Thursday, December 11, 2014

Repeat drunk-driver tells fishy story to explain erratic driving

Beer batterThis local story from Wisconsin tells a funny story about what (as regular readers know) I do not think is a very funny crime often committed again and again and again by certain violent career criminals.  The story is headlined "Man charged with 10th OWI; tells officer he'd eaten beer battered fish," and here are the details:

An Adams County man will be charged with his 10th OWI.  75-year-old John Przybyla was pulled over October 12. He was driving north on State Highway 13 in the Township of Dell Prairie.  Officers pulled him over because he crossed the center line and had a broken tail light.

The officer asked Przybyla if he had been drinking.  He said that he hadn't, and that he'd only eaten beer battered fish.

The officer conducted field sobriety tests and Przybyla's preliminary breath alcohol test was .062.  He can't have a PBT over .02 because of earlier convictions.

He faces an additional charge of driving with a revoked license after a 3rd OWI and three other traffic citations.  Przybyla was first convicted for an OWI in 1995.

The repeat offender's amusing excuse for his crime is, of course, what drew me to this story. But I also think it is significant and telling that a person can be a violent menace to innocent people on the roads over and over again and yet as a society we still general fail to impose serious sanctions likely to incapacitate this kind of violent career criminal.  But if someone is caught selling even a relatively small quantity of illegal drugs even a few times, our laws will frequently threaten or mandate very lengthy prison terms.

December 11, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

"As Though They Were Not Children: DNA Collection from Juveniles"

The title of this post is the title of this notable new paper by Kevin Lapp now available via SSRN. Here is the abstract:

Law enforcement craves data.  Among the many forms of data currently collected by law enforcement, perhaps none is more potentially powerful than DNA profiles.  DNA databasing helps law enforcement accurately and efficiently identify individuals and link them to unsolved crimes, and it can even exonerate the wrongfully convicted.  So alluring is DNA collection that the practice has rapidly expanded to juveniles.  The federal government and every state but Hawaii mandate DNA collection from juveniles as a result of some contact with the criminal justice system.  A conviction in criminal court, a delinquency adjudication in juvenile court, and even a mere arrest can trigger compulsory DNA collection.  Law enforcement also seeks DNA samples from juveniles based on their consent.

This Article provides a comprehensive accounting of current juvenile DNA collection legislation and case law.  It then situates DNA collection from juveniles within the law’s longstanding and renewed emphasis on special treatment of children both generally and with particular attention to criminal law and juvenile justice.  Bringing to bear Supreme Court jurisprudence, neuroscientific and psychosocial research, juvenile court history, and the critical lens of childhood studies, it argues that DNA collection from juveniles based on contact with the criminal justice system is not reasonable and cannot withstand scrutiny. The government interests served by DNA profiling are reduced with respect to juveniles, and the privacy interests are enhanced.  Many of its benefits, including deterrence, are lost with regard to juveniles.  The Article calls for the prohibition on DNA collection following an adjudication of delinquency or an arrest, and a ban on consent collection from juveniles.  This will protect children, and their childhood, while preserving law enforcement’s ability to exploit genetic databasing and aggregate data collection where its rationale justifies its application.

December 11, 2014 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Thursday, December 04, 2014

"The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling"

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

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes.  This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding.  In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency."  This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making.

The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed.  In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants.  And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.

This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional.  The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.

December 4, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Fourth Circuit find LWOP + 60 month sentence (!?!) for drug offenses substantively unreasonable

Thanks to a few helpful readers, I was alerted to a notable opinion from a Fourth Circuit panel today in US v. Howard, No. 13-4296 (4th Cir. Dec. 4, 2014) (available here).  Here are excerpts from the start, middle and end of the lengthy opinion:

In appeal No. 13-4296, a jury convicted Dennis Ray Howard on one count of conspiracy to distribute and possess with intent to distribute a controlled substance, phencyclidine (“PCP”), nine counts of distribution of PCP, and one count of possession of a firearm in furtherance of a drug trafficking offense.  The district court sentenced Howard to a term of life imprisonment plus 60 months....  For the reasons set forth within, we affirm the convictions, vacate the sentence as substantively unreasonable, and remand for resentencing....

The district court reached its life imprisonment sentence by making an upward departure based on Howard’s de facto career offender status, and by reasoning that the § 3553(a) factors supported a sentence at the top of the Guidelines range determined after the departure.  Because we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the § 3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable....

By declaring Howard a serial recidivist dedicated to dispensing “poison” with no hope of redemption, and by basing this judgment on stale criminal history, the bulk of which was non-violent and committed when Howard was a juvenile, the district court failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2)....

The district court plainly sought to intone all of the principles underlying § 3553(a)(2) when it announced its sentence.  It stated the need for individual and general deterrence, incapacitation, and just punishment.   There is no doubt that the sentence sent a “message” of deterrence to the people of Wilson and the Eastern District of North Carolina.  The district court made those intentions clear. But we simply fail to see, on the whole record, how the life-plus-60-months sentence reasonably reflects the seriousness of the offense or just punishment.  Manifestly, it is a sentence “greater than necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of § 3553(a)(2).

December 4, 2014 in Booker in the Circuits, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Wednesday, December 03, 2014

Praise for Texas justice embracing "Right on Crime" from across the pond

This new BBC article, headlined "Why Texas is closing prisons in favour of rehab," provides a notable example of the rest of the world taking note (and praising) the "right on crime" movement. The piece is authored by a Danny Kruger, a former speechwriter for UK's prime minister David Cameron, and here are excerpts:

Coming from London to spend a couple of days in Texas last month, I was struck most of all by how generous and straightforward everyone was.  Talking to all sorts of different people about crime and punishment, the same impression came across: We expect people to do the right thing and support them when they do.  When they don't we punish them, but then we welcome them back and expect good behaviour again.  It's not naive, it's just clear.

For years that straightforward moral outlook translated into a tough criminal justice system.  As in the rest of the US, the economic dislocations of the 1970s, compounded by the crack epidemic in the 1980s, led to a series of laws and penal policies which saw the prison population skyrocket.  Texas, for instance, has half the population of the UK but twice its number of prisoners.

Then something happened in 2007, when Texas Republican Congressman Jerry Madden was appointed chairman of the House Corrections Committee with the now famous words by his party leader: "Don't build new prisons. They cost too much." The impulse to what has become the Right on Crime initiative was fiscal conservatism — the strong sense that the taxpayer was paying way too much money to fight a losing war against drugs, mental ill-health and petty criminality.

