Thursday, August 04, 2016
State public defender, lamenting funding issues, appoints Mizzou Gov to represent indigent defendant
As reported in this local article, headlined "Missouri's head public defender assigns case to Gov. Nixon, cites overburdened staff," Missouri's head public defender as ordered the state's Governor to put his mouth where his money isn't. Here are the details and context:
Fed up with what he says is the governor’s failure to properly fund his overwhelmed office, the state’s lead public defender ordered Gov. Jay Nixon this week to represent a poor person in Cole County this month. Michael Barrett said he was using a provision of state law that allows him in extraordinary circumstances to delegate legal representation “to any member of the state bar of Missouri.” He’s starting with the state’s highest-profile lawyer: Nixon.
Barrett says the governor has repeatedly declined to give the public defender system the money it requests and is withholding promised funding increases this year. “Providing counsel to poor people who face incarceration is the obligation of the state. It’s not fair to go after private attorneys who are trying to pay the rent when they had nothing to do with contributing to this,” Barrett said in an interview Wednesday.
Barrett never exercised this power before because he thought it was wrong to place the burden of public cases on private attorneys “who have in no way contributed to the current crisis,” he wrote in a letter to the governor dated Tuesday. “However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it,” Barrett wrote, referring to Nixon, a Democrat who was a four-term attorney general before becoming governor.
Studies have found that the Missouri Public Defender System lacks the resources or staff to serve the state’s neediest. The system has struggled with high caseloads, high turnover, low salaries and tired, overworked attorneys for years. The Missouri constitution allows the director of the public defender system to assign cases to any lawyer in the state, regardless of whether the lawyer is a public defender, Barrett said.
Just this June, the legislature granted the public defender system a $4.5 million increase, which would’ve helped in hiring 10 more employees and some private attorneys on a contractual basis. The office currently employs more than 370 attorneys. Officials with the public defender’s office had asked for a $23.1 million boost, while Nixon recommended a $1 million increase.
Last month, Barrett and the Missouri State Public Defender Commission filed a lawsuit claiming that Nixon withheld $3.5 million of that $4.5 million increase. Barrett claims Nixon is targeting the public defender system for budget cuts while leaving more money for other programs he likes. Nixon’s office could not be immediately reached for comment Wednesday night.
A 2014 study found that the state’s public defender system needs almost 270 more attorneys to meet its current case volume, which fluctuates between 70,000 and 100,000 cases every year. In 2009, Missouri’s was the second-lowest-funded public defender system in the country. Now, Barrett says that he has even fewer lawyers than when that study was done. He’s lost 30 lawyers because he doesn’t have the money to hire replacements as employees leave for private law firms. Meanwhile, the system’s caseload has gone up 12 percent over the past year to about 82,000 cases, Barrett said. Each of his lawyers has to handle 125 to more than 200 cases at a time.
The full letter that the state public defender wrote to Gov Nixon when appointing him is available at this link.
Tuesday, August 02, 2016
In wake of Hurst, Delaware Supreme Court declares state's death penalty unconstitutional
The post-Hurst hydra took an especially big bite out the the death penalty in the First State this afternoon: as reported in this local article, via "a landmark decision, the Delaware Supreme Court has ruled that the state's death penalty statute is unconstitutional." Here are the basics:
A 148-page opinion released Tuesday afternoon said that the current law is a violation of the Sixth Amendment role of the jury. The decision of whether and how to reinstate the death penalty should now be left to the General Assembly, the opinion said.
The question before the top state court arose after the U.S. Supreme Court found in January that Florida's death penalty law was unconstitutional because it gave judges – not juries – the final say to impose a death sentence. Delaware and Alabama are the only other states that allow judges to override a jury's recommendation of life....
The last execution in the state was in 2012, when Shannon Johnson, 28, was killed by lethal injection. All pending capital murder trials and executions for the 14 men on death row are currently on hold while the court considered the constitutionality issue.
The full 148-page opinion in Rauf v. Delaware is available at this link. A brief per curiam summary kicks off the opinion, starting this way:
The State has charged the Defendant, Benjamin Rauf with one count of First Degree Intentional Murder, one count of First Degree Felony Murder, Possession of a Firearm During those Felonies, and First Degree Robbery. The State has expressed its intention to seek the death penalty if Rauf is convicted on either of the First Degree Murder counts. On January 12, 2016, the United States Supreme Court held in Hurst v. Florida that Florida‘s capital sentencing scheme was unconstitutional because "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." On January 25, 2016, the Superior Court certified five questions of law to this Court for disposition in accordance with Supreme Court Rule 41. On January 28, 2016, this Court accepted revised versions of the questions certified by the Superior Court and designated Rauf as the appellant and the State as the appellee.
In this case, we are asked to address important questions regarding the constitutionality of our state‘s death penalty statute. The Superior Court believed that Hurst reflected an evolution of the law that raised serious questions about the continuing validity of Delaware‘s death penalty statute. Specifically, Hurst prompted the question of whether our death penalty statute sufficiently respects a defendant‘s Sixth Amendment right to trial by jury.
Because answering the certified questions requires us to interpret not simply the Sixth Amendment itself, but the complex body of case law interpreting it, we have a diversity of views on exactly why the answers to the questions are what we have found them to be. But that diversity of views is outweighed by the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst. We also have a shared belief that the importance of the subject to our state and our fellow citizens, reflected in the excellent briefs and arguments of the parties, makes it useful for all the Justices to bring our various perspectives to bear on these difficult questions.
Charleston mass murderer now making mass attack on constitutionality of federal death penalty
As reported in this BuzzFeed News piece, headlined "Dylann Roof Challenges Constitutionality Of Federal Death Penalty Law," a notorious mass murderer filed a notable motion in federal court yesterday in an effort to prevent being subject to the ultimate punishment. Here are the details:
Lawyers for Dylann Roof on Monday filed a motion challenging the federal government’s intention to seek the death penalty in his murder trial, arguing that the penalty is unconstitutional. “[T]his Court should rule that the federal death penalty constitutes a legally prohibited, arbitrary, cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” lawyers write in defense of Roof, who is charged with murder for the shooting deaths of nine people inside a historically black South Carolina church this past summer.
In the filing, the lawyers argue that the death penalty itself is unconstitutional, as is the federal death penalty law. “[T]he [Federal Death Penalty Act] may have been designed with as much care as possible under the circumstances, the capital sentencing process that the statute provides is constitutionally inadequate in practice,” the lawyers write. “The results of jurors’ good-faith grappling with the law — arbitrary, biased, and erroneous death verdicts — are intolerable as a matter of due process and proportional punishment.”
The challenge is only being brought, the lawyers write, because the federal government is seeking the death penalty in Roof’s case after rejecting his offer to plead guilty and accept multiple life sentences without the possibility of parole....
In addition to the two broad constitutional challenges, Roof’s lawyers are also challenging the jury selection process referred to as “death qualification” — finding a jury willing to impose the death penalty. As the lawyers note, “conscientious objectors to the death penalty are systematically excluded” from such juries. “Because the practice of death qualifying a jury has no constitutional or statutory underpinnings, distorts the jury function, introduces arbitrariness into capital sentencing and increases the influence of racism and sexism on the death determination, there is no justification for maintaining it,” the lawyers write.
The lawyers are also challenging related to the use of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) in the prosecution, noting that the legislation considered including the death penalty as a punishment but ultimately rejected it. “[D]espite Congress’s deliberate decision not to provide for the death penalty in HCPA prosecutions, the government has effectively amended the statute to permit a death sentence to be imposed,” the lawyers argue.
The full 34-page filing seeking to "strike the death penalty as a possinle punishment" is available at this link.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
- Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution
Saturday, July 30, 2016
Judge Jack Weinstein authors mega-opinion threatening to find sentence unconstitutional if offender not placed in certain prison(!?!?)
A number of helpful reader alerted me to this notable local story describing the latest remarkable (and legally suspect?) sentencing opinion by US District Judge Jack Weinstein. The piece is (inaccurately) headlined "Brooklyn judge says no prison for convicted child molester," and here are the reported details:
A Brooklyn federal judge on Thursday urged the U.S. Bureau of Prisons to hold a convicted child molester in a medical facility and said he would find the 15-year mandatory minimum sentence unconstitutional if the bureau doesn’t comply.
The apparently unprecedented move by U.S. District Judge Jack Weinstein, who said defendant “D.W.” — identified on the court docket as Darnell Washington — had mental problems and would be a suicide risk in the general prison population, reflected the judge’s long-standing criticism of mandatory minimums.
Weinstein said Washington, 27, of Brooklyn, a repeat offender convicted of both child pornography charges and sexual exploitation of a minor, had been abused as a child, raped during an earlier prison stint, identified as gay and was suicidal.
The judge said 15 years in a regular prison would make him “uniquely vulnerable” to abuse or solitary confinement, and amount to cruel and unusual punishment. He said the time should be served at the Federal Medical Center prison in Devens, Massachusetts, where sex-offender treatment is available, or another medical facility.
The Bureau of Prisons is not obligated to follow a judge’s preference, but Weinstein said if his recommendations were ignored and Washington was put in “general population of a medium or high security prison” he was “prepared” to find the sentence unconstitutional.
“The court is required . . . to impose a sentence of fifteen years in prison on this defendant,” Weinstein wrote in his 215-page ruling. “But, it has the responsibility and power to ensure that the sentence is carried out in a civilized way.”
Until I have an opportunity to review the 200+ page opinion in this case (which I cannot yet find on-line), I am not yet prepared to criticize Judge Weinstein's work here. Moreover, now that the judge has imposed the formal sentence, I am not sure he even has any proper jurisdictional basis to declare it unconstitutional if (and when?) prison official do not comply with his placement mandate.
UPDATE: A helpful reader sent me a copy of the full opinion in US v. DW for posting here: Download US v DW
Thursday, July 28, 2016
"California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives."
The title of this post is the title of this lengthy report recently published by the Alarcón Advocacy Center at Loyola Law School, Los Angeles and co-authored by Professor Paula Mitchell, executive director of the Alarcón Advocacy Center, and Nancy Haydt, Board of Governors, California Attorneys for Criminal Justice. The perspective on whether to end or mend the California death penalty is somewhat predictable based on the past work of the authors, and this overview from the document itself provides a summary of its analysis:
California voters will decide the fate of the state’s death penalty this November. There is now a broad consensus that California’s death penalty system is broken. Voters will be asked to choose between two starkly different proposals to address its dysfunction and failures. Competing ballot initiatives will ask voters either to replace the death penalty with life without the possibility of parole, or to double down on the failed system by spending millions more to modify and expand it.
Voters can either support YES on Prop 62, which will replace the death penalty with life without parole and save the state $150 million per year. Or, voters can support Prop 66 to keep the death penalty system and implement multiple changes to how it operates. Each proposition would make substantial and far reaching changes to California’s criminal justice system. But only one can pass into law: if both propositions receive more than 50% of the vote, then the one with most votes will become law and the other will not.
This Report analyzes the competing initiatives. It looks at the current state of the death penalty system in California and analyzes how each initiative will work in practice. In particular it looks at whether the initiatives will achieve their stated goals, and whether there would be other, perhaps unintended, consequences to their passage into law.
This Report concludes that Prop 66’s proposed “fixes” to the current system will cost millions more than the already expensive death penalty system and will not speed up executions. In fact, Prop 66 will only make matters worse by creating more delays and further clogging the state’s over-burdened court system. Prop 66 will add layers of appeals to a system already facing an insurmountable backlog of decades of death penalty appeals waiting to be decided.
Prop 66 contains other provisions that proponents claim will speed up executions, such as keeping the lethal injection protocols secret and out of the public’s purview, exempting them from the Administrative Procedures Act. This and other key features of Prop 66 will certainly be subject to litigation challenging the provisions on constitutional and other grounds, should Prop 66 pass, adding yet more delays to death penalty cases.
The Report further finds that Prop 66 fails to make the constitutional changes required to deliver the results it promises. At the same time, its proposals are so convoluted that they are likely to create many new problems that will not only complicate the administration of the death penalty system, but will also impact and harm the rest of California’s legal system.
This Report finds that Prop 62, by contrast, is straightforward and transparent. It replaces the death penalty with life without the possibility of parole, saving the state $1.5 billion in the next ten years alone. Prop 62 requires inmates to work and increases the victim compensation rate. Prop 62 ensures that the state never executes an innocent person, without jeopardizing public safety.
"The Downstream Consequences of Misdemeanor Pretrial Detention"
The title of this post is the title of this intriguing new empirical paper available via SSRN authored by Paul Heaton, Sandra Mayson and Megan Stevenson. Here is the abstract:
In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime.
We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the casual effect of detention. These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.
I fear that most criminal justice researchers and reform advocates (myself included) pay much less attention to misdemeanor crimes and punishments than to so many other parts of the justice system. This article (and a few others noted below in prior posts) provides a reminder that we should not overlook this important element of modern justice systems.
Some prior related research and advocacy on misdemeanors:
- "Crashing the Misdemeanor System"
- Thoughtful discussion of too-often forgotten story of misdemeanors
- New ACS issue brief urges " diverting and reclassifying misdemeanors" to save big bucks
Wednesday, July 27, 2016
John Hinkley now to be freed from a psychiatric hospital, now 35 years after his crime and verdict of not guilty by reason of insanity
As reported in this Reuters piece, "John Hinckley Jr., who wounded U.S. President Ronald Reagan and three other people in a 1981 assassination attempt prompted by his obsession with actress Jodie Foster, can be freed from a psychiatric hospital to live with his mother, a federal judge ruled on Wednesday." Here is more about this notable ruling in perhaps the highest-profile insanity case of all time:
U.S. District Judge Paul Friedman said Hinckley, 61, who was found not guilty by reason of insanity in a 1982 trial, no longer posed a danger to himself or others. He said Hinckley could be released from St. Elizabeth's, a government psychiatric hospital in Washington, as soon as Aug. 5, subject to nearly three dozen conditions. "Since 1983, when he last attempted suicide, he has displayed no symptoms of active mental illness, exhibited no violent behavior, shown no interest in weapons, and demonstrated no suicidal ideation," Friedman said of Hinckley in a 103-page opinion.
