Tuesday, December 10, 2013
"Harsh Sentences Are Killing the Jury Trial"
The title of this post is the headline of this forceful commentary at The Atlantic authored by Andrew Guthrie Ferguson. Here are lengthy excerpts from a piece that merits a full read:
[T]he Human Rights Watch Report, “An Offer You Can’t Refuse,” confirms that harsh sentencing laws have undermined the American jury system. On average, 97 percent of defendants plead guilty in federal court. For crimes that carry a minimum mandatory sentence, going to trial has simply become too risky. As Human Rights Watch reports: “Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty.”
This risk goes well beyond the traditional trade-offs. Plea offers have been around since the 1800s and are a well-established and necessary part of criminal practice. But the new mandatory minimums and sentencing enhancements have given federal prosecutors new power to coerce pleas and avoid trials. A prosecutor can now give a minor drug dealer this choice: “Plead guilty to a reduced charge, or go to trial and risk sentencing that will put you in jail for decades.” It’s not hard to understand why so many defendants — whether innocent, guilty, or not quite as guilty as charged — are taking the first option....But, there is a secondary cost that is less often discussed but equally damaging to the criminal justice system. Harsh sentencing laws are killing the jury trial. And without trials, citizens have no say in the criminal justice system.
It is no accident that the jury trial is the only constitutional right to make a repeated appearance in the original Constitution and the Bill of Rights. The founding fathers considered criminal juries to be the best mechanism for checking the power of judges and lawyers. By interposing citizens between a prosecutor and a conviction, the constitutional system protected individual liberty. This is not to say that colonial juries did not convict people quite regularly, and quite harshly. But when they did, citizens, not prosecutors, were the ones condemning the law breakers. It was this local, public participation that gave legitimacy to the larger system.
The modern domination of plea bargains has excised the role of the citizen-juror. Without trials, citizens do not learn about what is happening in the criminal justice system, and they have no way of taking part in it. Instead of seeing the consequences firsthand, ordinary Americans must rely on research reports and news stories. This practice disconnects the people from their own democratically enacted laws, precluding them from evaluating these elective choices.
Unlike trials, plea bargains take place in secret, away from public scrutiny. They involve negotiations between repeat players in the system — the lawyers. And for many types of crimes, the bargains are influenced by federal policies, not local ones. Thus, the jury system — with its emphasis on local authority and public participation — has been replaced with a system as insular as it is broken....The push for jury trials in the Bill of Rights came from citizens — not judges, politicians, or prosecutors. In fact, the perceived lack of citizen involvement in the legal system almost derailed the original Constitution, as Anti-Federalists saw it as a threat to their liberty. Concerned citizens wrote, organized, and protested on behalf of their own role in the justice system. They won, and that victory can still be read in the Sixth Amendment, which promises in rather emphatic terms that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”
Today, Americans of all political persuasions should embrace a greater role for juries, at least when it comes to federal prosecutions. After all, Tea Party conservatives believe in local, accountable government, while progressive liberals believe in an equitable system of justice. More jury trials will mean more ordinary people engaged in the legal system — more citizens involved in their government. The result will not only be consistent with the original design of the Constitution but, like the jury system, itself, will encourage more local, democratic, participatory engagement with our government and its policies.
A few recent and older related posts on modern prosecutors and plea practices:
- Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system
- "The Prisoners’ (Plea Bargain) Dilemma"
- US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinion
- A prosecutor's potent perspective on Lafler, Frye and the future of plea bargaining
- "The Plea Jury"
- Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?
- Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums
- "Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect"
- "The Unchecked Charging Power of the Prosecutor"
Sunday, December 08, 2013
Victims provide some recent historical perspectives on two worst crimes in recent American history
As regular readers may know, I am a huge believer in having criminal justice systems give special attention to victims' interests, rights and perspectives (in part because I believe actual victims, generally speaking, are often interested in a much more dynamic and sophisticated government response to wrong-doing than just the lock-em-up-and-throw-away-the-key attitudes too often claimed to be in their interest by politicians and prosecutors). For that reason, I am always pleased when victim-oriented matters become big legal cases (as with the SCOTUS Paroline case concerning restitution for child porn victims), and also when the media gives special and extended attention to crime victims.
For these (and other) reasons, I am pleased and intrigued to see today's New York Times has these two extended articles discussing victims' perspectives on two of the worst crimes in recent American history:
I have long felt very fortunate that I personally have only been the victim of relatively minor property crimes (though I do have a number of family members and friends who have had their lives shattered by serious violent crimes). I also feel very fortunate to live in a society that, at least in some high-profile settings for some victims, seeks to be attentive to the unique needs and enduring challenges that all too many crime victims face.
Thursday, December 05, 2013
Yet another effective review of the child porn restitution challenges facing SCOTUS
I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic. (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.) And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline. The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):
In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.
Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...
Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery. The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases. But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....
Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution. Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal. The senators, though, say that all these courts got it wrong and the 5th Circuit got it right. They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.” And they provide an important piece of history about how VAWA was drafted....
Here’s the clearest way to think about how and why Amy and other victims like her should win restitution. Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures. But the harm is crystal clear in the aggregate. And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.
How much does each viewer who is convicted have to pay? The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole. Courts should use their discretion to pick some place in the middle, the government says. It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”
If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair. But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants. Then it would be up to those men to find the others who are also legally responsible. This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts. If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.
Money can make a huge difference for victims of sexual abuse. For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times. Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution. The Supreme Court should too. And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.
A few prior posts on Paroline:
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
December 5, 2013 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack
Wednesday, December 04, 2013
"The wrong people decide who goes to prison"
The title of this post is the headline of this notable new CNN commentary authored by US DIstrict Judge Mark Bennett and Prof. Mark Osler. Here are some of the on-the-mark views coming today from these Marks:
Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law. Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.
This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion. It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.
The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.
After nearly 30 years, we know how Congress' experiment turned out, and the results are not good. Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way. Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities....
Let's look at just one way that prosecutors exercise this discretion: the enhancement of narcotics sentences under 21 U.S.C. 851, or proceedings to establish prior convictions. These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may raise the maximum possible sentence.... [O]ur analysis of the way these enhancements have been used reveals a deeply disturbing dirty little secret of federal sentencing: the stunningly arbitrary application of these enhancements by prosecutors within the Department of Justice.