What Madden found was that too many low-level offenders were spending too long in prison, and not reforming.  On the contrary, they were getting worse inside and not getting the help they needed on release.  The only response until then, from Democrat as well as Republican legislators, was to build more prisons. Indeed, Mr Madden's analysis suggested that a further 17,000 prisoners were coming down the pipe towards them, requiring an extra $500m (£320m) for new prisons.  

But he and his party didn't want to spend more money building new prisons. So they thought of something else — rehab.   Consistent with the straightforward Texan manner, the Congressional Republicans did not attempt to tackle what in Britain are known as "the causes of crime" — the socio-economic factors that make people more disposed to offend. Instead, they focused on the individual criminal, and his or her personal choices.  Here, they believe, moral clarity and generosity are what's needed.

Though fiscal conservatism may have got the ball rolling, what I saw in Texas — spending time in court and speaking to offenders, prison guards, non-profit staff and volunteers — goes way beyond the desire to save money. The Prison Entrepreneurship Programme, for instance, matches prisoners with businesspeople and settles them in a residential community on release.  Its guiding values are Christian and its staff's motives seem to be love and hope for their "brothers", who in turn support the next batch of prisoners leaving jail.

The statutory system is not unloving either. Judge Robert Francis's drugs court in Dallas is a well-funded welfare programme all of its own — though it is unlike any welfare programme most of the 250 ex-offenders who attend it have ever seen.  Clean and tidy, it is staffed by around 30 professionals who are intensely committed to seeing their clients stay clean and out of jail, even if that means sending them back to prison for short periods, as Judge Francis regularly does when required....

Immediate, comprehensible and proportionate sanctions are given for bad behaviour, plus accountability to a kind leader and supportive community.  This is the magic sauce of Right on Crime.

Far from having to build new jails for the 17,000 expected new inmates, Jerry Madden and his colleagues have succeeded in closing three prisons.  I visited one by the Trinity River in Dallas, now ready for sale and redevelopment.  They spent less than half the $500 million earmarked for prison building on rehab initiatives and crime is falling faster than elsewhere.

This, then, ticks all the boxes - it cuts crime, saves money and demonstrates love and compassion towards some of the most excluded members of society. It is, in a sense, what conservatives in America and Britain dream of — a realistic vision of a smaller state, where individuals are accountable for their actions and communities take responsibility for themselves and their neighbours.  It is a more positive version of the anti-politics — anti-Washington, anti-Westminster — tide that seems to be sweeping the West.

December 3, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, December 02, 2014

"Actually, Blacks Do Care About Black Crime"

The title of this post is the headline of this notable new Slate commentary by Jamelle Bouie. Here are excerpts: 

In cities across the country, crowds are protesting police violence against unarmed black men. Demonstrators want justice, not just for Michael Brown, but for Eric Garner, John Crawford, and Tamir Rice, the 12-year-old boy killed by Cleveland police last month.  To that end, they’ve stopped parades and blocked highways in an effort to show the value of a black life.

But to some critics, this outrage is misplaced.  “Somebody has to tell me, something somebody needs to tell me why Michael Brown has been chosen as the face of black oppression,” said MSNBC’s Joe Scarborough on Monday morning, during his daily show.  His co-panelist, Donny Deutsch, agreed. “It’s not a black-white situation. It’s a thug-police officer situation,” he said. “Where are the angry crowds demanding justice for blacks such as these, who were wiped out in St. Louis by other blacks in recent memory?” wonders Deroy Murdock in a column for National Review. “One can hear birds chirp while listening for public outcry over the deaths of black citizens killed by black perpetrators. Somehow, these black lives don’t seem to matter,” writes Murdock, who doesn’t note that — in those cases — perpetrators are usually caught and convicted.  And then there’s former New York City mayor Rudy Giuliani, who—after President Obama spoke on Ferguson — told CNN that “[Obama] also should have spent 15 minutes on training the [black] community to stop killing each other.”

This basic question — “Where is all the outrage over black-on-black crime?” — is raised whenever black Americans protest a police shooting, or any other violence against unarmed black men.  “Nationally, nearly half of all murder victims are black,” wrote conservative commentator Juan Williams after Trayvon Martin was killed in 2012, “And the overwhelming majority of those black people are killed by other black people. Where is the march for them?”...

[L]et’s look directly at the question raised by Murdock, Giuliani, and Williams — “Do black people care about crime in their neighborhoods?” They treat it as a rhetorical concern — a prelude to broad statements about black American concerns. But we should treat it as an empirical question — an issue we can resolve with some time and research.

This isn’t as easy as it sounds. While blacks are more likely to face criminal victimization than other groups, that doesn’t tell us how black Americans feel about crime and where it ranks as a problem for their communities.  For that, we have to look to public opinion surveys and other research. And while it’s hard to draw a conclusive answer, all the available evidence points to one answer: Yes, black people are concerned with crime in their neighborhoods....

[W]hile black neighborhoods are far less dangerous than they were a generational ago, black people are still concerned with victimization.  Take this 2014 report from the Sentencing Project on perceptions of crime and support for punitive policies.  Using data from the University of Albany’s Sourcebook of Criminal Justice Statistics, the Sentencing Project found that — as a group — racial minorities are more likely than whites to report an “area within a mile of their home where they would be afraid to walk alone at night” (41 percent to 30 percent) and more likely to say there are certain neighborhoods they avoid, which they otherwise might want to go to (54 percent to 46 percent). And among black Americans in particular — circa 2003 — “43 percent said they were ‘very satisfied’ about their physical safety in contrast to 59 percent of Hispanics, and 63 percent of whites.”

More recent data shows a similar picture. In 2012, Gallup found that, compared to the general public, blacks were more worried about “being attacked” while driving their car, more worried about being the victim of a hate crime, and — most salient for our discussion — more worried about “being murdered.” Likewise, according to a 2013 survey for NPR, the Robert Wood Johnson Foundation, and the Harvard School of Public Health, 26 percent of black Americans rank crime as the most important issue facing the area they live. That’s higher than the ranking for the economy (16 percent), housing (4 percent), the environment (7 percent), social issues (4 percent), and infrastructure (7 percent). And in a recently published survey for Ebony magazine and the W.K. Kellogg Foundation, 13 percent rank violent crime as a top issue — which sits in the middle of the rankings — and 48 percent say that the black community is losing ground on the issue.