In addition to Reagan, Hinckley's attack wounded presidential press secretary James Brady, a policeman and a Secret Service agent. It helped launch the modern gun control movement, as Brady and his wife, Sarah, founded what is now known as the Brady Campaign to Prevent Gun Violence after he was left permanently disabled. The Bradys' support helped the Brady Handgun Violence Prevention Act become law in 1993, imposing federal background checks on gun purchases and a five-day waiting period.
The Hinckley verdict also led several states to rewrite their laws making it more difficult to use the insanity defense while the U.S. Secret Service tightened its protocols for presidential security.
Upon his admission to St. Elizabeth's, doctors diagnosed Hinckley with depression and psychosis - two maladies they say have been in remission for years. Friedman said Hinckley will be required to spend at least a year living with his mother, Jo Ann, 90, in Williamsburg, Virginia, about 130 miles (210 km) south of Washington, where he has been making increasingly long furlough visits for several years.
If Hinckley's treatment team approves, he may then move into his own residence by himself or with roommates, Friedman said. He also said if Hinckley's mother becomes unable to monitor him in her home, his brother or sister will be required to live there with him until the hospital determines an alternate plan. In a May story about Hinckley's life, Washingtonian magazine cited neighbors in her gated community who liked Mrs. Hinckley but did not want him living there.
Hinckley had unsuccessfully sought jobs in Williamsburg at places such as Starbucks and a Subway sandwich shop and tried to become involved in volunteer programs in the town, Washingtonian said. He eventually took a volunteer job in the library of a psychiatric facility in Williamsburg. Hinckley's behavior during his furlough visits has been unimpeachable aside from a few occasions, the judge wrote. Twice in 2011, Hinckley lied to hospital staff about where he had been.
Friedman's order imposes nearly three dozen conditions, including a requirement that Hinckley meet with his psychiatrist in Washington monthly and notify the Secret Service when he travels for the appointment. He is barred from making contact with Foster or her family, Reagan's family and relatives of the other victims, and he is required to either work or volunteer at least three days per week. He is restricted to a 50-mile radius of Williamsburg and must make information about his mobile phone, vehicle and Internet browsing history available to his treatment team and law enforcement.
The petition for release from Hinckley was supported by his doctors but opposed by U.S. prosecutors. A spokesman for the U.S. Attorney's office in Washington did not immediately respond to a request for comment, nor did Hinckley lawyer Barry Levine. Hinckley was a 25-year-old college dropout with vague aspirations of a musical career when he fired at Reagan. He had become obsessed with Foster and the Martin Scorsese film "Taxi Driver" in which she played a teenage prostitute. Hinckley began to identify with the film's main character, Travis Bickle, who planned to assassinate a presidential candidate, and spent several years trying to make contact with Foster, who was a student at Yale University in Connecticut.
On March 30, 1981, Hinckley wrote Foster a letter detailing his plans to kill Reagan in an effort to win her over. Later that day, Hinckley approached Reagan outside the Washington Hilton Hotel and opened fire. Reagan suffered a punctured lung but recovered relatively quickly. Brady's death in 2014 was attributed to his wounds but federal prosecutors said the following year they would not charge Hinckley with his murder.
Foster has refused to comment publicly on Hinckley since addressing it in 1981, and a publicist for the Academy Award-winning actress did not immediately respond to a request for comment on Wednesday.
The full 103-page opinion in US v. Hinckley is available at this link.
Some prior related posts:
- Three decades after shooting the President, John Hinckley's freedom still debated
- As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?
July 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Spotlighting the travesty of how the Eleventh Circuit is handling Johnson claims
I highlighted in this post here last week the potent opinions by a number of Eleventh Circuit judges explaining why they think the Circuit's precendents for dealing with prisoner petitions based on the Supreme Court's landmark ruling in Johnson v. United States, 133 S. Ct. 2551 (2015), are so very wrong and unjust. A helpful reader made sure that I did not miss this recent Bloomberg commentary on this topic authored by Noah Feldman headlined "This Is What 'Travesty of Justice' Looks Like." Here are excerpts:
Call it Scalia’s revenge. In one of the last cases that he authored before he died in February, Justice Antonin Scalia convinced his colleagues to strike down a key clause of the Armed Career Criminal Act because it was unconstitutionally vague. As a result, thousands of convicted felons are now asking courts to have their sentences reduced.
The legal rules for considering such post-conviction requests are tricky and technical. But in most of the country, prisoners are getting another day in court to have their ACCA convictions reviewed in the light of the new legal principle. In the Eleventh Circuit, which includes Alabama, Georgia and Florida, the process has gone badly awry [and] a judge on the circuit's court of appeals cried foul, calling for a fundamental change in how its handling these cases....
Before a prisoner can go back to the district court for what’s called a “second, successive” post-conviction petition, he or she needs special permission from a federal court of appeals. The stakes are high for the prisoners. In some cases, the difference might be between the 15-year minimum imposed on felons with three prior convictions, and a sentence of 10 years or less for fewer convictions.
Consequently, the U.S. Court of Appeals for the Eleventh Circuit has been immersed in the time-consuming process of figuring out who should be allowed a second chance to file a petition in District Court seeking review of their sentence. It's studying presentence reports to ascertain whether any of the prior convictions should still count, and, if so, how that might change the petitioner's sentence. Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.
Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion ... declaring that the process in her court wasn’t working. Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.
To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request. The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means. And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.
What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.
The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit. And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem. But real people are spending potentially many extra years in prison on the basis of an unconstitutional law. That’s wrong. In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.
Tuesday, July 26, 2016
District Court explains reasons for disallowing penile plethysmograph and visual response testing for child pornography offender
A helpful reader altered me to a notable sentencing opinion handed down last week by District Judge John Kane in US v. Cheever, No. 15-cr-00031-JLK (D Colo July 18, 2016) (available here). The first part of the opinion provides a thoughtful account of the sentencing judge's accounting of application of the 3553(a) sentencing factors to defendant Shawn Cheever after his plea to a single count of possession of child pornography, but an "addendum" to the opinion is what makes it truly blog-worthy. In the addendum, Judge Kane explains why he is refusing to "authorize a treatment provider to require polygraph, plethysmograph (PPG) and visual reaction time measurements." His lengthy explanation merits reading in full, and here are a few of many interesting passages therein:
Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. Rather, just as with the polygraph (lie detector) machine, it is used as a tool of coercion by both law enforcement personnel and treatment providers. The plethysmograph is used to obtain inculpatory admissions, the reliability of which is at best equivocal. The patient or suspect may believe he can manipulate the results — and with a modicum of sophistication or psychopathy, he may well be able to do so. Or, the suspect or patient may succumb to the threat, overt or implied, that his refusal to submit to testing has negative implications that can result in further incarceration, withholding of privileges or being held back in the treatment or incarceration processes and therefore lie about his interests or past behavior. Moreover, it is not fanciful speculation that false test results can be conveyed to the individual in order to reduce resistance and gain inculpatory admissions....
[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. The violation is per se. It is paradoxical that the government would mandate individuals subject to supervised release to join an administrator of the test in conduct so vile that it landed him in prison in the first place. The statute criminalizing the possession, use and distribution of child pornography has no exceptions. Both the administrator and the subject are violating the statute. Moreover, the well-established continuing damage inflicted on the child victims portrayed in the pornography derives from the fact that they are seen repeatedly by viewers and it makes not one shred of difference to the victims that the viewer is a pervert or a therapist....
Prohibiting courts, probation and parole officers and treatment facilitators and providers from using devices that fail tests of scientific validity is necessary, but a further comment about the line Judge Noonan describes so eloquently will perhaps provide a resolution to the underlying debility. Judge Noonan evokes the task of Orwell's "Thought Police" — and using what is "discovered" as a basis for further punishment or superficial rehabilitation. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) stated: "freedom of thought. . . is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal."...
The established traditions of our law embrace the ancient common law principle that liberty should not be impinged or threatened for what a person thinks, but only for what a person does. The maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) was written long before the invention of the plethysmograph or other machines intended to probe the recesses of the mind....
Penile plethysmograph tests rely on the heavy assumption that stimuli arousal is strongly related to the potential for recidivism. Inferences by the courts about a person's potential for sexual offense based on his innermost sexual desires fail to acknowledge that arousal data is not an ineluctable precursor to deviant behavior. This observation, a fortiori, illustrates the dangerous conflation of thought with behavior. Before administering the penile plethysmograph without questioning its obvious scientific shortcomings (not to mention its ethical implications), it is crucial that the courts, probation and parole officers and PPG evaluators recognize 1) the power of refrain; and 2) the difference between thought and action. The presuppositionless assumption is that any "arousal level" occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses. Urges, however, are not always overwhelming. Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.
UPDATE: Another helpful reader altered me that there is now this Denver Post article about the opinion in Cheever, which is headlined "Judge criticizes federal sentencing guidelines in pornography case: Kane said he would have given sex offender lesser sentence if permitted by law."
"The Death Penalty and the Fifth Amendment"
The title of this post is the title of this essay authored by Joseph Blocker and just published online by the Northwestern Law Review. Here is part of the introduction:
Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?
The dueling opinions in Glossip v. Gross have brought renewed attention to the constitutionality of the death penalty. In a dissent joined by Justice Ginsburg, Justice Breyer identified “three fundamental constitutional defects” with the death penalty.... Justice Breyer’s dissent marked the first time that two members of the current Court have announced a belief that the death penalty is likely unconstitutional “in and of itself,” and the opinion has justifiably been treated as a significant development.
In a blistering concurrence, Justice Scalia (joined by Justice Thomas) wrote that the dissent was full of “gobbledy-gook,” and that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.” Justice Scalia argued that the Fifth Amendment afforded a textual basis for the capital punishment’s continued constitutionality.... Announcing his concurrence from the bench, Justice Scalia made the point even more strongly, saying that “the death penalty is approved by the Constitution.” He and many others have made some version of this point...
The Fifth Amendment contains prohibitions, not powers, and there is no reason to suppose that it somehow nullifies other constitutional prohibitions — most importantly, the ban on cruel and unusual punishment. The real target of the Fifth Amendment Argument can only be the Court’s longstanding Eighth Amendment doctrine, which is not limited to the punishments considered cruel and unusual at the time of the Constitution’s framing. Unless and until that doctrine changes, the Argument itself carries no weight.
To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so, only that the “constitutional defects” Justice Breyer identifies cannot be dismissed out of hand. Glossip, along with other developments in law and practice, have made the continuing constitutionality of capital punishment a pressing question. That question should be answered without the distraction of the Fifth Amendment.
Saturday, July 23, 2016
Split Virginia Supreme Court deems unconstitutional mass effort by Gov to restore felon voting rights
As reported in this local article, the "Supreme Court of Virginia on Friday struck down Gov. Terry McAuliffe’s executive order restoring voting rights to 206,000 felons, dealing a severe blow to what the governor has touted as one of his proudest achievements in office." Here is more about the ruling:
In a 4-3 ruling, the court declared McAuliffe’s order unconstitutional, saying it amounts to a unilateral rewrite and suspension of the state’s policy of lifetime disenfranchisement for felons. The court ordered the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered” under McAuliffe’s April 22 executive order and subsequent orders.
As of this week, 11,662 felons had registered to vote under McAuliffe’s orders. The court gave a cancellation deadline of Aug. 25.
McAuliffe, a Democrat, took the sweeping action in April, saying he was doing away with an unusually restrictive voting policy that has a disproportionate impact on African-Americans. In a legal challenge, Republican leaders argued McAuliffe overstepped his power by issuing a blanket restoration order for violent and nonviolent felons with no case-by-case review.
The court majority found that McAuliffe did indeed overstep his authority. “Never before have any of the prior 71 Virginia governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request,” Chief Justice Donald W. Lemons wrote in the majority opinion. “To be sure, no governor of this commonwealth, until now, has even suggested that such a power exists. And the only governors who have seriously considered the question concluded that no such power exists.”
In response, McAuliffe said he will “expeditiously” sign roughly 13,000 individual rights restoration orders for people who have already registered to vote. He said he’ll continue until rights are restored for all 200,000 people affected by the original order.
“Once again, the Virginia Supreme Court has placed Virginia as an outlier in the struggle for civil and human rights,” McAuliffe said in a written statement. “It is a disgrace that the Republican leadership of Virginia would file a lawsuit to deny more than 200,000 of their own citizens the right to vote. And I cannot accept that this overtly political action could succeed in suppressing the voices of many thousands of men and women who had rejoiced with their families earlier this year when their rights were restored.”...
Republicans have attacked the order as a political power grab, accusing McAuliffe of trying to help his friend and presumptive Democratic presidential nominee Hillary Clinton win a swing state by adding thousands of Democratic-leaning voters to the polls. GOP leaders called the court’s ruling a victory for the rule of law. “He spent 90 days bragging about this being the high point of his governorship,” said Del. Robert B. Bell, R-Albemarle, who’s running for attorney general in 2017. “And the court made it very clear that he acted unconstitutionally.”
In a joint statement, House Speaker William J. Howell, R-Stafford, and Thomas K. Norment Jr., R-James City, said: “Our nation was founded on the principles of limited government and separation of powers. Those principles have once again withstood assault from the executive branch. This opinion is a sweeping rebuke of the governor’s unprecedented assertion of executive authority.” Howell and Norment were two of the plaintiffs behind the legal challenge. They argued that their future election bids could be tainted by participation of invalid voters.