The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota. Nor are these Midwestern neighbors an anomaly. In the Northern District of Florida, prosecutors apply the enhancement 87% of the time, but in the bordering Middle District of Georgia, they are used in just 2% of relevant cases.
There is also breathtaking disparity within federal district within the same state (PDF). For example, in Florida, prosecutors in the Northern District apply the enhancement 87% of the time, but in the Southern District, it is used only 14% of the time. In the Eastern District of Tennessee, offenders are 3,994% more likely to receive an enhancement than in the Western District of Tennessee. In the Eastern District of Pennsylvania, a defendant is 2,257% more likely to receive the enhancement than in the Middle District of Pennsylvania. The disparities are startling.
In August, Attorney General Eric Holder announced steps to establish more discipline within the Department of Justice in how this discretion is used. It is a promising step but only that: a step. It is unclear how firm the attorney general is willing to be in tracking and constraining the use of this kind of discretion by prosecutors in different areas.
The larger lesson, and the more important one, is that after nearly 30 years, we still have gross and tragic disparities in federal sentencing, with the added burden of too many people put in prison, caused by mandatory sentencing and harsh sentencing guidelines. Tentative steps at reform will not be enough. It is time for a radical rethinking of the project as a whole and a recognition that this grand experiment in shifting discretion to prosecutors has failed.
December 4, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
Friday, November 29, 2013
"Abstract Risk and the Politics of the Criminal Law"
The title of this post is the title of this intriguing looking new paper by Brenner Fissell now available via SSRN. Here is the abstract:
Much of the criminal law contains what theorists call “abstract endangerment” statutes — crimes that punish not actual, but hypothetical, creation of risk. Consider the case of underage alcohol possession: age does not necessarily imply immaturity, and possession does not necessarily lead to consumption. The crime is therefore doubly “abstract”: many violations will create no risk of harm at all but the conduct is nevertheless prohibited. Theoretical defenses of these overinclusive laws proceed mainly by emphasizing the deficiencies of individuals in assessing their own cases of risk. What these defenses implicitly assume, though, is that the entity the individual must defer to — the legislature — is itself superior at risk assessment.
This Article attacks this supposition, and discusses the problematic features of legislative deliberation regarding risk in the criminal law. Many extraneous considerations often enter, and certain inherent features of these bodies make them especially problematic. Defenders of abstract endangerment statutes, then, ought not simply assume that the legislature is epistemically superior to the individual, and bear a greater justificatory burden than they have satisfied thus far.
Wednesday, November 27, 2013
"Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing"
The title of this post is the title of this notable new paper by Samantha Buckingham now available via SSRN. Here is the abstract:
Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society.
Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices. This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders.
The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes. Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate. This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts. Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in. A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.
November 27, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack
Monday, November 25, 2013
New Brennan Center report urges "Reforming Funding to Reduce Mass Incarceration"
As reported in this press release, late last week The Brennan Center for Justice published a notable new report setting out a notable new proposal under the title "Reforming Funding to Reduce Mass Incarceration." Here are highlights via the press release:
The proposal, dubbed by the authors “Success-Oriented Funding,” would recast the federal government’s $352 million Edward Byrne Memorial Justice Assistance Grant (JAG) Program, by changing the measures used to determine success of its grants. It reflects a broader proposed shift in criminal justice programs at all levels of government. The proposal could be implemented without legislation by the U.S. Department of Justice.
“Funding what works and demanding success is critical, especially given the stakes in criminal justice policy. This report marks an important step toward implementing this funding approach in Washington and beyond,” said Peter Orszag, former Director of the White House Office of Management and Budget, who wrote the proposal’s foreword.
The Center proposes major changes to the program’s “performance measures”, which are used to track a grant recipient’s use of the funds....
“What gets measured gets done,” said Inimai Chettiar, director of the Justice Program at the Brennan Center and one of the report’s authors. “Criminal justice funding should reflect what works. Too often, today, it is on autopilot. This proposal reflects an innovative new wave of law enforcement priorities that already have begun to transform policy. That is the way to keep streets safe, while reducing mass incarceration.”
Success-Oriented Funding would hold grant recipients accountable for what they do with the money they receive. By implementing direct links between funding and proven results, the government can ensure the criminal justice system is achieving goals while not increasing unintended social costs or widening the pipeline to prison.
The JAG program was launched nearly three decades ago at the height of the crime wave. As such, its performance measures center on questions about the quantity of arrests and prosecutions. Although funding levels are not based on rates of arrests and prosecutions, interviews with over 100 state and local officials and recipients found that many grant recipients interpreted the performance measure questions as indicating how they should focus their activity.
The Brennan Center’s new, more robust performance measures would better record how effective grant recipients are at reducing crime in their state or locality. For example, current volume-based performance measures record activity, such as total number of arrests, number of people charged with gun crimes, or number of cases prosecuted. The Brennan Center’s proposed new Success-Oriented performance measures record results, such as the increase or decrease in violent crime rate or what percentage of violent crime arrests resulted in convictions.
A Blue Ribbon Panel of criminal justice experts also provided guidance and comments on the measures, including leaders in law enforcement, prosecutors and public defenders, former government officials, and federal grant recipients. Participants included David LaBahn, president of the Association of Prosecuting Attorneys; John Firman, research director of the International Association of Chiefs of Police; and Jerry Madden, a senior fellow at Right on Crime....
In addition to implementing new metrics, the Brennan Center recommends the Justice Department require grant recipients to submit reports. By mandating that grant recipients answer the questions, the Justice Department can align state and local practices with modern criminal justice priorities of reducing both crime and mass incarceration. The reported data should then be publicly available for further analysis.
The full Brennan Center report can be accessed at this link.
Tuesday, November 19, 2013
What message does six-month prison sentence in high-profile NJ animal cruelty case really send?
The question in the title of this post is prompted by this lengthy local report about a high-profile New Jersey state sentencing, headlined "Brick couple sentenced to 6 months in jail for abusing dog, Sammy." Here are excerpts:
The township couple that admitted to abusing a 17-year-old dog named Sammy was sentenced to six months in jail on Monday. Brick residents Keith Morgan, 56, and Shauna Ewing Morgan, 43, stood in silence next to each other and between their respective attorneys while the sentence was read. The sentence also included a $1,000 fine, $13,500 in restitution, 30 days community service and the couple is prohibited from future ownership of an animal.
“This is what we wanted, this is what was deserved and it was justified,” Monmouth County SPCA Chief Victor “Buddy” Amato said. “This judge did the right thing.” A packed courtroom erupted in cheers when Judge Robert LePore announced jail time for the couple.
“Unless these individuals are imprisoned for their depraved, cruel and heinous conduct, such acts of animal cruelty will continue worldwide,” LePore said. “The lack of care provided to Sammy was inexcusable.” LePore said the sentence he issued was to deter future animal cruelty. “This court believes that a message needs to be sent not just to these defendants, but to all of society that animal cruelty is a national and global problem and must be addressed and deterred,” LePore said.
The charges stem from a March incident when Keith Morgan brought the Cocker Spaniel to the Associated Humane Society in Tinton Falls, claiming he found Sammy in a garbage bag on the side of the road, Amato said. Keith Morgan gave an interview to a local television station after he turned the dog in, claiming he found the dog. That interview was played in court during the sentencing. However, officials said they later learned that the couple had owned the dog for at least nine years.
Sammy was then brought to the Red Bank Veterinary Hospital for treatment because he was malnourished and his fur was covered in urine and matted together in knots to the extent that the dog could not stand up, Amato said. He was released to a foster family in April. Days after Sammy was turned in, authorities learned through an anonymous tip that the Morgans had a second dog, named Ady, at their home. Amato said that because Ady had been groomed before they found her, authorities they were unable to determine if she was neglected. The 3-year-old Cocker Spaniel was voluntarily surrendered to the SPCA and eventually placed in a new home.
Before LePore issued the sentencing, both of the Morgans made a statement to the judge, apologizing. “I was in a bad time in my life. I was depressed … because my wife left,” Keith Morgan said. “I apologize, I didn’t mean for this to happen.” He and his attorney Kevin Sheehy told the judge that Shauna Morgan wasn’t at the home for several months before the incident because the two were separated. Keith Morgan had also been diagnosed with a kidney disease and at one point was suicidal, Sheehy said.
Shauna Morgan’s attorney, Marc Schram, told the judge the couple did not have any contact during their separation, and found the conditions at the home when she returned. “I should have foreseen that Sammy wouldn’t have been safe with my husband, but I didn’t know he was going to get so sick. … If I had foreseen it I would have taken Sammy with me,” she said through tears. “I’m sorry it turned out the way it did.”...
Attorney Steven Zabarsky prosecuted the case and he said he was happy with the outcome. “On behalf of the state, I’ve very satisfied,” Zarbarsky said.
Sammy’s case garnered international attention and a Facebook page was created in support of the dog. An online petition calling on prosecutors to ask for the maximum sentence for the Brick couple received nearly 33,000 signatures.
The Morgans were arraigned on May 20, with more than 250 people packing the Brick municipal courtroom to watch. A line stretched out the door of the courthouse with supporters wearing t-shirts and holding signs demanding justice. During a July 15 hearing, which also drew approximately 150 Sammy supporters, a Staten Island, N.Y. woman yelled out “Go kill yourself” and was escorted out of the courtroom.
Ultimately the Morgans reached a plea agreement on Aug. 19, and Amato called the outcome a “win.” Keith Morgan pleaded guilty to one count of abuse of animal cruelty and filing a false report with law enforcement, while Shauna Ewing Morgan admitted to two counts of animal cruelty.
The eight-month case also stirred debates surrounding animal abuse. In May, N.J. 101.5 radio hosts Dennis Malloy, Judi Franco and Ray Rossi were under fire after they brought the case up on their respective shows. Social media posts claimed Malloy and Franco said animal rights activists needed to get their priorities straight, while Rossi allegedly said “untrue” and “hurtful” statements on air about one of the administrators of the Sammy the Cocker Spaniel Facebook page....
Capt. Richard Yocum, who is president of the state SPCA, said he was proud of Detective William Hyer and Deputy Chief Larry Donato, who investigated the case and of the ruling that was made. “The stand that they [the court] have taken against animal cruelty being unacceptable tonight was admirable,” Yocum said. “Sammy does have a loving home, he’s doing much, much better and he’s living out his life in a very good place.”
After the sentence, both of the Morgans’ attorneys said they would be filing an appeal Tuesday morning. The judge granted a motion for a stay to allow the Morgans to remain free for the appeal process.
Because I am an animal lover and have been a passionate pet owner for my whole life, I can understand how many people can and will get very worked up about animal abuse. Still, I cannot help but wonder how much NJ taxpayer money was spent in this prosecution, and I especially wonder if many other abused animals might have been better served if those resources had instead been directed to an animal shelter or to a public service campaign.
Effective use of state resources aside, the message I take away from this sentencing story is the telling (and I think unfortunate) reality that many folks view incarceration as the only serious and meaningful punishment even when it seems likely that creative alternative punishments could possibly be more significant and effective. This kind of case, in which the defendants do not appear to present any real risk to public safety, seems to me to be the perfect setting for developing thoughtful shaming sanctions and lengthy (animal-servicing) community service as a punishment that could and should keep an on-going spotlight on the problems of animal cruelty and better enable other to better understand how to avoid hurting animals in the first instance.
Monday, November 18, 2013
Ninth Circuit rejects Second Amendment attack on federal crime of gun possession by certain misdemeanants
In a lengthy panel opinion coupled with a notable concurrence, the Ninth Circuit today in US v. Chovan, No. 11-50107 (9th Cir. Nov. 18, 2013) (available here), rejects a defendant's Second Amendment challenge to the federal statute criminalizing gun possession by persons convicted of domestic violence misdemeanors. Here is how the majority opinion starts:
Following the entry of a conditional guilty plea, Daniel Chovan appeals the district court’s denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. § 922(g)(9). Section 922(g)(9) prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life. Chovan contends that § 922(g)(9) is unconstitutional both on its face and as applied to him because it violates his Second Amendment right to bear arms. In the alternative, he argues that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reject Chovan’s “civil rights restored” argument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g)(9) under intermediate scrutiny.
In a lengthy concurrence, Judge Bea explains why he thinks strict scrutiny is the right way to scrutinize the federal gun crime at issue here, and his opinion concludes this way:
The Heller opinion did not provide lower courts with explicit guidance on how to analyze challenges to statutes under the Second Amendment. If we are to apply the familiar tiers of scrutiny analysis in Second Amendment cases, instead of a pure textual, historical, and structural analysis, however, history and precedent still dictate a more stringent examination of these issues than the majority allow. Strict scrutiny has become an integral aspect of much of our constitutional jurisprudence. See Fallon, supra, at 1268 (ranking strict scrutiny “among the most important doctrinal elements in constitutional law”). After applying strict scrutiny to § 922(g)(9), I come to the same conclusion as do the majority, and uphold the law. The close look afforded by strict scrutiny, however, ensures that the law truly is narrowly tailored to further a compelling governmental interest, and ensures that the Second Amendment’s contours are drawn by the Constitution, and not by Congress.
November 18, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack
Justice Sotomayor calls for Alabama's capital sentencing system to get a "fresh look"
SCOTUS wrapped up its formal November activities with an order list this morning that included two dissents from denials of cert in state criminal cases. SCOTUSblog here reports on these basics:
Among cases the Court declined to hear was a challenge to Alabama’s death sentencing scheme, filed by an inmate who was given such a sentence by the judge even though the jury had voted eight to four against that punishment. Justice Sonia Sotomayor, in a twelve-page dissent most of which was joined by Justice Stephen G. Breyer, said that the Court should take a new look at Alabama’s capital punishment approach. It is now the only state where judges have imposed death sentences contrary to advisory verdicts recommended by juries. In a part of the opinion that Justice Breyer did not join, Justice Sotomayor argued that the Alabama approach may violate a string of modern Court rulings enhancing the role of juries in the sentencing process. She wrote as the Court denied review in Woodward v. Alabama (13-5380).The Court’s denial of review in two other cases drew dissenting opinions or separate statements by Justice Samuel A. Alito, Jr. One was Rapelje v. McClellan (12-1480), a test of federal courts’ power in habeas cases to defer to summary rulings by state courts in criminal cases. Justice Antonin Scalia joined the Alito dissent in that case.
The case concerning Justice Alito has more to do with habeas review than sentencing issues, but the case concerning Justice Sotomayor has to be right in the wheel-house of sentencing fans. Here is how Justice Sotomayor's dissenting opinion (which has a graph in the middle) gets started and concludes:
The jury that convicted Mario Dion Woodward of capital murder voted 8 to 4 against imposing the death penalty. But the trial judge overrode the jury’s decision and sentenced Woodward to death after hearing new evidence and finding, contrary to the jury’s prior determination of the same question, that the aggravating circumstances outweighed the mitigating circumstances. The judge was statutorily entitled to do this under Alabama law, which provides that a jury’s decision as to whether a defendant should be executed is merely an “advisory verdict” that the trial judge may override if she disagrees with the jury’s conclusion. In the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts. Since Alabama adopted its current statute, its judges have imposed death sentences on 95 defendants contrary to a jury’s verdict. [FN1] Forty-three of these defendants remain on death row today. Because I harbor deep concerns about whether this practice offends the Sixth and Eighth Amendments, I would grant Woodward’s petition for certiorari so that the Court could give this issue the close attention that it deserves....[FN1] A list of these 95 defendants sentenced to death after a jury verdict of life imprisonment is produced in an appendix to this opinion. By contrast, where juries have voted to impose the death penalty, Alabama judges have overridden that verdict in favor of a life sentence only nine times.
Eighteen years have passed since we last considered Alabama’s capital sentencing scheme, and much has changed since then. Today, Alabama stands alone: No other State condemns prisoners to death despite the considered judgment rendered by a cross-section of its citizens that the defendant ought to live. And Apprendi and its progeny have made clear the sanctity of the jury’s role in our system of criminal justice. Given these developments, we owe the validity of Alabama’s system a fresh look. I therefore respectfully dissent from the denial of certiorari.
"The Jurisprudence of Death and Youth: Now the Twain Should Meet"
The title of this post is the title of this notable new article by Janet Hoeffel now available on SSRN. Here is the abstract:
The Supreme Court recently married its "death is different" death penalty jurisprudence and its burgeoning "children are different too" jurisprudence to apply Eighth Amendment death penalty jurisprudence to juvenile non-death sentences in Graham v. Florida and Miller v. Alabama. This Article argues that the (practically non-existent) jurisprudence of juvenile transfer should travel further down this comparative road paved by the Court and insist that juvenile transfer proceedings be subject to the same scrutiny exercised over capital punishment proceedings. While Eighth Amendment process need not be literally incorporated into juvenile transfer proceedings, it should be adopted through the Due Process Clause.
The parallels between the death penalty and juvenile transfer are striking. Both involve a decision to expose a person to the most severe set of penalties available to the relevant justice system: a death sentence for adults in adult court; a transfer to adult court for youth in juvenile court. The decision to send an adult to his death is a decision to end his life; the decision to send a juvenile to adult court is a decision to end his childhood. Both decisions signify a life not worth saving, and therefore, both decisions are to apply to the "worst of the worst." As a result of the finality and seriousness of their consequences, both processes should require the strictest of procedures for reliable imposition of those consequences.
While the Court’s jurisprudence on procedures for imposing death is not a model, the Court has, at least, worked both to narrow who is subject to the death penalty and to reduce the potential for arbitrary and capricious imposition of death through procedures for guided discretion. The lessons learned in that context can be applied to improve juvenile transfer procedures that allow transfer of a child to adult court based on the unfettered and arbitrary discretion of a judge or, worse, a prosecutor. Furthermore, death penalty jurisprudence applied in capital cases, and as applied in Graham and Miller, leads to the conclusion that juvenile transfer laws allowing automatic transfer of a child to adult court, without an individualized consideration, violates due process.
Friday, November 15, 2013
If concerned principally about saving lives and public safety, can one reasonably oppose mass use of safer-driving technologies?
The question in title of this post is prompted by this local news item from my own local paper headlined "More Ohioans die on road in 2012." Here are excerpts:
Traffic fatalities rose last year across the United States for the first time since 2005, and Ohio was a big reason why, according to federal data. More people died in car crashes in 37 states in 2012 than in 2011, and only Texas experienced a bigger jump than Ohio did, according to data released yesterday by the National Highway Traffic Safety Administration....
In all, 1,123 people died in Ohio wrecks last year — an increase of 106 from 2011. More than 70 percent of the increase was attributed to alcohol and impaired driving. Nationwide, 33,561 people were killed in car crashes in 2012, an increase of 1,082. Ohio’s crashes accounted for about 10 percent of the nationwide increase....
Ohio’s trend mirrors what much of the country experienced in 2012: a big jump in traffic fatalities early in the year. About 72 percent of the increase nationwide occurred during the first quarter of the year, and Ralston said Ohio actually experienced a drop in traffic deaths during the second half of 2012. Motorcycle deaths increased in the United States for the third consecutive year.
“I think too many times when we don’t hear about things or think things are going well, we get complacent about that,” MADD Ohio Executive Director Doug Scoles said. “The thing that’s frustrating with this is, impaired driving is completely preventable.”
The National Highway Traffic Safety Administration also announced yesterday that it would develop plans before the end of the year to encourage automakers to incorporate safety features in more vehicles. Those features include seatbelt interlocks that prevent vehicles from being driven before a seat belt is fastened, alcohol-detection systems and collision avoidance.
MADD Ohio wants the state legislature to require ignition interlocks for all people convicted of drunken driving, and it’s hopeful that the auto industry will take a role in adding the safety technology, Scoles said. “I think crackdown campaigns are effective, (but) they’re short-lived,” he said.
As regular readers know well (even if just from this post yesterday), I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. And this local article (just like the one I noted yesterday) further reinforces my sense that significant investments in safer-driving technologies may be the most ready and cost-effective way to save innocent lives and improve public safety.
Recent related post:
- If concerned principally about saving lives and public safety, can one reasonably oppose mass use red-light cameras?
Is AG Eric Holder going to stay on the job until he truly reforms American criminal justice?
The question in the title of this post is inspired by this new Washington Post article headlined "Reforming justice system is personal goal for Eric Holder Jr." Here are excerpts from the piece:
As the Justice Department seeks new ways to reduce the burgeoning U.S. prison population, its success is likely to depend on community programs such as the one in this small city in America’s heartland.
In the past 11 years, federal prosecutors here have authorized substance abuse treatment and other assistance for more than 100 low-level offenders as an alternative to prison sentences. Eighty-seven have successfully completed the program and, in the process, saved the federal government more than $6 million by sparing it the cost of incarceration....
Justice officials see the program in Peoria as a model for other communities — and central to the criminal justice reforms that Attorney General Eric H. Holder Jr. is moving to implement. In August, at an American Bar Association conference in San Francisco, Holder announced that low-level nonviolent drug offenders with no ties to gangs or large-scale drug organizations would no longer be charged with offenses that impose severe mandatory sentences. He has also introduced policies to reduce sentences for elderly, nonviolent inmates, to find alternatives to prison for nonviolent criminals, and to improve reentry programs to curb repeat offenses.
The announcements have heralded some of the most significant criminal justice policy shifts from the department in years. For Holder — who has said that as a U.S. attorney and judge he saw neighborhoods destroyed by both illegal drugs and the tough-on-crime legislation that has disproportionately affected black men — the issue has been personal.
“Day after day, I watched lines of young people, most often young men of color, stream through my courtroom,” Holder told ex-offenders Thursday during a visit to a St. Louis courthouse, one of a string of stops he is making to promote his reform agenda. “I learned how drug abuse, crime and incarceration can trap people in a destructive cycle. A cycle that weakens communities, tears families apart and destroys individual lives.”...Many of the department’s criminal justice reforms have bipartisan support, and Republican governors in some of the most conservative states have led the way on prison reform. Congress also has shown a renewed interest in reducing the nation’s prison population, including the introduction of a bill this week that would reauthorize the Second Chance Act, which funds grants for programs that support probation, parole and reentry programs across the country.
“Rather than incarcerating repeat offenders in the same families generation after generation, we can put our taxpayer dollars to better use to break this vicious cycle and turn lives around,” Sen. Rob Portman (R-Ohio), a former prosecutor and one of the bills sponsors, said in a statement.
Efforts to reduce the prison population have drawn criticism from some lawmakers, who are skeptical that new policies will reduce crime. “I am skeptical,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the chamber’s Judiciary Committee, said at a a hearing last week. “Reducing prison sentences will bring prisoners out on the street sooner. The deterrent effect of imprisonment would be reduced. Many so-called nonviolent drug offenders have violent records. Some of these released offenders will commit additional crimes.”...
In a Philadelphia courtroom earlier this month, the attorney general watched more than a dozen drug offenders in a “reentry” program report to a judge to discuss their personal and work situations. Officials there said the program, which provides parenting classes, vocational training and job opportunities, has saved $1.5 million in annual incarceration costs because fewer ex-offenders are being sent back to prison. The national revocation rate for ex-offenders who are not in such programs is 47 percent; the rate among participants in the seven-year-old Philadelphia program is about 20 percent.
During his stops Thursday, Holder met with judges and pretrial service officers and watched as a district court judge encouraged ex-offenders to overcome their drug addictions and stay out of prison. He spoke emotionally to a group about how his nephew struggled to overcome drug addiction.
Inside a federal courthouse in St. Louis, he watched a ceremony in which ex-offenders graduated from an intensive recovery program called EARN (Expanding Addicts’ Recovery Network). “I look at you all and I see myself,” he said. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”
“Some of them didn’t catch the same breaks,” the nation’s top law enforcement official said. “Some had to deal with drug issues. . . . I know that everyone makes mistakes — everyone. Including me. And that’s why I wanted to be here today to tell you in person how proud I am that each of you has decided not to let your mistakes define you and not to make excuses, but to make the most of the opportunities that you’ve been given.”
Right after President Obama's re-election, as noted in this post from last November, AG Holder was talking about staying on as AG for only "about a year" into this second Presidential term. But that year has now passed, and I have heard very little new buzz about AG Holder moving on. And, if he is truly committed to engineering significant and lasting criminal justice reform, I think he may need (at least) the next three years to really have a chance to get this done.
November 15, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
"Reducing crime by reducing incarceration"
The title of this post is the headline of this new Washington Times op-ed authored by David Cole and Marc Mauer. Here are excerpts:
The United States remains the world leader in imprisonment, with an incarceration rate five times higher than that of many of our European allies. It wasn’t always this way. From 1925 through 1975, our incarceration rate was about 160 per 100,000 persons. Today it is nearly 700 per 100,000. It rose consistently for more than three decades, largely as a result of changes in policy, not crime rates. These policy changes, under the rubric of the “get tough” movement, were designed to send more people to prison and to keep them there longer. As the prison population has expanded, however, whatever impact incarceration may have had on crime has confronted the law of diminishing returns. Meanwhile, the corrections system costs us $80 billion a year.
In response to these concerns, recent years have seen significant reforms across the country. States from Texas to California to New York have reduced mandatory minimum sentences, softened “three-strikes” laws, or established drug-offender diversion programs. The number of people incarcerated in state prisons nationwide has dropped for three years in a row. California, New York and New Jersey have each reduced their prison populations by about 20 percent in the past decade — with no increases in crime.
In an era of heightened partisan politics, reform is a rare bipartisan issue. Attorney General Eric H. Holder Jr. and Republican Sens. Rand Paul and Mike Lee don’t often see eye to eye, but they have all advocated measures to reduce mandatory minimums. The American Legislative Exchange Council, which promotes free-market law reforms in the states, has identified reducing prison overcrowding as one of its priorities. Regardless of one’s politics, no one can be proud of the fact that the world’s wealthiest society locks up more of its citizens per capita than any other nation.
Most of the reforms thus far have focused on nonviolent offenders, especially drug-law violators — and for good reason. The large-scale incarceration of low-level drug offenders has had little impact on the drug trade; street-corner sellers and couriers are easily replaced. Incarceration imposes substantial costs on society at large, though, and on the life chances and families of those locked up.
If we are to tackle the incarceration rate effectively, we need to focus not only on those who receive the shortest sentences, but also on those who receive the longest sentences — lifers. Even as incarceration rates have begun to fall, life sentences have increased. One in nine prisoners in the United States is now serving a life sentence, including 10,000 serving life for a nonviolent offense (often the “third strike” under a three-strikes law). Nearly a third of the life sentences are imposed with no possibility of parole.
While most of these individuals have committed serious offenses, the increased reliance on life sentences is counterproductive. Criminal offenses tend to drop with age. As offenders grow older, their incarceration is increasingly less likely to have any incapacitative value. Nor is there any evidence that life sentences have greater deterrent effect. Studies find that it is the certainty of punishment, not its severity, that is most correlated with deterrence. Yet many states have adopted a “life means life” policy with no consideration of parole. Such sentences effectively write off the offender, rejecting the possibility of redemption altogether....
A key factor in the prison expansion of recent decades has been that offenders sentenced to prison are serving much longer sentences. American sentences today are frequently two to three times the length for similar offenses in the United Kingdom, the Netherlands, France and other industrialized nations. Sentencing reform has begun with the low-hanging fruit of mandatory minimums for nonviolent offenses, but if it is to succeed, we must reduce the length of criminal sentences generally.
Recent related post:
- New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
- New York Times op-ed asks "Serving Life for This?"
Thursday, November 14, 2013
If concerned principally about saving lives and public safety, can one reasonably oppose mass use red-light cameras?
The question in title of this post is prompted by this local news item from my own local paper headlined "Coalition says red-light cameras reducing accidents, saving lives." Here are excerpts:
The battle over whether red-light cameras are primarily lifesavers or money-makers is being re-fought in the General Assembly seven years after it began. Cameras placed at critical intersections, including 38 in Columbus, help dramatically reduce accidents and save lives, a statewide coalition said yesterday, pushing back against a legislative proposal that would all but eliminate the devices in Ohio.
House Bill 69, passed by the House this year, “is bad public policy that puts people at risk on Ohio roads,” Sgt. Brett Bauer of the Springfield Police Department said at a Statehouse news conference. Red-light cameras “are making roads safer in Springfield and across the state,” he said. The bill would limit cameras to school zones — and then only when an officer was present.
A coalition of police officials from Columbus and other cities, plus municipal officials, bicycle enthusiasts and safety advocates, appeared at the news conference alongside Sen. Kevin Bacon, R-Minerva Park, who is planning legislation to reform how the cameras may be used rather than repeal the use of cameras, as the House bill would do.
The most emotional advocate in favor of continuing using the cameras was Paul Oberhauser of Somerset, whose 31-year-old daughter, Sarah, was killed in 2002 when a motorist ran a red light and hit her car in an intersection at 55 mph. “The year Sarah died, about 1,000 people nationally were killed in red-light accidents,” Oberhauser said. “I know you understand this carnage has got to stop.”...
Right-angle crashes are down 74 percent in Columbus, while rear-end crashes have dropped 25 percent at intersections with cameras, said Lt. Brenton Mull of the Columbus Division of Police. The city has 38 cameras at intersections scattered across the city. “It is a model program that should be emulated, not thrown out because someone doesn’t like getting a ticket from a red-light camera,” he said.
As regular readers (and my students) know well, I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. In the context of debates over gun control, the death penalty, mass incarceration and other high-profile public policy criminal justice debates, there is often considerable competing claims and evidence concerning whether and when certain government policies actually do or do not save innocent lives and improve public safety. But this local article confirms my understanding that red-light cameras do tend to improve public safety at least somewhat (and does so in a way that actually raises revenue for localities rather than require significant expenditures).
I fully understand why persons principally concerned about privacy rights or due process or government graft might have real problems with widespread use and potential abuse of red-light cameras. But I really want to hear from readers if they think that those persons who say their principally criminal justice concerns relate to saving lives and public safety (as I do) have any sound basis for opposing mass use of these cameras.
New York Times op-ed asks "Serving Life for This?"
I am pleased to see that columnist Nicholas Kristoff used his op-ed space today in the New York Times to promote the ACLU's new report on the thousands of persons serving LWOP sentences for non-violent offenses in the United States (discussed here). This piece is headlined "Serving Life For This?," and here are excerpts:
At a time when America has been slashing preschool programs, we have also been spending vast sums to incarcerate thousands of nonviolent offenders in life sentences without any possibility of parole. These cases underscore that our mass incarceration experiment has resulted in monstrous injustice and waste — a waste of tax dollars and of human lives.
Judges and prison officials are rebelling at the injustice of our justice system. Here’s what Judge James R. Spencer, a federal district judge, said when sentencing a former F.B.I. informant to life without parole for selling crack cocaine to support his own addiction: “A life sentence for what you have done in this case is ridiculous; it is a travesty.” But federal law on mandatory minimums left Judge Spencer no leeway. He added: “I don’t agree with it, either. And I want the world and the record to be clear on that. This is just silly.”
Here are some other nonviolent offenders serving life sentences without the possibility of parole:
• Ricky Minor, a meth addict and father of three, was found with 1.2 grams of meth in his home, along with over-the-counter decongestants that can be used to manufacture meth. He was initially charged under Florida law and says he faced a two-and-a-half-year sentence. Later indicted under federal law, he pleaded guilty because his public defender said that otherwise the prosecutors would also pursue his wife, leaving no one to raise their children. Minor had several prior nonviolent offenses, for which he had never served time, and these required Judge Clyde Roger Vinson to sentence him to life without parole. Judge Vinson said that the sentence “far exceeds whatever punishment would be appropriate.”
• Dicky Joe Jackson was a trucker whose 2-year-old son, Cole, needed a bone-marrow transplant to save his life. The family raised $50,000 through community fund-raisers, not nearly enough for the transplant, and Jackson tried to earn the difference by carrying meth in his truck. He has now been in prison for the last 17 years; when he lost his last appeal, he divorced his wife of 19 years so that she could start over in her life. The federal prosecutor in the case acknowledged: “I saw no indication that Mr. Jackson was violent, that he was any sort of large-scale narcotics trafficker, or that he committed his crimes for any reason other than to get money to care for his gravely ill child.”
• Danielle Metz became pregnant at 17 and later married an abusive man who was also a drug dealer. To placate him, she says, she sometimes helped him by fetching cocaine or collecting money from Western Union. After one clash in which he punched her in the face, she took the kids and left him. Two months later, she was indicted. She says that she was prosecuted primarily to induce her to testify against her husband, but that she wasn’t knowledgeable enough to have useful information to trade for a reduced sentence. She has now spent more than 20 years in prison.
Those examples come from a devastating new report, “A Living Death,” by the American Civil Liberties Union. It identified more than 3,200 such nonviolent offenders sentenced to die behind bars. Four out of five are black or Hispanic. Virtually all are poor. Many had dismal legal counsel. Some were convicted of crimes committed when they were juveniles or very young adults....
I write often about human rights abuses abroad. But when we take young, nonviolent offenders — some of them never arrested before — and sentence them to die in prison, it’s time for Americans who care about injustice to gaze in the mirror.
Recent related post:
Wednesday, November 13, 2013
"Kasich postpones execution of inmate who wants to donate organs"
The title of this post is the headline of this breaking news story reporting some surprising news coming from Ohio this afternoon. Here are details:
Wowsa. I have to catch my breath and think about this a lot before I am sure how to react. While I do so, I look forward to hearing reactions from both the pro and anti death penalty crowd in the comments.
In an unprecedented move, Gov. John Kasich has postponed the execution of Akron child-killer Ronald Phillips scheduled for Thursday to determine if his organs can be harvested. It has been rescheduled for July 2, 2014.
In a statement released this afternoon, Kasich halted Phillips’ execution “so that medical experts can assess whether or not Phillips’ non-vital organs or tissues can be donated to his mother or possibly others.”
“Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said.
Phillips, 40, was sentenced to die for the 1993 beating, rape and murder of three-year-old Sheila Marie Evans, the daughter of his girlfriend at the time. The governor said if Phillips “is found to be a viable donor to his mother or possibly others awaiting transplants of non-vital organs, such as kidneys, the procedures would be performed and then he would be returned to Death Row to await his new execution date.”
Phillips asked earlier this week if he could donate his organs to his mother or others, but the Ohio Department of Rehabilitation and Correction rejected his request.
Is sentence disparity reduced if mass murderer Whitey Bulger and drug dealer Sam Hurd get the same LWOP sentence?
The question in the title of this post is prompted by the news of two seemingly very distinct federal sentencings taking place today in which it seems the federal sentencing guidelines are calling for the exact same LWOP sentence.
Regular readers are already familiar with the case involving Whitey Bulger, whose sentencing is taking place today in federal Court in Boston. This new USA Today article, headlined "Victim's son: Mobster Whitey Bulger is 'Satan'," highlights just the latest developments in a case in which I sincerely wonder why there is not more of an effort by pro-death-penalty advocates to have an even tougher punishment than LWOP in the mix.
Somewhat less high profile, except perhaps for hard-core football fans, is the sentencing of former NFL receiver Sam Hurd. This SI.com article, headlined "Former NFL player Sam Hurd hopes to avoid life sentence at hearing," provides some background starting this way:
This afternoon at the Federal courthouse in Dallas, U.S. District court judge Jorge Solis is scheduled to begin the sentencing hearing for former Cowboys and Bears receiver Sam Hurd, who pleaded guilty to a single drug trafficking charge in April. Hurd's attorneys will be allowed to present witnesses and evidence to contest the individual allegations against him. At the end of the hearing Solis will decide whether to take the recommendation of the U.S. Probation and Pretrial Services Department of life in prison without parole or give Hurd a lighter sentence. The only certainty is that Hurd will be going to prison.
Hurd was arrested on Dec. 14, 2011 and indicted on Jan. 4, 2012. For the first 19 months, life in prison was not even in the discussion. Five to 20 years was the sentencing range, with precedent and the informed opinions of more objective onlookers and academics backing up that estimate. Since the life sentence recommendation was made in late July, one comment repeated by sources across the spectrum of partiality has been some version of this reminder: You realize life in prison in the federal system means the next time he comes out of prison it'll be in a coffin.
Hurd, who has been housed in the federal detention center in Seagoville, about a 30-minute drive from the Dallas court building, did not respond to an email from SI Wednesday morning. He may have already been relocated to downtown Dallas and unable to access his prison-controlled email account. He called last Friday night and repeated again that he is "ready to be sentenced for what I did, not this other mess. Our system should not work like this.
I have to assume that Hurd is facing a recommended LWOP sentence because of the quantity of drugs being ascribed to him and a guideline sentencing structure that provides that drugs dealers will often be facing the same guideline sentence as mass murderers.
Hurd is, of course, very fortunate that the federal sentencing guidelines are no longer mandatory, and I think it is unlikely he will get an LWOP term today. But this coincidence of these two very different criminals facing the exact same federal guideline sentence provides a high-profile example of how the guidelines can themselves create disparity and especially revelas how misguided it can often be to assume imposition of within-guideline sentences reduce disparity.
UPDATE: On Wednesday afternoon, as reported here, Sam Hurd received a 15-year federal prison sentence; on Thursday morning, as reported here, Whitey Bulger received two life terms plus 5 years in the federal pen.
November 13, 2013 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9) | TrackBack
Tuesday, November 12, 2013
"The Eighth Amendment as a Warrant Against Undeserved Punishment"
The title of this post is the title of this notable new paper by Scott Howe now available via SSRN. Here is the abstract:
Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive. A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium.
Yet, this view of the Eighth Amendment challenges many current criminal-law doctrines and sentencing practices that favor crime prevention over retributive limits. Mistake-of-law doctrine, felony-murder rules and mandatory-minimum sentencing laws are only a few examples. Why have these laws and practices survived? One answer is that the Supreme Court has largely limited proportionality relief to a few narrow problems involving the death penalty or life imprisonment without parole, and it has avoided openly endorsing the deserts limitation even in cases in which defendants have prevailed. Yet, this Article presents a deeper explanation. I point to four reasons why the doctrine must remain severely stunted in relation to its animating principle. I am to clarify both what the Eighth Amendment reveals about the kind of people we want to be and why the Supreme Court is not able to force us to live up to the aspiration.
Can and should brain science research become a regular (and regulated) part of sentencing decision-making?The question in the title of this post is prompted by this notable new NPR segment (misleadingly?) headlined "The Case Against Brain Scans As Evidence In Court." Here are excerpts from the piece:
It's not just people who go on trial these days. It's their brains.
More and more lawyers are arguing that some defendants deserve special consideration because they have brains that are immature or impaired, says Nita Farahany, a professor of law and philosophy at Duke University who has been studying the use of brain science in court.
About 5 percent of murder trials now involve some neuroscience, Farahany says. "There's a steady increase of defendants seeking to introduce neuroscience to try to reduce the extent to which they're responsible or the extent to which they're punished for a crime," she says.
Farahany was a featured speaker at the Society for Neuroscience meeting in San Diego this week. Also featured were several brain scientists who are uncomfortable with the way courts are using brain research....
The approach has been most successful with cases involving teenagers, Farahany says. "It seems like judges are particularly enamored with the adolescent brain science," she says. "Large pieces of their opinions are dedicated to citing the neuroscientific studies, talking about brain development, and using that as a justification for treating juveniles differently."...
So judges and juries are being swayed by studies showing that adolescent brains don't function the same way adult brains do. One study like that was presented at the neuroscience meeting by Kristina Caudle, a neuroscientist at Weill Cornell Medical College. The study, funded by the National Institutes of Health, used a technology called functional MRI to look at how the brains of people from 6 to 29 reacted to a threat.
"The typical response — and what you might think is a logical response — is to become less impulsive, to sort of withdraw, to not act when there is threat in the environment," Caudle says. "But what we saw was that adolescents uniquely seemed to be more likely to act. So their performance on this task became more impulsive." And Caudle found that in adolescents, an area of the brain involved in regulating emotional responses had to work much harder to prevent an impulsive response. This sort of study is great for understanding adolescent brain development in a general way, Caudle says.
"What it doesn't do is allow us to predict, for example, whether one particular teenager might be likely to be impulsive or to commit criminal behavior," she says. And Caudle worries that a study like hers could be used inappropriately in court. "Jurors tend to really take things like MRI scans as fact, and that gives me great pause," she says.
When it comes to nature versus nurture, brain scientists think both matter. A lot of the neuroscience presented in court is simply unnecessary, says Joshua Buckholtz, a psychologist at Harvard. "Anyone who's every had a teenager would be able to tell you that their decision-making capacities are not comparable to adults," he says.
And relying on brain science to defend juveniles could have unexpected consequences, Buckholtz says. For example, he says, if a prosecutor used an MRI scan to show that a 16-year-old who committed a capital crime had a very mature brain, "Would we then insist that we execute that juvenile?"
The task of integrating brain science into the judicial system will in large part be the responsibility of judges, Buckholtz says. And how it works will depend on how well judges understand "what a scientific study is and what it says and what it doesn't say and can't say," he says.
I do not see anything in this piece which suggests that brain scans amount to "junk science," and thus I do not fully understand why NPR thinks this segment reveals a "case against" against brain science as evidence in legal proceedings.
Of course, I fully understand concerns expressed by scientists about the potential misuse or misunderstanding of their nuanced brain scan research. But juries and judges are drawn to scientific research largely because the decision-making alternative is to rely more on gut feelings, emotions, instincts or biases. Unless brain scans provide a worse foundation for making judgments than gut feelings, emotions, instincts or biases, it seems to me they ought to have a role in legal decision-making.
As the question in the title of this post suggests, I think the really tough questions here are not whether brain science is worthy of consideration, but rather when and how brain science should be considered by judges and juries. Indeed, the Supreme Court's Eighth Amendment rulings in Roper and Graham and Miller have already given brain science research some constitutional import, and thus I hope both scientists and law professors will now turn their attention to debating how the legal system might most fairly and effectively operationalize what the brain research is telling us about the scientific realities of human behaviors and personal development.
November 12, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (16) | TrackBack