Finally, Atlantic Media’s “State of the City” poll — published this past summer—shows an “urban minority” class that’s worried about crime, and skeptical toward law enforcement, but eager for a greater police presence if it means less crime.  Just 22 percent of respondents say they feel “very safe” walking in their neighborhoods after dark, and only 35 percent say they have “a lot” of confidence in their local police.  That said, 60 percent say hiring more police would have a “major impact” on improving safety in their neighborhoods.  And while “urban minority” includes a range of different groups, there’s a good chance this is representative of black opinion in some areas of high crime and victimization, given the large black presence in many American cities.

It’s important to note that this concern with crime doesn’t translate to support for punitive policies. Despite high victimization rates, black Americans are consistently opposed to harsh punishments and greater incarceration.  Instead, they support more education and job training.

Beyond the data, there’s the anecdotal evidence. And in short, it’s easy to find examples of marches and demonstrations against crime. In the last four years, blacks have held community protests against violence in Chicago; New York; Newark, New Jersey; Pittsburgh; Saginaw, Michigan; and Gary, Indiana. Indeed, there’s a whole catalog of movies, albums, and sermons from a generation of directors, musicians, and religious leaders, each urging peace and order. You may not have noticed black protests against crime and violence, but that doesn’t mean they haven’t happened. Black Americans — like everyone else — are concerned with what happens in their communities, and at a certain point, pundits who insist otherwise are either lying or willfully ignorant....

To that point, it’s worth noting the extent to which “what about black-on-black crime” is an evasion, an attempt to avoid the fundamental difference between being killed by a citizen and being killed by an agent of law.

December 2, 2014 in National and State Crime Data, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Friday, November 28, 2014

Texas Justice calls for state's death penalty to be abolished

Tom-Price-Judge-Texas-Court-of-Criminal-AppealsAs reported in this local article, "Texas Court of Appeals Justice Tom Price on Wednesday denounced the death penalty, saying that Texas' 2005 life without parole law makes it unnecessary and that the possibility of executing a wrongfully convicted person is an 'irrational risk' that should not be tolerated by the criminal justice system."  Here is more about this notable development which emerged in a legal challenge to a notable planned execution:

The Dallas Republican's comments, thought to be the first time such views have been voiced by a judge on the state's highest criminal appeals court, came in a strongly worded dissent to the court's Wednesday rejection of an appeal on behalf of Scott Panetti, a Fredericksburg double-killer said to suffer from schizophrenia.  Panetti, 56, is scheduled to be executed next Wednesday.

"Based on my specialized knowledge of this process," Price wrote, "I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purpose served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel."

Price, 61, a former Dallas County state district judge, has served on the high appeals court since 1996.  His term ends this year and he has said he will not seek re-election.  In his statement, Price asserted that "society is now less convinced of the absolute accuracy of the criminal justice system."...

"In my time on this court I have voted to grant numerous applications for writs of habeas corpus that have resulted in the release of dozens of people who were wrongfully convicted," Price wrote.  "I conclude that it is wishful thinking to believe that this state will never execute an innocent person for capital murder. ... I am convinced that, because the criminal justice system is run by humans, it is naturally subject to human error. There is no rational basis to believe that this same type of human error will not infect capital murder trials."

Price's comments were greeted with surprise by law professors and appellate attorneys active in death penalty cases.  "I'm still absorbing it. It wasn't expected," said Maurie Levin, a former clinical law professor at the University of Texas who now is based in Philadelphia. "It's long overdue."  While the concerns raised by Price have been "discussed and decried around the country for a number of years now ... for a high court judge, a CCA judge, to articulate them so forthrightly is extraordinary."...

Jani Maselli Wood, an assistant Harris County public defender, an adjunct professor at the University of Houston law school and a former Texas Court of Criminal Appeals staff attorney, said she doubts Price's statement will influence legislators or incoming juries. But, "it will impact his legacy for what he wants us to remember," Wood said.  "He says we have life without parole, why do we need death convictions.  He is remarkably brave.  I think it is heroic."

Price's statement came in a dissent to the court's 6-3 vote not to consider a new appeal on behalf of Panetti that argues his mental condition "renders him categorically ineligible for the death penalty under the Eighth and 14th Amendments, because imposition of the death penalty on offenders with severe mental illness offends contemporary standards of decency."  The court found the petition failed to meet requirements for applications of post-conviction writs of habeas corpus.

Judges Elsa Alcala and Cheryl Johnson issued a separate dissenting opinion, saying they would stay Panetti's execution to allow for an examination of his claim that the Eighth Amendment prohibits execution of seriously mentally ill individuals.

The full six-page "Dissenting Statement" by Justice Price can be accessed at this link, and here is one of a number of notable paragraphs from the opinion:

Some might argue that a victim’s family deserves the finality that comes with the execution of an offender.  This is a misguided sentiment as the instant case demonstrates. Applicant has been on death row for about twenty years.  The victims’ family has not gotten finality after twenty years due to the numerous appeals and writs filed by applicant in which he has contended that his mental status makes him ineligible for execution.  And, perhaps, one would say that the answer is speeding up executions.  But creating a more restrictive temporal limitation would only increase the risk of executing a wrongfully convicted person.  In my experience, a victim’s family is more likely to quickly experience finality through the criminal justice system when an offender is sentenced to life without parole than when he is sentenced to death.

November 28, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack

Wednesday, November 26, 2014

"The Neuroscientific Case Against Retributive Justice"

The title of this post is the title of this interesting new article by Stephen Morris and Robert Robinson available via SSRN.  Here is the abstract:

Retributive Justice is the theory of justice according to which individuals are either rewarded or punished as payback for the moral rights/wrongs they have committed. Consequentialist considerations such as deterrence and prevention do not figure into justifications for treatment from this perspective.  This theory also holds that the severity of the punishment ought to be in proportion to the severity of the crime. The central tenant of the retributive model of justice — namely, that reward/punishment gives people what they deserve — relies crucially upon the intuition that people are sometimes accountable for their actions in some strong metaphysical sense.  In particular, we may intuitively feel justified in holding someone morally responsible if her actions were intentional, rather than accidental or coerced.  This common view is captured by what we call the "Principle of Retribution": i.e., the view that it is fair to hold an agent morally responsible, and therefore punish her for her crimes, only if her actions were freely willed, intentional, and uncoerced. It follows from this that unless free will exists for human beings, retributivist justice (at least insofar as human beings are concerned) cannot be justified.