Justices Cleo E. Powell and S. Bernard Goodwyn — the court’s two African-Americans — dissented from the ruling, arguing the plaintiffs lacked standing to bring the case. Justice William C. Mims also dissented over the issue of standing, saying the court lacked sufficient evidence — most notably the governor’s list of the 206,000 felons affected — to fully consider the order’s impact....
Republicans argued McAuliffe lacks the authority to issue blanket restorations, but Attorney General Mark R. Herring and top constitutional scholar A.E. Dick Howard said McAuliffe was on firm legal ground. “The majority’s opinion is terribly disappointing, especially for the thousands of Virginians who will be thrown off the voter rolls after experiencing the joy, excitement, and fulfillment of getting back their voice and their vote,” Herring said in an emailed statement.
McAuliffe’s Democratic allies blasted Republicans for celebrating a legal victory that will block thousands of Virginians from voting. “It’s a sad and disappointing day when the Virginia Supreme Court bows to political pressure from right-wing ideologues who would rather bar citizens from the polls than compete for every vote,” said Anna Scholl, executive director of Progress Virginia. Scholl said the “deciding vote” was Justice Stephen R. McCullough, whom Republicans elected to the Supreme Court this year after refusing to approve McAuliffe’s interim pick, former Justice Jane Marum Roush, for a full term. McCullough sided with the majority....
The legal rebuke comes at an awkward time for McAuliffe, who is scheduled to speak at next week’s Democratic National Convention celebrating Clinton and her newly selected running mate, U.S. Sen. Tim Kaine, D-Va. Clinton praised McAuliffe after the order in April. When he was Virginia’s governor, Kaine declined to issue a blanket rights restoration order like the one pursued by McAuliffe, despite pressure from activists. The Supreme Court ruling referenced Kaine’s position, saying Kaine “correctly understood” he did not have blanket restoration power.
The full opinion from the split Virginia Supreme Court is available at this link.
Michigan prosecutor wants 71-year-old "juve lifer" to still have no chance of parole
This local AP article, headlined "Prosecutor: No sentencing break for Michigan's oldest juvenile lifer," reports on the disinclination of a Michigan prosecutor to be open to considering even the possibility of parole for an elderly prisoner given LWOP more than a half-century ago. Here are the details:
Oakland County prosecutor Jessica Cooper said Friday she'll seek another no-parole sentence for a 71-year-old man who is the oldest so-called juvenile lifer in the Michigan prison system. Sheldry Topp has been in prison for nearly 54 years. He was 17 in 1962 when he ran away from a state hospital, broke into an Oakland County home and fatally stabbed the owner.
Life sentences with no chance for parole are no longer automatic for anyone under 18. Juvenile lifers have a right to new hearings as a result of a U.S. Supreme Court decision. Judges now have discretion and can consider an offender's childhood, education and a variety of other factors.
Prosecutors across Michigan are filing their sentencing proposals this week in more than 350 cases.
The prosecutor said she'll seek no-parole sentences again for 44 people who are in prison, including Topp. She declined to explain her position in Topp's case during an interview with The Associated Press, referring a reporter to a court filing, which wasn't available after business hours.
"When we talk about doing due diligence, we did an incredible amount of due diligence in these cases," said Cooper, a former judge. "The cases that we've been reviewing are not the kids who were at the wrong place at the wrong time. We're talking about stabbings, shootings and strangulations. ... I'm shocked."
Topp, who turns 72 in September, is in a prison in Muskegon. In a recent court filing, attorney Deborah LaBelle said he was in a hospital with heart problems. She couldn't be reached for comment Friday. In 1987 and 2007, the state parole board recommended that Topp's sentence be reduced, but governors declined.
Meanwhile, in Wayne County — the state's largest — prosecutor Kym Worthy said she would seek no-parole sentences again for at least 60 prisoners who were convicted of murder as teens.
Worthy said she'll ask that 81 people be given a certain number of years in prison instead of a no-parole sentence. That could lead to freedom for some who already have been locked up for decades.
Thursday, July 21, 2016
"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"
The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:
The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues. These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates. Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer. The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances. Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States. Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.
As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world. African American and Latino communities suffer even higher incarceration rates. Our incarceration rates increased dramatically in the 1980s and into the 1990s. Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period. Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes. One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest. Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.
This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration. This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration. Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process. This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining. First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements. Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining. This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.
Wednesday, July 20, 2016
"How Judges Think about Racial Disparities: Situational Decision-Making in the Criminal Justice System"
The title of this post is the title of this intriguing new article authored by Matthew Clair and Alix Winter from the jounral Criminology and available at this link. Here is the abstract:
Researchers have theorized how judges’ decision-making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system. Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them. By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing.
Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates. To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist. Noninterventionist strategies concern only a judge’s own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws.
We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision-making in organizational contexts.
Tuesday, July 19, 2016
Federal judge refuses to accept plea of LA County Sheriff Lee Baca for obstruction because of inadequacy of maximum sentence of six months in
As reported in this lengthy Los Angeles Times piece, headlined "Judge throws out ex-L.A. County Sheriff Lee Baca's plea deal, saying six months in prison not enough," a federal judge decided that a high-profile federal defendant had cut too sweet a plea deal to resolve charges of obstruction of justice. Here are the interesting details concerning a rare (but not unprecedented) district court decision:
A federal judge on Monday threw out a plea agreement that would have given former Los Angeles County Sheriff Lee Baca a maximum of six months in prison, saying the sentence was too lenient considering Baca’s role in obstructing an FBI investigation into the county jails. Addressing a downtown courtroom packed with Baca’s supporters, U.S. District Court Judge Percy Anderson said the deal “would trivialize the seriousness of the offenses … the need for a just punishment [and] the need to deter others.”
Baca, 74, had pleaded guilty in February to a single charge of lying to federal investigators. But the former sheriff’s involvement in trying to derail the investigation reached further than that, Anderson said. At stake was what the investigators were trying to expose, Anderson said: an “us-versus-them” culture in which deputies covered up for one another and responded to inmates with enough violence to send them to the hospital.
Six months in prison for the man who ran the Sheriff’s Department “would not address the gross abuse of the public’s trust … including the need to restore the public’s trust in law enforcement and the criminal justice system,” Anderson said.
The judge said he would allow Baca to withdraw his guilty plea, setting a new hearing date for Aug. 1. The maximum sentence for the false statement charge is five years -- the same amount of time that Baca’s former No. 2, Paul Tanaka, received last month after going to trial in a related obstruction-of-justice case. Seven lower-ranking sheriff’s officials who have been convicted and sentenced in the obstruction case received a year and a half to more than three years in prison.
Baca’s plea agreement had called for a sentence ranging from probation to six months in prison. Prosecutors have said they agreed to the deal in part because of Baca’s willingness to plead guilty. Baca’s attorney, Michael Zweiback, argued that the former sheriff should not serve any prison time because he is in the early stages of Alzheimer’s disease.
Baca must now choose among several unappealing options. He could go ahead with the sentencing and accept whatever punishment Anderson has in mind. He could withdraw his guilty plea and go to trial, taking his chances with whatever charges the government might decide to bring. He could negotiate a new deal with federal prosecutors for a longer sentence that the judge would find more acceptable.
After Monday’s hearing, Zweiback said he was disappointed with the judge’s decision but hoped to resume talks with prosecutors. He said that if he cannot reach an agreement that includes a specific sentence, rather than an open-ended guilty plea, he will not leave his client’s fate in Anderson's hands. “At that point, we might as well take our chances at trial,” Zweiback said.
Baca’s Alzheimer’s could be a factor if the case heads to trial and his ability to understand the proceedings deteriorates. The trial could be put on hold if he is declared mentally incompetent. “If the government believes it’s two years in ... getting to trial and sentencing him, that could leave Mr. Baca in very bad shape,” Zweiback said....
Legal experts said Anderson's move was unusual but not unexpected, considering his law-and-order reputation and comments he has made during sentencing in the related cases. “We already knew the defendant was facing a federal judge who believed these kinds of acts were as serious as they come,” said Miriam Krinsky, a former federal prosecutor who was the executive director of a county commission that investigated brutality by jail deputies and who served as a top aide to Baca’s successor, Jim McDonnell, during his first year in office....
Laurie Levenson, a Loyola Law School professor and former federal prosecutor, said Anderson was not likely to be “swayed by sympathy or the emotional aspects of the case.” She said he was likely to be especially unforgiving of law enforcement officials who did not fulfill their duties. “He views this type of abuse of trust more seriously, notwithstanding Baca’s health concerns,” Levenson said.
Federal sentencing law provides that people who are higher up in an organization -- mob bosses, for example — are more culpable than lower-level members, said Joseph Akrotirianakis, another former federal prosecutor now in private practice. “Today’s events are not entirely surprising in light of the sentence that Mr. Tanaka received,” Akrotirianakis said. “That was not a fact known to the government at the time that Baca entered into his plea.”...
Brian Moriguchi, head of the union that represents Sheriff’s Department supervisors, said Baca is responsible for the actions of his subordinates, especially Tanaka, and should receive more than six months considering the sentences the others will serve.
Many sheriff's deputies have been closely watching the criminal prosecutions to see if the punishments for former bosses would approach those of lower-ranking employees following their orders. “It’s not only widespread in the department, it’s widespread in society — the feeling that those who have power seem to be exempt from the same rules as everyone else,” Moriguchi said.
Perhaps previewing coming SCOTUS work in Beckles, four Eleventh Circuit judges make case against circuit's refusal to apply Johnson to guidelines
In this post after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career offender guideline of the US Sentencing Guidelines. Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with that career offender guideline, which in turn has led to most circuit courts finding Johnson-based constitutional problems with sentences based on that guideline.
But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines. I considered this ruling suspect, but an amicus brief I helped put together urging en banc review in Matchett did not led to its reconsideration. As blogged here last month, though, we know have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.
For a variety of reasons, I am expecting that SCOTUS will ultimately agree with the majority of circuits that Johnson's holding applies to the career offender guidelines and thereby reject the Eleventh Circuit's Matchett precedent. What I did not expect was that a number of Eleventh Circuit judges would set forth, in essence, some amicus briefing to SCOTUS in order to explain in detail why they think their own circuit's work in Matchett was wrong. But that is what I see via a series of recent concurring opinions in In Re: William Hunt and In re: Charles Therion Clayton, cases in which a panel felt duty-bound to reject habeas applications due to the Matchett precedent but then followed up with separate opinions by Circuit Judges Wilson and (Jill) Pryor and Rosenbaum and Martin all explaining why they think Matchett is so wrong and so troublesome as we await a SCOTUS ruling in Beckles.
If you have read this far into this post, you probably have some interest in the application of Johnson and its impact on the career offender guidelines, which in turns means you ought to find the time to read all the judicial thoughts shared in Hunt and Therion. I know that is my plan for this evening, and to whet everyone's appetite I will close this post by quoting the closing paragraph authored by Judge Pryor in these cases:
If the Supreme Court decides in Beckles that the residual clause in the career offender guideline is void for vagueness, there may be new hope for the scores of inmates who have tried to obtain relief since Johnson, only to be turned away by this Court based upon Matchett. I hope next time around we will avoid the mistakes I have identified. And I hope that, rather than being behind the march of justice, we, as our nation’s designated guardians, will be at the front.
Nearly four years(!?!) in federal prison for MLB scout who hacked into rival team's research and notes
As reported in this local article, headlined "Former Cardinals scouting director sentenced to 46 months for hacking Astros database," a notable defendant got a significant federal prison sentence for some illegal corportate espionage. Here are some of the details:
The former St. Louis Cardinals scouting director who admitted he hacked accounts of the Houston Astros to gain insight into their operations was sentenced Monday afternoon to 46 months in prison.
Chris Correa pleaded guilty in January to five counts of unauthorized access to a protected computer. As part of his plea, Correa admitted to using the accounts of three Astros employees to view scouting reports, amateur player evaluations, notes on trade discussions and proposed bonuses for draft picks. The information he accessed was given an estimated value of $1.7 million by the U.S. Attorney’s office.
Correa, 36, also admitted taking measures to conceal his identity. The sentence includes two years of supervised release and restitution payment of $279,038.65. He will remain free until he is to report to prison, in two to six weeks....
During his guilty plea six months ago, Correa contended he hacked into the Astros accounts to see if former Cardinals employees had taken proprietary data or statistical models to use in their new positions with the Astros. Correa told prosecutors he found evidence that it did occur, U.S. Attorney Kenneth Magidson told the Post-Dispatch at that time....
Giles Kibbe, general counsel for the Astros, said after the sentencing that Correa accessed the Houston team’s database 60 times on 35 different days. “I don’t know what he saw or thought he saw,” Kibbe said, adding that what was clear from listening to U.S. District Judge Lynn N. Hughes during the sentencing is this: “The Astros were victims in this case.”...
Houston and its general manager, Jeff Luhnow, who began his baseball career with the Cardinals more than a decade ago, have repeatedly denied that Luhnow or any other former Cardinals employees brought information to the Astros. “The Astros refute Mr. Correa’s statement that our database contained any information that was proprietary to the St. Louis Cardinals,” the team said in a statement in January. Along with the U.S. attorney’s investigation, in which no other member of the Cardinals’ organizations was charged, the team completed an internal investigation; its outcome was Correa’s dismissal a year ago....
Correa read a four-minute statement to the judge before Hughes handed down his sentence. “I behaved shamefully,” Correa said, in apologizing to the Astros. “The whole episode represents the worst thing I’ve ever done by far.”
As he continued reading, offering an apology to his family with the promise to “regain your trust,” Hughes stopped Correa, asking him to turn around and speak directly to family members attending the hearing. Correa did so, his voice breaking as he repeated his apology. Correa said that because of his actions, he lost his career and his house, and he will work with his wife to rebuild “a quiet life of integrity.”
Hughes chastised Correa several times for his actions, comparing them to middle-school behavior. The judge used as an example a teacher asking Correa if he threw the eraser to which Correa would justify the action by saying: “Bobby did, too!”
“I hope it didn’t work then. It’s not going to work now,” Hughes said. The judge likened Correa’s hacking actions to altering a check by adding extra zeroes “and wiping out someone’s bank account.” Hughes also disclosed in court that Correa had been using prescription drugs without a prescription since the hacking charges, and that he could also have been prosecuted for that crime.
Hughes noted that Correa had taken college classes in ethics, asking: “At any time did you think hacking the Astros’ computers and using other people’s passwords was ethical?”
“No, your honor,” Correa said. Correa left the courthouse without comment, climbing into the passenger seat of a white SUV that was quickly driven away....
As part of his plea in January, Correa admitted to illicitly accessing Houston’s database through three accounts from at least March 2013 to the end of June 2014. He began by accessing the email account of one Astros employee who used to work for the Cardinals, referred to in the documents as “Victim A.” Although never mentioned by name in the documents, two of the former employees being described are believed to be Luhnow and Sig Mejdal. Both were key architects in the early days of the Cardinals’ analytic departments, and both are now baseball operations execs in Houston.
Correa took advantage of the fact that “Victim A” had used a password for his Astros email that was similar to the one he used with the Cardinals. He had gained the password when “Victim A” turned in his Cardinals laptop before leaving the team. Correa was able to access the accounts of two other Houston employees and through them see information in a database nicknamed “Ground Control.” On March 24, 2013, Correa viewed an Excel file of every amateur player eligible for the draft as well as the Astros’ internal evaluations and the scouts’ proposed bonuses to offer the players. He also looked at the Astros’ evaluations of Cardinals’ prospects.
That June, during the draft, Correa entered Ground Control and filtered the Astros’ information on players not yet drafted. He also looked at specific pages for two players, neither of whom the Cardinals drafted.
During that visit he looked at Houston’s scouting information for three of the eight players the Cardinals’ selected the previous day in rounds three through 10. At baseball’s trade deadline, July 31, Correa peered into Houston’s notes on trade discussions. In March 2014, he again entered the database and looked at 118 pages of what court documents called “confidential information.”
Cardinals general manager John Mozeliak and other team officials have stated they did not know about the breaches until investigators alerted them in early 2015.
I have reprinted the details of this "hacker's crime" because I am struggling to see what aggravating factors justified a nearly four-year prison sentence for a white-collar offenders who would appear to present no obvious risk to public safety and who has admitted his misdeeds and seems to show genuine remorse for his computer crimes. I sumrise from the press description here that the the defendant's federal sentencing guidelines range was driven up significantly by the U.S. Attorney's determination that the "estimated value" of corporate information accessed here was $1.7 million. But the fact that the defendant was ordered to pay less than $300K in restitution suggest that the actual harm to the Cardinals was far less than the economic number that appears to have driven the defendant's sentence up so much under the applicable sentencing guidelines.
Because I have not done a careful study of lots of recent computer crime cases, I am not sufficiently informed about whether this particular defendant's crime was distinctly bad or whether his sentence is distinctly severe. But I do know that modern problems in the US with mass incarceration is aggravated when we now have persons who pose no threat to public safety and who commit crimes that seem to have a relatively small impact on a huge rich company getting sent away to federal prison for a really long period of time.
July 19, 2016 in Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (30)
Monday, July 18, 2016
Detailing the steady growth in registered sex offenders in Texas
Last week, the Austin American-Statesman had this lengthy and effective article highlighting the history and modern realities of the sex offender registry in Texas. The piece is headlined "Program to corral ballooning sex offender registry failing," and here are excerpts:
Texas started its sex offender registry 20 years ago as a way for the public and police to monitor a group of criminals believed to be virtually incapable of rehabilitation and thus likely to commit additional sex crimes. Since then, however, many studies have concluded that it is uncommon for sex offenders — particularly those who ... are designated as low-risk — to commit new offenses.
According to the Texas Department of Public Safety, more than 90 percent of the state’s registered sex offenders are not considered to be at high risk of re-offending.
Yet the registry is like a cemetery: Because many offenders are placed on it for a lifetime, or at least decades, it only expands in size. Over the past five years, Texas has added new names to the list at a rate of nearly a dozen every day.
In 2011, Texas began a so-called deregistration process. The intent was to remove those who were unlikely to re-offend from the list and, in so doing, save taxpayers money. By focusing police attention on truly dangerous offenders, it would also improve public safety.
By that measure, however, the program has been a bust. In the 5 1/2 years it has been in existence, only 58 sex offenders have been permitted to deregister from the Texas list — less than one-tenth of 1 percent of the current registry....
[T]he calculated risk offenders pose to the public typically has little to do with their appearance on the registry. While a handful of states meaningfully separate low- from high-risk offenders — Massachusetts excludes its lowest-risk offenders from the public list — many, like Texas, do not.
So-called Romeo offenders, convicted of sex with an underage girlfriend or boyfriend, exist side by side with rapists. There is no consideration as to whether a molestation occurred within a family — and thus, experts say, is statistically unlikely to reoccur outside it — or was committed by a predator snatching an unknown child off the street.
Surveys show the public believes public registries make neighborhoods safer, because sex criminals demand the extraordinary supervision and exposure. Yet research also indicates residents rarely consult the public lists.
And while some criminologists still suggest the registries improve crime rates, a growing number of studies have concluded they have had no meaningful impact on sex offenses by predicting or preventing them. “The abundance of evidence does not point to the effectiveness of registration systems in reliably classifying offenders, reducing recidivism, or preventing sex crimes,” Jill Levenson, a national expert in registry studies, concluded in a research roundup published earlier this year.
Practitioners say an offender’s appearance on the list can even have the opposite of its intended effect. Employment and housing restrictions that accompany registration — most state-regulated occupations in Texas prohibit sex offenders from holding licenses, and at least 86 cities limit where offenders can live — can drive registrants back into illegal behavior, said Pierce, who has worked with sex offenders for more than two decades.
Despite their low utility, the registries continue to balloon in size. As of June 1, Texas’ stood at 87,686 — 35 percent higher than five years ago. Maintaining the growing lists is increasingly expensive. In 2006, the Texas Department of Public Safety assigned 10 staffers and spent $343,000 to manage the registry. By last year, it required 21 employees and nearly four times the money.
Local law enforcement agencies, where offenders must periodically check in, bear the bulk of the costs. The Houston Police Department, which monitors more than 5,000 registered sex offenders, employs 14 people — 10 of them officers — who do nothing else.
Sunday, July 17, 2016
Defense builds case for unconstitutionality of death penalty in federal court in Vermont
Those who follow the federal death penalty closely surely have heard of the long-running case from Vermont involving Donald Fell. Fell was involved in the murder of three persons way back in 2000, and the feds have been trying to secure and preserve a death sentence for the last dozen years. After an original death sentence reversed on appeal, Fell is getting a new opportunity to build a record in the District Court concerning his claims that the death penalty is unconstitutional. This recent local article, headlined "Fell's defense: The federal death penalty is 'irrational'," reports on these recent developments. Here are excerpts:
The final witness for the defense in the Donald Fell death penalty hearing in Rutland testified on the results of more than 20 years of research he’s gathered for the Federal Death Penalty Resource Council Project.
Based on that data, Kevin McNally, the project’s director and an attorney in Kentucky, said that the “federal death penalty is driven by irrational or illegal considerations,” including race, gender, geography, or luck. “It’s akin to being struck by lightning,” McNally said.
McNally cited the Donald Fell case as a prime example of the role luck and timing can play in capital cases and the authorization of the death penalty....
Fell was convicted in the brutal killing of Terry King, a North Clarendon grandmother, and sentenced to death in 2005. The verdict was overturned due to juror misconduct and a retrial is scheduled for early next year. The two-week long hearings in Rutland could lead to a historic Supreme Court ruling on the constitutionality of the death penalty....
The lack of a uniform standard for seeking the death penalty is one of many factors that has eroded public trust in capital punishment, according to Richard Dieter, executive director of the Death Penalty Information Center, who also testified on Friday. Although a majority of Americans still support the death penalty, Dieter said, growing numbers have expressed concern about the way it is applied....
Counsel for the U.S. government questioned whether the Death Penalty Information Center was a neutral source of information as Dieter characterized it. Attorney Sonia Jimenez read the titles of several reports published by the center: “Struck by Lightning: The Continuing Arbitrariness of the Death Penalty”; “The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All”; and “A Crisis of Confidence: Americans’ Doubts About the Death Penalty.”
Asked if he was opposed to the death penalty, Dieter said he took a fact-based approach. “It’s not a philosophical issue for me,” he said. “It’s not a moral issue.”
“The present system is broken,” he continued. “Can it be fixed? Maybe it can’t be fixed.”
The government will present its case next week in Rutland District Court.
In this post over at PrawfsBlawg, Michael J.Z. Mannheimer provides some additional context and highlights his distinct interest in the case:
The defense filed the usual battery of motions for a capital case, arguing among other things that the death penalty has become cruel and unusual punishment. Curiously, the court issued an order this past February calling for a hearing on the issue. Citing Justice Breyer’s dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting), the court expressed an interest in the suggestion there that the risk of wrongful execution, the geographic disparities in the implementation of the death penalty, the long delays before execution, and the purported arbitrariness in meting out the death penalty all added up to its unconstitutionality. However, the court seemed unsatisfied with deciding these issues without a factual record complete with testifying experts, and wrote that the purpose of a hearing “is to develop the fullest possible expression of both sides' factual and empirical arguments.” In particular, while capital defendants typically repeat the same empirical assertions in their briefs, a hearing would provide the Government the opportunity to “cross-examine the sources of social and statistical information cited by the defense” and “offer its own empirical evidence in response.”...
Irrespective of how the court rules, it appears that the court is attempting to get as complete a factual record as possible in order to tee the unconstitutionality issue up for appeal. My interest in this particular case stems from the fact that this is a federal capital prosecution for crimes occurring in a non-death penalty State (well, here, two separate non-death penalty States). I have appeared in the case as an amicus and have filed an amicus brief on my own behalf making the argument, based on my prior scholarship, that the Cruel and Unusual Punishments Clause forbids the imposition of the federal death penalty under these circumstances. Presumably, the court will ultimately address that issue as well, unless it is mooted by a broader ruling that the death penalty is unconstitutional full stop.
Ninth Circuit rejects district court's decision to base sentence on drug amount higher than jury's special verdict
A helpful reader made sure I did not overlook the interesting Ninth Circuit panel decision in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016) (available here), which was handed down on Friday. Here is how the helpful reader helpfully summarized the decison: "Somewhat unusually, the jury returned a special verdict finding the defendant responsible for less than 50 g of meth. The Circuit Court vacated his sentence after the District Court based the guidelines range on 4.5 kg and gave a stat max sentence of 20 years. An interesting variation on using (or not) acquitted conduct at sentencing, I think." And here are a few paragraphs from the decision:
The principal question presented is whether the district judge was entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The district court believed it was entitled to do so because “[t]here is no increase in the statutory maximum sentence beyond the 20 years or 240 months that is charged in the [i]ndictment.”....
Some of our sister circuits seem to have held that a jury’s special-verdict finding that the quantity of drugs involved in the crime is less than a particular amount did not preclude the judge from finding a greater quantity for purposes of sentencing. [CITES] But those cases did not directly address the argument raised by Pimentel-Lopez — that the affirmative finding by the jury that the quantity of drugs involved was less than a specific amount precluded a contradictory finding by the district judge during sentencing....
Some of our sister circuits seem to have assumed that the juries’ findings merely acquitted defendants of possessing higher quantities of drugs, and that may have been warranted on the record before them.... Here, by contrast, the record is clear that the jury didn’t merely acquit defendant of possessing 50 grams or more of methamphetamine; it made an affirmative finding “beyond a reasonable doubt” that the amount attributable to defendant was “[l]ess than 50 grams.” Our own caselaw, and simple logic, precludes us from vouchsafing sentencing judges the power to make contradictory findings under these circumstances.
Saturday, July 16, 2016
Michigan appeals court rejects "sentencing by videoconference" as a violation of state rules
As reported in this AP piece, a Michigan appeals court said a state trial court erred when sentencing Trenity Heller by video in a drug case. Here is the background and basic details of the ruling:
The use of technology has been hailed as a great way to save money in Michigan's criminal justice system, and state rules allow video from jail for a variety of hearings, including arraignments, guilty pleas and misdemeanor sentences. "Felony sentencing is not on the list," the appeals court said in its 3-0 decision that Heller's rights were violated.
"Sentencing by video dehumanizes the defendant who participates from a jail location, unable to privately communicate with his or her counsel and likely unable to visualize all the participants in the courtroom," the court said, adding that it "clashes with the judge's duty to acknowledge the humanity of even a convicted felon."
But Smith, the only Circuit Court judge in Hillsdale, said he gives everyone a fair shake. He sees other benefits, too. "The jail is across town so we do save money and security" by using video, Smith told The Associated Press. "If they don't leave jail, then we don't have them in the courthouse and have the problems Berrien faced."
He was referring to the fatal shooting of two bailiffs Monday at the Berrien County courthouse. The sheriff said an inmate somehow got a deputy's gun while being moved between the court and jail.
Smith also said he doesn't choose a sentence depending on whether someone is standing in front of him or appearing by video. "I sentence on facts, not on emotions," the judge said.
