Pine Creek and Challenger school cases have been handed over to the Fourth Judicial District Attorney’s Office. The juveniles involved could be hit with a felony sex offender charge.
Penalties for underage sexting vary from state to state. In Colorado, minors caught trading nude photos are legally susceptible to harsh child pornography charges. It’s one reason why the Legislature has been working toward a solution to reduce possible sentencing for teens who sext. The latest bill to reach the Legislature would reduce charges for minors to a misdemeanor, echoing the laws of 11 other states. But a vote on the Colorado measure stalled in a House committee last week. Lawmakers against the measure were primarily concerned that, while it would be good to reduce potential child pornography charges for sexters, the bill was still too harsh on kids sending nude images.
State Representative Yeulin Willet, who cosponsored the bill, says that the misdemeanor charge did not go too far. He argued that the juvenile petty offense that the bill introduced accounts legally for "virtually no crime at all" and "basically just takes that juvenile into some counseling or education, end of story."... "To say that this is a victimless situation is just not a fact," he said. "These images get stolen, hacked, now they end up in the hands of thousands or more via digital media, and now you have a suicidal young girl."
But Jennifer Eyl, director of family stability programs at the Rocky Mountain Children’s Law Center, says that even the misdemeanor charge was too harsh. It criminalized the behavior of sexting itself, even consensual sexual behavior between teens, she said, rather than targeting the issue of non-consensual spreading of nude images. "It’s really kind of this blanket prevention of sexting, which, we work with kids, we just know that that’s not going to happen. Sexting is part of 21st-century communication between teenagers," she said. Eyl also expressed concerns that the most vulnerable children — in the foster system or without strong parental involvement — were particularly susceptible to blanket charges because foster parents might be more inclined to involve police should they find nude photos.
A few prior related posts:
- The many fascinating legal and social issues swirling around "sexting"
- Should sexting lead to sex offender registration?
- "Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases"
- Third Circuit upholds bar on sexting prosecution threatened by state DA
- "Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says"
- "Sexting or Self-Produced Child Pornography?"
- New York Times reviews juve problems with modern sex-offender laws
- "Don’t Just Get Kids Off the Sex Offender Registry. Abolish It"
April 17, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (8)
Saturday, April 16, 2016
Privacy gurus: what do you think of (coercive?) plea discussions requiring disclosure of defendant's iPhone password?
I have had the great pleasure of working through the years with a number of super-smart privacy-tech scholars (see here and here). I am very interested to hear what these folks and others think of this fascinating new story from an NYC federal district court. The story is headlined "Meth, kiddie porn-dealing dentist has two weeks to give up iPhone password if he wants shot at plea deal, judge says," and here are the interesting details:
A Manhattan dentist charged with distributing methamphetamines and child pornography has two weeks to decide whether he will disclose to the government the password to his locked iPhone so the FBI can examine the creepy contents, a federal judge said Friday.
Dr. John Wolf has been trying to cut a plea deal with the Brooklyn U.S. Attorney's office, but prosecutors haven't offered a plea agreement until it can be determined whether there is additional criminal evidence on the iPhone. Assistant U.S. Attorney Moira Penza said the iPhone is password protected and the FBI has been trying to unlock the device without asking a judge to order Apple to assist the government.
"We've been considering the possibility that we will just give them the password," defense lawyer Marc Agnifilo told Federal Judge William Kuntz....
Kuntz said he wanted to set a deadline in case there is no agreement. "I don't have to tell you this is a very complicated, contentious issue," Kuntz said Friday. Wolf allegedly traded meth with a drug dealer for dental services, but also had a trove of child porn which he gave to an undercover FBI agent who posed as a pervert. Wolf's lawyer said his client was addicted to meth before he was arrested.
Friday, April 15, 2016
Previewing what could be a big coming criminal justice week at SCOTUS
The folks at SCOTUSblog have this new post about an intriguing Supreme Court development for the coming week:
The Supreme Court, altering its usual agenda, will issue one or more opinions in argued cases on Monday of next week, as well as on the more normal days of Tuesday and Wednesday, according to the Court’s telephonic “hotline” announcing its schedule. Ordinarily, when the Court is hearing argument on Mondays, it releases only orders in new cases, and withholds opinions until later in those weeks.
The new plan immediately stirred speculation that the Court has found some specific urgency in a pending case that requires immediate action. Monday will see a large crowd in the courtroom because the case up for argument that day is the major challenge to President Obama’s 2014 revision of immigration policy, in the case of United States v. Texas.
I will leave it to others to speculate what this unusual development might mean amidst a chaotic and high-profile SCOTUS Term. But the simple fact that the Court expects to release opinions on three days next week reinforces my expectation that we will get one or more criminal justice rulings in the coming days. In addition, as these two SCOTUSblog preview posts details, on Tuesday and Wednesday of next week, a couple criminal justice cases are scheduled for oral argument:
On Wednesday, April 20: Birchfield v. North Dakota: Argument preview: Warrantless DUI tests and the Fourth Amendment
Thursday, April 14, 2016
California board recommends parole for former "Manson family member" Leslie Van Houten
Though the federal system and a number of states have abolished parole, a number of states still have this method of prisoner release and high-profile cases often provide a reminder of this important reality. And, as highlighted by this new Los Angeles Times article, headlined "Board recommends parole for Charles Manson follower Leslie Van Houten," high-profile parole cases can reach back to crimes committed nearly a half-century ago. Here are the details and some context:
A California review board recommended parole Thursday for former Charles Manson family member Leslie Van Houten, who was convicted in the 1969 killings of Leno and Rosemary LaBianca. The decision was issued following a hearing earlier in the day at the California Institution for Women in Chino. Van Houten has been denied parole 19 times since she was convicted of murder in the deaths of Leno LaBianca, a wealthy grocer, and his second wife at their Los Feliz home.
After the ruling is reviewed by the parole board's legal team, it will be forwarded to Gov. Jerry Brown, who could decide to block Van Houten’s release. Los Angeles County Dist. Atty. Jackie Lacey expressed disapproval after the decision was announced: "We disagree with the board's decision and will evaluate how we plan to proceed."
The youngest of Manson’s followers, Van Houten, 66, has been considered the least blameworthy member of the group, and has been portrayed by supporters as a misguided teen under the influence of LSD on the night of the killings. A former homecoming queen from Monrovia, Van Houten did not join in the Aug. 9, 1969, killings of Sharon Tate, the wife of film director Roman Polanski, and four others at the Benedict Canyon home that Tate was renting.
But the following day, then-19-year-old Van Houten joined in slaying the LaBiancas. Van Houten and another woman held down Rosemary LaBianca as Charles “Tex” Watson stabbed Leno LaBianca. After Watson stabbed Rosemary LaBianca, he handed Van Houten a knife. She testified to stabbing Rosemary at least 14 more times. The blood of the victims was used to scrawl messages on the walls, as had been done at the Benedict Canyon home.
In prior bids for parole, Van Houten's attorneys have characterized her as a model inmate who has obtained a college degree behind bars and has been active in self-help groups. At a 2002 parole board hearing, Van Houten said she was “deeply ashamed” of what she had done, adding: "I take very seriously not just the murders, but what made me make myself available to someone like Manson."...
Van Houten's attorney, Richard Pfeiffer, said he believed the two-member board was most persuaded by her exemplary behavior behind bars. "Since 1980, there were 18 different doctors who did psychiatric evaluations of her. Every single one found she was suitable for parole," Pfeiffer said.
Van Houten told her attorney that she was left "numb" by the decision handed down Thursday. Pfeiffer said he's hopeful that Brown opts to grant her parole. "The opposition to parole has always been the name Manson," he said. "A lot of people who oppose parole don’t know anything about Leslie’s conduct. Her role was bad. Everyone’s was. But they don’t know what she’s done since then and all of the good she’s done."
Last summer, a parole board recommended parole for Manson associate Bruce Davis, who was convicted in the 1969 killings of Gary Hinman and Donald “Shorty” Shea. But in January, Gov. Brown rejected parole for the 73-year-old, stating that “Davis' own actions demonstrate that he had fully bought into the depraved Manson family beliefs.” Davis was not involved in the killings of the LaBiancas, Tate and four others.
Could and should past concussions be a significant mitigator at federal sentencing of white-collar offender?
The question in the title of this post is prompted by this interesting local article about a high-profile federal sentencing that has been postponed so that the defendant can participate in a study of the long-term symptoms of traumatic brain injury. The headline of this story is "Ex-Cleveland Brown Reggie Rucker says concussions possibly caused him to steal from nonprofits," and here are the interesting details:
Former Cleveland Browns wide receiver Reggie Rucker indicated Wednesday that he will rely on concussions that he suffered as a football player as a possible explanation for embezzling money from his non-violence groups when a judge sentences him later this year.
Rucker, 68, of Warrensville Heights is participating in a study at the National Institute of Health that is examining the long-term symptoms of traumatic brain injury — something that many current and former NFL players say they suffer from as a result of concussions.
His attorneys asked U.S. District Judge Dan Polster to delay his May 23 sentencing because Rucker has another test to undergo in June. That test that could prove useful in explaining why Rucker stole about $100,000 from the Cleveland Peacemakers Alliance and other nonprofits, attorney Jack Sammon said at a hearing Wednesday. Over objections from the U.S. Attorney's Office, Polster postponed Rucker's sentencing date until July 14.
"I want to have as much information about Mr. Rucker as I can reasonably get," the judge said.
Rucker pleaded guilty in February to wire fraud and making false statements to the FBI. Prosecutors said Rucker cut thousands of dollars in checks from his nonprofits and withdrew cash from ATMs at casinos across the country. His actions often placed his agencies in the red leaving many of his outreach worker without paychecks.
Rucker used the money to pay personal expenses, including gambling debts and his mortgage, all while making passionate pleas to the public and government agencies for money for his philanthropic endeavors, prosecutors said.
Michael Hennenberg, an attorney representing Rucker, said the former Browns player suffered seven or eight concussions that he knows of during his 13-year career. Three of those came as a result of blows that knocked him unconscious, the attorney said.
Such injuries are known to cause impulsiveness and compulsiveness, both of which may play into Rucker's crimes, Hennenberg said. "Reggie Rucker is the first person in the country to be examined to determine the full implications of his now-known significant brain injuries," Hennenberg said.
Assistant U.S. Attorney Adam Hollingsworth objected to postponing the sentencing, in part because Rucker has already submitted past medical records that point to possible brain injuries. He also noted that doctors have said a definitive traumatic brain injury diagnosis is not possible until a person dies and an autopsy is performed....
Under a plea agreement he reached with prosecutors, Rucker faces a prison sentence of between 21 and 27 months. He enrolled in the Ohio Casino Control Commission's lifetime irrevocable exclusion program in March, meaning he can no longer legally gamble at casinos in the state. "Mr. Rucker's actions to defraud charitable organizations and line his pockets were conscious decisions on his part, and he will be held accountable for those actions," Mike Tobin, a spokesman for the U.S. Attorney's Office, said in a statement Wednesday.
The guilty plea cemented a fall from grace for Rucker, a beloved football player who made a name for himself by heading organizations that encourage non-violent responses to disputes between Cleveland residents.
Despite the brain injury discussions, Hennenberg stressed that Rucker has accepted responsibility for his actions. He released a document the former football player gave to the U.S. Probation Office on Friday that will be used when the office makes its sentencing recommendation. "I have learned and continue to learn many valuable life lessons as a result of my wrongful conduct that brought me into the criminal justice system," Rucker's written statement reads.
"Costs of Pretrial Detention"
The title of this post is the title of this notable new piece authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:
Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees — inmates not convicted of a crime — which constitute the majority of individuals in our nation’s jails.
Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants — including the most dangerous — and others detaining most defendants — even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact of pretrial detention alone calls for an empirical analysis.
Although legal scholarship has applied cost-benefit analysis to other areas of criminal law, this Article is the first attempt at conducting such analysis in the pretrial arena. This Article compares the risk posed by each defendant and the cost of any crimes they may potentially commit while released with the costs incurred by detaining these defendants. The results show that relying on the cost-benefit model provided here, judges could bring significant savings — approximately $78 Billion, increased safety, and potentially more equitable pretrial detention decisions.
Tuesday, April 12, 2016
Ninth Circuit talks through requirements for Miller resentencing a decade after mandatory LWOP
The Ninth Circuit yesterday issued an interesting opinion faulting a district court for how it limited the evidence it considered and other problems with how it conducted a resentencing of a juvenile murderer given a mandatory LWOP sentence a decade before such a sentences was deemed unconstitutional by the Surpeme Court. Miller fan will want to read US v. Pete, No. 14-103 (9th Cir. April 11, 2016) (available here), in full, and here is how the opinion starts and along with some key passages from the heart of its analysis:
Branden Pete was 16 years old when he committed a crime that resulted in a mandatory sentence of life without the possibility of parole. Later, Miller v. Alabama, 132 S. Ct. 2455 (2012), held unconstitutional for juvenile offenders mandatory terms of life imprisonment without the possibility of parole. On resentencing, the district court refused to appoint a neuropsychological expert pursuant to 18 U.S.C. § 3006A(e) to help Pete develop mitigating evidence.
Our principal question on appeal is whether the district court abused its discretion in declining to appoint such an expert to aid the defense. We conclude that it did, and so remand for appointment of an expert, and for resentencing after considering any expert evidence offered. We also consider, and reject, Pete’s other challenges to his resentencing....
In rejecting the motion to appoint an expert, the district court ... noted that Pete’s upbringing and the circumstances of the crime have not changed, and maintained that because a psychiatric evaluation had been done in 2003, a second evaluation would be “duplicative.” “[I]t is difficult to conceive how,” the district court stated, “the passage of time may impact [the psychiatric] evidence” presented during the pretrial proceedings nearly ten years before. Further, the district court held that the impact of incarceration on Pete “is not the type of mitigating evidence which Miller contemplates.” We disagree with the district court as to all three aspects of its reasoning....
When the district court ruled that no expert testimony was “necessary,” it ignored Miller’s reasoning and directives. At the time of resentencing, Pete’s neuropsychological condition had not been evaluated in more than a decade. An updated evaluation could have revealed whether Pete was the same person psychologically and behaviorally as he was when he was 16. Rather than being “duplicative,” as the district court believed, a new evaluation could have shown whether the youthful characteristics that contributed to Pete’s crime had dissipated with time, or whether, instead, Pete is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citation omitted); see also Montgomery, 136 S. Ct. at 733. Similarly, without current information relating to the policy rationales applicable specifically to juvenile offenders, Pete was hamstrung in arguing for a more lenient sentence.
More specifically, the significant mitigating evidence available to Pete at resentencing, other than his own testimony and that of his lawyer (neither of which the district court credited), would have been information about his current mental state — in particular, whether and to what extent he had changed since committing the offenses as a juvenile. This information was directly related to Pete’s prospects for rehabilitation, including whether he continued to be a danger to the community, and therefore whether the sentence imposed was “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see id. (a)(2)(C), (D). Such information is pertinent to determining whether, as Miller indicates is often the case, Pete’s psychological makeup and prospects for behavior control had improved as he matured, with the consequence that his prospects for rehabilitation and the need for incapacitation had changed.
April 12, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)
"Accounting for Prosecutors"
The title of this post is the title of this interesting looking new paper by Daniel Richman now available via SSRN. Here is the abstract:
What role should prosecutors play in promoting citizenship within a liberal democracy? And how can a liberal democracy hold its prosecutors accountable for playing that role? Particularly since I’d like to speak in transnational terms, peeling off a distinctive set of potential “prosecutorial” contributions to democracy — as opposed to those made by other criminal justice institutions — is a challenge. Holding others — not just citizens but other institutions – to account is at the core of what prosecutors do. As gatekeepers to the adjudicatory process, prosecutors shape what charges are brought and against whom, and will (if allowed to) become shapers of citizenship. They also can can promote police compliance with legal and democratic norms. Because the prosecutorial role in case creation is largest when crimes are not open and notorious, prosecutors can also play an outsized role in the bringing of cases that target instances of illegitimate subordination (including domestic violence) and corruption that are antithetical to a liberal democracy.
After considering ways in which prosecutors might promote democratic values, I explore (quite tentatively) how prosecutors can be held to account. Working from existing practices and structures, I consider how we might promote their potential contributions through legal and institutional design with respect to reason-giving obligations; geographic scale; insulation from direct political influence, and modulation of their message.
Taking a close look at the prosecutor dealing with Miller and Montgomery on the ground in Philly
Daniel Denvir has this intriguing piece in Salon about the resentencing of juvenile murderers in the City of Brotherly Love and Sisterly Affection. The full headline highlights its themes: "The unconstitutional outrage of juvenile life sentences: Why Philadelphia will be a case study for this criminal-justice reform: The city is faced with deciding what to do about 300 now-unconstitutional juvenile life sentences." Here is how it starts:
Children convicted of committing murder on Philadelphia’s violent streets long faced the prospect of receiving the harshest sentence short of death: life without parole. Today, the city has more juvenile offenders locked up for life than any other. It has been a grim and predictable cycle: Young black men mourned at premature funerals and their killers packed into state prisons with only the narrowest hope of ever leaving. And then the tough-on-crime pendulum began to swing back.
In 2012, the U.S. Supreme Court ruled that mandatory life without parole for juveniles was unconstitutional, and in a January decision they made that ruling retroactive. And so Philadelphia District Attorney Seth Williams has roughly 300 big decisions to make: How long will he seek to imprison the onetime juveniles, many now much older, who until recently were set to die behind bars?
States responded to the 2012 Miller v. Alabama decision in a hodgepodge manner, including by abolishing juvenile life without parole entirely. In Pennsylvania, however, then-Gov. Tom Corbett signed a law that angered reform advocates for its harshness, changing the sentence for first-degree murder to 35 years to life for older juveniles, and 25 to life for younger ones. Those convicted of second-degree murder now face sentences of 20 or 30 years to life.
Critically, the law did not make the new sentences retroactive, leaving hundreds of Pennsylvania juvenile lifers in limbo. The Court’s January decision in Montgomery v. Louisiana means that prosecutors and judges throughout Pennsylvania will soon face a deluge of prisoners asking to be re-sentenced. In Philadelphia, advocates are concerned that Williams, who has taken a tough line in the past, will fight to keep many behind bars for a long time.
“The District Attorney has a pretty stark choice,” emails Marc Bookman, director of the Atlantic Center for Capital Representation. “He can either follow the very obvious trend away from sentencing juveniles to life without parole sentences, or he can swim against the tide and against the dictates of the Supreme Court and continue to seek such sentences.”
Williams’ office, which declined to comment for this story, must navigate the gap between the Supreme Court and the current state law. It’s unclear how he will proceed. The Supreme Court only barred mandatory life without parole sentences, so he could try to keep some locked up. The Court did make it clear, however, that life without parole sentences should only be applied in rare cases where an offender is “irreparably corrupted.”
Brad Bridge, a lead attorney at the Defender Association of Philadelphia, criticized Williams’ past opposition to making Miller retroactive and says that he should move quickly to resolve the cases of those who have been incarcerated the longest. “Based upon [these court rulings,] we now must re-sentence over 300 juvenile lifers in Philadelphia,” emails Bridge. “Given that over 100 of these juvenile lifers have been incarcerated for over 30 years, we should quickly resolve those cases immediately by agreeing to release those who have done well in prison. It is only by prompt resolution of 100, and maybe 200, of these cases that the resources of the judiciary, prosecutor and defense can be properly focused on the 100 cases that cannot be resolved by agreement.”
Bridge and the Juvenile Law Center, a leading critic of juvenile life without parole, have called for the prisoners to be re-sentenced on third-degree murder, carrying a sentence of 20 to 40 years. But Richard Long, executive director of the Pennsylvania District Attorneys Association, has argued that the harsher sentences meted out by the state’s new law should be applied.
Seth Williams is the association’s vice president, and last fall conveyed his opposition to re-sentencing, telling WHYY that the prisoners “aren’t kids in fifth grade doing these things… We’re talking about killings. Not someone who stole someone’s laptop. We’re talking about the loss of life. And us having to look into the eyes of victims’ families, who want something done.”
Monday, April 11, 2016
New Orleans judge threatening to turn public defender funding crisis into a public safety problem
This local article from the Big Easy reports on notable efforts by a local judge to make sure it is no longer easy for public officials to ignore the problem of inadequate funding of public defenders to represent indigent criminal defendants. The article is headlined "New Orleans judge orders release of seven inmates charged with serious felonies because of lack of money for defense, but men will remain jailed pending an appeal," and here are the basic details:
In a potentially blockbuster ruling, an Orleans Parish judge on Friday ordered seven indigent inmates released from jail because of a lack of state money for attorneys to represent them amid a squeeze on public defense funding in New Orleans and across Louisiana.
However, Criminal District Court Judge Arthur Hunter stayed his order, which also included a suspension of the men’s prosecutions, pending an appeal from District Attorney Leon Cannizzaro’s office. Assistant District Attorney David Pipes told Hunter an appeal is coming, and Hunter gave him 10 days. The seven men will remain behind bars pending the outcome of that appeal.
All of them face serious felony charges — including murder, armed robbery and aggravated rape — and all have been deemed indigent. Most have spent more than a year behind bars, going months without legal help on their cases, attorneys said.
Hunter ruled that the lack of state funding for the seven men’s defense violated their Sixth Amendment rights and that the resulting uncertainty on when their cases might move forward warrants their release. “The defendants’ constitutional rights are not contingent on budget demands, waiting lists and the failure of the Legislature to adequately fund indigent defense,” Hunter wrote in his 11-page ruling, portions of which he read from the bench.
“We are now faced with a fundamental question, not only in New Orleans but across Louisiana: What kind of criminal justice system do we want? One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?”
A spokesman for Cannizzaro’s office said the district attorney “believes that releasing defendants charged with serious acts of violence poses a clear and present danger to public safety, and he intends to appeal the ruling.” Spokesman Christopher Bowman added, “It appears that the judge’s ruling declares that a legislative act — namely the most recent budget — violates the Louisiana Constitution.”
Tulane Law School professor Pam Metzger, who is representing all seven in their bid for release, said she was “thrilled that the judge appreciates the extraordinary constitutional obligations of providing poor people with counsel and due process of law.” She said she was disappointed that Hunter stayed his ruling but that attorneys would continue pressing to free the men.
In addition to Metzger, each of the men has an attorney appointed by Hunter. But in his ruling, Hunter said the appointment of private attorneys without any state money available for early witness and defendant interviews, filing motions and strategizing “makes a mockery of the Sixth Amendment right to the effective assistance of counsel.”
Hunter was following directions laid out in a 2005 Louisiana Supreme Court decision on when judges can halt prosecutions because of a lack of adequate indigent defense funds. The court said a judge can stop a case “until he or she determines that appropriate funding is likely to be available.” The “absence of a date certain” when that money will come, Hunter found, also violates the right to due process guaranteed in the 14th Amendment to the U.S. Constitution, as well as the Louisiana Constitution’s edict for the Legislature to “provide for a uniform system for securing and compensating qualified counsel for indigents.”...
Chief Public Defender Derwyn Bunton’s office had turned away the seven cases, citing a severe budget shortfall, bloated workloads and the loss of several experienced attorneys in his office.
Hunter, who has taken drastic measures during past funding shortfalls at the Public Defenders Office — he ordered the release of several inmates after Hurricane Katrina — doled out the seven men’s cases to private attorneys, who promptly sought a halt to the prosecutions and the men’s release. They said they can’t do any work on the cases unless they get money to pay for investigators and other expenses.
Hunter’s ruling came after a series of hearings in his courtroom that began in November with testimony from Bunton and Jay Dixon, who heads the Louisiana Public Defender Board, among others. They testified that indigent defense in Louisiana is facing a crisis because of a system in which local offices are funded largely through fines and fees leveled on criminal defendants, mostly for traffic violations. Those revenues have slid steadily over the past several years, in some parishes more than others. All told, almost a dozen district public defenders across the state have instituted austerity programs.
In New Orleans, that has meant a hiring freeze since last summer and, beginning in January, a refusal by Bunton’s office to accept appointments in serious felony cases — now at 110 and counting — because of a lack of experienced attorneys to handle them, according to Bunton. “Obviously, the charges involved in these cases are really serious, so I do think folks should be concerned about public safety,” Bunton said Friday. “We wouldn’t need to be in this position if (the state) provided the resources that are necessary under the constitution. You can only prosecute as fast as you can defend, and if you can’t defend, you can’t prosecute.”...
The defenders’ funding troubles may be getting even worse. In Baton Rouge, lawmakers grappling with the state’s deep budget morass have threatened deep cuts in the $33 million in annual state funding that has supplemented local revenue, making up about a third of the overall funding for indigent defense across the state. The Louisiana Supreme Court has in the past endorsed a halt to prosecutions until adequate funding becomes available. But it has stopped short of ordering action by the Legislature.
At a recent hearing, Metzger described an “abject state of financial crisis. There is no money to fund these defenses. ... The cause of the delay rests entirely with the state. The Legislature has been on notice not simply for weeks or months or years but for decades.”
In a legal filing last week, however, Cannizzaro’s office described the private attorneys seeking to be relieved from the cases as bent on “nothing less than anarchy” by pressing for the defendants’ release and a halt to their prosecutions, while “hoping for a paycheck” at the expense of justice. “They are seeking to bring down a system they disagree with rather than protecting the rights of those individuals this court has appointed them to represent,” Pipes wrote.
A statement from Mayor Mitch Landrieu called Hunter’s ruling “a miscarriage of justice on all sides” and urged the judge “for the sake of the victims and their families” to “reconsider putting alleged murderers back on the streets, like Darrian Franklin.”
“The state needs to live up to its obligation by fully funding the public defender, and the judge should continue to work on getting the State to appropriately fund its responsibilities,” the statement read.
Friday, April 08, 2016
New draft article, "De-Policing," seems to provide empirical support for "Ferguson effect" claims
I just came across this notable new article on SSRN titled simply "De-Policing," which seems to provide some general empirical support for what is now being called the Ferguson Effect. The piece, authored by Stephen Rushin and Griffin Sims Edwards, seems empirically sophisticated (though I lack the talents to check the empiricism), and here is the abstract:
Critics have long claimed that when the law regulates police behavior it inadvertently reduces officer aggressiveness, thereby increasing crime. This hypothesis has taken on new significance in recent years as prominent politicians and law enforcement leaders have argued that increased oversight of police officers in the wake of the events in Ferguson, Missouri has led to an increase in national crime rates. Using a panel of American law enforcement agencies and difference-in-difference regression analyses, this Article tests whether the introduction of public scrutiny or external regulation is associated with changes in crime rates.
To do this, this Article relies on an original dataset of all police departments that have been subject to federally mandated reform under 42 U.S.C. § 14141 — the most invasive form of modern American police regulation. This Article finds that the introduction of § 14141 regulation was associated with a statistically significant uptick in crime rates in affected jurisdictions. This uptick in crime was concentrated in the years immediately after federal intervention and diminished over time. This finding suggests that police departments may experience growing pains when faced with external regulation.
Latest USSC retroctivity data suggest prison savings approaching $2 billion from drugs-2 guideline amendment retroactivity
The US Sentencing Commission's website has this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated April 2016, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through March 25, 2016 and for which court documentation was received, coded, and edited at the Commission by March 29, 2016."
The official data in the report indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, now 26,850 federal prisoners have had their federal drug prison sentences reduced by an average of two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $1.9 billion dollars.
As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the US Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.
Thursday, April 07, 2016
"Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment"
The title of this post is the title of this interesting new article by Alex Reinert now available via SSRN. Here is the abstract:
The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination. In particular, I argue that the phrase “cruel and unusual punishment” was intertwined with pre- and post-Revolutionary notions of the permissible limits on the treatment of slaves.
The same standard that the Framers adopted for the treatment of prisoners in 1787 was contemporaneously emerging as the standard for holding slaveholders and others criminally and civilly liable for harsh treatment of slaves. Indeed, by the middle of the nineteenth century, constitutional law, positive law, and common law converged to regulate the treatment of prisoners and slaves under the same “cruel and unusual” rubric. Thus, when the Supreme Court of Virginia referred to prisoners in 1871 as “slaves of the State,” the description had more than rhetorical force.
Going beyond the superficial similarity in legal standards, examining how the “cruel and unusual” standard was explicated in the context of slavery offers important insights to current debates within the Eighth Amendment. First, the contention by some originalists that the Punishments Clause does not encompass a proportionality principle is in tension with how courts interpreted the same language in the context of slavery. Indeed, relationships of subordination had long been formally governed by a principle of proportional and moderate “correction,” even though slavery in practice was characterized by extreme abuse. Second, to the extent that dynamic constitutional interpretation supports limiting criminal punishment according to “evolving standards of decency,” the comparative law frame used here raises questions as to how far our standards have evolved. This, in turn, should cause commentators and jurists to reconsider whether the twenty-first century lines we have drawn to regulate the constitutional bounds of punishment are adequate to advance the principle of basic human dignity that is thought to be at the heart of the Eighth Amendment.
New Jersey Supreme Court reverses murder sentence after trial judge says he always gives that sentence
A unanimous New Jersey Supreme Court today issued an interesting sentencing opinion today in NJ v. McFarlane, No. 075938 (April 7, 2016) (available here), which gets started this way:
Defendant chased an unarmed man, whom he was attempting to rob, and shot him in the back with a revolver. The victim was alive and gasping for air after he fell to the ground, but defendant robbed him and left him to die. Defendant was convicted of first-degree murder, among other things, and sentenced to sixty years in prison.
We are called upon to determine whether defendant’s sentence should be vacated and the matter remanded for resentencing before a different judge, because the trial judge remarked during a subsequent, unrelated status conference that he always gives sixty-year sentences to a defendant convicted by a jury of first-degree murder. While we acknowledge the judge’s subsequent explanation for his remarks, preservation of the public’s confidence and trust in our system of criminal sentencing requires that the matter be remanded for resentencing by another judge of the same vicinage.
Wednesday, April 06, 2016
The title of this post is the title of this timely new piece by William Berry now available via SSRN. Here is the abstract:
When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule. The current retroactivity doctrine relies on a confusing substance-procedure dichotomy. Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question. Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.
This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity. Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations. Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.
April 6, 2016 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)
Examining how Michigan, thanks to Montgomery, is struggling through Miller retroactivity
A couple of month ago I flagged here a press report on the legal and practical challenges unfolding in Pennsylvania after the Supreme Court's ruling in Montgomery v. Louisana forced the state to start dealing with all its now-unconstitutional mandatory juve LWOP sentences. Now I see this similar story from Michigan headlined " Hundreds of Mich. juvenile lifer cases to be reviewed." The lengthy and details article gets started this way:
Hundreds of killers sentenced to mandatory life without parole while in their teens could be resentenced this year, but a debate over how to process the cases has left prosecutors and lawyers in limbo. The Michigan Court of Appeals has been asked to decide whether a judge or jury should consider whether to give offenders new sentences. A hearing is anticipated, but a date to make arguments hasn’t been set.
The U.S. Supreme Court ruled in 2012 that sentencing a person under 18 to life in prison without parole constitutes “cruel and unusual punishment.” The decision potentially affects 363 cases in Michigan dating to 1962.
Prosecutors have been required to provide a list to the chief judge in every county of the cases that may require resentencing. Wayne County has the most, at 152. Oakland is second with 49, followed by Genesee with 26 and Kent with 24. Macomb has 12 cases to be reconsidered for sentencing. Prosecutors will have to make legal motions to resentence those they feel still deserve life without parole. Other defendants will get a minimum of 25-40 years and a maximum of 60 years to serve before automatically being considered for parole.
Critics, including families of victims, argue mandatory resentencing may be unjust and open old wounds for victims who thought their cases were settled. Local law enforcement officials and prosecutors predict the process will be lengthy, costly and could further traumatize families.
Gov. Rick Snyder has recommended adding $1.1 million to the state budget to fund 11 full-time employees at the State Appellate Defenders Office for compliance with the Supreme Court ruling. But prosecutors, struggling with smaller staffs and tighter budgets, say they need more money too. Defense and appellate attorneys agree it’ll cost money to process the cases, but they argue it’s the right thing to do.
Many young offenders are immature, act impulsively and often are under the direction of older defendants, advocates say. Some juvenile lifers already have served beyond the minimum sentences that would have otherwise taken effect under resentencing, but for the pending hearing in the Michigan Court of Appeals.
“The bottom line is we’re not opening the doors and letting them all out — there will be a process and a hearing and some will be determined unfit for release,” said Valerie Newman, an assistant defender in the State Appellate Defenders Office. “And there will still be parole hearings.”
County prosecutors in Michigan say the process will take time, money and care to ensure that people who should be in prison stay there. St. Clair County Prosecutor Michael Wendling, who recently testified before a state Senate subcommittee on potential problems with resentencing, said: “It will tie up my staff and also challenge our resources — and I have only four cases; some counties have more than a hundred.” Wendling said after it is determined a case will be resentenced, it will mean locating victims, witnesses and experts and diverting assistant prosecutors from new cases.
Among Wendling’s old cases is one from 2010 in which Tia Skinner, then 17, plotted with a boyfriend to kill her parents after they took away her cellphone. Skinner has been resentenced twice, Wendling said. Another involves James Porter, then 17, of Yale who on one morning in 1982, balanced a .22 rifle on the handlebars of his bicycle, pedaled to the house of a friend with whom he had a dispute and fatally shot the teen and four family members. “I suspect we will be seeking the same sentences on all four of our juvenile lifers — these aren’t shoplifting cases,” Wendling said.
Tuesday, April 05, 2016
More reflections and criticisms of clemency work past, present and future
I reprinted here over the weekend a lovely and positive report by Lisa Rich about all the activity emerging from the White House last week on the important topic of clemency. Thanks to Mark Osler, I have now learned that Thursday's extended "White House Briefing on Life After Clemency" can be watched in full via YouTube here. Here is how the event is described:
Building on the President's efforts to make our criminal justice system more fair by granting clemency to men and women sentenced under outdated sentencing rules, the briefing brings together academics, advocates and Administration officials seeking to remove obstacles to successful reentry. The briefing provides a collaborative environment to discuss and share ideas on the President's clemency initiative and ways to improve paths to reentry.
Critically, not everyone is having warm feelings about the work of Prez Obama and his administration's work to date in this arena. In particular, Mark Osler followed up his participation in the White House briefing with this New York Times op-ed headlined "Obama’s Clemency Problem." Here are excerpts:
In the spring of 2014, the Obama administration announced an initiative to consider granting clemency to thousands of federal prisoners serving what Mr. Obama called “unjust” sentences for low-level drug crimes. Federal prisoners were notified of the project, and more than 30,000 responded by submitting surveys to begin the process.
Despite the relatively high number of commutations that Mr. Obama has now granted, there are still more than 9,000 pending commutation cases, many of the sort singled out in the 2014 initiative as potentially worthy. So why has the president acted on so few? Typically, a reluctance to exercise the pardon power is a result of political timidity. But in this case, the Obama administration already took the political risk two years ago when it announced the clemency initiative.
The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process. Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice. Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general.
When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates. It is not an incidental fact that Ms. Yates is a career prosecutor. When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases.
I was a federal prosecutor for five years. In that job, deciding someone’s fate is a necessary but difficult emotional commitment. The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear. We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.
President Obama can and should fix this problem with a simple executive order that places the Office of the Pardon Attorney in the White House, rather than at the bottom of the institutional structure at the Department of Justice. An empowered pardon attorney (or perhaps a pardon board, as we find in many states) would then report directly to the president. That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.
And while Professor Osler is concerned about the slow and cumbersome process for considering clemency requests, this letter to AG Loretta Lynch authored by Senator Richard Shelby highlights that others are troubled by some of the few offenders who have already received sentence commutations. Here is how Senator Shelby's letter gets started:
I am writing to you in response to yesterday’s announcement that President Barack Obama granted sentence commutations to 61 individuals. I have strong concerns that 12 of these 61 individuals were convicted of one, if not more, firearm-related offenses. These include:
- Seven convictions of possession of a firearm in furtherance of a drug trafficking crime;
- Four convictions of possession of a firearm by a felon; and
- Two convictions of use of a firearm in furtherance of a drug trafficking offense.
In August 2014, the Department of Justice announced its rubric for considering federal inmates for the President’s new initiative for executive clemency. Part of these criteria included: non-violent individuals who would not pose a threat to public safety if released; low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; inmates who do not have a significant criminal history; and those who have no history of violence prior to, or during, their current term of imprisonment.
By my count, the President has commuted the sentences of over 200 of these “non-violent” federal inmates, of which 33 were convicted of firearm-related offenses. I am troubled by the nature of the firearm-related convictions and the fact that some individuals are previously convicted felons who continued to commit crimes. This announcement clearly demonstrates that the Administration is not following its own selection criteria. Frankly, I am left wondering why the President and the Justice Department consider individuals who carry guns to drug deals as “non-violent”.