We begin by looking back at how theories of retributive justice grew up alongside theories of distributive justice and we describe how those theories have subsequently grown apart. From there we argue that current empirical research in the field of neuroscience casts doubt on the legitimacy of the retributive model of justice insofar as it undermines a particular understanding of free will that appears necessary for its own justification.  Much of the recent work on neuroscience's impact on the subject of free will has centered on the work of Benjamin Libet, whose experiments provided evidence that people's actions were initiated by unconscious brain processes that occurred prior to any conscious awareness of decision making on the part of the actor. We argue that the strongest case that neuroscience makes against the type of free will at issue comes not from Libet's work, but rather from more recent studies indicating that human behavior can be predicted with a high degree of accuracy based on unconscious neural processes.  Furthermore, the case against the relevant sort of free will is bolstered by extensive research suggesting that much, if not all, of the explanations for human behavior involving conscious causes are no more than confabulations that attempt to put a conscious narrative upon actions that have strictly unconscious origins. Finally, we provide empirical evidence that determinism is — for all intents and purposes — the correct position with regard to human cognition, decision making, and choice.  We then argue that insofar as retributive justice seems to require that some actions depend on actions that are non-determined, neuroscience suggests that retributive justice is unjustifiable.

We conclude by providing insight for revising our thinking about criminal justice and what we owe to those who commit crimes. In particular, we discuss how the common theory of distributive justice — which remains intact and includes principles guaranteeing individual liberty and equality of opportunity — gives advice on how we have failed people antecedent to their crimes, and how a person is best dealt with after her crime has been committed.

November 26, 2014 in Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

Some unusual suspects working to stop Texas from executing mentally ill condemned murderer

Panetti003This new Mother Jones article reports on some of the interesting persons who are eager to prevent Texas from carrying out a notable death sentence next week.  The article is headlined "Can Ron Paul and Conservative Evangelicals Save a Texas Death-Row Inmate? A rightwing crusade aims to stop the execution of Scott Panetti, a mentally ill convicted murder." Here are excerpts:

When Scott Panetti represented himself in a Texas capital murder case in 1995, wearing a purple cowboy suit and calling himself "Sarge," he called as a witness a veterinarian who once lived across the street from him. Panetti questioned the vet about the time he euthanized Little Blue, Panetti's old dog. The episode had nothing to do with the case. Other witnesses Panetti tried to call to the stand: John F. Kennedy and Jesus.

Trial transcripts, medical records, and expert witness testimony have documented that Panetti suffers from severe schizophrenia. He believes Texas is going to execute him to stop him from preaching the gospel — not because he shaved his head, donned camo fatigues, and shot and killed his in-laws in 1992. The Supreme Court has declared that executing the mentally ill violates the Eighth Amendment's prohibition on cruel and unusual punishment, but several Texas and federal courts — including the US Supreme Court — have reviewed Panetti's case, and each one has ruled that the state can proceed with his lethal injection. Now, with Panetti’s execution scheduled for December 3, the only thing that might save him is a national campaign being mounted by conservatives, including former Texas Republican congressman and libertarian icon Ron Paul.

Panetti's lawyers have filed a clemency petition with the Texas Board of Pardons and Parole, which can recommend that Gov. Rick Perry, a Republican, commute Panetti's sentence to life in prison without parole. That petition has received an outpouring of support from conservatives and evangelicals. In addition to Paul, this group includes Jay Sekulow, an evangelical lawyer famous for pressing religious liberties cases on behalf of social conservatives.

Paul's involvement in the case is unusual. Last year, he publicly endorsed a new advocacy group, Conservatives Concerned About the Death Penalty, saying, "I believe that support for the death penalty is inconsistent with libertarianism and traditional conservatism." This was the result of a years-long evolution....

It’s also unusual for conservative Christians to support a clemency petition like Panetti's. The last time evangelicals really rallied en masse to prevent a pending execution was in 1998, in the case of Karla Faye Tucker, who converted to Christianity in prison and became a conservative cause celebre. Despite the pleadings of evangelicals such as Pat Robertson, the Texas governor at the time, George W. Bush, went ahead with the execution, and Tucker became the first woman executed in the state since 1863.

The Panetti case is different. His religious fervor is the product of a brain disorder, and the evangelicals' opposition to his execution is not related to his religious proclamations. It is more of a reflection of the shift in public attitudes regarding capital punishment that has been driven by the growing number of exonerations of death-row inmates, the high number of mentally ill and disabled people sentenced to die, and the inefficient and expensive administration of capital punishment. "A lot of conservatives are late to realize that the whole criminal justice system is part of the government," says Richard Viguerie, a prominent conservative leader and an ardent opponent of the death penalty.

Religious conservatives are increasingly joining those who would like to see the end of the death penalty, citing their movement’s commitment to a "culture of life," which has traditionally focused primarily on restricting abortion. Conservative evangelicals, says Beaudoin, have been animated by the Panetti case over the past few weeks. Her outfit has opposed other executions, but, she says, the Panetti case has hit a nerve. She has been surprised by the number of influential Christians who have signed on to the clemency petition, especially Samuel Rodriguez, the president of the National Hispanic Christian Leadership Coalition, who's on Time magazine's 2013 list of the 100 most influential people in the world. Abby Johnson, a former Planned Parenthood clinic director who now runs a pro-life ministry for former abortion clinic employees, wrote an editorial in the Dallas News calling on Texas to spare Panetti.

"This is the largest outpouring of support on a death penalty case we've seen from evangelicals, and you can see why, given the ridiculous nature of this case," Beaudoin says. "A lot of folks who signed this [clemency] letter might have given pause about signing on to a letter opposing the death penalty generally, but they think we have no business executing Scott Panetti." She adds, "As Christians, we're called protect the most vulnerable. And there's just no question that Scott Panetti is in that number as someone who's suffered from severe mental illness. We all want to keep society safe, but I'm thankful there are other ways to do that than executing people."

November 26, 2014 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Monday, November 24, 2014

"Will Texas Kill an Insane Man?"

The question in the title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:

On Dec. 3, Texas plans to execute an inmate named Scott Panetti, who was convicted in 1995 for murdering his in-laws with a hunting rifle. There is no question that Mr. Panetti committed the murders. There is also no question that he is severely mentally ill, and has been for decades.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ.  A standby lawyer said his behavior was “scary” and “trance-like,” and called the trial “a judicial farce.”

It was not an act.  Mr. Panetti, now 56, was first diagnosed with schizophrenia when he was 20, and in the years before the murders he was hospitalized several times for delusions and psychotic episodes.  

In this respect, he is no different from the estimated 350,000 inmates around the country with mental illness — 10 times the number of people in state psychiatric hospitals.  But Mr. Panetti is not just another insane prisoner; his name is synonymous with the Supreme Court’s modern jurisprudence about mental illness on death row. In Panetti v. Quarterman, decided in 2007, the justices held that it is not enough for a defendant simply to be aware that he is going to be executed and why — the previous standard the court had used in permitting the execution of the mentally ill....

But the justices refused to set precise guidelines for determining whether someone is competent enough to be executed, and they did not overturn Mr. Panetti’s sentence. Instead, they sent the case back to the lower courts for a fuller reconsideration of his current mental state.

By any reasonable standard — not to mention the findings of multiple mental-health experts over the years — Mr. Panetti is mentally incompetent. But Texas, along with several other stubborn states, has a long history of finding the loopholes in Supreme Court rulings restricting the death penalty.  The state has continued to argue that Mr. Panetti is exaggerating the extent of his illness, and that he understands enough to be put to death — a position a federal appeals court accepted last year, even though it agreed that he was “seriously mentally ill.”

Mr. Panetti has not had a mental-health evaluation since 2007.  In a motion hastily filed this month, his volunteer lawyers requested that his execution be stayed, that a lawyer be appointed for him, and that he receive funding for a new mental-health assessment, saying his functioning has only gotten worse.  For instance, he now claims that a prison dentist implanted a transmitter in his tooth.

The lawyers would have made this motion weeks earlier, immediately after a Texas judge set Mr. Panetti’s execution date. But since no one — not the judge, not the district attorney, not the attorney general — notified them (or even Mr. Panetti himself), they had no idea their client was scheduled to be killed until they read about it in a newspaper. State officials explained that the law did not require them to provide notification.

On Nov. 19, a Texas court denied the lawyers’ motion. A civilized society should not be in the business of executing anybody. But it certainly cannot pretend to be adhering to any morally acceptable standard of culpability if it kills someone like Scott Panetti.

November 24, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, November 23, 2014

Reviewing the potential and pitfalls in a notable problem-solving court in NYC

Today's New York Times has this terrific lengthy account of the work of a unique "problem-solving court" in New York.  The piece is headlined "In a Queens Court, Women in Prostitution Cases Are Seen as Victims," and here are small excerpts from an article that merits a read in full:

The Human Trafficking Intervention Court in Queens, which is marking its 10th anniversary next month, ... serves as a model for a statewide 11-court program that began last year. The intention is to change the legal conversation around the multibillion-dollar sex trade by redefining the women in it as victims instead of criminals. Most are offered a deal: Take part in a set number of counseling sessions, usually five or six, and the charges will be dismissed and the record sealed.

After 13 months, the five New York City courts are still a work in progress, their success tracked more in individual stories than statistics. “This court is not devised to solve the problems of trafficking,” Judge Serita said of the program, “but to address one of the unfortunate byproducts, which is the arrest of these defendants on prostitution charges.”

All defendants in the specialized courts are presumed to be victims at risk, the first of many assumptions made, in part, because of the silence surrounding sex trafficking. That silence also makes it tougher to shift social mores. Not only do the police and the justice system still treat prostitution as a crime, but the women themselves, most undocumented, often don’t define themselves as having been trafficked — whether out of fear, shame or choice....

At no point in the proceedings does the judge, the prosecutor or the defense lawyer ask if the defendants have been trafficked; nor is there a quid pro quo to give up a trafficker. It is rare, but the hope is that the women, perhaps after working with counselors, will feel comfortable describing the conditions that led them to prostitution....

On Fridays, Judge Serita usually hears more than 40 cases in three hours. “How are you today?” she asks each of the women, inquiring whether they take English classes and praising their progress. Several defendants said they noticed less that she was an Asian woman and more that she had a warm demeanor. On other days, she presides over the drug treatment and mental health courts in Queens.

The trafficking court, she acknowledged, is a Catch-22: For people to feel less like criminals, they must first go through the criminal justice system. Leigh Latimer, the Legal Aid Society lawyer assigned to Judge Serita’s court, agreed. “There is a somewhat more recent view that clients are potentially victims, but we’re still arresting them at a very rapid pace,” she said. “We’re trying to solve their problems through being arrested, which is not an affirming process.”...

On several Fridays, nearly a dozen women said during interviews in Mandarin that they did not feel like trafficking victims, but victims of the police. The women all spoke on the condition of anonymity because their cases were still pending. “My name has been tarnished,” said one woman, who was upset that her case was “lumped with all those others.” She denied performing a sex act, but the police report contradicted that, Ms. Affronti said.

Another woman explained that she was arrested at 4 a.m. on her sixth day of work. She and her sister, who quit after the second day because she sensed “something was not right,” owed more than $80,000 to friends and family members who raised the money for them to come to the United States from Fuzhou. That type of pressure to pay back smuggling agents — often with interest as high as 12 percent — is considered “debt bondage.” It is a more subtle condition of human trafficking, but is pervasive in New York’s Asian communities, lawyers say.

November 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, November 22, 2014

Notable comments from AAG about Justice Reinvestment

Earlier this week, Assistant Attorney General Karol Mason delivered these interesting remarks for DOJ's Office of Justice Programs at a big Justice Reinvestment Summit. The full speech is worth review, and here are a few excerpts I found noteworthy:

I think it can legitimately be said that justice reinvestment has transformed the way we approach public safety in this country.  It is no exaggeration to say that it has helped to redefine the missions of our criminal and juvenile justice agencies.  Thanks in great part to the focus that your work has given to justice policies, corrections leaders, law enforcement officials and prosecutors have begun to measure their performance, not just by the narrow metrics of arrests, convictions and confinement, but by actual improvements to public safety.

And this shift in attitude and approach is paying off.  Many states that have engaged in Justice Reinvestment have seen drops in crime rates and imprisonment — and substantial taxpayer savings.

Having just emerged from the recent mid-term elections, it’s worth remarking on another important aspect of justice reinvestment: it’s an approach to justice policy that resonates on both sides of the aisle.  We’ve seen lawmakers who disagree on just about every other policy matter rally around data-driven analysis focused on investing increasingly scarce public resources in programs and policies that work.

State and local governments, representing all political persuasions, have taken on major reforms designed to reduce prison-building costs and redirect precious public funds to programs aimed at reducing crime.  It can honestly be said that, in a climate of intense partisanship, we are witnessing the growth of a broad, bipartisan consensus in city halls, state capitals and Congress around crime and justice policy, thanks in great measure to justice reinvestment....

This progress is reflected in a general downward trend in both crime and incarceration rates throughout the country.  Before the FBI released its most recent data last week, crime had declined nationally by more than 11 percent since President Obama took office. The new FBI data show additional drops in 2013.  On top of that, the rate of incarceration has gone down by more than eight percent since 2009.  It’s the first time these two measures have fallen together in more than 40 years.  This is truly historic! We’re experiencing a moment of public safety unprecedented in most of our lifetimes.

But this is no time to relax.  Those of you who’ve been in this business for a while know that the winds of justice and sentencing policies have always blown hot and cold.  If we don’t take advantage of the momentum we’ve built through Justice Reinvestment and embed this data-driven mindset into mainstream practice, we risk a return to the counterproductive practices of the past.

In fact, truth be told, we are still two nations when it comes to prison trends. The extraordinary success in reducing incarceration that we’ve been able to realize in many states has been offset by continued increases in others.  Now, to be sure, these figures don’t reflect that some of the states with increases are now working through justice reinvestment to change course.  And I’m confident that now we have the wind at our back. But we will have to remain vigilant.

November 22, 2014 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, November 20, 2014

"The Racist Origins of Felon Disenfranchisement"

The title of this post is the headline of this recent New York Times commentary by Brent Staples. Here are excerpts:

The state laws that barred nearly six million people with felony convictions from voting in the midterm elections this month date from the late 19th and early 20th centuries, when Southern lawmakers were working feverishly to neutralize the black electorate.  Poll taxes, literacy tests, grandfather clauses and cross burnings were effective weapons in this campaign.  But statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.

This racially freighted system has normalized disenfranchisement in the United States — at a time when our peers in the democratic world rightly see it as an aberration. It has also stripped one in every 13 black persons of the right to vote — a rate four times that of nonblacks nationally.  At the same time, it has allowed disenfranchisement to move beyond that black population — which makes up 38 percent of those denied the vote — into the body politic as a whole.  One lesson here is that punishments designed for one pariah group can be easily expanded to include others as well....

Maine residents vigorously debated the issue last year, when the Legislature took up — and declined to pass — a bill that would have stripped the vote from some inmates, whose crimes included murder and other major felonies.  Families of murder victims argued that the killers had denied their loved ones the right to vote and therefore should suffer the same fate.

Those who opposed the bill made several arguments:  That the franchise is enshrined in the state Constitution and too important to withdraw on a whim;  that voting rights keep inmates connected to civic life and make it easier for them to rejoin society;  that the notion of restricting rights for people in prison was inconsistent with the values of the state.

A former United States marshal and police chief argued that revoking inmate voting rights would strip imprisoned people of dignity and make rehabilitation that much more difficult. The editorial page of The Bangor Daily News argued against revocation on the grounds that, “Removing the right of some inmates to exercise their legal responsibility as voters in a civilized society would undermine that civilized society.”

The fact that most states view people who have served time in prison as beyond the protection of the bedrock, democratic principle of the right to vote shows how terribly short this country has fallen from achieving its ideals.

November 20, 2014 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

"Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law"

The title of this post is the title of this notable new paper by Ronald Cass now available on SSRN.  Here is the abstract:

Recently, both practical and doctrinal changes have significantly reduced the degree to which criminal punishment fits rule-of-law ideals.  Although far from the only cause, the expansion of criminal sanctions as a by-product of an extraordinary explosion in administrative rulemaking that is backed by criminal liability has helped propel this change.  While there are reasons to support criminal enforcement of administrative decision-making, the ways in which administrative rules are adopted, applied, and enforced and the scale of governmental law-making (including administrative rule-making) that has provided the grounds for potential criminal penalties have produced a massive increase in government power that risks serious erosion of individual liberty.

This change cries out for immediate attention ― and for changes to the law.  This article explores differences between criminal law and administrative law, and between statutory and administrative rule generation and application, explaining how differences between administrative law and criminal law play out (problematically) with respect to much criminal enforcement of administrative rules.

November 20, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, November 18, 2014

Wonderful new on-line resource, Collateral Consequences Resource Center, now available

Header-mainI am very pleased to be able to report on a very important addition to the criminal justice on-line universe, the Collateral Consequences Resource Center.  This posting by Margy Love provides this background and something of a mission statement:

The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014.  We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.

The legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects.  The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation.  Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served.  Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind.  Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention.  People with a record are organizing to promote change.

The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues.  The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.”  Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions.  The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction.  It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: staff@CCResourceCenter.org.

Impressively, this new web resource (which I guess I will call CCRC) has a ton of terrific content already assembled at webpages dedicated to State-Specific Resources, Books and Articles, and Reports and Studies.  And here are links to a few recent notable blog postings:

November 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Thursday, November 13, 2014

"'I Expected It to Happen/I Knew He'd Lost Control': The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5"

The title of this post is the title of this notable new article by Michael Perlin now available via SSRN. Here is the abstract:

The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.

My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing.  I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of that Manual, it will force them to seriously confront — in a wide variety of cases — the impact of PTSD on sentencing decisions.  And this may lead to more robust debates over the impact of mental disability generally on sentencing outcomes.

My optimism here is tempered by (1) the reality that courts deal teleologically with mental disability evidence in general (subordinating it when it is introduced by the defendant, and privileging it when introduced by the state), and (2) the power of sanism — an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry — in this entire inquiry.

On the other hand, we must also consider the impact of therapeutic jurisprudence on the question in hand.  Therapeutic jurisprudence (TJ) presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti-therapeutic consequences.  Although some scholars have considered TJ in the context of the Federal Sentencing Guidelines, it remains mostly an “under the radar” topic.”  I believe it is essential we give it a new and urgent focus.

I am convinced that, if courts take seriously the new treatment of PTSD in DSM 5, and couple that with an understanding of sanism and an application of TJ, that will lead to an important sea change in the ways that defendants with that condition — especially those who are Iraqi and Afghanistani war veterans - are sentenced. This paper proceeds in this manner.  First, I briefly review the law of sentencing as it relates to persons with disabilities, focusing on developments that followed the Supreme Court’s decision in United States v. Booker (making the Federal Sentencing Guidelines advisory rather than mandatory), the role of sanism, and the significance of therapeutic jurisprudence.  Then, I look at how courts have, until this moment, treated PTSD in sentencing decisions. I will then look at DSM 5 to highlight its definitional changes.  I then try to “connect the dots” to show how DSM 5 demands changes in sentencing practices, and explain how this change can be consonant with the principles of TJ. I will end with some modest conclusions.

November 13, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (12) | TrackBack

Monday, November 10, 2014

Federal prosecutors righteously undo convictions based on FBI agent's misdeeds

Regularly readers know I am quick to criticize federal prosecutors in this space when I am troubled by decision that seem driven more by a desire to win convictions and secure long sentences than by a commitment to do justice.  Given that reality, I nw want to be among the first to praise federal prosecutors for their response to evidence than an FBI agent in the DC area tampered with evidence in a number of serious prosecutions.  This Washington Post piece, headlined "More drug defendants cleared of charges because of investigation into FBI agent," provides details on a story that showcases the virtuousness of federal prosecutors:

Thirteen defendants charged with or convicted of distributing large amounts of heroin in the District had their cases dismissed Friday because prosecution had been tainted by an FBI agent who is accused of tampering with evidence linked to the cases, including drugs and guns.

Seven of the defendants had pleaded guilty in the drug conspiracy and four of them were serving prison sentences of between two and seven years.  But in one instant, all were unburdened by criminal charges or convictions, and those serving time had their sentences vacated. As soon as the hearing in federal court adjourned, the former defendants rushed from the box normally reserved for jurors, with one jubilantly saying, “Let me get out of here before [the judge] changes his mind.”

Friday’s ruling in U.S. District Court follows similar action Thursday, when another judge threw out charges involving 10 people convicted in a separate drug conspiracy involving the sale of heroin and cocaine.  Charges in other cases could be dropped in the near future.

Prosecutors had recommended dropping the charges amid the investigation of Matthew Lowry, 33, an FBI agent assigned to the Washington field office who worked with police on crime that spilled over from the District into Maryland and Virginia.  Lowry has been suspended but not charged. The investigation is being led by the Justice Department’s inspector general, and court documents link the dismissals to the probe involving Lowry.

Authorities have said little about the investigation, but court documents filed as part of the release of suspects say that Lowery is accused of tampering with drug and gun evidence. Officials with knowledge of the investigation have said the agent allegedly took heroin and used it himself.  Other officials said Lowry was found in the last week of September slumped over the wheel of an unmarked FBI car near the Navy Yard, along with two drug evidence bags, heroin and two guns.

The fallout has been swift.  Within days, prosecutors identified at least three drug cases and started to send defendants home from jail and prison to await further action. Prosecutors began dismissing cases outright Thursday.  In all, 23 of 28 defendants in two drug cases have had their charges dismissed.

“We do not lightly dismiss these cases, particularly when the defendants face the serious drug charges at issue here,” U.S. Attorney Ronald C. Machen Jr. said in a statement.  But, he added, “The credibility of the system is paramount and more important than any individual prosecution. That’s why we are carrying out a case-by-case, defendant-by-defendant review to determine which cases should go forward.

"We are carefully examining the role that the FBI agent played in each investigation to assess whether the case can proceed.  And moving forward, be assured we will not be dissuaded from aggressively investigating and prosecuting narcotics cases to protect the residents of the District of Columbia,” the prosecutor said....

One of the defendants freed, 59-year-old Brandon Beale, went straight from the courtroom to the Pretrial Services Agency so he could turn in his ankle bracelet and shed the restrictions of home detention, said his attorney, Greg English.  English said Beale, who was jailed for nearly a year, planned to fight the charges on the grounds that he was merely a drug user, not a dealer.  Now, English said, there will be no reason to do that.

“This turn of events is absolutely extraordinary for an agent to commit misconduct like this. It goes to the basic integrity of the system,” English said. “But having said that, I think the U.S. Attorney’s Office did the right thing today and dismissed it. . . . They were completely ethical and upfront in their conduct in this case.”  English said it was technically possible for prosecutors to bring the charges against Beale and others again, but he doubted they would do so.

In addition to being eager to praise federal prosecutors for their swift and aggressive response to learning that an FBI agent has gone rogue, I am also eager to know if anyone (e.g., Bill Otis) might be incline to criticize the federal prosecutors for moving to vacate a bunch of convictions rather than to seeking to contend that any evidence problems created by the rogue agent produced on harmless errors.

November 10, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, November 05, 2014

"Fish, Shotguns and Judicial Activism"

Images (3)The title of this post is the title of this terrific new Bloomberg commentary by Noah Feldman spotlighting some connected issues in the two big federal criminal justice cases being heard today by the US Supreme Court. Here are extended excerpts that explain why jurisprudes, and not just criminal justice fans, ought to be watching these cases closely:

Is a fish a tangible object? Does a sawed-off shotgun pose serious risk of injury? Laugh if you must, but the U.S. Supreme Court is taking up these questions in a pair of cases that will form another chapter in the saga of our vastly expanding federal criminal law. Funny as the cases may seem -- both funny strange and funny ha-ha -- they illustrate how policy and law constantly interact for a court deeply divided about the nature of statutory interpretation.

The fish case, Yates v. United States, involves a Florida fishing boat that was boarded and found to have 72 undersized grouper aboard. Ordered to bring the fish back to port where they would be used as evidence, the skipper, John Yates, instead threw them overboard and tried to substitute fish that were over the legal size requirement.

The criminal nature of the act seems intuitive. The part that has reached the Supreme Court on appeal stems from Yates’s conviction under a provision of the Sarbanes-Oxley Act that punishes anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.” The government says that Yates destroyed a tangible object, namely the fish. Yates says the law, passed after the Enron scandal, is intended to prohibit shredding documents, not throwing fish into the sea....

Aristotle, followed by today’s purpose-driven interpreters such as Justice Stephen Breyer, believed the solution is to interpret the law as its authors would have intended had they only thought of the future case. Others, such as Justice Antonin Scalia, reject the idea that the judge should do anything but apply the law as it is written. Ordinarily, you could expect the case to come down to this division, and to come out 5-4, depending on what Justice Anthony Kennedy thinks of it.

In Yates’s case, things are more complicated. Breyer may well reason that the underlying purpose of the statute is not to protect documents from destruction but to protect evidence in federal cases from being destroyed by defendants. If so, he would uphold Yates’s conviction insofar as Yates was clearly trying to get away with a crime by getting rid of the evidence.

For his part, Scalia may find himself affected by a special principle that he applies only in criminal cases: the “rule of lenity,” according to which an ambiguous statute should be interpreted in favor of the criminal defendant. If Scalia were to follow this principle, he might overturn the conviction.

Of course, whether to apply the rule of lenity depends on whether you think the law is ambiguous. The government says it isn’t: You can hold a fish, so it’s a tangible object. If Scalia thinks the ambiguity -- if any -- derives from context, not language, then according to his own jurisprudence, he shouldn’t apply the rule of lenity, and should uphold the conviction.

The shotgun case, Johnson v. United States, is no less challenging -- and no less odd. Samuel James Johnson, founder of something called the Aryan Liberation Movement, was arrested after he made the mistake of telling an undercover federal agent about his plans for attacking various non-Aryan targets. He was in possession of weapons including an AK-47 -- and that possession was a felony that would ordinarily have gotten him roughly 10 years in prison. But Johnson had three prior convictions. And under the federal Armed Career Criminal Act, a fourth conviction for a violent felony carries a minimum of 15 years.

The law defines “violent felony” to include a range of obvious crimes -- plus any “conduct that presents a serious potential risk of physical injury to another.” One of Johnson’s prior state convictions was for possession of a short-barreled shotgun. Did owning the illegal shotgun pose a serious potential risk?

You won’t be surprised to hear what the gun lobby thinks about that in its friend of the court briefs -- but that’s not really the important point here. The crucial question is, what’s the meaning of the so-called residual clause of the repeat offender law? How should the courts define what counts as a serious risk of potential injury?

The Supreme Court has been answering that question on a case by case basis -- a practice disliked by, you guessed it, Justice Scalia. He thinks the law is unconstitutionally vague, because it doesn’t provide defendants sufficient notice or the courts adequate guidance. It’s easy to see why the law worries Scalia. He wants the courts to follow the law’s literal meaning, not its policy aims -- but it’s almost impossible not to inject policy when the law tells you to evaluate “serious potential risk of physical injury.”

The purpose-oriented justices look at the interpretive issue and see business as usual. To them, the courts must always consider policy and purpose, whether the subject is tangible fish or injurious firearms.

Who’s right is a deep question of jurisprudence. But as a practical matter, the cases show that Scalia’s approach, devoted to opposing judicial activism, won’t work when Congress actively wants the judiciary to make the law up as it goes along. If Scalia wants to avoid relying on his own judgment, he has to strike down the law as unconstitutional. And that isn’t judicial restraint. It’s activism. 

Some previous related posts:

November 5, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, November 03, 2014

Arguing for releasing all drug prisoners and reparations to "right the drug war’s wrongs"

Lucy Steigerwald has this provocative new Washington Post blog/commentary piece headlined "Sentencing reform and how to right the drug war’s wrongs." Here are excerpts:

On November 1, the U.S. Sentencing Commission’s plan to reform sentencing for certain drug crimes went into effect. The details were hammered out back in April and July, and they could have been challenged by Congress. Thankfully, Congress declined to do so, and now the commission has a chance at helping nearly half of the 100,000 inmates in federal prison come home earlier than they otherwise would have.

For decades, the war on drugs rolled onward, leaving a pulpy mass of casualties in its wake. But since at least 2012, when Colorado and Washington state legalized recreational use of marijuana, there has been some serious strides against this dangerous domestic policy. Generally, however, any progress made on drugs has been confined to changing the legality of substances....

Even the tentative, good-but-not-good-enough Fair Sentencing Act, which reduced the sentencing disparity between crack and cocaine in 2010, was initially not retroactive until the USSC voted to make it so.... The USSC is doing something more substantial still with their new guidelines, which allow for retroactive petitioning for reduced time in prison starting in November 2015. Prisoners may begin petitioning for these reductions now, however. Unfortunately, those sentences cannot fall below the mandatory minimums, which can only be changed by Congress. Ideally, the Justice Safety Valve Act, introduced by Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.), which would give judges more flexibility to depart from mandatory minimums, will be eventually signed into law, allowing for some of the damages wrought by these mandatory sentences to be mitigated.

In addition, even though the sentencing reforms help the federal prison population, we are very far from instituting anything as optimistic on a statewide level. Most of the some-400,000 state prisoners in jail on drug-related crimes are out of luck unless they get individual commuting of their sentences.

As the war on drugs loses popularity, the question of what to do about the lives ruined and interrupted is going to come up again and again. One of the more fascinating, though politically unrealistic suggestions for what to do about this mess is one offered by a Green Party candidate for governor of New York: Howie Hawkins suggests releasing all drug prisoners, and putting together a “panel on reconciliation” between them and their communities and governments. They want voting rights restored, school grants restored, help for children of the former cons, and prevention of would-be employers asking about criminal histories. They even suggest full-on reparations for “the communities affected.”

This won’t pass muster, probably not even in the most liberal states. The slow reforms being offered by the USSC, and criminal justice advocates like Sen. Paul might be all we get. But the reparations idea does present a question of what society should do after the madness of a moral panic dims, and the end result turns out to be 2.3 million people in prison or jail. Most people wouldn’t object to a payment to any of the 147 people freed from death row, especially those who turned out to be unequivocally innocent. What happens when we realize that neither possessing nor selling drugs is a real criminal act? Doesn’t that suggest that we have a lot of innocent people in prison who will need a lot of help in restarting their lives?

November 3, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"

Download (2)Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang.  His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system.  But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage.  In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.  The outcome is very largely determined by the prosecutor alone....

Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain.  If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources).  Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little.  Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense.  For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).

Prior related posts on Judge Rakoff's commentaries:

November 3, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack