Saturday, March 14, 2015

Notable criminal justice commentary from Slate

Slate is already one of my regular daily reads for all sorts of topics, and Slate's regular writers on criminal justice issues (Dahlia Lithwick, Emily Bazelon, William Saletan) always have something interesting to say. And these recent Slate pieces seem like must-reads for criminal justice fans:

UPDATE: Just a few days since I first completed this post, here are some more must-read Slate pieces:

March 14, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Friday, March 13, 2015

"Jones, Lackey, and Teague"

The title of this post is the title of this notable new article by J. Richard Broughton now available via SSRN. Here is the abstract:

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane.

By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making the case for applying the bar, this paper adds to, and challenges, the existing literature on capital punishment, Lackey claims, and Teague doctrine. This paper dissects the Jones ruling on the application of Teague, examining the Supreme Court’s “new rule” case law and concluding that Lackey claims, when viewed at the appropriate level of generality, propose a new rule. It then addresses the more complicated aspect of applying Teague in this context, recognizing that the first Teague exception poses the most likely basis for avoiding the Teague bar on a Lackey claim. At a minimum, Lackey claims (like Miller v. Alabama claims, now the subject of substantial Eighth Amendment litigation on collateral review) sit at the intersection of procedural and substantive rules. Nonetheless, this paper makes the case for viewing the claim as procedural and therefore Teague-barred. Ultimately, then, this paper emphasizes a point that could substantially influence existing litigation: litigators and federal judges should take the Teague bar more seriously when considering Lackey claims on federal habeas review, particularly when viewed in light of modern habeas rules and doctrine that limit relief and protect the interests of the states. But the paper also emphasizes an important point about death penalty policy and politics: if the state is to have a death penalty at all, it should be prepared, and willing, to ensure that death sentences are actually carried out.

March 13, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Utah establishes criminal registry for white-collar offenders

Via this New York Times piece, I see that Utah has extended the idea of a criminal registry to fraudsters. Though I have reservations about criminal registries for a variety of reasons, I think this particular kind of registry might make a lot of sense as a recidivism/crime prevention measure.  Here is how this fascinating story gets started:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society. Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons.  The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”

While some Utah lawmakers fear that the registry is overkill, the idea does tap into a vein of populist outrage over financial misdeeds. As much as sex offender registries spread state by state, so too could a white-collar crime registry find favor across the nation, say its supporters.

The legislation’s sponsor in the Utah Senate, Curtis S. Bramble, a Republican, plans to promote the idea through his role as president-elect of the National Conference of State Legislatures, an influential group, saying that “the registry could become a best practices for other states.”

March 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, March 11, 2015

"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"

The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:

The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”

The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense.  These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.

These guidelines are premised on the following foundational principles: 

  • children are constitutionally and developmentally different from adults;

  • children, by reason of their physical and mental immaturity, need special safeguards and care;

  • children must not be defined by a single act; 

  • juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation; 

  • juvenile life defense requires a qualified team trained in adolescent development; 

  • juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner; 

  • juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;

  • juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;

  • juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;

  • juvenile life defense counsel must litigate for a presumption against life sentences for children; and

  • juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.

March 11, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Mizzou lawyers spotlight problems poised by rapid pace of executions

As reported in this Kansas City Star article, headlined "Attorneys struggle to keep up with Missouri’s execution pace," the Show Me State's recent pattern of showing condemned inmates to the execution chamber on a regular basis has prompted a notable expression of concern from lawyers. Here are the details:

[F]or the small group of lawyers who take on the burdens of defending inmates on the cusp of execution in Missouri, the sheer volume of cases is overwhelming their ability to do that work.

That’s the message four law professors and lawyers delivered to the Missouri Supreme Court this week as they called for execution procedure changes that would give lawyers more time for each client. “These amendments are necessary because the capital defense bar is in crisis because of its recent workload,” the group wrote.

Since November 2013, Missouri has executed 13 men. A handful of lawyers who specialize in capital litigation have represented most of them. They also represent most of Missouri’s other defendants with a pending execution date or who soon are expected to see one set.

The state’s fast execution pace — Missouri tied Texas for most in the country last year with 10 — has left those lawyers struggling to meet their legal obligations to multiple clients at the same time, according to the letter by members of an American Bar Association death penalty assessment team that recently studied Missouri’s execution system. “The legal proceedings in death penalty cases are notoriously lengthy and complex,” they wrote. “Establishing a detailed understanding of those proceedings is a time consuming task and a basic prerequisite to competent performance.”

In addition, the cases take an intense emotional toll on attorneys who get to know the clients intimately before watching them die, the letter said. “No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience,” the letter stated. One attorney has represented five of the last nine men executed and has two other clients with an “imminent risk of execution,” the letter noted....

The four members of the assessment team who sent the letter to the Supreme Court — University of Missouri law professor Paul Litton, St. Louis University law professor Stephen Thaman, retired Missouri Court of Appeals Judge Hal Lowenstein and Douglas Copeland, a partner in a St. Louis law firm — recommended three amendments to the state’s rules.

The first would limit any one lawyer from representing a client who has an execution date set within six months of any of the lawyer’s other clients. Second, they also ask that a minimum notice of six months be given before an execution can be carried out. The third proposal would allow lawyers to prioritize caseloads to concentrate on cases with pending execution dates while being granted more time to deal with other clients’ cases.

“These are common-sense solutions to a serious problem affecting virtually every scheduled execution,” according to the letter.

The problems have mounted only recently in Missouri, where the lawyers pointed out that only two executions took place in the seven years from 2006 through 2012. But this has been a long-term issue in other death penalty states. “For decades it has been widely recognized … that unreasonable workloads among capital litigators can severely challenge the effectiveness of their representation,” said national death penalty expert Deborah Denno, a professor at the Fordham University School of Law.

Though it will be up to the Missouri Supreme Court to adopt or reject the rule changes, the court has shown some flexibility in the past. Last July, it changed the rules to limit executions to no more than one per month.

And last August, the court withdrew an execution warrant it had issued the previous month after the inmates’ attorneys said they wouldn’t have enough time to do everything required in the case while balancing work they had in other pending cases. They were given additional months before that man’s execution was carried out in November....

Jennifer Herndon, a St. Louis-area lawyer who has represented several death row inmates, said the proposals are all good ideas that are badly needed. “People don’t understand the pressure, particularly in the last 30 to 45 days before an execution,” she said. “If you don’t work on it 24 hours a day, you’re thinking about it 24 hours a day.” Facing that same kind of pressure month after month makes it virtually impossible to operate at 100 percent “no matter how hard you try,” she said.

The helpful folks at The Marshall Project have uploaded a copy of the letter reference in this article at this link.

March 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 09, 2015

What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?

As noted in this post, this morning the US Supreme Court today finally decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.  But, as this new SCOTUSblog post about the cert grant spotlights, it actually is not entirely clear just what the Supreme Court has decided to decide:

The Florida death penalty case now up for review involves Timothy Lee Hurst of Pensacola, who faces a death sentence for the 1998 murder of a woman who was an assistant manager at a Popeye’s fast-food restaurant where Hurst also worked.

Hurst’s public-defender lawyers asked the Court to rule on two broad questions: one about the jury’s role when an accused individual claims a mental disability, and one about the jury’s role in the death-sentencing process, including an issue of whether its verdict must be unanimous. (His jury split seven to five in recommending death.) The second question was based on a claim that Florida courts fail to follow a 2002 Supreme Court decision on death sentencing, Ring v. Arizona.

In agreeing to rule on the case, the Court rewrote the question it will consider in an apparent attempt to simplify it: whether Florida’s approach to death sentencing violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.”

Because the Ring decision is all about the Sixth Amendment, and the role of the jury in deciding whether a murder was committed in an “aggravated” form, it is not clear just what the Court had in mind in linking an Eighth Amendment issue to the Ring precedent. It could be, although this was not plain from the order, that the Court is looking at Hurst’s case on Eighth Amendment grounds on his claim of mental disability, on the lack of jury unanimity, and on the general fairness of a death sentence for this particular individual. Presumably, that will become clearer as the briefs are filed in the case in coming months.

Helpfully, this extended post at Crime & Consequences reviews some of the legal background and possible implication of the Hurst case, which includes these observations:

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure.  Therefore, there is no limitation on the Court's authority to create new law in this case.  The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States.  Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States.  However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.

Because of the maelstrom of potential legal issues raised by this particular Florida case, I am not sure what to expect from the Justices. I am sure any and everyone who does not like how Florida does its capital sentencing (including the nearly 400 murderers currently on Florida's death row) may be inclined to present varied constitutional arguments to SCOTUS to urge a reversal of the death sentence in this intriguing new case.

March 9, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring

One big question that arose way back in 2000 when the Supreme Court issued its landmark Apprendi decision was whether capital sentencing schemes that incorporated judicial death penalty determinations were still constitutional.  In 2002, in Ring, the Supreme Court somewhat clarified matter when it found Arizona's capital sentencing scheme problematic in light of Apprendi.  Now, finally and remarkably, the Supreme Court has decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.

This new SCOTUS order list has just one new cert grant, and here it is:

HURST, TIMOTHY L. V. FLORIDA: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).

Notably, according to the Death Penalty Information Center's data, Florida has carried out 39 executions since the Supreme Court handed down its ruling in Ring in 2002, and I suspect a good number of those Florida condemned (and now dead) murderers asserted that their death sentencing violated the Sixth Amendment and/or the Eighth Amendment in light of Ring.  If there is some kind of afterlife for executed murderers, I expect there will now be some interesting SCOTUS talk in the Florida section of that netherworld.

March 9, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, March 08, 2015

Can a sheriff prohibit sex offenders from a church that is sometimes a school?

The question in the title of this post is prompted by this story coming from North Carolina, headlined "Graham sheriff bans sex offenders from church." Here are the details:

A sheriff in one of North Carolina's smallest counties told sex offenders they can't attend church services, citing a state law meant to keep them from day care centers and schools. Sheriff Danny Millsaps, in Graham County, told the registered offenders about his decision on Feb. 17, according to a letter obtained by the Asheville Citizen-Times on Friday....

"This is an effort to protect the citizens and children of the community of Graham (County)," he wrote. "I cannot let one sex offender go to church and not let all registered sex offenders go to church." He invited them to attend church service at the county jail.

Millsaps, in an interview on Friday, said he may have made a mistake when he wrote that offenders "are not permitted to attend church services." He said he understands the Constitution gives everyone the right to religious freedom. But, he said, he's standing by his take on the law blocking offenders from places where children are present.

"I understand I can't keep them from going to church," he said. "That may have been misunderstood. I'll be the first one to say I might have made mistakes in the wording of that letter." He said he has no immediate plans to arrest a sex offender should one of the 20 in his county attend church on Sunday.

Graham County Manager Greg Cable said the county attorney is looking into the matter and any legal mistakes would be corrected. The American Civil Liberties Union in Raleigh, at the newspaper's request, is reviewing the letter the sheriff sent. The newspaper also sent a copy to the state Department of Justice for an opinion on the law....

Other North Carolina counties have dealt with the same issue. Deputies in Chatham County in 2009 arrested a sex offender for attending church, citing the same law. A state Superior Court judge eventually ruled the law, as applied to churches, was unconstitutional.

In Buncombe County, sex offenders are permitted in church as long as pastors know and are in agreement, Sheriff Van Duncan says. That's similar to the county's policy for allowing sex offenders at school events such as ball games. They are allowed as long as school administrators have warning and the offenders are monitored to some extent, the sheriff said. The law allows schools to do this, a factor the judge noted back in 2009 in the Chatham County case.

Duncan said if a sex offender threatens a child at a church or school event, the law can be enforced and used to ban the offender. He said church leaders in Buncombe County, generally, want to minister to sex offenders.

The law applies to churches that run schools Monday-Friday the same as it would apply to county or city schools during the week. Sex offenders are generally banned from school property.

March 8, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Religion, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, March 07, 2015

California voters through Prop 47 help fix prison crowding problems plaguing state for decades

Images (5)Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s.  Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues.  But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.