Smith said nearly all felons at the jail have chosen video and waived their right to stand in court since he began offering a choice earlier this year.
Wednesday, July 13, 2016
Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing
In prior posts here and here, I noted the notable Loomis case in Wisconsin in which the defendant was contesting on due process grounds the reliance by a sentencing court on risk-assessment tools. Today the Wisconsin Supreme Court issued this lengthy opinion rejecting the defendant's constitutional challenge. The Court's extended introduction to its extended opinion is thoughtful, and includes these passages:
In 2007, the Conference of Chief Justices adopted a resolution entitled "In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism." It emphasized that the judiciary "has a vital role to play in ensuring that criminal justice systems work effectively and efficiently to protect the public by reducing recidivism and holding offenders accountable." The conference committed to "support state efforts to adopt sentencing and corrections policies and programs based on the best research evidence of practices shown to be effective in reducing recidivism."
Likewise, the American Bar Association has urged states to adopt risk assessment tools in an effort to reduce recidivism and increase public safety. It emphasized concerns relating to the incarceration of low-risk individuals, cautioning that the placement of low-risk offenders with medium and high-risk offenders may increase rather than decrease the risk of recidivism. Such exposure can lead to negative influences from higher risk offenders and actually be detrimental to the individual's efforts at rehabilitation.
Initially risk assessment tools were used only by probation and parole departments to help determine the best supervision and treatment strategies for offenders. With nationwide focus on the need to reduce recidivism and the importance of evidence-based practices, the use of such tools has now expanded to sentencing. Yet, the use of these tools at sentencing is more complex because the sentencing decision has multiple purposes, only some of which are related to recidivism reduction....
Use of a particular evidence-based risk assessment tool at sentencing is the heart of the issue we address today. This case is before the court on certification from the court of appeals. Petitioner, Eric L. Loomis, appeals the circuit court's denial of his post-conviction motion requesting a resentencing hearing.
The court of appeals certified the specific question of whether the use of a COMPAS risk assessment at sentencing "violates a defendant's right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment's scientific validity, or because COMPAS assessments take gender into account."
Loomis asserts that the circuit court's consideration of a COMPAS risk assessment at sentencing violates a defendant's right to due process. Additionally he contends that the circuit court erroneously exercised its discretion by assuming that the factual bases for the read-in charges were true.
Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.
We determine that because the circuit court explained that its consideration of the COMPAS risk scores was supported by other independent factors, its use was not determinative in deciding whether Loomis could be supervised safely and effectively in the community. Therefore, the circuit court did not erroneously exercise its discretion.
Prior related posts:
- Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
- Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing
Monday, July 11, 2016
Spotlighting that the death penalty, practically speaking, is now really dying
BuzzFeed News reporter Chris Geidner has this lengthy and timely article highlighting some notable capital realities circa 2016. The piece carries this full headline: "Practically Speaking, The Death Penalty Is Disappearing In The United States: Although nearly 3,000 people are on death row in America, there has not been an execution in the country for two months — and few executions are expected in the coming months." Here is the start of a piece that merits a full read:
It has been two months since any state in the United States has carried out an execution. This marks the longest time between executions in the U.S. since the Supreme Court effectively halted them in the fall of 2007 through spring 2008 while considering a case about the constitutionality of lethal injection.
This time, the situation is very different. Although there are pending court cases about the death penalty’s application, the source of the two-month stoppage in executions isn’t the Supreme Court. It’s a variety of state-specific issues, ranging from the aftermath of Supreme Court rulings that come down earlier this year to drug availability to fallout from botched executions.
The pause on executions — since it is state-specific — won’t last forever. The stoppage could end as soon as Thursday if an execution scheduled for Georgia goes ahead as planned. It isn’t, however, only that there have been no executions in the past two months. This year, there have been fewer executions overall — just 14 in the first half of the year — than in years past. It’s extremely unlikely, moreover, that the number will be higher in the second half of the year.
There are, in fact, only three states — Georgia, Missouri, and Texas — that have executed anyone since January of this year. What’s more, these states appear to be the only ones that could hold an execution today — despite the nearly 3,000 people on death row across the country. The only other state where executions still seem to be a possibility this year is Arkansas, and that is only so if the state obtains a new supply of execution drugs — which is by no means a sure thing.
Before the 2007-08 gap in executions, the next most recent time when there was such a gap was nearly 25 years ago, when there were no executions held between Nov. 12, 1991, and Jan. 22, 1992. Even then, the stoppage is not entirely comparable to the current one because there often have been shorter periods with no executions surrounding the holiday season. Gaps prior to then were more common, but they were due to the fact the states were still passing and implementing their execution process in the wake of the Supreme Court’s 1976 decision approving execution statutes after a nationwide ruling against the death penalty laws four years earlier.
In short, this is an unprecedented moment in the modern era of the death penalty. Why, in the absence of any overarching federal prohibition on executions, is this so?
First Circuit finds sentence enhanced based on a song (and thrice longer than guideline range) substantively unreasonable
Thanks to Howard Bashman at How Appealing, I did not miss the interesting First Circuit panel ruling in Alvarez-Núñez, No. 15-2127 (1st Cir. July 9, 2016) (available here), declaring an above-guideline sentence substantively unreasonable. Here are excepts from an opinion that has a wordy flair that would justify reading in full:
In this case, the sentencing court confused the message with the messenger. That led the court to blur the line between the artistic expression of a musical performer and that performer's state of mind qua criminal defendant. Concluding, as we do, that this line-blurring undermined the plausibility of the court's sentencing rationale (and, thus, rendered the sentence substantively unreasonable), we vacate and remand for resentencing....
Evidence extrinsic to the protected words or conduct may make clear that a performance or artistic work speaks to a defendant's motive, state of mind, or some other attribute in a way that is relevant to sentencing. In the absence of such extrinsic evidence, the mere fact that a defendant's crime happens to resemble some feature of his prior artistic expression cannot, by itself, establish the relevance of that expression to sentencing.
Evidence that might support such an inference is conspicuously lacking in this case. Nothing in the record indicates that the lyrics or music videos had any direct application either to the defendant or to his lifestyle. Nor is there any basis for a claim that they are unlawful in any respect. By like token, there is no hint that the defendant had any prior involvement with illegal firearms, much less with violence or murder. The government did not so much as attempt to prove any uncharged conduct, nor did the district court make any findings about the defendant's involvement in any other criminal activity. To the contrary, the PSI Report — accepted in this regard both by the government and the district court — confirms that, at age 34, the defendant had no adult criminal history.
The district court's conclusions — that the lyrics and music videos comprised "objective evidence . . . that this [crime] was not a mistake," that they reflected that the defendant had a history of involvement "with firearms, with violence, [and] with murders," and that they made it likely that the defendant possessed the gun for nefarious purposes — thus rested entirely on naked inferences drawn from the content of the lyrics and music videos....
Taking the lyrics and music videos as "objective evidence" of factors relevant to sentencing, without an iota of corroborating evidence, results in a sentencing rationale wholly unsupported by the record. Like a house built upon a porous foundation, a sentence built upon a rationale that is unsupported by the record cannot stand.
Saturday, July 09, 2016
Notable sparring over sequence of capital trials for Charleston mass murderer Dylann Storm Roof
In this post not long after the racist mass murderer committed by Dylann Storm Roof, I flagged the possibility of a double capital prosecution by both the feds and South Carolina in this post. Now that, a year later, this prospect has become a reality, the logistical dynamics are presenting interesting legal issues. And this new Wall Street Journal article, headlined "Death Penalty Freeze Puts Charleston Church Shooting Trials in Conflict: State prosecutors say likelihood of execution gives their case precedence," explores some of this novel capital ground:
The alleged shooter of a South Carolina church congregation is scheduled to appear in state court next week amid a dispute over whether a state or federal case against him should go to trial first.
State prosecutors said in June their case against Dylann Roof should happen first because, in part, it is more likely to result in the death penalty. There is currently an effective moratorium on executions in the federal prison system, due to an internal review of the drugs used to execute prisoners.
South Carolina prosecutors charged Mr. Roof, 22 years old, with nine counts of murder and three counts of attempted murder last year for the June 2015 slaying of nine parishioners at an African-American church, and Solicitor Scarlett Wilson has said she would pursue the death penalty. Federal prosecutors, who charged Mr. Roof within weeks of the state indictment, are also seeking a death sentence.
Mr. Roof has pleaded not guilty but his lawyers have said he would plead guilty if the state or federal governments dropped requests for the death penalty. A lawyer for Mr. Roof didn’t respond to a request for comment.
The federal trial is scheduled to begin in November, while the state trial is slated for January. A hearing in state court is set for Wednesday to discuss the scheduling issues.
The dueling prosecutions have raised complicated procedural issues. Ms. Wilson said in court papers that because Mr. Roof is in the state’s custody, if he were sentenced to death in the federal trial, but received a life sentence in the state trial, the state would likely never relinquish custody of him, defeating any chance of an execution.
Ms. Wilson also argued that because the federal government last executed a prisoner in 2003, the state couldn’t trust that a death penalty verdict in the federal trial will actually result in an execution. “Because of the apparent unwillingness of the United States to implement a sentence of death, the state submits that the outcome of the federal trial has little to no relevance to the defendant’s ultimate fate,” Ms Wilson wrote. “For that reason, it disserves the victims to ask them to endure two trials, but the United States nonetheless has imposed its contrary will.”
Lawyers for Mr. Roof argued in court papers filed Wednesday that issues surrounding scheduling could be easily resolved if prosecutors would remove their request for the death penalty and accept Mr. Roof’s plea. “It was predictable that the unprecedented decision of both the state and federal governments to seek the execution of the same man at the same time would lead to scheduling problems,” defense attorneys wrote.
Federal prosecutors haven’t responded to the requests for the state trial to go first. In a letter to victims’ families Wednesday, South Carolina U.S. Attorney Beth Drake wrote, “While it may appear in court pleadings that the state and federal court are both working towards a speedy trial, at the end of the day, we are all after the same thing—justice.”
Mr. Roof’s attorneys have moved to dismiss the federal case, saying it ignores the division between state and federal jurisdictions.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
Thursday, July 07, 2016
Sharp criticisms of bladerunner Oscar Pistorius being sentenced only to six years for murdering his girlfriend
A high-profile defendant, Oscar Pistorius, was resentenced this week after the South Africa's Supreme Court of Appeal had concluded he should be convicted of murder and not just manslaughter for shooting girlfriend Reeva Steenkamp. Regular readers may recall the trial judge seemed to accept his self-defense claims when first giving him only a five-year sentence. This time around, the sentence only was increase by a year, and more than a few commentators have expressed disappointment in this result:
Via Eric Macramalla at Forbes here, "Judge Masipa: Her Flawed And Appalling Sentencing of Pistorius"
Via Ranjeni Munusamy at The Guardian here, "Oscar Pistorius sentence: an homage to celebrity and white privilege"
My complete ignorance about South African sentencing laws, procedures and practices lead me to be unable to comment intelligently on either the Pistorius resentencing or these sharp reactions to it. But this case provides still more evidence that sentencing outcomes, especially for high-profile figures, are often controversial no matter where in the world they take place.
Prior related posts:
- "Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"
- Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
- Prosecutors in South Africa indicate they plan to appeal Pistorius outcome
- Now a murderer, Oscar Pistorius facing resentencing
Tuesday, July 05, 2016
Detailing how challenges go up for federal probation officers as the federal prison population does down
The Wall Street Journal has this interesting new article discussing one of many echo effects of a large number of federal prisoners being released early in recent years due to various federal sentencing developments. The article is headlined "Changes in Sentencing Policy Raise Pressure on Probation Officers: Wave of early inmate releases raises concerns over preventing relapses among high-risk population." Here is how it gets started:
Karrie Springstead tries not to stand directly in front of the ex-inmate’s apartment door as she knocks. The veteran probation officer doesn’t expect trouble, but she never knows who might be on the other side. “It’s the third party that makes me a little more leery,” says Ms. Springstead, 31 years old. “It’s the people you don’t know, and they don’t know me.”
Ms. Springstead is one of 5,500 federal probation officers who oversee roughly 180,000 people across the country. The current push for shorter prison sentences is putting more work on the force, federal officials say, and raising concerns that critical details might be missed that could prevent relapses among a high-risk population.
Overhauling the criminal-justice system, including shorter sentences, is a hot topic in Washington, with some Democrats and Republicans increasingly coalescing behind a view that incarceration times have gotten too long. Even before any major bills have passed, however, federal officials have begun chipping away at sentences. Since 2010, 14,100 people have been freed early because of changes in sentencing law and policies, according to the Administrative Office of the U.S. Courts, and the federal probation case load has increased 7% since 2010. In the same period, the budget of the U.S. Office of Probation and Pretrial Services Office rose 0.5%, to $902 million.
The proportion of federal ex-inmates whose probation has been revoked dropped to 27% in 2015 from 29% in 2010. That decline has been attributed in part to improved risk assessments that are more sophisticated than previous ones and include a wider array of factors, from an offender’s education levels to family makeup.
But probation officials say the drop is due chiefly to the fact there are fewer officers, relative to the number of ex-inmates, to spot violations, so more offenders are remaining free. “There is a tie between revocation rates going down and a shortage of officers in the community checking on people,” said Steve Skinner, chief of the federal probation office in Oklahoma City, where Ms. Springstead works....
A change in 2014 by the U.S. Sentencing Commission to the way drug sentences are calculated shows the potential impact. The federal probation office asked for a year to prepare for the change, and hired 388 new probation officers, though attrition cut the net gain to 150, said Matthew Rowland, who heads the office. As a result of the sentencing change, a service that usually gets about 1,130 new charges a week got about 5,000 in the space of a weekend around last Nov. 1. Another 26,000 will be released early in coming years due to the change, according to the U.S. Sentencing Commission.
Anyone eager to discuss what likely will be the highest-profile "declination" in federal criminal justice history?
Lots of smart people recognize and discuss in lots of ways the unique and uniquely important role that prosecutors play in the operation of modern US criminal justice systems, and one theme of a lot of recent commentary and analysis is how little information we generally have about how prosecutors make decisions about who and how to prosecute (and who not to prosecute) for various alleged wrongdoing. In particular, it is sometimes said that too often we fail to even know about a decision and the decision-making process of a prosecutor to decline to bring charges after a significant criminal justice investigation.
I provide this context for anyone eager to discuss and debate this high-profile news as reported in this New York Times article headlined "F.B.I. Recommends No Charges Against Hillary Clinton for Use of Personal Email." As source materials for anyone eager to discuss this recommended declination, here is the full text of today's statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System." It includes these key passages:
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information....
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government....
In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.
As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.
UPDATE: The folks at Crime & Copnsequences already have this quartet of posts up discussing Comey's findings and statement:
- Q: Did Director Comey Make a Mistake?
- Claims v. Findings on the Clinton E-mail Issue
- Never Hillary
- Hillary Clinton Gets a Pass
Saturday, July 02, 2016
Can and will big data help reduce mass incarceration?
The question in the title of this post is prompted by this intriging Wired piece headlined "The White House Is on a Mission to Shrink US Prisons With Data." Here are excerpts:
The Obama administration believes better data within the criminal justice system could [help address mass incarceration. Last week,] the White House announced its new Data-Driven Justice Initiative, through which 67 cities and states will work with each other, as well as with leading tech companies like Amazon and Palantir, to find new ways to use data to shrink the size of their local prison populations.
“What we’ve seen as we’ve engaged with state and local leaders across the country is that there are people who simply do not need to be in our jails,” Valerie Jarrett, senior advisor to the President, said on a call with journalists today. Taking a closer look at the data, she said, can help identify who those people are. In some cities, that’s already starting to happen. The White House pointed to one example in Mecklenburg County, North Carolina, which began diving into its own data back in 2014 to find low-risk people in jail who could be released early. That intervention led to a 40 percent reduction in the county jail population. “That’s 40 percent, and they have had no increase in reported crime,” Jarrett said. “Pretty amazing.”
Of course, data mining is not the forte of most local law enforcement, which is why the White House is also asking for the tech industry’s help. As part of the announcement, Amazon is convening a consortium on data interventions in criminal justice that will be attended by companies like Palantir and organizations like Code for America. The goal of the summit, according to Lynn Overmann, senior policy advisor to the U.S. Chief Technology Officer, is to convene the country’s top data scientists, technologists, and developers together with local governments to figure out “the solutions most likely to work as broadly as possible.”
Some tech companies are donating their existing tools to the member cities and states. For instance, RapidSOS, a company that allows people to submit their exact location data to emergency personnel, is offering its product to five cities for free for the next 10 years. Several research institutions like New York University and the University of Chicago are also partnering with cities and states to research their data strategies.
In a time when Republicans and Democrats can’t seem to agree on anything, prison reform has become an unlikely unifier. Recently, House speaker Paul Ryan has become an outspoken advocate for sentencing reform. That type of across-the-aisle support could help these data efforts spread more quickly. Already, among the seven states that signed on to the Data-Driven Justice Initiative, three have Republican governors. As part of the commitment, they promise to merge criminal justice and health system data to identify people who are most at risk, create new protocols for first responders dealing with mental health issues, and inform pre-trial release decisions.
Of course, using technology to decide whether someone stays behind bars or not is sure to be fraught with controversy as these programs roll out all over the country. After all, if people are concerned about algorithms deciding the news they see, what happens when algorithms decide a person’s freedom?
"Should a juvenile sex offender be locked up indefinitely?"
The question in the title of this post is the headline of this PBS Newshour segment, which is focused on Minnesota's experiences with indefinite commitment of sex offenders. Here is a segment of the segment:
Elizabeth Letourneau is one of the nation’s leading experts on juvenile sex offenders. She directs the Moore Center for the Prevention of Child Sexual Abuse at John Hopkins University. She says civilly committing juvenile sex offenders makes little sense, first because it’s incredibly costly. Minnesota spends about $125,000 per offender per year, which is roughly triple the cost of regular prison.
But, most importantly, she says it doesn’t make sense because juvenile offenders are likely not lifetime offenders. "Among youth who are adjudicated for a sexual offense, so they have been arrested, processed, 97 percent to 98 percent will not reoffend sexually. So, truly, the vast majority ... if they are caught committing a sexual offense, will not do it again."
Emily Piper is the commissioner of Minnesota’s Department of Human Services, which oversees the state’s sex offender program. She says only 4 percent of Minnesota’s registered sex offenders are currently civilly committed, and she argues the state is rightly incarcerating the most troubling of those....
In 2011, a class-action lawsuit was brought against the state by a group of offenders in Minnesota’s program, including Craig Bolte, arguing they were not getting any meaningful treatment and were instead being held indefinitely.
And, last year, federal district judge in St. Paul sided with them, saying that Minnesota’s sex offender program was unconstitutional, ruling “It’s a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”
The state has appealed the decision, and a ruling is expected this fall. In the meantime, state officials say they have already started making changes. Five offenders have been moved into less restrictive settings, and new reviews are being done of all offenders to determine who’s a potential candidate for release and who isn’t.
Even Dru Sjodin’s mother, Linda Walker, admits that maybe some juvenile cases should be reexamined, but she hopes that, in all its reforms, Minnesota will err on the side of caution before releasing anyone.
Friday, July 01, 2016
California initiative to reform death penalty in state qualifies for ballot (and will compete with repeal initiative)
As helpfully explained by Kent Scheidegger via this post at Crime & Consequences, an "initiative to fix problems that have obstructed the enforcement of the death penalty in California has qualified for the ballot." The group supporting the effort is called Californians for Death Penalty Reform and Savings, and its website has all the details of its reform efforts. Kent's post provides this additional context and information:
Four years ago, the friends of murderers came within four percent of repealing the death penalty because they had the money to qualify an initiative while the forces of justice did not. Many people believed that the choice was therefore one between repeal and the status quo of a penalty that is never enforced.
Not this time. The status quo will be history come November, and the people have a clear choice between "end it" and "mend it."
If both initiatives pass, the one that gets the greater number of "yes" votes will prevail.
The greatest problem, once again, will be the great disparity in funding. Softness on crime is the cause of deep-pocketed elitists who do not suffer the consequences of crime, while the base for toughness on crime consists mainly of regular folks of modest means who do. The other side will be able to run deceptive ads, and we will have limited ability to counter them with truthful rebuttal through paid advertising. Hopefully we will be able to get the truth out through other means.
Among the interesting aspects of this story to watch in the coming months is whether various prominent California (or national) officials will officially support/endorse the mend or the end proposal. I suspect most will try to avoid talking about the issue, but I am hopeful the press and advocates will press prominent politicans to express a position.
Prior related post:
Wednesday, June 29, 2016
Sixth Circuit affirms way-below guideline five-year child porn sentence based in part on jury poll urging sentence even lower
A number of helpful readers made sure that, despite being on the road all day, I did not miss the remarkable Sixth Circuit panel decision today in US v. Collins, No. 15-3236 (6th Cir. June 29, 2016) (available here). I first blogged about this case here after initial sentencing, recounting these basic details via a news account:
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.
Unhappy with this outcome, federal prosecutors appealed the sentence as unreasonable, but now has lost before a unanimous Sixth Circuit panel. The Court's relatively short opinion includes these passages:
The government also argues that the jury poll was an “impermissible factor” for the district judge to consider in crafting an appropriate sentence. Conatser, 514 F.3d at 520. We again disagree. Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence....
District courts also have the authority to “reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts.” United States v. Kamper, 748 F.3d 728, 741 (6th Cir. 2014). Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements. See United States v. Bistline (Bistline I), 665 F.3d 758, 762-64 (6th Cir. 2012) (finding that the district court “did not seriously attempt to refute” the judgments underlying the guidelines).
When establishing the Sentencing Commission, Congress directed it to take “the community view of the gravity of the offense” into account when crafting appropriate criminal sanctions. 28 U.S.C. § 994(c)(4). As reflected in his writing on the subject, and briefly in the sentencing hearing below, the district judge reasons that the Commission fell short of this directive. See Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 HARV. L. & POL'Y REV. 173, 185 (Winter 2010)....
Though we reiterate that juries lack “the tools necessary for the sentencing decision,” Martin, 390 F. App’x at 538, they can provide insight into the community’s view of the gravity of an offense. See Gwin, supra at 193-94; see also Ring v. Arizona, 536 U.S. 584, 615-16 (2002) (BREYER, J., concurring) (jurors “reflect more accurately the composition and experiences of the community as a whole” and are “better able to determine in the particular case the need for retribution”) (internal quotations and citations omitted). The jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.
June 29, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4)
Should more lenient treatment of alleged repeat Indiana University rapist garner even more national attention than Stanford swimmer sentencing?
The question in the title of this post is prompted by this remarkable new local story out of Indiana, headlined "Monroe County prosecutor frustrated in ex-IU student's plea deal in rape cases." Here are the basic troubling details:
The Monroe County Prosecutor’s Office admitted it was frustrated after a former IU student charged in two rape cases ended up spending one day in jail. John Enochs will serve one year of probation after pleading guilty to battery with moderate bodily injury as part of a plea agreement. Two rape charges against him were dismissed.
The most recent incident happened in April 2015. According to court documents, a woman told police she’d been raped at the Delta Tau Delta fraternity house but didn’t know her alleged attacker. She said she repeatedly told him to stop, but he held her down. Eventually she was able to leave the room and get away. Security video showed Enochs entering the room with the victim. She left 24 minutes later; health officials said she suffered a laceration to her genitals.
While that case was under investigation, police found a similar alleged rape from 2013. The woman involved in that case agreed to help investigators. DNA evidence and witness statements led them to Enochs.
In a statement Monday, the Monroe County Prosecutor’s Office said the case presented a “very unusual” set of circumstances; law prevented a jury in either case from learning about the other allegation if the cases went to trial.
Prosecutors also said there were “evidentiary” problems with both cases. In the oldest allegation, the one from 2013, witnesses couldn’t recall some important details because so much time had passed and they’d been drinking. Photographs also existed that contradicted “the assertion that the complaining witness was incapable of engaging in consensual activity shortly before the alleged assault.” In the more recent case, prosecutors said DNA evidence was problematic; prosecutors also said video before and after the alleged assault did “not support the assertion of a forcible rape.” They said that made it impossible for them to prove that Enochs caused the woman’s injury.
“This turn of events was frustrating for us as prosecutors, due to the fact that there were two complaints against the defendant. That fact is the reason we continued to pursue accountability on his part which led to this plea agreement,” Chief Deputy Prosecuting Attorney Robert Miller wrote in a statement. Miller said Enochs originally pleaded guilty to a felony; the battery charge was reduced to a misdemeanor at the court’s discretion....
Katharine Liell, who represented Encochs in the case, said Encochs was charged with crimes he didn’t commit. Liell pointed out that prosecutors dismissed both rape charges and blamed the lead investigators for presenting “false and misleading evidence” in the probable cause affidavit charging Encochs with rape. Liell called the charges “sensationalized and false,” adding that Enochs did indeed admit to a misdemeanor. Liell said he was “profoundly sorry for his lack of judgment.”
Because I can only infer various details about this case from this press report, I am deeply disinclined to "attack" the attorneys or the judge for their handling of this case. Still, it seems in this case we have allegations of repeat rapist essentially getting away with his crimes because he only ended up with a misdemeanor conviction and thus not only will not serve any prison time, but will not have to be on a sex offender registry or suffer any other lifetime collateral consequences that go with a serious felony conviction.
I fully understand why a "perfect storm" of factors turned the Brock Turner case into the national sentencing scandal of 2016. But, relatively speaking, the ultimate (in)justice that seems to have taken place in this case out of Indiana seems to be even more scandalous and likely ought to be of even bigger concern for those deeply troubled by the problems of sexual assaults on college campuses.
Tuesday, June 28, 2016
Final SCOTUS order list has nine Mathis GVRs ... and I suspect hundreds more cases will be impacted
The Supreme Court this morning finished up its work before heading out on summer vacation by issuing this order list. Though the Justices granted review in eight new cases, none appear to involve criminal justice issues. But the order list still had a bit of sentencing intrigue by including nine GVRs based on its Mathis ACCA ruling from last week (basics here).
Though it is never surprising to see a spate of GVRs in the wake of any significant ruling about a federal sentencing statute, I suspect that the fall-out from Mathis will extended to many more cases because, as reported via Justice Alito's dissent, it seems the ruling means that "in many States, no burglary conviction will count" as a possible ACCA predicate offense. That reality not only can impact many past, present and future ACCA cases, but also could also echo through the application of burglary (and even other crimes) in past career offender guideline cases.
Ultimately, I would be very surprised in the impact and import of Mathis end up nearly as grand or as complicated as last Term's Johnson ruling. But the consequential sentencing math of Mathis still may be major.
June 28, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Monday, June 27, 2016
Per the Chief, SCOTUS unanimously vacates former Gov's conviction while adopting "more bounded interpretation" of corruption statute
Wrapping up yet another remarkable Term with a notable bit of unanimity, the Supreme Court's final opinion for this SCOTUS season was a win for a high-profile federal defendant McDonnell v. United States, No. 15-474 (S. Ct. June 27, 2016) (available here). Chief Justice Roberts authored the opinion for the unanimous Court, and here are some key excerpts from the start and center of the ruling:
In 2014, the Federal Government indicted former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, on bribery charges. The charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.
To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. The parties did not agree, however, on what counts as an “official act.” The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five “official acts.” Those acts included “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning studies of anatabine. Supp. App. 47–48. The Government also argued more broadly that these activities constituted “official action” because they related to Virginia business development, a priority of Governor McDonnell’s administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official — without more — does not count as an “official act.”
At trial, the District Court instructed the jury according to the Government’s broad understanding of what constitutes an “official act,” and the jury convicted both Governor and Mrs. McDonnell on the bribery charges. The Fourth Circuit affirmed Governor McDonnell’s conviction, and we granted review to clarify the meaning of “official act.”...
Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”...
It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter. Instead, something more is required: §201(a)(3) specifies that the public official must make a decision or take an action on that question or matter, or agree to do so....
In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of “official act.”
Saturday, June 25, 2016
"Trauma Informed Juvenile Justice"
The title of this post is the title of this new paper authored by Samantha Buckingham now available via SSRN. Here is the abstract:
The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.
The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.
This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.
Friday, June 24, 2016
Unexpectedly(?), new post-Hurst hydra head takes big bite out of Ohio capital case
As regularly readers know, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases. That hydra has been taking various bites out of capital cases most prominently in Alabama and Delaware as well as Florida, but this article from my own local Ohio paper highlights how new heads can pop up in unexpected places. The article is headlined "Prosecutor: Marion County judge's ruling puts death penalty in jeopardy," and here are the interesting details:
A Marion County judge this week dropped the death penalty elements from a convicted murderer-rapist's sentence on the grounds that there were similarities to a Florida death sentence ruled unconstitutional by the U.S. Supreme Court this year.
Because Florida and Ohio have similar sentencing and procedural guidelines, defense attorneys argued that Maurice A. Mason, sentenced in 1994 for raping and beating to death Robin Dennis, then 19 and pregnant, should not be executed.
The case could have implications in other capital cases in Ohio, said Marion County Prosecutor Brent Yager, who disagreed with Monday's decision by Marion Common Pleas Court Judge William Finnegan. "I was surprised," said Yager. "I believe that there is a distinction between the death penalty in Florida and in Ohio."...
Finnegan, in his ruling, wrote that the Hurst decision makes clear that the Sixth Amendment requires juries make specific findings to authorize the death penalty. Ohio, he wrote, "has no provision for the jury to make specific findings related to the weighing of aggravating and mitigating factors," and thus is unconstitutional.
Yager said Ohio differs from Florida because juries here directly decide the aggravating circumstances in a capital case used in the penalty phase and sentencing, although judge's have the ability to commute the death sentence in lieu of life in prison.... Yager said the ruling is frustrating, in part because victim families and lawmakers expect swift and certain justice.
"Ohio and the state legislature have decided we still should have a death penalty in Ohio," said Yager. "But based on the judge's ruling here, if this stands, our death penalty would be unconstitutional. This decision does become a statewide issue." Yager said he plans to file an appeal with the Third Circuit Court of Appeals in Lima.
Mason's attorney, Kort Gatterdam, said the decision should "withstand scrutiny from higher courts and will become the law of this state ... and could become the basis to eliminate the death penalty in Ohio."...
Mason, now 52, has been moved from death row to a regular cell at the Mansfield Correctional Institution. With no sentence on record for the murder conviction, he technically is eligible for a parole hearing. But the Ohio Department of Rehabilitation and Correction and the parole board have said that won't happen his ultimate sentence for murder is resolved.
Not long after SCOTUS ruled in Hurst, a very smart and savvy local lawyer told me that he thought a strong argument could be made that Ohio's capital sentencing scheme has Hurst problems. Apparently, at least one state trial judge agrees, and it will be very interesting to watch the certain appeal of this ruling in the state courts as well as whether this ruling echoes through lots and lots of other Ohio capital cases past and present.
The full 50-page ruling in Ohio v. Mason, No. 93CR1053 (Ohio Common Pleas Ct. June 20, 2016), is available at this link. I have not yet had a chance to read the opinion, but I think it surely is a must-read for capital litigators of all stripes in Ohio and elsewhere.
Do all or most prosecutors really end up "hostile to constitutional rights"?
The question in the title of this post is prompted by this lengthy new Reason commentary authored by Ken White and appearing under the titled "Confessions of an Ex-Prosecutor: Culture and law conspire to make prosecutors hostile to constitutional rights." The full article is a must-read for lots of reasons, and how it gets started should highlight why:
Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26 — a young 26 at that — on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did.
Three types of culture — the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice — shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly — nobody had to.
When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer — the very sort of true believer that used to annoy me as a young prosecutor.
Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion — and even paranoia — from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.
I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.
My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types. Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them. Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.
Split Arkansas Supreme Court upholds state's new secrecy law to allow execution plans to move forward
As reported in this AP piece, "Arkansas can execute eight death row inmates, a split state Supreme Court ruled Thursday in upholding a state law that keeps information about its lethal injection drugs confidential." Here is more about the ruling and its context:
Arkansas Attorney General Leslie Rutledge said she would request new execution dates once the stays are lifted on the eight inmate executions. Generally, a ruling goes into effect 18 days after it is issued. A paralytic drug, vecuronium bromide, expires on June 30, and the supplier has said it will not sell the state more. So, for the stays to be lifted before the drugs expire, Rutledge must ask the court to expedite the certification process, which she had not done as of Thursday.
"I will notify the governor once the stays of executions have been lifted so that he may set execution dates. I know that victims' families want to see justice carried out, and that is exactly what I will continue to work toward as Attorney General," she wrote in an emailed statement. Arkansas Department of Correction spokesman Solomon Graves would not say whether the agency would try to move forward with the executions. When asked whether the department had tried to negotiate purchasing additional drugs or contacted the suppliers to see whether Thursday's ruling would entice them to sell, Graves said he could not engage in hypotheticals....
The court noted in its ruling an affidavit from a prison official, who said he had contacted at least five other drug wholesalers and manufacturers that said they would not sell the drugs to the state or would not sell them without the makers' permission. It was unclear whether Thursday's actions would change those companies' decisions. The attorney general's office would not advise the Department of Correction to use the drugs after they expire, spokesman Judd Deere said.
A group of death row inmates had argued that Arkansas' execution secrecy law, which requires the state to conceal the maker, seller and other information about the drugs, could lead to cruel and unusual punishment and that the state reneged on a pledge to share information. But the high court said in its 4-3 majority opinion that a lower court "erred in ruling that public access to the identity of the supplier of the three drugs (the Arkansas Department of Correction) has obtained would positively enhance the functioning of executions in Arkansas. As has been well documented, disclosing the information is actually detrimental to the process."
Jeff Rosenzweig, an attorney representing the inmates, said he is "studying the decision and anticipate filing a petition for rehearing." Three justices wrote full or partial dissents, including Associate Justice Robin Wynne, who wrote that he believed the inmates proved their claim that the law violated the state constitution's prohibition on cruel or unusual punishment. Justice Josephine Linker Hart wrote that the dismissal of the complaint was premature and that she would have ordered disclosure of the drug information....
For more than 10 years, Arkansas' executions have been stalled because of multiple court challenges over different drug protocols and problems obtaining those drugs. Arkansas Gov. Asa Hutchinson set execution dates last September that were later stayed by the high court until the inmates' challenge could be heard. Hutchinson "believes Judge Griffen overstepped his authority and is pleased the Arkansas Supreme Court reversed his ruling upholding the law protecting the confidentiality of the supplier," spokesman J.R. Davis said, adding that Hutchinson is reviewing the decision and talking with Rutledge regarding "the appropriate next steps to take."
The inmates had argued that without disclosure of the source and other information they had no way to determine whether the midazolam, vecuronium bromide or potassium chloride would lead to cruel and unusual punishment. The inmates also argued that the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said that agreement is not a binding contract, and the court agreed Thursday.
Several other issues remain before the state can complete the eight pending executions in the seven days before the paralytic drug expires. A handful of the inmates have not been given a chance to have clemency hearings, and for those who already had them, it was unclear whether they would need another opportunity to apply for clemency because a new date of execution would have to be set.
The full ruling from the Arkansas Supreme Court can be accessed at this link, and this passage from the majority opinion helps explain the import of the Supreme Court's Glossip ruling on this state case:
In this case, the Prisoners urge us to disavow the requirement established in Baze, as amplified by the Court in Glossip, that a prisoner bears the burden of proving a known and available alternative to a state’s current execution protocol. They assert that we should construe our provision differently because the Eighth Amendment uses the words “cruel and unusual punishment,” whereas the Arkansas Constitution contains the disjunctive phrase “cruel or unusual punishment.” As the Court made clear in Glossip, the burden of showing a known and available alternative is a substantive component of an Eighth Amendment method-of-execution claim. We are not convinced that the slight variation in phraseology between the two constitutions denotes a substantive or conceptual difference in the two provisions that would compel us to disregard any part of the test governing a challenge to a method of execution. Accordingly, we decline the Prisoners’ invitation to depart from our practice of interpreting our constitutional provision along the same lines as federal precedent, and we hereby adopt the standards enunciated in both Baze and Glossip. Accordingly, in challenging a method of execution under the Arkansas Constitution, the burden falls squarely on a prisoner to show that (1) the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and (2) there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain.
Thursday, June 23, 2016
"For aficionados of pointless formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre."
The title of this post is one of a number of Justice Alito's spectacular comments in his dissent in the latest Supreme Court ruling on ACCA, Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (opinion here, basics here). In addition to a number of great rhetorical flourishes, Justice Alito's dissent in Mathis explains how messy ACCA jurisprudence has become and reinforces my sincere wish that folks in Congress would find time to engineer a (long-needed, now essential) statutory ACCA fix. Here are passages from Justice Alito's Mathis dissent that frames effectively the mess that ACCA has become and builds up to the sentence I am using as the title of this post:
Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties — that is, longer prison sentences — in a fair and uniform way across States with myriad criminal laws....
Programmed [via prior ACCA rulings], the Court set out on a course that has increasingly led to results that Congress could not have intended. And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Elements,” see ante, at 8, the Court keeps its foot down and drives on....
A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that abuilding was burglarized, count the conviction.
The majority disdains such practicality, and as a resultit refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary.... As the Court sees things, none of this would be enough. Real-world facts are irrelevant.
Stressing harms of drunk driving, SCOTUS upholds warrantless breath tests (but not warrantless blood tests) incident to arrest
The Supreme Court handed down its last big Fourth Amendment decision of this Term, and Birchfield v. North Dakota, No. 14–1468 (S. Ct. June 23, 2016) (available here), is a nuanced ruling that I am glad to see makes much of the scourage of drunk driving. Here is the start of the Birchfield opinion for the Court authored by Justice Alito, as well as two key summary paragraphs from deep into the opinion:
Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws.
In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches....
Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.
We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.
Chief Justice Roberts and Justices Kennedy, Breyer and Kagan joined Justice Alito's opinion for the Court. Justice Sotomayor, joined by Justice Ginsburg, filed an opinion concurring in part and dissenting in part. Justice Thomas also filed his own opinion concurring in the judgment in part and dissenting in part.
Another ACCA win for federal defendants in Mathis
The Supreme Court this morning handed down its last sentencing case this Term, and Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (available here), is another win for federal criminal defendants. Here is the start of the Mathis opinion for the Court authored by Justice Kagan:
The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense — i.e., the offense as commonly understood. For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.
Justice Kennedy issued a concurring opinion, and so did Justice Thomas. Justice Breyer, joined by Justice Ginsburg, issued a dissenting opinion. And Justice Alito issued his own dissenting opinion.
"Religious Objections to the Death Penalty after Hobby Lobby"
The title of this post is the title of this intriguing piece authored by Danieli Evans now available via SSRN. Here is the abstract:
In this short essay, I consider how the logic of the complicity-based claims in Hobby Lobby and subsequent nonprofit cases could be applied to challenge the common policy of “death qualifying” jurors in capital punishment cases — removing any juror who reports conscientious opposition to the death penalty. I argue that just like religious nonprofits that object to reporting a religious objection to contraceptives on the grounds that it enables someone else to provide contraceptives, a juror might object to reporting a religious objection to the death penalty on the grounds that it will enable someone else to replace them who is more likely to impose the death penalty.
Wednesday, June 22, 2016
Anyone interested in making bold predictions on the last four criminal cases still to be decided by SCOTUS this Term?
Amy Howe at SCOTUSblog has this helpful new post reviewing the final eight cases still to be resolved by the eight Justices before they take their summer vacations. Some of these opinions will be handed down tomorrow and the others are likely to be released early next week. Notably, four of the remaining eight are criminal cases (and I am leaving out of this accounting the big immigration case). Here are Amy's review of the four criminal cases left:
Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Voisine and Armstrong contend their state convictions (which the First Circuit affirmed) do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.
Birchfield v. North Dakota (argued April 20, 2016). Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall. The North Dakota and Minnesota Supreme Courts ruled in favor of the states, and now the Justices will weigh in.
Mathis v. United States (argued April 26, 2016). After having been convicted of several burglaries in Iowa, Richard Mathis was later prosecuted by the federal government for being a felon in possession of a firearm and received a mandatory minimum sentence under the Armed Career Criminal Act based on his burglary convictions. The Eighth Circuit affirmed his conviction. The question before the Court is how to determine whether state convictions like Mathis’s qualify for federal mandatory minimum sentences and for removal under immigration law.
McDonnell v. United States (argued April 27, 2016). Former Virginia governor Bob McDonnell is challenging his convictions for violating federal laws that make it a felony to agree to take “official action” in exchange for money, campaign contributions, or anything else of value. The Fourth Circuit affirmed, and so the Justices agreed to weigh in. He argues that merely referring someone to an independent decision maker – in his case, in an effort to help promote a Virginia businessman’s nutritional supplement – doesn’t constitute the kind of “official action” that the statute bars.
I think it is possible that any of these cases could turn into a blockbuster, and Birchfield and McDonnell arguably require the Justices to do some "big" jurisprudential work to resolve the issues before them. Narrow/technical rulings seem more likely in Voisine and Mathis, though the former may get some extra attention in light of the on-going political discussions and sparring over gun control following the Orlando shootings and the latter seems sure to add yet another chapter to the lengthy and complicated ACCA jurisprudence.
As we await these final rulings (and especially because all are sure to be eclipsed in the mainstream media by the abortion, affirmative action and immigration cases also on tap), I would be eager to hear from readers about what they are expecting or even hoping for as the SCOTUS Term winds down.
Ninth Circuit discusses timing and tolling for successor 2255 petitions making Johnson claims
Hard-core habeas fans know that all sorts of procedural issues can potentially trip up federal defendants serving Armed Career Criminal Act sentences from being able to bring claims collaterally attacking their sentences based on Johnson v. US. Some of the procedural trip-wires, and potential work-arounds, are discussed today by a Ninth Circuit panel in Orona v. US, No. 16-70568 (9th Cir. June 22, 2016) (available here).
I am not sure any of the particulars discussed in Orona are that noteworthy, but I thought the case merited a blog mention because this week is, arguably, the last week in which defendants with long-final sentences can bring timely collateral attacks based on Johnson.
Tuesday, June 21, 2016
"Society would benefit from rewarding attorneys for identifying the wrongly and unnecessarily imprisoned"
The title of this post is the subheading of this great new article in the latest issue of Regulation published by the Cato Institute. The article, authored Christopher Robertson and Jamie Cox Robertson, carries the main title of "Reducing Wasteful Incarcerations," and here are excerpts from the start and heart of the article:
Prisons are essential to a safe and civil society. Prisons are also costly for the taxpayers whose government houses, feeds, medicates, and supervises millions of people underlock and key. This expense is compounded by errors in the U.S. legal system that produces both false guilty verdicts and overly harsh penalties. It’s time for the United States to take a closer look at these unnecessary incarcerations. By working to release prisoners who don’t belong in prison, we can lower the costs of the prison system — not to mention restore freedom to people who are wrongly being deprived of it. Unfortunately, it is difficult to identify which prisoners are wrongly incarcerated, and itwould take an enormous investment of professional expertise and money to produce that information. However, we could make valuable progress on this issue by offering appropriate incentives for attorneys to identify some of these wasteful incarcerations, thus saving public money and serving the ends of liberty....
Under current law, most prisoners probably deserve to be there, and there is no simple algorithm for identifying which ones don’t. The challenge is to separate the wheat from the chaff, and that requires professional skills and the investment of both time and money. Currently, to do this sorting, we largely depend on charity, luck, and pluck, which is no way to run a multibillion dollar government enterprise.
A better approach would be for the government to increase funding for public defenders so they can do more post-conviction litigation. Some public defenders already have in-house innocence projects. Still, funding for public defenders’ offices is notoriously scarce, the salaries offered for these cases often fail to attract the best attorneys needed to undertake such complex work, and the overworked offices naturally triage in favor of new cases.
Of course, we could spend more on public defenders. But as a centrally planned solution, it’s hard to assessthe optimal level of investment. Prior reform efforts suggest that additional spending on public defenders may also be politically infeasible because it is often viewed as providing a service for criminals.
Instead, governmentsshould consider using a contingent-fee system for post-conviction counsel. Attorneys would only receive this fee if they successfully show that a prisoner’s continued incarceration is wrongful. The fee could be based on a simple proportion of the estimated amount the government would save by stopping the incarceration — perhaps 50% of those costs. Or, the system could be set up like the statutory fee paid to civil rights attorneys, taking into account a reasonable hourly rate multiplied by a factor to recognize the low chances of prevailing. In the False Claims Act, passed during the Civil War to root out fraud by government contractors, and the more recent whistle blower statute that the Internal Revenue Service uses to expose tax evaders,we have precedents for paying financial rewardsthat align the interests of knowledgeable individuals and the government.
The advantage of a contingent fee is that it gives attorneys an incentive to search for worthy cases and bring them to prosecutors and the courts, which is exactly what a cost-conscious government needs. Unlike desperate and unskilled prisoners representing themselves, attorneys would have no incentive to clog the courts with frivolous claims for post-conviction relief. Any such claim would require the investment of time and money without promise of return. Instead, we should expect a small industry of specialist attorneys to develop, at first focusing on the low-hanging fruit, but then becoming more specialized to identify entire categories of cases where review is most promising.
Open letter from large group of reform advocates urges Prez Obama to "accelerate the process" for granting clemency
As reported in this new USA Today piece, headlined "Experts warn White House that time is running out for clemency initiative," an impressive group signed on to this open letter to Prez Obama discussing his clemency activities. Here are excerpts from the USA Today reporting providing some pf the leteer's context and content:
Thousands of federal inmates could be eligible to have their sentences reduced under the Obama administration's initiative to free non-violent offenders from prison, but experts are warning the White House that time is running out for the president to take action.
A record-setting number of clemency petitions, lack of resources and a confusion over eligibility have hampered President Obama's plan to use his constitutional pardon power to shorten sentences, particularly for low-level drug offenders serving mandatory minimum sentences. If those inmates are going to have any hope, President Obama needs to personally intervene in the process, a group of advocates, law professors and attorneys said in a letter to the president Tuesday.
"The initiative has been plagued by bureaucratic inefficiencies that have kept petitions that meet all of your stated criteria from reaching your desk," the letter said. "We are concerned that as your days in office diminish, the clemency initiative is moving too slowly to meet the goals you set when you announced it in 2014."
The letter was signed by 41 people, led by Julie Stewart of Families Against Mandatory Minimums and including and law professors from Harvard, Yale, Georgetown, Berkeley, Columbia, Northwestern, New York University and others. Also notable: former White House special adviser Van Jones and former U.S. District Judge Nancy Gertner.
In response, the White House said Obama "has demonstrated a commitment to the commutations process not seen by any other president in the modern era." He's issued more commutations than the past seven presidents combined, written personal letters to clemency recipients and met with recipients to urge society to give them second chances.
"As we have said, the president will continue to issue additional commutations throughout the remainder of his time in office," said Assistant White House Press Secretary Brandi Hoffine. "The clemency process alone, however, will not address the vast injustices in the criminal justice system resulting from years of unduly harsh and outdated sentencing policies."
Obama has stepped up the pace of commutations in his last year in office, no longer waiting until the end of the year to announce clemency decisions. Obama granted 61 commutations in March, 58 in May and 42 this month — part of what White House Counsel Neil Eggleston said was a deliberate attempt to grant clemency on a more regular basis. In all, Obama has commuted the sentences of 348 people, more than any president since Franklin Roosevelt. (He's also granted just 70 pardons, fewer than any full-term president since 1800.)
But according to the Office of Pardon Attorney, 11,861 commutation petitions were still pending as of June 6, fueled largely by the Judtice Department's call for more applications from volunteer defense attorneys in 2014. And this isn't the first time there have been warnings of a backlog in the process. A year ago, former Pardon Attorney Deborah Leff told defense lawyers that "the clock is running," and that petitions weren't coming in quickly enough. There were questions about the eligibility criteria, and many cases required a complete re-examination of court and prison records. Then in January, Leff resigned, citing a lack of resources and interference from Deputy Attorney General Sally Quillian Yates that prevented her recommendations from reaching the president's desk.
I had the honor of being asked to sign on to this open letter, and I agree with nearly all of its sentiments. But, as I stressed in this post a few months ago, I have been clamoring for clemency reform since Prez Obama's first day on the job, and I remain deeply disappointed and troubled that there seems to have been no serious interest or commitment to any kind of structural/institutional reform in this space. As a result, I did not feel I could comfortable sign this letter because it includes a sentence stating that, in th clemency arena, the signers "believe [Prez Obama's] leadership will bring lasting change to the country and set the table for further reforms in future administrations."
I certainly do not want to unduly criticize Prez Obama's (still very important) efforts in this arena, and I am especially pleased to see this open letter getting press attention. But, unless Prez Obama does something more than just grant a few hundred more commutations (which is what I am expecting to see in the coming months), I am still going to view his Presidency in terms of a unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.
"What is 'violent' crime?"
The question in the title of this post is the very first sentence of this effective Salon commentary by Benjamin Levin. The commentary has this (much less pithy) full headline and subheadline: "It’s time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system: The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment." And here are excerpts:
What is “violent” crime? Perhaps that seems like an easy question — murder is; tax evasion isn’t. But the distinction between violent and nonviolent crime has proven tricky for lawyers, judges and legislators.
Policy debates about proper punishments or enforcement too often break down because the various stakeholders get hung up on whether the crime in question is “violent.” If we are serious about addressing mass incarceration and our bloated criminal justice system, it’s time to rethink what counts as violent crime.
Perhaps nowhere is this issue more evident than in recent debates about drug crime. Where the bipartisan push to reduce prison populations has focused on “nonviolent drug offenders,” sentencing reform opponents have argued that drug crime is inherently violent.
Last year, the National Association of Assistant U.S. Attorneys (an organization representing federal prosecutors) published a white paper arguing that drug trafficking is violent crime. Last month, William Bennett and John Walters (the drug czars for Presidents George H.W. Bush and George W. Bush, respectively), penned an op-ed echoing this claim.
I think that Bennett and Walters are wrong on the facts, but their argument also highlights the problem with using the violent/non-violent distinction as a relevant metric of criminal punishment.
Bennett and Walters claim that drug trafficking is violent because of the harms that drugs themselves do (i.e., by hurting users and by imposing third party harms). Notably, their claim isn’t that drug dealers use violence to make money and control their turf. Indeed, a body of research shows that prohibition – not the drugs themselves — has made drug dealing a dangerous industry. Rather, their claim is that drug dealing is violent because it has victims. And that’s a much broader claim.
They’re certainly right that many illegal drugs carry with them severe health risks and risks to third parties, causing danger at home, in the workplace, and on the road. But does that make drug dealing a “violent crime”?
Bennett and Walters’s argument appears to rest on an expansive definition of violent – an act is violent if it does harm in the world or if people suffer directly or indirectly because of it. This definition would capture many traditional violent crimes (murder, rape, assault, etc.), but it would also sweep in a great deal of conduct that does harm, directly or indirectly. Why isn’t selling alcohol or cigarettes a violent act? What about gun possession? Drunk driving? Theft? Or even tax evasion?
While the Supreme Court has struggled to define when conduct is “violent,” the real-world consequences of this definitional question are critically important: the law often treats violent and nonviolent crime very differently. Many laws govern the conduct of those with criminal records, restricting housing, employment, voting and a range of benefits. These laws often depend upon the nature of the underlying offense — a violent felony might preclude someone from finding work in a given industry; a nonviolent conviction might not. Additionally, a conviction for a violent (as opposed to a nonviolent) crime might trigger a much longer sentence if an individual commits another crime — even if the second crime is nonviolent or less serious....
Certainly, there are many cases in which most of us would agree that the alleged conduct is violent. And there may be cases in which most of us would agree that conduct is nonviolent. (And, those latter cases often serve as the easiest point of bipartisan sentencing reform.) Yet Bennett and Walters’s argument shows that most harmful or objectionable conduct might be classified as violent. If a determination that crime is violent rests simply on finding someone who suffers directly or indirectly based on the act in question, then the definition knows no bounds.
If “violent crime” means so many things, then it only creates the illusion that society has sorted out the true “bad guys” or punished the worst conduct. Instead, it becomes a proxy for social harm, risk prediction, or moral condemnation. It may be that consensus on questions of criminal punishment is an impossible goal. But continuing to cast all objectionable conduct as violent is counterproductive and makes meaningful compromise and reform even more difficult.
Intriguing review of Georgia's intriguing modern history with capital punishment
Because many modern landmark Supreme Court death penalty cases came from Georgia (e.g., Furman, Gregg, Coker, McKlesky), the Peach State will always have a plum role in any story of the modern history of the death penalty. And this recent local article, headlined "Georgia executions rise, while death sentences plummet," details why Georgia's most recent history with capital punishment also merits attention. Here is how the piece starts:
It’s Georgia’s new death penalty paradox: the state is executing inmates at a record clip, but prosecutors almost never seek the death penalty anymore, and juries refuse to impose it when they do.
During each of the past two years, Georgia executed five inmates. If, as expected, the state carries out another execution later this year, it will have put more people to death — six — in 2016 than in any single year since the U.S. Supreme Court reinstated capital punishment four decades ago. But the last time a Georgia jury imposed a death sentence was in March 2014. And district attorneys have been turning away from death as a sentencing option, more often allowing killers to receive sentences of life in prison without the possibility of parole.
A decade ago, state prosecutors filed notices of intent to seek the death penalty against 34 accused killers. That number dropped to 26 in 2011 and to 13 last year. How many times have Georgia DAs sought the death penalty so far this year? Once. And this was against a man accused of killing a priest — a clergyman who had signed a document saying if he died a violent death he did not want his killer to face the death penalty.
The incongruity of the increasing numbers of executions and the plummeting numbers of death sentences took both prosecutors and defense attorneys by surprise. “Wow,” Atlanta criminal defense attorney Akil Secret said. “Maybe the times are changing.” The precipitous declines raise the question of whether prior capital sentences were justified, Secret said. “If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?”
Monday, June 20, 2016
"Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment"
The title of this post is the title of this revealing new empirical paper available now via SSRN and authored by Amanda Agan and Sonja Starr. Here is the abstract:
“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.
To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.
Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods). Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.
June 20, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)