I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way.  The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:

California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.

The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday.  Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.

But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47.  “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview.  “The thing we are grappling with is the tremendous rise in property crime.”

Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....

Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....

In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014.  Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.

Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said.  “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”

Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less.  Prior to the measure, the threshold for misdemeanor property crimes was $450.  Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.

Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”

Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure.  Most of that money is slated for mental health and substance abuse programs.

I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.

Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).

Some prior related posts on California's Prop 47 and its early impact:

March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, March 06, 2015

Examining some statistical realities behind federal death penalty administration

This intriguing Voactiv piece, headlined "Here Are The Odds The Boston Bomber Will Get The Death Penalty," draws on the Boston bomber federal capital trial as an opportunity to looks at some basic federal capital sentencing data. The piece is subheaded "Turns out, it's pretty hard to get a jury to vote for execution," and here are excerpts:

As the [Tsarnaev] trial wraps up its first week, we looked at how often the U.S. Attorney General has asked for the death penalty over the past two decades, and how often it has been able to get the jury to agree.  Between 1989 and 2009, some 2,795 cases were eligible for the death penalty.  Of those, the federal government brought 262 death- cases to trial and only 70, or about 25 percent, ended in a death sentence, according to the most recent statistics from the Federal Death Penalty Resource Counsel.  In the vast majority of the 262 cases, the juries recommended a life sentence instead.

Many death-penalty cases, another 201, never saw the inside a courtroom because they were settled before the trial....  [And] the federal government rarely pursues it even in cases that are eligible.  The U.S. Attorney General has approved death penalty prosecution for only 15 percent of all eligible cases over the past 20 years....

Even if Tsarnaev does get the death penalty, the execution isn’t likely to happen any time soon: Of the 70 people who have been sentenced to death in federal trials around the country in the last two decades, most are still waiting on death row.  Only three people have been executed since 1977, the latest in 2001.  Some defendants have been waiting on death row for over 20 years.

March 6, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Fourth Circuit holds that Miller is not retroactive on collateral review under Teague

Like many who follow Eighth Amendment jurisprudence or care about juvenile justice, I had been hopeful that the Supreme Court was finally going to resolve this Term whether its Miller ruling barring mandatory LWOP sentences for juvenile offenders was to be applied retroactively.  But Toca, the case on which cert had been granted a few months ago, got resolved on other grounds and now lower court rulings continue to be central to this issue for the time being.  Consequently, I am grateful to a reader who alerted me that the Fourth Circuit yesterday, in Johnson v. Ponton, No. 13-7824 (4th Cir. March 5, 2015) (available here), formally addressed this matter.  Here is how the panel's unanimous opinion starts and winds down: 

Petitioner-Appellant Shermaine Ali Johnson appeals the district court’s dismissal of his habeas petition under 28 U.S.C. § 2254, challenging his sentence of life imprisonment without parole.  He argues that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), is retroactively applicable to him on collateral review.  Miller held that imposing mandatory life imprisonment without the possibility of parole for juvenile homicide offenders -- i.e., imposing that sentence without any individualized consideration of their status as juveniles -- violates the Eighth Amendment.  For the reasons that follow, we conclude that the Miller rule is not retroactively applicable to cases on collateral review. We therefore affirm....

We therefore hold that the Supreme Court has not held the Miller rule retroactively applicable, and that the Court’s holdings do not dictate retroactivity because the rule is neither substantive nor a watershed rule of criminal procedure.  In so deciding, we join the Eleventh Circuit.  We also note that our holding is consistent with that of the only other circuit court panel to have answered the question of Miller’s retroactivity.  See Craig v. Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (unpublished).

March 6, 2015 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 05, 2015

Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row

I have been interested in the Jodi Arias case from Arizona since she was found guilty of murder two years ago, not principally because of all the media attention her case generated, but because of the extraordinary efforts Arizona prosecutors were prepared to make AT TAXPAYER EXPENSE to try to get Arias on to the state's death row.  Last year in this post, I guessed that Arizona prosecutors were spending more than $5,000,000 in taxpayer funds in their effort to have Jodi Arias sent and kept on death row rather than in another part of Arizona's prison system.  

As this new AP report from Arizona highlights, all those taxpayer costs created by the prosecutors in this one state capital case have now officially achieved nothing:

Convicted murderer Jodi Arias was spared the death penalty Thursday after jurors deadlocked on whether she should be executed or sent to prison for life for killing her lover in 2008.

It marked the second time a jury was unable to reach a decision on her punishment — a disappointment for prosecutors who argued for the death penalty during a nearly seven-year legal battle.  It means the judge will sentence Arias on April 13 to either life in prison or a life term with the possibility of release after 25 years.

Family members of victim Travis Alexander wept when the judge announced that jurors couldn't reach a decision after deliberating for about 26 hours over five days.  The family sobbed as they left the courtroom, with one covering her eyes as she walked out. Arias' mother, Sandra, received a hug from a friend moments after the verdict was read....

Arias' 2013 trial became a sensation with its tawdry revelations about her relationship with Alexander and that she shot him in the head and slit his throat so deeply that he was nearly decapitated.  It was broadcast live and TV audiences heard how Arias had stabbed and slashed Alexander nearly 30 times then left his body in his shower at his suburban Phoenix home, where friends found him about five days later.

The jury convicted her of first-degree murder but deadlocked on punishment, prompting the sentencing retrial that began in October.  Prosecutors say they don't regret trying again to send Arias to death row.  Maricopa County Attorney Bill Montgomery, who decided to seek the death penalty a second time, told reporters that "regret is a place in the past I can't afford to live in."

Arias initially courted the spotlight after her arrest, granting interviews to "48 Hours" and "Inside Edition."  She testified for 18 days at her first trial, describing her abusive childhood, cheating boyfriends, relationship with Alexander and her contention that he was physically abusive.  She did more media interviews after the jury convicted her of murder.

Spectators lined up in the middle of the night to get a coveted seat in the courtroom for the first trial. However, attention was dampened during the penalty retrial after the judge ruled cameras could record the proceedings but nothing could be broadcast until after the verdict.

The proceedings revealed few new details about the crime and dragged on months longer than expected amid a series of expert witnesses and a surprising late October decision by Judge Sherry Stephens to remove reporters and spectators from the courtroom so Arias could testify in private. A higher court halted the testimony on its second day after complaints from news organizations. At the end of the retrial, Arias passed up a chance to address the jury. She said she wanted to make such comments but refused to do so unless the courtroom was cleared. She cited potential personal safety threats in declining to speak in the open courtroom.

I am not at all surprised to hear the Arizona prosecutors now "say they don't regret trying again to send Arias to death row."  After all, these prosecutors got the opportunity to work for two more years on a high-profile and exciting case and they likely will not suffer any professional consequences for wasting an extraordinary amount of taxpayer resources now twice failing to convince a jury that Jodi Arias ought to die for her crimes.

Especially because, as I said before in prior posts, it was extremely unlikely Arias would ever be executed even if she had been sentenced to death, this case is now for me exhibit #1 in the extraordinary misallocation of resources that the death penalty can often engender because prosecutors generally get all the political benefits and suffer none of the true economic costs of capital punishment systems.  The folks who should really regret how this case has been handed are crime victims and others in need of social services and programming in Arizona.  As I noted in a prior post, the Arizona Crime Victims Programs — which is under the authority of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" — has an annual budget of around $5,000,000.  I feel pretty confident a lot more good throughout Arizona could have been done if state tax resources were allocated to doubling the funds for crime victim programming rather than enabling prosecutors to keep seeking a death verdict for Jodi Arias (which itself was never likely to get carried out).

Some prior posts on the Arias case:

March 5, 2015 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?

The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers.  This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:  

In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.

But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.

Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.

But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....

And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....

Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.

Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.

Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release.  And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.

Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75.  But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail."   Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.

March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack

Wednesday, March 04, 2015

First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing

Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing.  The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:

Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.

The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.

We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges.  We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....

A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.

Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance.  We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.

Some related prior posts:

P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post.  It has been a long day.

March 4, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium

As reported in this local article, headlined "Pennsylvania Supreme Court to take death penalty moratorium case: Philadelphia DA calls governor’s actions lawless and unconstitutional," a fascinating case concerning state executive powers in the Keystone State is officially to be considered by the state Supreme Court. Here are the details:

The Pennsylvania Supreme Court on Tuesday agreed to take a case filed by the Philadelphia district attorney’s office challenging Gov. Tom Wolf’s moratorium implemented last month on capital punishment in the state. District Attorney R. Seth Williams asked the court to take up the matter involving a defendant named Terrance Williams, who was scheduled for lethal injection today.

Although Seth Williams asked that the court take the case on an expedited basis, the court refused, and it will be heard on a standard calendar, which means that both sides will file briefs and replies over the next several months, and oral argument will be scheduled at a date in the future.

It will probably be more than a year before any decision is reached, and University of Pittsburgh law professor John Burkoff said it could be even longer if the court decides it wants two new justices, who will be elected later this year, to consider the case as well.

Mr. Wolf announced on Feb. 13 that he was instituting a moratorium on the death penalty in Pennsylvania, saying that it was not an “expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes.” Instead, he continued, it was “based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive.” He cited nationwide statistics that show 150 people have been exonerated from death row, including six in Pennsylvania....

But in his filing, Seth Williams argues that Mr. Wolf’s action was lawless and unconstitutional. “Merely characterizing conduct by the governor as a reprieve does not make it so,” the prosecutor’s filing said.

Instead, it continued, “At all times in Pennsylvania history a reprieve has meant one thing and only one thing: a temporary stay of a criminal judgment for a defined period of time, for the purpose of allowing the defendant to pursue an available legal remedy. The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”

To halt the imposition of the death penalty on a defendant, the district attorney’s office continued, the sentence must be commuted, which can be done only with unanimous agreement by the state Board of Pardons. Seth Williams accused the governor of usurping judicial function.

But in the governor’s response, his attorneys said what he was doing is temporary — a reprieve — and requires no input from the Board of Pardons. “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis,’ ” they wrote, quoting an earlier court case.

Prior related posts:

March 4, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 03, 2015

Jury seated and ready for opening arguments in Boston bombing trial

As reported in this AP article, to culminate "two months of jury selection, a panel of 12 jurors and six alternates was seated Tuesday for the federal death penalty trial of Boston Marathon bombing suspect Dzhokhar Tsarnaev." Here is more about a high-profile federal capital proceeding:

The all-white panel consists of eight men and 10 women. Jurors include a self-employed house painter, an air traffic controller, an executive assistant at a law firm and a former emergency room nurse. Opening statements in the case are scheduled for Wednesday.

Tsarnaev, 21, faces 30 charges in connection with twin bombings at the finish line of the marathon April 15, 2013. Three people were killed and more than 260 were injured. He is also charged in the killing of a Massachusetts Institute of Technology police officer days after the bombings.

If the jury convicts Tsarnaev, the trial will move on to a second phase to determine his punishment. The only two options available for the jury are life in prison or the death penalty....

During the jury selection process, Tsarnaev's lawyers tried repeatedly to get the trial moved out of Massachusetts, saying he could not find a fair and impartial jury because of the emotional impact the bombings had in the state. O'Toole rejected three change-of-venue motions, saying the process of carefully questioning jurors to detect bias was successful in finding impartial jurors. The 1st U.S. Circuit Court of Appeals twice refused to order the trial moved.

Some prior related posts:

March 3, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Student Guest Post: "Behind Bars In 140 Characters or Less"

I told students in my Sentencing Course this semester that they could earn extra credit in the class by providing me with blog-ready, cut-and-paste materials for this blog.  One student did just that by providing me with this effective review of recent discussions of prison discipline in South Carolina:

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"Behind Bars In 140 Characters or Less"

This February 19 article from the New York Times Magazine entitled “The Shame of Solitary Confinement” explores the abuse of solitary confinement sentencing for inmates of South Carolina prisons.

Dave Maass, an investigative researcher for the Electronic Frontier Foundation, used the 40-page South Carolina Department of Corrections Social Media Disciplinary Report to parse through punishments inmates receive for posting to Facebook or Twitter while behind bars.  (His full report can be found here.) The distributed punishments range from loss of canteen privileges, good time, or visitation, to loss of property privileges or telephone rights.

On the record of some inmates, “disciplinary detention” for X number of days is listed.  Disciplinary detention or “administrative segregation” are nicer terms for solitary confinement.  Maass discovered that South Carolina inmates who made online posts were receiving seemingly disproportionate sentences of solitary confinement for their actions, a punishment typically received for “the worst of the worst” within prison.  Now, simple rule violations, in South Carolina and (we have reason to believe) in other states, can land inmates in solitary.  Could these disobedient actions not be equally, and perhaps more justly, punished by locating and confiscating the device, and sentencing the inmate to an overnight work shift, janitor duty, or a loss of other privileges short of years worth of solitary confinement?

The most troubling thing of all, Maass discovered, is that the undefined number of days could reach up to nearly thirty-eight years of solitary confinement for repeat offenders. 

“In October 2013, for example, Tyheem Henry received a penalty of 37½ years in solitary confinement, for posting on Facebook on 38 different days.  When Maass looked into the issue, he found that the agency was sending inmates caught posting on social-media sites to solitary confinement for an average of 512 days.”

In Tyheem Henry’s case, that’s nearly one year of solitary confinement per post on social media.  In cases less egregious than Henry’s, where inmates posted only once or twice, the average length of solitary per post exceeded a year.

The policies behind prisons not wanting inmates to post to online sites is strong.  The state is concerned that inmates may use the sites to intimidate witnesses or to plan the exchange of drugs or other contraband.  Since prisoners generally are not allowed Internet access nor cell phones, presence of posts is also indicative of a possession of contraband and thereby an automatic rule violation.

Fortunately, Maass is hopeful that this punishment scheme is disappearing, thanks to South Carolina judges and Department of Corrections Director Bryan Stirling.  On February 2, Stirling signed a new disciplinary mandate setting the maximum solitary punishment to sixty days per infraction/series of related infractions.  Stirling reported that the new policy would prevent “stacking time,” the practice that allowed for the extended sentences discussed above.

“In January 2014, a few months after Stirling took office, a South Carolina state court judge, J. Michael Baxley, entered a hard-hitting directive in a long-running lawsuit on behalf of about 3,500 mentally ill prisoners.  Baxley called the case “the most troubling” to come to the South Carolina courts, “far above all others,” in his 14 years on the bench. For mentally ill patients, isolation was “often used in lieu of treatment, with severe consequences,” Baxley found. Prisoners in South Carolina who suffered from depression, schizophrenia and other mental illnesses were almost twice as likely as other prisoners to go to solitary, for an average of 647 days.”

Citizens, taxpayers, and prison reformists should still be concerned, however.  Is it going to take a Judge Baxley in each of the fifty states to add some structure to the punishment scheme for inmates? Shouldn’t there be at least some debate as to whether solitary confinement should be on the table at all for social media violations?  After all, nearly 7% of South Carolina’s inmate population remains in solitary confinement.

“South Carolina’s record of abusing solitary may be particularly horrendous, but it’s not unique.  California is being sued over prolonged solitary confinement — defined as lasting between 10 and 28 years (yes, again, years).  In 2013, a county in New Mexico agreed to pay a settlement of $15.5 million to a man who, awaiting trial in jail on a drunken-driving charge, endured mental and physical suffering during 22 months of isolation. (He was never prosecuted.)”

March 3, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Monday, March 02, 2015

California Supreme Court rules blanket sex-offender residency restriction fails rational basis review

In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds.  As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."

As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:

In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b).  As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons.  Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....

The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.  We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.

March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Georgia scheduled to execute only female murderer on its death row

As reported in this AP piece, headlined "After weather delay, Georgia ready to perform rare execution of a woman," the Peach State appears poised this evening to end the life of a bad apple notable for her gender. Here are the details:

After getting a temporary reprieve when her execution was postponed because of winter weather conditions forecast to hit the state, the only woman on Georgia's death row is again set for execution Monday. Kelly Renee Gissendaner, 46, was scheduled to be executed Wednesday at the state prison in Jackson, but the Department of Corrections postponed it to Monday at 7 p.m., citing the weather and associated scheduling issues.

Gissendaner was convicted of murder in the February 1997 stabbing death of her husband, Douglas Gissendaner. Prosecutors said she plotted his death with her boyfriend, Gregory Owen.... Kelly Gissendaner repeatedly pushed Owen in late 1996 to kill her husband rather than just divorcing him as Owen suggested, prosecutors said. Acting on Kelly Gissendaner's instructions, Owen ambushed Douglas Gissendaner at the Gissendaners' home, forced him to drive to a remote area and stabbed him multiple times, prosecutors said

Owen pleaded guilty and received a life prison sentence with eligibility for parole after 25 years. He testified at Gissendaner's trial, and a jury convicted her and sentenced her to death in 1998.

The State Board of Pardons and Paroles, the only entity in Georgia authorized to commute a death sentence, on Wednesday denied Gissendaner clemency. A federal judge in Atlanta rejected a request to halt her execution, and her lawyers have appealed that decision to the 11th U.S. Circuit Court of Appeals.

If Gissendaner's execution happens, she will be the first woman executed in Georgia in 70 years. Lena Baker, a black maid, was executed in 1945 after being convicted in a one-day trial for killing her white employer. Georgia officials issued her a pardon in 2005 after six decades of lobbying and arguments by her family that she likely killed the man because he was holding her against her will. Baker was the only woman to die in the state's electric chair. P>Execution of female inmates is rare with only 15 women put to death nationwide since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, about 1,400 men have been executed, according to the Death Penalty Information Center.

Prosecutors offered Gissendaner the same plea deal that was offered to Owen, but she turned it down. Post-conviction testimony from her trial lawyer, Edwin Wilson, gives some insight into why, Gissendaner's lawyers argued in a clemency petition. They quote Wilson as saying he didn't think a jury would sentence Gissendaner to death. "I guess I thought this because she was a woman and because she did not actually kill Doug," Wilson is quoted as saying, adding that he should have urged her to take the plea.

Victor Streib, a retired Ohio Northern University law professor and an expert on the death penalty for women, said it's clear that women are condemned to die far less frequently than men, but that there are so few cases that it's tough to draw any general conclusions. "Statistically, yes, if you've got two cases and everything about them is exactly the same and one case is a woman and the other case is a man, the man is more likely to be sentenced to death," Streib said, but added that he wouldn't count on that as a legal strategy.

One reason women aren't sentenced to death as often is that they don't commit as many murders and when they do they generally aren't the "worst of the worst" murders that lead to the death penalty, Streib said. Juries may also be more likely to believe a woman was emotionally distressed or not in her right mind at the time of a killing, which can spare them a death sentence, he said.

March 2, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

Resentencing on tap in Ohio beard-cutting federal assault cases

As reported in this local article, headlined "Judge to re-sentence defendants in Amish beard-cutting case," today brings another sentencing proceeding in a high-profile civil-rights case prosecuted in Ohio's federal courts. Here are the basics:

Federal prosecutors believe that the 16 Amish people who will be re-sentenced by a federal judge this afternoon for a series of beard-cutting attacks in 2011 still have not shown that they understand the harm that they caused.

A memo filed Friday by Kristy Parker, deputy chief of the civil rights division of the Department of Justice, reiterated that U.S. District Judge Dan Polster should give Bishop Sam Mullet and his followers the same sentences he gave them in February 2013, even if they do not stand convicted of carrying out religiously-motivated hate crimes because of an appellate court's decision.

"Simply put, there has also been no indication over the past two years that the time the defendants have served up to this point has in any way caused them to re-evaluate the propriety or the gravity of their behavior other than their acknowledgment that the government takes the matters seriously (even if they do not) and their obvious unhappiness at having been caught and punished," the filing says....

Polster will re-sentence all 16 defendants -- who come from the small farming community of Bergholz in Jefferson County -- at 1:30 p.m. at the federal courthouse in Cleveland. Eight of those defendants have already served out their original sentences, and Polster said in an email to attorneys last week that he intends to sentence them to time served.

At the original sentencing, the judge handed down prison terms ranging from a year and a day to 15 years for Mullet, the community's leader. Prosecutors are expected to ask for the same sentences today because Polster's original ones were lower than those recommended by the U.S. probation office. Defense attorneys are asking the judge to sentence the defendants to time served and to release the eight who remain in prison.

The defendants are members of a breakaway sect of the Amish community made up of 18 families. They were convicted of multiple crimes in September 2012 for carrying out five nighttime raids. In the attacks, members of the community rousted five victims out of bed and chopped off their beards and hair with horse mane shears and battery-powered clippers. The attackers documented the attacks with a disposable camera....

A sentencing memo filed for Mullet says that its unlikely that Mullet would ever do something similar again, and that the Bergholz Amish community is still shunned by other Amish communities because of the case and its surrounding publicity.

In a memo filed Friday, prosecutors say that "it is the defendants themselves who created these circumstances through their own lawless conduct, yet they continue to blame the government and their properly imposed prison sentences for the harms they feel they have suffered. "The defendants' sentencing memoranda leaves the impression that they are the victims in this case, not the people they violently assaulted during nighttime raids and orchestrated attacks," the memo continues.

Some related prior posts:

March 2, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Sunday, March 01, 2015

Another account of the massiveness and messy process behind Prez clemency initiative

This lengthy new Washington Post article, headlined "U.S. clemency effort, slow to start, will rely on an army of pro bono lawyers," reports on the extraordinary scope and process behind the clemency initiative started seemingly long ago and still awaiting major action by Prez Obama. Here are excerpts:

A massive influx of applications from prisoners and a complicated review process have slowed the Obama administration’s highly touted initiative to grant clemency to nonviolent offenders, shifting the burden to an army of pro bono lawyers and specialists willing to help.

Just over a year after the administration unveiled its initiative, President Obama has commuted the sentences of eight prisoners, all of whose applications had already been submitted at the time of the announcement.  In the meantime, more than 35,000 inmates — about 16 percent of the federal prison population — have applied to have their sentences shortened under the Justice Department-led initiative.

In an unusual arrangement, the department has sought to deal with the deluge by encouraging outside lawyers to help identify candidates for earlier release and to represent them. Prisoner applications are being reviewed by more than 1,000 attorneys at 323 law firms and organizations nationwide.

“We have created what very well may be the largest, most ambitious pro-bono effort in the history of the legal profession,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, one of the four groups that make up what is known as the Clemency Project 2014.  Reimer, detailing the group’s efforts for the first time, said it spent all of 2014 “gearing up” and was hopeful the process would be accelerated soon....

Candidates for clemency under the new Justice Department criteria, released in the spring, must have served at least 10 years of their sentence, have no significant criminal history and no connection to gangs, cartels or organized crime.  Applicants also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

Even given those criteria, however, the universe of inmates who might qualify is huge, lawyers say.  “We had decades of harsh sentencing,” said Marjorie J. Peerce, a partner at Ballard Spahr in New York, whose lawyers have been screening clemency applications. “People were going to jail for decades because they were drug addicts selling a little bit of crack. There was such a disparity, and it was disproportionately affecting minorities.”...

[T]he Clemency Project — which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and Reimer’s association of criminal defense attorneys — has sent the petitions of only 14 inmates to the Justice Department’s Office of the Pardon Attorney to be considered for clemency....

Lawyers with the Clemency Project say the pace is partly a symptom of dealing with clients whose cases are complex and whose ability to communicate is limited because they’re incarcerated.  Every lawyer participating in the project had to be trained to sift through the applications to identify candidates who met the Justice Department criteria.  In many cases, they had to try to locate old legal documents and contact prosecutors and judges who imposed the sentences for answers.

Most of the inmates who requested assistance from the lawyers sent applications electronically through the Bureau of Prisons computers, but several thousand who didn’t have access to computers sent paper applications that had to be manually entered into an enormous database the attorneys have built.  Prisoner applications are still trickling in. “Some of these inmates have been in 20 to 25 years. Lawyers have to try to get pre-sentencing reports and sentencing transcripts, and, in some cases, the sentencing proceeding might not have been transcribed. It’s a cumbersome process, and you want to get it right,” Peerce said.

Although the Clemency Project is facilitating the process for inmates, it is not working directly with the Justice Department.  Inmates can contact the Clemency Project, which will research and prepare petitions for qualified candidates and send them to the Office of the Pardon Attorney, or, as 5,333 inmates have done since the spring, apply directly to that office. From there, petitions with recommendations go to the office of acting Deputy Attorney General Sally Quillian Yates.

Yates then sends the petitions with her recommendations to the White House counsel, Neil Eggleston, who sends them with his recommendations to Obama. Some advocates view that process as overly cumbersome. Justice Department spokeswoman Emily Pierce said that the agency “remains committed to the President’s Clemency Initiative, consistent with our overall efforts to modernize outdated sentencing laws.”

“The Clemency Initiative is just one prong of the tools we are using to accomplish that goal, including pushing sentencing reform in Congress and through the Sentencing Commission,” Pierce said. “We also are committed to ensuring that each individual who applies is treated fairly and equally and that public safety is a consideration in each and every petition under consideration.”

Reimer, of the National Association of Criminal Defense Lawyers, said that now that the Clemency Project has put in place a process for sorting out clemency applications, it plans to review and submit them to the Justice Department more quickly. “We’ve got a lot of work this year, but we’re determined to do it,” he said. “We will find everyone who may qualify and complete that by sometime early next year.”

Some prior related posts:

March 1, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, February 27, 2015

Split Connecticut Supreme Court works through Miller application issues

Images (3)As reported in this local AP piece, headlined "Connecticut court tosses 100-year sentence imposed on teen," the top court in the Nutmeg State issued a notable and significant ruling on juvenile sentencing in the wake of recent SCOTUS Eighth Amendment jurisprudence. Here are the basics:

The Connecticut Supreme Court on Friday overturned a 100-year prison sentence that was imposed on a Hartford teenager in a murder case, saying juveniles cannot be treated the same as adults when being sentenced for violent crimes.

In a 5-2 ruling, justices ordered a new sentencing hearing for Ackeem Riley, who was 17 in November 2006 when he sprayed gunfire into a Hartford crowd from a passing car. Three bystanders were shot, including 16-year-old honor student Tray Davis, who died....

The Miller decision was one of three U.S. Supreme Court rulings since 2005 that “fundamentally altered the legal landscape for the sentencing of juvenile offenders to comport with the ban on cruel and unusual punishment,” Connecticut Justice Andrew McDonald wrote in the majority decision. The rulings also barred capital punishment for all juvenile offenders and prohibited life imprisonment without the possibility of parole for juveniles in non-homicide cases.

McDonald wrote in Friday’s ruling, which overturned a state Appellate Court decision, that it didn’t appear trial Judge Thomas V. O’Keefe Jr. adequately considered Riley’s age at the time of the shooting. “The court made no mention of facts in the presentence report that might reflect immaturity, impetuosity, and failure to appreciate risks and consequences,” McDonald wrote. “In the entire sentencing proceeding, only defense counsel made an oblique reference to age.”

Justices Carmen Espinoza and Peter Zarella dissented....

State lawmakers are now considering a bill that would revamp Connecticut’s juvenile sentencing rules to conform to the U.S. Supreme court rulings. A similar measure failed last year. There are about 50 Connecticut prisoners serving sentences of 50 or more years for crimes committed when they were under 18, and most are not eligible for parole. Defense lawyers say they expect more appeals involving the juvenile sentencing issue.

The extended majority ruling in Connecticut v. Riley is available at this link, and it gets started with these passages:

The defendant, Ackeem Riley, was seventeen years old when he committed homicide and nonhomicide offenses for which the trial court imposed, in the exercise of its discretion, a total effective sentence of 100 years imprisonment. The defendant has no possibility of parole before his natural life expires. In his certified appeal to this court, the defendant claims that his sentence and the procedures under which it was imposed violate Graham and Miller, and, hence, the eighth amendment....

We agree with the defendant’s Miller claim. Therefore, he is entitled to a new sentencing proceeding at which the court must consider as mitigation the defendant’s age at the time he committed the offenses and the hallmarks of adolescence that Miller deemed constitutionally significant when a juvenile offenderis subject to a potential life sentence. We decline, however, to address the defendant’s Graham claim. As we explain later in this opinion, the legislature has received a sentencing commission’s recommendations for reforms to our juvenile sentencing scheme to respond to the dictates of Graham and Miller. Therefore, in deference to the legislature’s authority over such matters and in light of the uncertainty of the defendant’s sentence upon due consideration of the Miller factors, we conclude that it is premature to determine whether it would violate the eighth amendment to preclude any possibility of release when a juvenile offender receives a life sentence.

The dissenting Riley opinion is available at this link, and it starts this way:

I disagree with the majority’s conclusion that the total effective sentence of 100 years imprisonment imposed by the trial court on the defendant, Ackeem Riley, violates the eighth amendment to the United States constitution. I agree with the Appellate Court’s conclusion that, "[b]ecause the court exercised discretion in fashioning the defendant’s sentence, and was free to consider any mitigating evidence the defendant was able to marshal, including evidence pertaining to his age and maturity"; State v. Riley, 140 Conn. App. 1, 4, 58 A.3d 304 (2013); the sentence complied with the decision of the United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), which held that "the [e]ighth [a]mendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Emphasis added.) Id., 2469. To be clear, therefore, Miller applies only to mandatory sentencing schemes. Accordingly, I respectfully dissent.

February 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

How might US Sentencing Commission's new Tribal Issues Advisory Group deal with marijuana law and policy?

The question in the title of this post is prompted by this notable new US Sentencing Commission press release, which was released on a day I am participating in the first ever Tribal Marijuana Conference (some background here via MLP&R).  Here are excerpts from the press release:

The United States Sentencing Commission announced today the formation of a Tribal Issues Advisory Group (TIAG), which will consider methods to improve the operation of the federal sentencing guidelines as they relate to American Indian defendants, victims, and tribal communities.

The TIAG will look at whether there are disparities in how federal sentencing guidelines are applied to defendants from tribal communities or in the sentences received by such defendants as compared to similarly situated state defendants. The group will also examine whether there should be changes to the guidelines to better account for tribal court convictions or tribal court orders of protection and consider how the Commission should engage with tribal communities in an ongoing manner....

The TIAG is composed of federal appointees and at-large members. The federal judge appointees are Judge Diane Humetewa from Arizona, Judge Brian Morris from Montana, Chief Judge Ralph Erickson from North Dakota, and Chief Judge Jeffrey Viken and Judge Roberto Lange from South Dakota. The ten at-large members were selected from a broad array of applicants from across the country, and they represent a wide spectrum of tribal communities and roles in the criminal justice system. The TIAG at-large members include tribal court judges, social scientists, law enforcement officials, defense attorneys, and victims’ advocates.

“I commend the Commission for creating a mechanism to develop insights and information that have the potential to improve the lives of our citizens in Indian Country,” said Chief Judge Erickson. “I look forward to working with the distinguished members of this Group and with the Commission to rationally address longstanding sentencing issues in Indian Country.”

There are literally hundreds of tribal attendees at the tribal marijuana conference because it seems a number of tribal leaders think there is a chance that, despite federal prohibition, marijuana activity on tribal lands might "have the potential to improve the lives of our citizens in Indian Country." Of course, this new USSC advisory group has more than enough challenging issues to consider without getting into marijuana law and policy matters. But, especially because typically only the feds have full criminal jurisdiction in tribal lands, I think it will unavoidable for TIAG to discuss marijuana enforcement issues if (and when?) a number of tribes jump into the marijuana industry in the weeks and months ahead.

February 27, 2015 in Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 26, 2015

Encouraging recidivism realities after three-strikes reform in California

This new New York Times article, headlined "California Convicts Are Out of Prison After Third Strike, and Staying Out," reports on some good post-sentencing-reform news from the West Coast.  Here are excerpts:

Mr. Taylor, 58, is one of more than 2,000 former inmates who were serving life terms under California’s three-strikes law, but who were freed early after voters scaled it back in 2012. Under the original law, repeat offenders received life sentences, with no possibility of parole for at least 25 years, even if the third felony was as minor as shoplifting....

Formerly branded career criminals, those released over the last two years have returned to crime at a remarkably low rate — partly because they had aged in prison, experts say, and because participation in crime declines steadily after age 25, but also because of the intense practical aid and counseling many have received. And California’s experience with the release of these inmates provides one way forward as the country considers how to reduce incarceration without increasing crime.

“I hope the enduring lesson is that all of these people are not hopeless recidivists,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, which provides legal aid to prisoners and training to public defenders. “Those who remain dangerous should be kept behind bars,” added Mr. Romano, who was an author of the 2012 revisions. “But there are many people in prison who are no threat to public safety.”...

In 2012, with crime down and prisons overflowing, California voters had second thoughts. Proposition 36 held that many prisoners whose third offenses were not violent or serious would be eligible for resentencing, so long as a judge did not find an “unreasonable risk of danger to public safety.”

Of about 9,000 prisoners who had been sentenced under the three-strikes law, about 3,000 qualified for a rehearing; another 6,000, with more violent records, did not. As of late February, 2,008 inmates had been released for time served, and 92 were serving out reduced sentences. More than 700 cases remain to be adjudicated.Judges ruled against just 132 of the eligible inmates.

After being free for an average of more than 18 months, just 4.7 percent of the former life prisoners have returned to prison for new crimes, usually burglaries or drug crimes. By comparison, Mr. Romano calculates based on state data, of all inmates released from California prisons, about 45 percent return for new crimes over a similar period.

February 26, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

US Sentencing Commission releases report on LWOP sentences in federal system

I am intrigued and pleased to see that today the US Sentencing Commission has released this effective (reader-friendly) new report titled "Life Sentences in the Federal System." The entire 20-page report is a must read for anyone (like me) who fears we pay too much attention to much attention to a handful of death sentences and too little attention to hundreds of LWOP sentences. Here is how this new report gets started:

Life imprisonment sentences are rare in the federal criminal justice system. Virtually all offenders convicted of a federal crime are released from prison eventually and return to society or, in the case of illegal aliens, are deported to their country of origin. Yet in fiscal year 2013 federal judges imposed a sentence of life imprisonment without parole on 153 offenders. Another 168 offenders received a sentence of a specific term of years that was so long it had the practical effect of being a life sentence. Although together these offenders represent only 0.4 percent of all offenders sentenced that year, this type of sentence sets them apart from the rest of the offender population. This report examines life sentences in the federal system and the offenders on whom this punishment is imposed.

There are numerous federal criminal statutes that authorize a life imprisonment sentence to be imposed as the maximum sentence. The most commonly used of these statutes involve drug trafficking, racketeering, and firearms crimes. Additionally, there are at least 45 statutes that require a life sentence to be imposed as the minimum penalty. These mandatory minimum penalties generally are required in cases involving the killing of a federal official or other government employee, piracy, or repeat offenses involving drug trafficking or weapons. In fiscal year 2013, 64 of the 153 offenders who received a sentence of life imprisonment were subject to a mandatory minimum penalty requiring the court to impose that sentence.

February 26, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, February 25, 2015

SCOTUS in Yates rejects broad interpretation of federal criminal statute via fascinating 5-4 split (with Justice Alito as swing vote)!!

Download (5)I often tell students that one of many reasons I find sentencing and related criminal justice issues so fascinating is because truly hard and interesting Supreme Court cases will rarely be resolved via the traditional (and traditionally boring) political splits among the Justices.  This reality is dramatically and uniquely on display this morning thanks to a ruling for a federal criminal defendant today in Yates v. United States, No. 13-7451 (S. Ct. Feb. 25, 2015) (available here).  Yates has produced this remarkable and unprecedented combination of opinions and votes:

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

Here are some money quotes from the start of the plurality opinion authored by Justice Ginsburg:

John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico.  To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U. S. C. §1519...

Yates does not contest his conviction for violating §2232(a), but he maintains that fish are not trapped within the term “tangible object,” as that term is used in §1519.

Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction.  But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.  Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.

And here are excerpts from the close of the dissenting opinion authored by Justice Kagan:

If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. See ante, at 17–18. Section 1519, the plurality objects, would then “expose[] individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” Ante, at 18. That brings to the surface the real issue: overcriminalization and excessive punishment in the U. S. Code.

Now as to this statute, I think the plurality somewhat — though only somewhat — exaggerates the matter. The plurality omits from its description of §1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting §1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor.... Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.  And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.”  Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta.  But we are not entitled to replace the statute Congress enacted with an alternative of our own design.

Great stuff here (including a cite by Justice Kagan to the esteemed source pictured above).  And surely not to be overlooked is the remarkable reality that Justice Alito, who has a history of almost always backing prosecutors in close cases, turned out in Yates to the be key vote (and author of the actual controlling opinion) for a federal criminal defendant.  

Amazing stuff... and I hope some future law review article on Yates considers a title like "One Justice, Two Justice, Red Justice, Blue Justice: What Congress Should Learn from Dr. Seuss about Writing Statutes."  

February 25, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration"

The title of this post is the title of this notable new article by William Berry II now available via SSRN. Here is the abstract:

The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments.  The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.

The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race.  Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.

To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation.  Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures.  This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules.  Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.

Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences.  Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues.  The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.

February 25, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 24, 2015

"Can prisons predict which inmates will commit more crimes?"

The question in the title of this post is part of the headline of this new lengthy AP article, which follows with the headline "States trying secretive, psychological assessments."  Here are excerpts from the piece:

States are trying to reduce prison populations with secretive, new psychological assessments to predict which inmates will commit future crimes and who might be safe to release, despite serious problems and high-profile failures, an Associated Press investigation found.

These programs are part of a national, data-driven movement to drive down prison populations, reduce recidivism and save billions. They include questionnaires often with more than 100 questions about an offender's education, family, income, job status, history of moving, parents' arrest history — or whether he or she has a phone.  A score is affixed to each answer and the result helps shape how the offender will be supervised in the system — or released from custody.

Used for crimes ranging from petty thievery to serial murders, these questionnaires come with their own set of risks, according to the AP's examination.  Many rely on criminals to tell the truth, and jurisdictions don't always check to make sure the answers are accurate. They are used inconsistently across the country, sometimes within the same jurisdiction. The same defendant might be scored differently in the same crime.

Supporters cite some research, such as a 1987 Rand Corp. study that said the surveys accurately can predict the likelihood of repeat offenses as much as 70 percent of the time if they are used correctly.  But even the Rand study, one of the seminal pieces of research on the subject, was skeptical of the surveys' overall effectiveness.  It's nearly impossible to measure the surveys' impact on recidivism because they are only part of broader efforts.

Some surveys have the potential to punish people for being poor or uneducated by attaching a lower risk to those who have steady work and high levels of education.  The surveys are clouded in secrecy.  Some states never release the evaluations, shielding government officials from being held accountable for decisions that affect public safety.

"It is a vast improvement over the decision-making process of 20, 30 years ago when parole boards and the courts didn't have any statistical information to base their decisions on," said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, which is working with the Justice Department to shape reforms nationally....

The Justice Department's position on the surveys is inconsistent. On one hand, the department is helping bankroll this movement by providing millions of dollars to help states develop and roll out new policies.  Yet it's also putting on the brakes and is reluctant to use them for the federal prison population.

"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct," Attorney General Eric Holder told the National Association of Criminal Defense Lawyers in August.  "They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."

Cost savings, however, make these tools appealing to states. North Carolina, for instance, could save $560 million by 2017, a Justice Department report concluded.  Between 2011 and 2014, the North Carolina prison population decreased by more than 3,000 people, according to the state.  These reforms, including the use of risk assessments, has saved the state nearly $84 million, and it plans to route $32 million of those savings for community treatment programs.

February 24, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0) | TrackBack

Monday, February 23, 2015

"What rights do felons have over their surrendered firearms?"

The question in the title of this post is the substance of the title of this helpful SCOTUS argument preview of Henderson v. US authored by Richard Re over at SCOTUSblog.  Here are excerpts which highlight why I think of Henderson as an interesting and dynamic sentencing case:

Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?

The petitioner, Tony Henderson, was a Border Patrol agent convicted of distributing marijuana, a felony offense. Shortly after being arrested in 2006, Henderson surrendered his personal collection of firearms and other weapons to federal agents as a condition of release during the pendency of his criminal case. According to Henderson, his weapons collection included valuable items that had long been in the family, as well as an “antique.” Moreover, the collection was and remains Henderson’s lawful property. So, starting in 2008, Henderson asked authorities to transfer his weapons collection to someone else. But prosecutors and courts alike declined. Understandably enough, Henderson didn’t want his collection to escheat to the government like so much feudal property. So he’s pressed his rights to the Supreme Court.

The legal issues start with a conflict between a procedural rule and a federal statute. Under Federal Rule of Criminal Procedure 41, the government usually has to “return” a defendant’s lawful property. But that can’t happen in Henderson’s case because a federal criminal law (18 U.S.C. § 922(g)(1)) prohibits convicted felons, including Henderson, from possessing firearms. So if Rule 41 were allowed to operate according to its terms, Henderson would instantly be in violation of Section 922(g)(1). The courts below recognized that result as contrary to federal law and policy. (In a footnote in its merits brief, the federal government acknowledges that some of Henderson’s long-withheld weapons collection actually doesn’t consist of firearms at all. The government accordingly assures the Court that the “FBI is making the necessary arrangements to return the crossbow and the muzzle-loading rifle to petitioner.”)

To get around Section 922(g)(1), Henderson asked the government to transfer his firearms to third parties who are permitted to possess such items – specifically, either his wife or a friend who had promised to pay for them. Those proposed transfers, Henderson points out, wouldn’t result in his own possession of the firearms. And, critically, the proposed transfers would honor Henderson’s continued ownership of the weapons.... While Rule 41 by its terms may authorize only the “return” of property, Henderson argues that the federal district courts have “equitable” authority to direct transfers to third parties....

Without questioning that federal equitable authority operates in this area, the courts below apparently rejected Henderson’s transfer request in part based on the ancient rule of “unclean hands.” Under this venerable maxim, a wrongdoer (whose hands are figuratively dirty) may not seek relief at equity in connection with his own wrongful act. Based on a broad view of that precept, the courts below seemed to say that convicted felons are categorically barred from equitable relief as to their government-held property. Henderson contends that this holding revives ancient principles of “outlawry,” whereby criminals lose the protection of the law, while also running afoul of the Due Process Clause, the Takings Clause, and other constitutional provisions. However, the Solicitor General disputes that the decision below actually rested on this ground and — more importantly — has declined to defend it.

Instead, the federal government defends the result below on the ground that Section 922(g)(1) should be read to prohibit not just felons’ actual possession of firearms, but also their “constructive possession” of such weapons. On this view, impermissible constructive possession occurs when a convicted felon can exert some control over the next physical possessor of a particular item of property. Thus, Henderson would exert constructive possession – barred by federal law – if he could direct the transfer of his firearms to any particular person, including his wife or friend. Such direction, the government contends, would also create an unacceptable risk of letting the firearm find its way back to the felon. A permissible approach, in the government’s opinion, would be for it to transfer weapons to a licensed firearms dealer for sale, with proceeds going to the convicted felon.

Having gotten the federal government to endorse some remedial third-party transfers – a significant development in itself – Henderson asks why a convicted felon can’t at least nominate specific third parties, like a museum or a relative, to receive previously surrendered firearms that double as historical artifacts or family heirlooms....

While the ultimate outcome may turn in part on case-specific facts, the case touches on a number of important public debates. This becomes most obvious when the parties peripherally joust over the Second Amendment. The case has also drawn a number of amici. For instance, the Institute for Justice connects the case to public debate over forfeitures by asserting an aged canon against such forfeitures. Meanwhile, the National Association of Criminal Defense Lawyers and the National Rifle Association of America respectively argue from the Excessive Fines Clause and, of course, the Second Amendment. The Brady Center to Prevent Gun Violence, the government’s only amicus, also joins issue.

February 23, 2015 in Fines, Restitution and Other Economic Sanctions, Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Senators respond to NY Times criticisms of their sentencing work

I noted and commented here last week on this New York Times editorial about on-going debates over proposed federal sentencing reforms.  Today, the New York Times reprints two letters from the Senators whose work was subject to the Times' criticisms under the headline "Sentencing Reform: 3 Senators Speak Out."  Here are excerpts:

JOHN CORNYN & SHELDON WHITEHOUSE:  “The Roadblock to Sentencing Reform” (editorial, Feb. 17) expressed concerns about our legislation to enable federal inmates to earn earlier release from prison if they complete programs proved to reduce the risk that they’ll commit future crimes.

You worry that our “risk assessment” tools could disproportionately help white prisoners over minorities. But states across the country have found that risk assessments typically lead to results that are fairer for all groups, including minorities.  You yourself wrote last year that data­-based risk-assessment tools have been used in “at least 15 states ...with good results” (editorial, Feb. 17, 2014).  And our bill would emphasize “dynamic” risk factors — things prisoners can change — so that all inmates can lower their risk of recidivism....

We agree that we should reform other aspects of our criminal justice system. But no one should minimize the importance of ending the cycle of recidivism, reducing prison costs and helping inmates succeed upon release.

----

CHUCK GRASSLEY:  I disagree with your editorial.  The reality is that reductions in federal mandatory minimum sentences are misguided.  These sentences are vital in obtaining the cooperation necessary to prosecute leaders in the drug trade. The so-­called Smarter Sentencing Act, sponsored by Senators Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would arbitrarily cut in half the mandatory minimum sentences for importing, manufacturing and distributing drugs like heroin, PCP, methamphetamine and cocaine. Enacting such a bill during a well­-documented heroin epidemic would be irresponsible.

Both the Drug Enforcement Administration and the United States attorney in Manhattan have warned that terrorist organizations are using the drug trade to fund their operations. Under Supreme Court rulings, mandatory minimum sentences are the only tool available to Congress to ensure that judges impose adequate and more uniform sentences.

According to the United States Sentencing Commission, unlike in the states, virtually no citizen is in federal prison for drug possession.  Because a “safety valve” eliminates mandatory minimums and lowers sentences for first-time offenders, most federal drug inmates are repeat offenders who did not respond to shorter sentences, and many have extensive criminal histories, including violence.

A few recent related posts on federal sentencing reform:

February 23, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 21, 2015

New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor

Images (2)As reported in this new Reuters piece, headlined "New Oregon Governor Kate Brown to extend death penalty moratorium," a change in leadership at the top of the executive branch in the Beaver State is apparently not going to bring any change to the state's current peculiar death penalty practices. Here are the details:

Oregon's new Democratic Governor Kate Brown said on Friday she planned to extend a moratorium on executions that her predecessor enacted in 2011, well before an influence-peddling scandal forced him from office earlier this week.

But like fellow Democrat John Kitzhaber, Brown stopped short of formally commuting death sentences for the 34 inmates currently awaiting execution in the state, which has executed only two people in the past half century, both in the 1990s.  “There needs to be a broader discussion about fixing the system," Brown said in her first press briefing since she took Oregon's helm on Wednesday.  "Until that discussion, I'm upholding the moratorium imposed by Kitzhaber.” 

In a major salvo in the nation's long-running battle over capital punishment, Kitzhaber imposed a blanket reprieve on all Oregon death row inmates in 2011, saying he believed the death penalty was morally wrong.  He had faced growing calls in the waning days of his administration to commute all Oregon death sentences to life in prison before leaving office following an ethics scandal over accusations his fiancée used her role in his office for personal gain.

But Kitzhaber, who has not been seen publicly since announcing his resignation last week, remained silent on that issue, although he did commute the prison sentence of a young man serving time for attempted murder in a non-capital case.

Brown, who had been Oregon's secretary of state before this week, said she met with Kitzhaber on Monday and he advised her of his legislative priorities and recommendations. In addition to her death penalty plans, Brown told reporters she supports raising the minimum wage, increasing transparency and improving access to public records. 

Four years seems to me like plenty of time for the policy-makers and the public in Oregon to have a "broader discussion about fixing the system" used for administering the death penalty in the state. Notably, since Kitzhaber put the moratorium in place, I believe the Oregon legislature has enacted other forms of sentencing reform dealing with prison sentences as well as significant state health-care reforms.  In addition, Oregon public policy groups placed on the ballot in both 2012 and 2014 significant legal reform intended to "fix" perceived problems with marijuana laws and policies in the state.  If the last four years (and a number of election cycles) have not provided sufficient time for Oregonians to have a "broader discussion about fixing the system," I have a hard time imagining that the next few years are likely to engender such a discussion.

In the end, I seriously doubt that the new Oregon governor (or many others in the state) are really looking forward to having a "broader discussion about fixing the system" used for administering the death penalty in the state.  Rather, I think this phrase was the one that the new gov thought would best allow her to duck a controversial, high-profile issue for the time being (and maybe even for the full duration of her term).  For a handful of advocates, death penalty policy and practices in any state are very important, but for most citizens and voters the death penalty is a high-salience but low-significance concern.  Keeping Kitzhaber's execution moratorium in place allows the new gov to focus on other issues without the distorting distractions that death penalty politics can often create.

Some recent related posts:

February 21, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

"Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecutions"

The title of this post is the title of this new paper by Michael Patrick Wilt now available via SSRN.  Here is the abstract:

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year.  However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures.  Specifically, do these agreements — which can often include hundreds of millions of dollars in penalties — follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations?

This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system.  The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines.  The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines.  The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

February 21, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, February 20, 2015

More from ACSBlog's "symposium on racial inequalities in the criminal justice system"

Last week in this post I noted that the ACSBlog  kicked off a "two-week symposium on racial inequalities in the criminal justice system" via this post titled "Pervasive Inequalities in the Criminal Justice System."   This week brought these additional published posts in this series, al of which should be of special interest to sentencing law and policy fans:

February 20, 2015 in Collateral consequences, Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"

Images (1)As reported in this local article, "Philadelphia District Attorney Seth Williams has sued Gov. Tom Wolf over the death penalty moratorium he imposed last week." Here the basics:

In a lawsuit filed Wednesday, Williams asks the state Supreme Court to rule Wolf's move a "lawless act," claiming the governor had no legal right to grant a reprieve to convicted murderer Terrance Williams....

The lawsuit filed by the city's Democratic district attorney is the second one the Democratic governor has faced since he was sworn in to office Jan. 20. The Republican-controlled Senate sued Wolf in Commonwealth Court over his decision to fire the executive director of the Open Records Office, which the Legislature created when it updated the state's Right-to-Know Law in 2008.

Wolf's death penalty moratorium, announced Friday, fulfilled a campaign promise. It was criticized by district attorneys, law enforcement and some lawmakers. Some religious leaders and other lawmakers praised it....

Wolf said he will grant a reprieve each time a death row inmate is scheduled for execution but keep the inmates' death sentences intact, which was what he did in the case of Terrance Williams. Williams was scheduled to be executed March 4 for the 1984 robbing and fatal tire-iron beating of another man in Philadelphia.

"The governor took the action to place a moratorium on the death penalty because Pennsylvania's capital punishment system is flawed — it's ineffective, expensive, and many times unjust," Wolf spokesman Jeff Sheridan said Wednesday. "As he stated Friday, the governor will wait for the report being produced by the bipartisan Pennsylvania Task Force and Advisory Commission on Capital Punishment, established by the state Senate, and the recommendations within the report are addressed satisfactorily."

Wolf was within his legal right to grant a reprieve under Article 4, Section 9 of the state constitution, Sheridan added. That section also gives the governor the power to commute sentences and issue pardons.

In his lawsuit, Williams says the governor can grant reprieves only as a temporary measure to allow a defendant to pursue "an available legal remedy." The governor cannot grant open-ended reprieves in cases where there are no legal questions surrounding guilt, the suit states. "Merely characterizing conduct by the governor as a reprieve does not make it so," Williams wrote, citing a successful 1994 lawsuit Northampton County District Attorney John Morganelli filed against Gov. Robert P. Casey to enforce the death penalty against Martin D. Appel and Josoph Henry....

"The scope of the reprieve power is not mysterious or vague, and it is limited," Williams' lawsuit states. "Unlike some states, Pennsylvania does not grant the governor an unlimited at-will power of clemency, without which it is not even possible to posit an arguable ability to impose a moratorium."

The filing by Philadelphia DA Williams, which is styled an&"Emergency Commonwealth Petition For Extraordinary Relief Under King's Bench Jurisdiction," was filed in the Supreme Court of Pennsylvania and is available at this link.  I find the filing quite effective and compelling, and I thought these passages were especially notable:

On February 13, 2015, the Governor issued a purported reprieve in connection with his publicly-announced assumption of a constitutionally-nonexistent power to declare a “moratorium” on death sentences in Pennsylvania.

This lawless act by the Governor, improperly and inaccurately characterized as a reprieve — for the act issued in this case is not, in fact, a reprieve — is not within the constitutional powers of the Governor, usurps judicial review of criminal judgments, and is in direct violation of his duty to faithfully execute Pennsylvania law under Article IV, § 2. It is unconstitutional, illegal, and should be declared null and void by this Court....

The alleged reprieve, which is not a reprieve at all, violates the constitutional separation of powers.  The constitution requires due process, not the Governor’s personal standard of absolute perfection; and the task of assuring that criminal judgments meet that correct standard is assigned to the judiciary, not the executive.Exercise, by another branch, of an extra-constitutional attempt to disturb settled judgments in criminal cases is an impermissible usurpation of the exclusive function of the judiciary....

In law and in reality, therefore, the Governor seeks to nullify valid, final judgments of sentence in usurpation of the judicial function, and seeks to subject the law governing capital sentencing to the test of his personal standard of satisfaction,which in this instance happens to be a test of infallibility that is impossible for mere mortals to satisfy. This is not permissible in a government that is founded on the principle that the people are to be ruled by laws enacted by their representatives in the legislative process, and not the personal whims of a king or dictator. The constitutional role of the Governor is to execute the law, not sabotage it.

February 20, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Virginia's former first lady facing sentencing after hubby got only two years

Today brings another high-profile white-collar sentencing in the federal court in Virginia as Maureen McDonnell, former first lady, is to come before the same judge who sentenced former Virginia Gov Robert McDonnell to two years' imprisonment last month. Helpfully, Randall Eliason at the Sidebars Legal Blog provides this preview, titled "What to Expect at Maureen McDonnell’s Sentencing." Randall provides this refined summary of the guideline basics and the parties' recommendations:

The Presentence Report prepared by the U.S. Probation Department concludes that the Sentencing Guidelines call for a sentence of 63-78 months in prison. The prosecution agrees with those calculations but recommends the judge sentence her to only 18 months in prison to avoid an unwarranted disparity between her sentence and that of her husband. Mrs. McDonnell’s attorneys argue that, properly calculated, the Sentencing Guidelines call for only 33-41 months, but urge the judge to depart even further from the Guidelines and sentence her to probation along with 4000 hours of community service.

In addition, the Washington Post has this article headlined "Everything you need to know about Maureen McDonnell’s sentencing." But that piece does not set out these guideline basics, so the headline is not accurate for hard-core federal sentencing geeks like me.

UPDATE:  As this Washington Post piece reports, "Maureen McDonnell was sentenced Friday to a year and a day in federal prison after an emotional, hours-long hearing in which the former first lady of Virginia apologized publicly for the first time since she and her husband were accused of public corruption."

As all competent federal sentencing lawyers know, a sentence of a year and a day for the former first lady is actually better than a sentence of one year. That extra day makes her formally eligible to earn good-time credit, which nearly all non-violent offenders earn. So, practically, Ms. McDonnell is now likely to be released from federal custody after only 10.5 months in the federal graybar hotel.

February 20, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack

Thursday, February 19, 2015

"Parole Release Hearings: The Fallacy of Discretion"

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

Despite nearly every U.S. state having created a parole system, incarcerated offenders do not have a constitutional right to early release on parole, and parole hearings do not automatically invoke due process.  The resultant discretion afforded to parole decision-makers, coupled with the administrative regime’s relaxed evidentiary standards, risks erroneous, vindictive, or politically motivated information tainting release decisions. Louisiana, the world’s prison capital, has recently initiated parole reforms that may provide a model for reforms nationally.  This article details the evolution of Louisiana’s parole release structures, highlights problems with discretionary parole-release decision-making, and proposes Louisiana pilot reforms that may transfer to parole release systems in the United States. 

February 19, 2015 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

The back-story of George Toca's case (and its impact on other juve LWOPers)

George TocaThis new Bloomberg article authored by by Matt Stroud provides an interesting account of the stories behind what was, until it was settled a few weeks ago, the case the Supreme Court had planned to use to resolve the retroactive application of its Miller Eighth Amendment ruling. The piece is headlined "Prisoners Sentenced to Life as Kids Just Lost Their Best Chance for Freedom: How the criminal justice system failed George Toca — and 1,500 others like him," and it is a must-read and a must-watch based on the video linked to the story. Here are excerpts:

In 1984, when Toca was 17, he was charged with accidentally shooting and killing his best friend, Eric Batiste, during a failed carjacking.  Victims picked him out of lineups, despite initial statements to police describing an older, heavier shooter who was at least five inches taller than Toca and who did not have four gleaming gold caps on his top front teeth.

Largely on the basis of eyewitness testimony, Toca was convicted of second-degree murder in 1985 and given a mandatory sentence of life in prison without the possibility of parole. He has spent most of the last 31 years in Louisiana’s notorious Angola state penitentiary....

Toca has had an interesting winter.  In addition to denying responsibility for his friend’s killing — and working with lawyers at the Innocence Project New Orleans since 2003 to prove his case — Toca appealed to be resentenced based on his age at the time of the alleged crime. The U.S. Supreme Court selects less than 2 percent of the cases presented to it. In December, it agreed to hear Toca’s appeal....

[I]n 2012, in Miller v. Alabama, the court ruled that a mandatory sentence of life without parole, handed down in 29 states’ murder cases as well as those in federal court, is unconstitutional for offenders younger than 18.  The decision left a question on the table: What about those who had already been convicted?  Should they be resentenced?

Some states have said that all juveniles sentenced to mandatory life without parole should have a new sentencing hearing. Others — Louisiana, Pennsylvania, Michigan, and Minnesota — have decided against retroactivity.  The exact numbers are in dispute, but according to figures from Human Rights Watch and estimates from the Juvenile Law Center in Philadelphia, that means about 1,500 sentences nationwide hang in the balance.  By agreeing to hear and decide Toca’s appeal, the Supreme Court planned to end the uncertainty of those cases.

But in the weeks after the court agreed to hear the case, Toca was approached by Orleans Parish District Attorney Leon Cannizzaro with a tempting offer.  Toca had long maintained his innocence in the shooting, but now the D.A. had a deal for him. If he signed a plea agreement admitting to armed robbery, Cannizzaro would drop the original conviction and Toca would be paroled immediately....

Since he agreed to a plea deal, though, the Supreme Court dismissed his case and he is no longer standing in for 1,500 juvenile lifers like him in front of the nation’s highest court.

For those who believe juveniles sentenced to life behind bars should be forced to spend their lives there, Toca’s release is actually good news.  “This shows me that the system works,” said Bobbi Jamriska, whose pregnant sister was brutally beaten and stabbed to death in 1993 by a 16-year-old in suburban Pittsburgh.  “They went back and they questioned his case and raised their concerns, and [Toca] ended up being let out of jail.”

Jamriska has fought hard to keep both the death penalty and life without parole on the table for juvenile offenders.  As Pennsylvania director of the National Organization of Victims of Juvenile Murderers, she said her organization didn’t want Toca’s case in front of the Supreme Court anyway.  His case is “an extreme,” she said. “Even the victim’s family is saying, ‘Get him out of jail,’ ” Jamriska said.  “We’d prefer to have a case that’s more representative of some of the horrific crimes juveniles commit.”...

Will the Supreme Court [take up] another [case]?  Marsha Levick, deputy director and chief counsel of the Juvenile Law Center in Philadelphia, believes it will.  At least five cases —three in Louisiana, two in Michigan — have been sent for Supreme Court review and could replace Toca’s, but not until the next term at the earliest. That's in October.

Levick doesn’t blame Toca for his decision. “First and foremost, good for him,” she said. “I don’t think anybody who has been waiting for the retroactivity issue to be ruled upon would in any way question the decision that George Toca made. How could he not walk out of prison after 30 years?” For the other juvenile lifers nationwide, “obviously it was disappointing,” she said. “They’re still waiting, just as they have been for 30, 40, 50 years. And they think it’s time for them to get out as well.”

Toca hopes they do, too. Sitting outside with the sun shining above him, he looked down and offered an apology. “I know they was really relying on my case to get the retroactivity of the Miller case resolved,” he said. “All I can say is, I’m sorry that I let ’em down. This was all I could do.”

February 19, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 18, 2015

"The Divisibility of Crime"

The title of this post is the title of this notable new article by Jessica Roth discussing some of the Supreme Court's recent Armed Career Criminal Act jurisprudence.  Here is the abstract:

Near the end of the Supreme Court’s 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies.  Descamps represents the Court’s most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction “counts” for purposes of applying the ACCA and other sentencing enhancements and for determining the immigration consequences of prior convictions. This Essay is the first scholarly work to track the immediate effects of Descamps and to explore its implications for the criminal law more broadly. It shows that the decision is indeed having a significant effect on criminal sentencing, resulting in a steady flow of sentencing reversals and prospectively narrowing the class of defendants eligible for sentencing enhancements based on prior convictions. But more broadly, Descamps has called attention to the statutory specificity that legislators are capable of and the adjudicative clarity that courts can promote, if there are incentives for doing so. Until now, the Court has done little to encourage either. Thus, the opinion may push courts and legislators to think more carefully and systematically about what facts must be established to constitute a particular criminal offense, how such facts are established and recorded in the context of an adjudicative proceeding, and the consequences that flow from greater or lesser specificity. Ultimately, this impact may be felt not only in the context of applying recidivist statutes and sentencing enhancements, but also in other contexts that require attention to the basis for a criminal conviction, including the doctrine governing what constituent facts of a crime require jury unanimity and claims under the Double Jeopardy Clause.

February 18, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable

Regular readers who follow federal sentencing in child porn cases likely recall that the Sixth Circuit and an Ohio-based federal district judge got into a sentencing tug-of-war over the sentencing of child porn downloader Richard Bistline not long ago.  And even irregular readers should know that circuits, if they stick with it, will always win these kinds wars.  More proof of that reality come from another similar Sixth Circuit case decided today, US v. Robinson, No. 13-230806 (6th Cir. Feb. 18, 2015) (available here), which starts this way: 

The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  Defendant’s previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (“Robinson I”).  On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served.  The district court also lengthened the period of supervised release and imposed additional conditions of release.  The government’s second appeal raises the question of whether this second sentence is substantively reasonable.

For the reasons set forth below, we VACATE Defendant’s sentence and REMAND the case for reassignment and resentencing. 

Prior related posts concerning similar case:

February 18, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, February 17, 2015

Florida Supreme Court stays lethal injection pending SCOTUS case, and AG Holder urges national execution halt

As reported in this Reuters piece, "Florida’s highest court put executions on hold Tuesday while the U.S. Supreme Court decides whether use of a controversial general anesthetic constitutes “cruel and unusual” punishment of condemned killers." Here is more:

The state Supreme Court stopped the execution of Jerry William Correll next week because the Supreme Court recently agreed to hear a challenge some Oklahoma inmates brought against use of midazolam hydrochloride as the first of three drugs used in lethal injections. Florida uses essentially the same formula, the court said in a 5-2 ruling.

The state switched to midazolam as an anesthetic in 2013 when some foreign drug manufacturers quit supplying other drugs previously used in executions. The Department of Corrections said 11 lethal injections have been carried out with midazolam in Florida since then. Florida courts have approved midazolam, but the nation’s highest court agreed Jan. 23 to hear an appeal by 21 Oklahoma inmates in a case citing prolonged executions and signs of pain reported in that state, Arizona and Ohio.

Chief Justice Jorge Labarga wrote that if the nation’s highest court rules in favor of the prisoners, “then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continued viability.”

Justices Charles Canady and Ricky Polston dissented, saying Florida should proceed with Correll’s execution unless the U.S. Supreme Court stays it. Canady wrote that a stay in another state does not automatically require one in Florida, and that agreeing to review Oklahoma’s use of the drug means the justices will forbid it.

Meanwhile, as reported in this piece in The Hill, US Attorney General Eric Holder suggested today that all states ought to follow Florida's lead while the Supreme Court lethal injection case is pending:

Attorney General Eric Holder called Tuesday for a national moratorium on the death penalty until the Supreme Court weighs in on the issue later this year...

Late last month, the Supreme Court agreed to hear an appeal the from death row inmates in Oklahoma who are challenging the state’s procedures for lethal injections. "I think a moratorium until the Supreme Court makes that decision would be appropriate," Holder said.

February 17, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

AG Holder brags about achievements of DOJ's Smart on Crime initiative

The Department of Justice has just made available these two notable items:

I view both of these documents to be must-reads for any and all sentencing fans, and I will here highlight the data reported by AG Holder in his speech that strike me as most intriguing, as well as the AG's closing policy pitch:

In the year before our Smart on Crime charging policy took effect, roughly 64 percent of federally-charged drug trafficking offenses carried a mandatory minimum sentence. Last year, the new policy brought that number down to approximately 51 percent — a reduction of 20 percent relative to the prior year.  Put another way, we have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two.  That’s a major reduction.  In fact, it is historic.  The Sentencing Commission confirms that these numbers show that federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record....

Even though mandatory minimums have been charged significantly less frequently under our new policies, the percentage of cases in which we receive substantial cooperation from defendants has remained exactly the same.  This also holds true of the ability of our prosecutors to secure guilty pleas in these cases. In the year before Smart on Crime took effect, our prosecutors won guilty pleas in approximately 97 percent of drug trafficking cases.  A year later, despite significant reductions in our uses of mandatory minimums, this percentage stands at 97.5.  So the notion that the Smart on Crime initiative has somehow robbed us of an essential tool is contradicted not only by our history – but by clear and objective facts....

The work we have done is nothing short of groundbreaking.  But this is no time to rest on our laurels. Significant challenges remain before us.  And a great deal of work remains to be done.

Our prisons are still overcrowded.  Across the country, far too many people remain trapped in cycles of poverty, criminality, and incarceration.  Unwarranted disparities are far too common. Law enforcement is distrusted in far too many places and cops are not appreciated for the tough job they do so well.  And if we hope to build on the record we’ve established so far — and to make the Smart on Crime initiative not only successful, but permanent — it will be incumbent upon all Americans — most especially our Congress — to work together to ensure that all of this is just the beginning. From critical improvements to the juvenile justice system, to a range of back-end criminal justice reforms, we must continue to advance promising, bipartisan legislation to make our communities safer, treat individuals more justly and allow more efficient use of law enforcement resources.

Our efforts over the last six years have laid a strong foundation for a new era of American justice. Congress can help us build on this foundation by passing important, bipartisan legislation like the Smarter Sentencing Act, which would give judges more discretion in determining sentences for people convicted of certain federal drug crimes. And going forward – with measures like this one, and with the tireless work of our United States Attorneys and their colleagues, the strong leadership of our outstanding new Attorney General and Deputy Attorney General, and the robust engagement of the American people – I believe there’s good reason for confidence in where this work will lead us.

February 17, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Would you urge out-going (and apparently corrupt) Oregon Gov Kitzhaber to commute all death sentences?

The question in the title of this post is prompted by this notable new commentary authored by Frank Thompson, a retired assistant director of institutions and superintendent of the Oregon State Penitentiary.  Here are excerpts:

I know what it is like to execute someone. I am a retired prison superintendent who conducted the only two executions that have taken place in Oregon in the past 53 years.

The death penalty in Oregon comes at a high cost to our state in both human and fiscal resources.  I call on Gov. Kitzhaber to convert 35 death sentences to life without the possibility of release before he leaves office at mid-morning on Wednesday.

Based on my experiences as a correctional professional, capital punishment is a failed public policy — especially in Oregon where we have funded a death penalty system for over 30 years, yet only put to death two inmates who volunteered themselves for execution by abandoning their appeals. No other corrections program exemplifies such a complete failure rate.

During my more than two decades of running correctional facilities, I saw the population of those who are capable of extreme violence up close. I have no doubts at all that these offenders did not think about the death penalty for one second before committing their violent acts. Instead, research has been shown that public safety is greatly improved when our limited tax dollars are redirected to law enforcement agencies to solve cases and prevent crimes.

I understand exactly what is being asked of public employees whose jobs include carrying out the lawful orders of the judiciary to end another person's life.  The burden weighs especially heavily on my conscience because I know firsthand that the death penalty is not applied fairly or equally in Oregon.  I have known hundreds of inmates who are guilty of similar crimes yet did not get the death penalty because they reached a plea bargain of life without parole simply because they had the means for professional legal assistance.

I also understand, from my experiences in corrections, the potential awful and lifelong repercussions that can come from participating in the execution of prisoners.  Living with the nightmares is something that some of us experience.  This is particularly the case with those of us who have had more hands-on experience with the flawed capital punishment process, and/or where an execution under our supervision did not go smoothly.

I am never troubled when people make a forceful argument that "capital punishment is a failed public policy."  But I find it troubling that this argument is being made now to a disgraced (apparently corrupt) out-going governor rather than to the new incoming governor and other public-policy officials who are going to be staying in their jobs and would need to deal with the administrative and political implications and consequences of their actions.

Notably, it is not just Oregonians urging out-going Gov Kitzhaber to clear the state's death row.  Professors Charles Ogletree and Rob Smith have this new Huffington Post commentary headlined "Gov. Kitzhaber: Your Job Is Not Yet Done." here is how it concludes:

Governor Kitzhaber declared a moratorium on the death penalty back in 2011. He labeled the State's practice of imposing death sentences "neither fair nor just" and concluded that a "compromised and inequitable" capital punishment system is not befitting of Oregon. Nothing has changed and nothing will: the death penalty in Oregon is too broken to fix.

In his resignation letter, Governor Kitzhaber told us that he was proud to not have presided over any executions. Yet, as Governor, he presided over a state that has sentenced people to death under the same unjust system that led him to impose the moratorium. The Governor has the power to leave the troubled history of this disreputable death penalty system in Oregon's rearview mirror; and doing so would enhance the integrity of the criminal justice system without compromising public safety.

Governor Kitzhaber: You lit the torch in 2011; and now, in these few remaining hours, please carry that torch across the finish line.

February 17, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another

This lengthy new New York Times editorial spotlights and laments that one powerful Senator now appears to be the main impediment to federal sentencing reform moving forward in Congress.  Here are excerpts:  

For more than a year, members of Congress have been doing a lot of talking about the need to broadly reform harsh federal sentencing laws, which are a central factor in the explosion of the federal prison population.  It’s an overdue conversation, and one of the few in which Democrats and Republicans find some agreement — but, so far, they have nothing to show for it.

In the last session, senators introduced three bipartisan bills.  Two proposed “front end” reforms, like reducing or eliminating ridiculously long mandatory minimum sentences for some drug crimes.  The other focused on “back end” fixes, like increasing opportunities for good-­time credit to allow certain prisoners early release.

None of the bills got anywhere, but it was encouraging to see all three reintroduced in the new Republican­-led Senate. At least it was until they ran into a roadblock in the shape of Senator Charles Grassley, Republican of Iowa.  Mr. Grassley, the chairman of the Judiciary Committee, wields great power over any sentencing legislation....

Mr. Grassley, for reasons that defy basic fairness and empirical data, has remained an opponent of almost any reduction of those sentences.  In a speech from the Senate floor this month, he called the bills “lenient and, frankly, dangerous,” and he raised the specter of high-­level drug traffickers spilling onto the streets.

Mr. Grassley is as mistaken as he is powerful.  Mandatory minimums have, in fact, been used to punish many lower­-level offenders who were not their intended targets. Meanwhile, the persistent fantasy that locking up more people leads to less crime continues to be debunked.  States from California to New York to Texas have reduced prison populations and crime rates at the same time. A report released last week by the Brennan Center for Justice found that since 2000 putting more people behind bars has had essentially no effect on the national crime rate.

The bill that appears to have the best chance of passing anytime soon is known as the Corrections Act — that’s actually a sprawling acronym for Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System. Co­sponsored by Senator John Cornyn, Republican of Texas, and Senator Sheldon Whitehouse, Democrat of Rhode Island, the bill’s name is more ambitious than its goals, which include giving a narrow group of inmates the chance to participate in educational and other programs in exchange for earlier release. (The bill authorizes no financing for these programs, relying instead on, among other things, the volunteer efforts of faith­-based groups.)

Rehabilitation is a laudable aim, and it should be a part of any sentencing reform package. But the Cornyn-­Whitehouse bill would exclude nearly half of all federal prisoners — in many cases without any evidence that they pose a greater risk to public safety.

The bill also relies on an inmate’s criminal history.  This is a legitimate measure when it is used with the awareness that law enforcement disproportionately targets minorities. The danger is that white-­collar prisoners, who are most often white, will receive the law’s benefits, while, say, drug offenders, who are disproportionately African­-American, will be left out.

Finally, the bill pushes the use of data­-based risk­-assessment tools, which sound smart but again — because they rely on factors like a person’s employment history, neighborhood and education level — often have racially disproportionate effects....

Sentencing reform is a big and complicated issue, and may take some time to get right.  It would be a mistake to pass an incomplete bill and pretend that the hard work of reform is done.

Though I obviously laud the New York Times editorial board for complaining about a "roadblock" to reform created by Senator Grassley, I am troubled that this editorial goes on to create some more hurdles of its own through its (somewhat chaotic) criticisms of the Corrections Act. Every possible sentencing reform bill is sure to be an "incomplete bill" from somebody's perspective, but that should never serve alone as a reason to stall any needed reforms. The Fair Sentencing Act passed in 2010 was incomplete for only partially reducing the crack/powder disparity and for failing to make its reforms retroactive. But that reform still achieved a lot even though it did not achieve enough. Same goes, in my opinion, for all the sentencing reform bills now making the rounds.

Moreover, as a matter of substance, this editorial hammers Senator Grassley for defiance of empirical data, but that assails the Corrections Act for incorporating "data­-based risk­-assessment tools" and criminal history in its structures for back-end reform.  I fear the NYT editorial board wants policy-makers to be concerned only with the public safety data that it likes and to ignore the public-safety data that might undermine the Grey Lady's own mysterious sense of "fairness."  In this way, this editorial provides still more support for roadblocks to reform because any and everyone concerned about any part of the reform bills are encouraged to let their vision of the best reforms serve as an enemy and hurdle for any and all good and needed reforms.  

February 17, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, February 16, 2015

Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences

As reported in this AP piece, headlined "Federal prosecutors want same sentences in Amish beard-cutting case when they are resentenced," the feds are claiming that the reversal on appeal of the most-serious charges against a group of Amish defendants (details here) should not impact their sentence one whit.  Here are the details:

Sixteen Amish men and women whose hate crime convictions in beard- and hair-cutting attacks were overturned still should receive the same sentences, federal prosecutors told a judge who will resentence the group.

The members of the eastern Ohio Amish group are scheduled to be resentenced March 2 after the 6th U.S. Circuit Court of Appeals overturned only their hate crimes convictions. New sentences are required because the original sentences were based both on hate crimes convictions and convictions on other charges but did not differentiate between them.

The attacks were in apparent retaliation against Amish who had defied or denounced the authoritarian style of Sam Mullet Sr., leader of the Bergholz community in eastern Ohio. The U.S. Attorney's Office, in a court filing on Friday, said Mullet should be resentenced to 15 years for concealing evidence and making false statements to the FBI. Both of those charges were not overturned.

The other defendants should also be given the same lesser sentences. Those defendants who have already been released should be sentenced to time served, the prosecutors said.

Prosecutors argued that the conduct that led to the hate crime charges, which included kidnapping, should still be considered even if the defendants are no longer convicted of a hate crime.

Defense attorneys are expected to file their response next week.

I am neither surprised or troubled that the feds want the same sentences imposed on the less culpable defendants who have already finished serving their prison time. But I struggle to see how urging the same exact sentence for Sam Mullet Sr. despite reversal of the most serious convictions against him serves to "promote respect for the law" as 18 USC 3553(a)(2)(A) requires.

Related prior posts:

February 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, February 15, 2015

"Procedural Proportionality"

The title of this post is the title of this notable new paper by William Berry III now available via SSRN. Here is the abstract:

Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment.  Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.

Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases.  Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.

February 15, 2015 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 12, 2015

Spotlighting the administrative challenges posed by high-profile capital cases

This New York Times article, headlined "Jury Pool for Trial in Aurora Shooting Is Pressed on Death Penalty," highlights the various administrative difficulties a high-profile capital case formally gets underway in Colorado.  Here are excerpts:

Lawyers on Wednesday began questioning potential jurors for the trial of the man accused of killing 12 people and wounding 70 during a showing of a Batman film in a packed Colorado movie theater in 2012.

The defendant, James E. Holmes, has pleaded not guilty by reason of insanity, though his lawyers admit he was the gunman. The district attorney is seeking the death penalty, and prosecutors and defense lawyers focused most of their questioning on how prospective jurors feel about that sentence....

Officials sent jury summonses to 9,000 people here — a number that dwarfs even the 1,300 or so potential jurors who filled out questionnaires in the trial of the man accused in the Boston Marathon bombings. The pool of potential jurors has since been whittled to about 2,000. Questioning of those people is expected to take 16 weeks, during which the pool will be reduced to 120, who will receive further questioning, and finally to 12 jurors and 12 alternates.

The trial, to be held in this Denver suburb, could last from early spring to October, with testimony expected from police officers, crime scene experts, witnesses and mental health experts. The shooting took place July 20, 2012, at a movie theater in the Denver suburb of Aurora, where about 400 people were attending a screening of “The Dark Knight Rises.”... 

Two and a half years later, the effects of the massacre continue to ripple through the region, with victims and their families grappling with depression and post­traumatic stress disorder and divided over the prosecution’s decision to seek the death penalty. Some have argued that it is the only way to ensure justice; others have said it will cause years of appeals, an excruciating prospect for those seeking a degree of closure.

Recent and older related posts (with lots of comments):

February 12, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 11, 2015

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:

A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."

Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.

Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...

Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.

Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.

February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders.  Here is how the majority opinion concludes: 

We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution.  Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution.  We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.

Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:

When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....

The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.

 

Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.

February 11, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

"Incarceration’s Front Door: The Misuse of Jails in America"

Incarcerations-front-door-infographicThe title of this post is the title of this notable new report produced by the Vera Institute of Justice. This New York Times article, headlined "Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says," provides a helpful summary of and context for this report:

Jails across the country have become vast warehouses made up primarily of people too poor to post bail or too ill with mental health or drug problems to adequately care for themselves, according to a report issued Wednesday.

The study, “Incarceration’s Front Door: The Misuse of Jails in America,” found that the majority of those incarcerated in local and county jails are there for minor violations, including driving with suspended licenses, shoplifting or evading subway fares, and have been jailed for longer periods of time over the past 30 years because they are unable to pay court­imposed costs.

The report, by the Vera Institute of Justice, comes at a time of increased attention to mass incarceration policies that have swelled prison and jail populations around the country. This week in Missouri, where the fatal shooting of an unarmed black man by a white police officer stirred months of racial tension last year in the town of Ferguson, 15 people sued that city and another suburb, Jennings, alleging that the cities created an unconstitutional modern­day debtors’ prison, putting impoverished people behind bars in overcrowded, unlawful and unsanitary conditions.

While most reform efforts, including early releases and the elimination of some minimum mandatory sentences, have been focused on state and federal prisons, the report found that the disparate rules that apply to jails is also in need of reform.

“It’s an important moment to take a look at our use of jails,” said Nancy Fishman, the project director of the Vera Institute’s Center on Sentencing and Corrections and an author of the report. “It’s a huge burden on taxpayers, on our communities, and we need to decide if this is how we want to spend our resources.”

The number of people housed in jails on any given day in the country has increased from 224,000 in 1983 to 731,000 in 2013 — nearly equal to the population of Charlotte, N.C. — even as violent crime nationally has fallen by nearly 50 percent and property crime has dropped by more than 40 percent from its peak.

Inmates have subsequently been spending more time in jail awaiting trial, in part because of the growing reluctance of judges to free suspects on their own recognizance pending trial dates, which had once been common for minor offenses.  As a result, many of those accused of misdemeanors — who are often poor — are unable to pay bail as low as $500.

Timed with the release of the Vera Institute report, the MacArthur Foundation announced Wednesday that it would invest $75 million over five years in 20 jurisdictions that are seeking alternatives to sending large numbers of people to jail.  The jurisdictions, which could be cities, counties or other entities that run local jails, will be announced this spring.  Nationwide, the annual number of jail admissions is 19 times higher than the number of those sent to prison, and has nearly doubled since 1983, from about 6 million to 11.7 million. A significant number are repeat offenders, the report said.

Via this link, the Vera Institute has available the full Incarceration’s Front Door report, a helpful summary and the infographic I have tried to reproduce here.

February 11, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, February 10, 2015

Two notable Second Circuit opinions upholding aggravated sentencing decisions

A helpful reader alerted me to two Second Circuit sentencing decisions handed down this morning. Though neither seems all that ground-breaking, both still strike me a blogworthy.  Here are links to the rulings along with an excerpt from the start of the opinions:

United States v. Morrison, No. 14-485 (2d Cir. Feb. 10, 2015) (available here):

Defendant-Appellant Shane Morrison appeals from a February 6, 2014 judgment of the United States District Court for the Eastern District of New York (Wexler, J.) sentencing Morrison to, inter alia, eighteen months’ imprisonment following his guilty plea to one count of conspiracy to distribute cocaine.  Morrison argues that 18 U.S.C. § 3153(c) bars the district court’s reliance on positive results on drug tests administered by the Pretrial Services Agency (“pretrial services”) to enhance his term of imprisonment.  Because the district court did not violate § 3153(c) by relying on the information from pretrial services in determining Morrison’s sentence, we affirm the judgment.

United States v. Cramer, No. 14-761 (2d Cir. Feb. 10, 2015) (available here):

Defendant Thomas Cramer appeals from a judgment of conviction and sentence of 360 months’ imprisonment and 15 years of supervised release, entered on February 21, 2014 by the U.S. District Court for the Western District of New York (Geraci, J.), following his guilty plea to four counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). On appeal, Cramer argues that his sentence was procedurally unreasonable because he received a two-point enhancement under U.S. Sentencing Guidelines Manual  section 2G1.3(b)(3) for use of a computer in the commission of the crimes.  This case presents two issues of first impression in this Circuit: First, does the computer-use enhancement under Guidelines subsection 2G1.3(b)(3)(A) apply to a defendant who begins communicating and establishing a relationship with a minor by computer, but then entices the victim through other modes of communication? Second, is Application Note 4 to Guidelines section 2G1.3 plainly inconsistent with subsection 2G1.3(b)(3)(B) and therefore inapplicable to that subsection? We answer both questions in the affirmative.

February 10, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack