Tuesday, June 11, 2013
Celebrity injustice?: NFL player Chad Johnson gets 30-days in county jail for lawyer butt patAs reported in this CNN piece, "Butt pat lands former NFL star Chad Johnson in jail," a low-level sentencing proceeding involving a high-profile defendant in Florida state court has become interesting fodder for debating courtroom decorum and celebrity justice. Here are the intriguing details:
As an NFL player, Chad Johnson patted a lot of men on the butt when he liked their work, but on Monday, defendant Chad Johnson found out that one Florida courtroom was not the place to play that game.
After Johnson patted his lawyer on the rear, Judge Kathleen McHugh rejected Johnson's plea to a probation violation in the domestic violence case involving Johnson and his then-wife, Evelyn Lozada. Johnson was arrested in May for not meeting with his probation officer and was in court Monday to enter a plea.
After he was asked if he was pleased with his attorney, the former wide receiver once known as "Chad Ochocinco" gave his lawyer, Adam Swickle, a gentle pat on the rear.
McHugh was furious when people in the audience laughed. "There's nothing funny about what's going on here today," she told Johnson.
Johnson, 35, replied that he wasn't laughing. Then McHugh said, "I don't think anything's funny about it, Mr. Johnson. This isn't a joke."
Johnson said he didn't do it as a joke. Swickle agreed, saying: "I don't think it was done as any disrespect to the court. I don't think he meant to get a reaction from the court room, judge."
The judge told Johnson she wouldn't accept a plea deal that involved only community service and more anger management counseling. Instead, she sentenced him to 30 days in jail and tacked three months onto his one-year probation, which would have ended in September.
Johnson seemed resigned to his fate. "Love me through the good and the bad because I'm gone love you regardless... See you in 30... " he tweeted later.
As I write this post, I am hearing Skip Bayless and Stephen A. Smith on First Take yelling at each other about sentencing practices, race, gender, incarceration and courtroom activities. Given that there is this video of what went down (with the key event just before the one-minute mark, and the judge's (over?)reaction just before the two-minute mark), I hope readers will provide their own takes on this notable example of celebrity sentencing.
Friday, June 07, 2013
"A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"The title of this post is the title of this notable lengthy commentary authored by Tamara Tabo at Above the Law concerning the new complaint of judicial misconduct filed against Fifth Circuit Judge Edith Jones earlier this week. The piece merits a full read for anyone following this brouhaha, and here are some excerpts:
I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia [which served as the basis for the complain], and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.
But I don’t need to do that. I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges. While there’s not enough space here to evaluate each of the charges the complaint makes, let’s have a closer look at a few of them, starting with her alleged comments on race.
According to the complaint, Judge Jones asserted that “certain racial groups commit more of these crimes than others.” She said that “[s]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row and “sadly” it was a “statistical fact” that people “from these racial groups get involved in more violent crime.”
Note that she did not say that race causes criminality, only that we see a disproportionately high number of violent offenders of certain races. These are facts. Even without knowing her, you could easily conclude that Judge Jones thinks these are unpleasant facts. That would certainly explain her alleged repeated use of the word “sadly” in reference to these statistics about race and crime.
If Judge Jones had followed these facts with a different policy claim, would we consider factual statements to be proof of impartiality or impropriety? Or is it less that what she stated was false and more that it was simply not to some liberal audience members’ liking? One could cite these same facts, then proceed to argue for all manner of social reforms — ones that address the causes of the racial disparity in criminality. Doing so would be entirely compatible with what Judge Jones allegedly said during her speech.
What if Judge Jones had said that males were more likely to commit violent crimes than females? Would that be a problem? More violent offenders in our justice system are, in fact, male than female, after all. Would any reasonable person accuse Judge Jones — herself a non-male! — of undermining “public confidence in the judiciary” or being so gender-biased that she would be unfit to handle criminal cases? I hope not.
Correlation is not causation. Nothing in the complaint shows that Judge Jones suggested or thinks that race causes criminality.
The complaint further alleges that Judge Jones engaged in misconduct when she discussed capital defendants who raise claims of mental retardation. The complaint’s footnote 10 states, “This term is outdated — now generally replaced by “Intellectually Disabled” — and thus Judge Jones’s use of the term “mental retardation” is kept in quotations.”
I work with clients (in a clinical setting, not a legal one) who suffer from severe cognitive impairments. In that setting, I wouldn’t describe a client as “mentally retarded,” because we’re after more precise diagnoses and because, yes, that catch-all term has fallen out of favor. But do you know who does routinely use the term “mentally retarded” in a professional setting? The United States Supreme Court — as quoted in the complaint’s footnote 11, for example. Using that term suggests a willingness to use a legal term of art, not necessarily some outmoded insensitivity to people, say, with Down’s Syndrome.
It is not disrespectful of individuals with disabilities to be angered by false claims of mental retardation, as Judge Jones allegedly was. It does not malign their dignity to suggest that many are capable of choosing between good and evil. Just because one thinks that a particular legal claim is frequently abused does not mean that every instance of such a claim is abusive or legally frivolous. We’re accusing one of the most respected judges of the federal judiciary of misconduct over something that even the Onion satirizes.
The complaint alleges that Judge Jones “indicated that any Mexican National would rather be on death row in the United States than in a Mexican prison” and “stated that Mexico ‘wasn’t about to provide any of their own citizens with the kind of legal protections the person would get in the United States.” The complaint does not even bother to contest this joke, since it’s (a) a joke, and (b) uncontestable. Even the U.S. consulate helpfully reminds U.S. tourists to Mexico that they won’t benefit from little perks of the American justice system such as the presumption of innocence....
What is it we expect judges to talk about when we invite them to speak, if not some “view from the bench”? We expect them to draw on their actual experiences with actual cases. That is, frankly, why most judges are more interesting to listen to than most law professors.
We rightly expect that judges will not publicly comment on cases currently pending before them. To be clear: no affiant claimed that Judge Jones did so. Once again, even if we take their account of what she said as true, it just doesn’t add up to anything worthy of censure.
If there’s one woman on the planet who doesn’t need a pipsqueak like me defending her, that woman is likely Edith H. Jones. She likely will not dignify these charges with any response. I, however, am not so constrained by that sort of dignity. Obviously.
Recent related post:
- Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty
Thursday, June 06, 2013
Some more thoughtful thoughts on DNA collection and Maryland v. KingAlan Michaels is not only my Dean at the OSU Moritz College of Law, he is also the co-author of Understanding Criminal Procedure (with our colleague Joshua Dressler). Consequently, when he sent an e-mail with some thoughts on the SCOTUS ruling in King concerning DNA collection from arrestees, I was quick to ask his permission to reprint these thoughts in this space. With his permission, here they are:
Recent related posts:
1) It is surely true that more crimes will be solved by running the DNA of arrestees through a database of unsolved crimes. But the thing that probably troubles me most about the case (as a normative matter, not thinking about correct doctrinal answer), is that the content of the group “arrestees” is framed in a lot of ways by racial bias, so that the impact of this in the long run will very likely be disproportionate apprehension of guilty individuals of color for these unsolved crimes. I like apprehension of the guilty (a lot!), but the potential disproportionate part is very, very, troubling. Although King was limited to arrestees for “serious” crimes, the writing is on the wall; in other contexts “serious” can mean punishable by six months or more, pretextual arrests are not unheard of even without this DNA incentive, and the Court has made clear that custodial arrest is constitutional even for traffic offenses. Indeed, I was deeply moved by the irony of the decision coming down the same day as this report came out [noted in this prior post] showing that all else equal African-Americans are four times as likely as whites to be arrested for marijuana.
If we are going to use new “super methods” for crime solving, that at least make us hinky about privacy, I think we need to do so in a way that does not have a disproportionate impact on subordinated groups. As Scalia points out in dissent (making a different point), we would also solve crimes by swabbing all airline passengers....
2) A different thought though, while still focusing on the real world impact: Justice Scalia is in dissent on this one, while Thomas (his originalist compatriot) and Akhil Amar and Neal Katyal [noted in this prior post] think he is wrong about what the framer’s would have said about DNA swabs. As probably all of you know, I’m not a fan of originalism anyway. I can’t help but notice that this is, once again, a case where Justice Scalia surprisingly is on the side of the criminal defendant as a result of his view of what the framers would have done, but it just happens that the practical impact is most felt around a crime where men are being prosecuted for crimes against women and girls.
First Maryland v. Craig, (Justice Scalia loses war he won first battle of in Coy v. Iowa; child victims of sexual abuse are allowed to testify in separate room from criminal defendant); Second, Crawford (out of court statements where witness unavailable newly excluded as constitutional matter — big impact in domestic violence prosecutions, where victim’s statements previously admitted under hearsay exception when victim would not testify at trial), and now King (DNA that he would forbid being collected used most frequently to solve rapes and other sexual assaults). As one colleague pointed out to me, there are an at least equal number of Justice Scalia pro-defendant cases that do not have this feature (against searches of cars incident to arrest, against warrantless thermal imaging of a home, his anti-Terry view, to name a few), but it may still be a notable feature of relying exclusively on centuries-old perspectives to resolve contemporary problems — something to be considered in weighing the merits of interpretive methods.
- Via somewhat unusual 5-4 split, SCOTUS finds reasonable DNA acquisition from arrestee in Maryland v. King
- "Why the Court Was Right to Allow Cheek Swabs"
- Would legalizing marijuana be a huge step toward a less racialized criminal justice system?
Wednesday, June 05, 2013
"NC House vote moves Racial Justice Act closer to repeal"The title of this post is the headline of this new local article concerning the latest efforts in North Carolina to undo a law that has placed a significant hurdle in the state's efforts to administer the death penalty. Here are the basics:
The legislature took another step Tuesday toward wiping out a signature law that allows convicted killers to be spared the death penalty if they can show court decisions tainted by racial bias.
The 77-40 vote in the state House was largely along party lines, with one Democrat joining all Republicans to repeal the law called the Racial Justice Act. The preliminary vote — the House will likely take another vote Wednesday — came after more than an hour of debate....
The law’s supporters read names of men wrongly convicted of murder, while it’s detractors recited names of murder victims. “Keep in your minds the victims of the heinous, heartless, cold-hearted killers,” said Rep. Nelson Dollar, a Cary Republican.
The 2009 law allowed people sentenced to death to use statistical evidence to show that race played a significant part in their trial or in the prosecutor’s decision to seek the death penalty. Successful challengers have their death sentences commuted to life in prison.
Last year, the legislature weakened the law by narrowing the use of statistics. The bill moving through the legislature this year would erase the law. The bill would also prevent regulatory boards from penalizing doctors, nurses and other health care professionals from assisting in executions. In 2007, the N.C. Medical Board said it would punish doctors that participated in executions. State law requires that a doctor be present. The N.C. Supreme Court ruled in 2009 that the board had exceeded its authority....
Racial Justice Act supporters said it has exposed racial bias, and so far, has led to findings that prosecutors improperly prevented African-Americans from serving on juries. “None of us should want to execute any person whose sentence is based on racial discrimination,” said Alma Adams, a Greensboro Democrat.
A Cumberland County judge found last year that jury selection in four death row inmates’ cases was tainted by conclusive evidence of racism. More than 150 death row inmates filed challenges under the 2009 version of the law. The bill debated Tuesday would invalidate more than 140 of the claims that have not been heard in court.
The law’s detractors said it was flawed from the beginning. One of the reasons they gave was that white defendants convicted of murdering white people by all white or nearly all white juries can claim racial bias. Decisions about the death penalty should be made on the facts of each case, critics said, not on a statistics. They contend that the real intent of the law was to put a moratorium on the death penalty.
“No one wants actual racial discrimination,” said House Speaker Pro Tem Paul Stam, an Apex Republican. “We don’t want race to be used as a pretext to stop the death penalty.”
A few older and more recent posts on NC Racial Justice Act:
- NC Gov signs new racial justice act concerning capital prosecutions
- Will NC's new Racial Justice Act effectively kill the state's death penalty?
- NC defender officer urging that racial bias claims be brought in every capital case
- NC prosecutors bring complaints about state's Racial Justice Act to court
- North Carolina DAs urge state legislature to repeal Racial Justice Act
- Veto debate follows NC legislature's vote to repeal state's capital Racial Justice Act
- NC Governor vetoes bill to repeal state's Racial Justice Act
- NC death row defendant prevails in first case decided under state's Racial Justice Act
- Reviewing the uncertain state of capital justice in the state of North Carolina
- NY Times editorial on "Race and Death Penalty Juries"
- North Carolina legislature trying again to cut back on state's consequential Racial Justice Act
- Is effort to reform North Carolina's Racial Justice Act a "Test of Racial Justice"?
- New ruling under NC Racial Justice Act takes three more defendants off death row
Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penaltyAs reported in this Texas Tribune article, headlined "Complaint: Judge's Death Penalty Remarks Show Racial Bias," Fifth Circuit Judge edith Jones is the subject of a judicial misconduct complaint based on her comments earlier this year in a speech about race and the death penalty. Here are the basics:
According to a complaint filed Tuesday by civil rights groups, ethicists and a legal aid organization, 5th U.S. Circuit Court of Appeals Judge Edith Jones allegedly said during a February event at the University of Pennsylvania Law School that “racial groups like African-Americans and Hispanics are predisposed to crime,” and that they get involved in more violent and “heinous” crimes than people of other ethnicities....
At the February event, she also reportedly said that Mexican nationals would rather be in a Texas prison than in a prison in their home country. The complaint also takes issue with comments the judge reportedly made criticizing the U.S. Supreme Court’s prohibition on executing the mentally retarded.
“Judge Jones’ biased remarks demonstrated both an utter disregard for the fundamental judicial standard of impartiality and a lack of judicial temperament,” the complaint argues.
Among those who filed the complaint are the NAACP, the Texas Civil Rights Project and the Mexican Capital Legal Assistance Program, which is funded by and represents Mexico in cases where its foreign nationals face capital murder charges in the U.S. It was filed with the 5th Circuit Court’s chief judge, who would decide whether to refer the case to a judicial council made up of 5th Circuit and district court judges. Because Jones is a former chief judge of the 5th Circuit, the group asked that its complaint be transferred to another circuit court for review.
In affidavits filed with the court, people who attended the event where Jones spoke said she denied the existence of systemic racism in the application of the death penalty. They said she contended that more Hispanics and African-Americans are on death row because people “from these racial groups get involved in more violent crime.”
The complaint indicates that Jones also told the audience that exempting the mentally retarded from the death penalty was a disservice. In 2002, the U.S. Supreme Court — amid what Jones reportedly described as a “judicial law-making binge” — decided that the mentally retarded are not eligible for execution because their lack of intellectual ability renders them less culpable for the behavior.
“I am not able to capture the complete outrage she expressed over the crimes or the disgust she evinced over the defenses raised,” Marc Bookman, a capital defense lawyer from Pennsylvania who attended the discussion, wrote in an affidavit.
Tuesday, June 04, 2013
Would legalizing marijuana be a huge step toward a less racialized criminal justice system?The question in the title of this post is prompted by this notable New York Times article headlined "Blacks Are Singled Out for Marijuana Arrests, Federal Data Suggests." Here are excerpts:
Black Americans were nearly four times as likely as whites to be arrested on charges of marijuana possession in 2010, even though the two groups used the drug at similar rates, according to new federal data. This disparity had grown steadily from a decade before, and in some states, including Iowa, Minnesota and Illinois, blacks were around eight times as likely to be arrested.
During the same period, public attitudes toward marijuana softened and a number of states decriminalized its use. But about half of all drug arrests in 2011 were on marijuana-related charges, roughly the same portion as in 2010.
Advocates for the legalization of marijuana have criticized the Obama administration for having vocally opposed state legalization efforts and for taking a more aggressive approach than the Bush administration in closing medical marijuana dispensaries and prosecuting their owners in some states, especially Montana and California.
The new data, however, offers a more nuanced picture of marijuana enforcement on the state level. Drawn from police records from all 50 states and the District of Columbia, the report is the most comprehensive review of marijuana arrests by race and by county and is part of a report being released this week by the American Civil Liberties Union.... “We found that in virtually every county in the country, police have wasted taxpayer money enforcing marijuana laws in a racially biased manner,” said Ezekiel Edwards, the director of the A.C.L.U.’s Criminal Law Reform Project and the lead author of the report.
During President Obama’s first three years in office, the arrest rate for marijuana possession was about 5 percent higher than the average rate under President George W. Bush. And in 2011, marijuana use grew to about 7 percent, up from 6 percent in 2002 among Americans who said that they had used the drug in the past 30 days. Also, a majority of Americans in a Pew Research Center poll conducted in March supported legalizing marijuana.
Though there has been a shift in state laws and in popular attitudes about the drug, black and white Americans have experienced the change very differently. “It’s pretty clear that law enforcement practices are not keeping pace with public opinion and state policies,” said Mona Lynch, a professor of criminology, law and society at the University of California, Santa Cruz....
The cost of drug enforcement has grown steadily over the past decade. In 2010, states spent an estimated $3.6 billion enforcing marijuana possession laws, a 30 percent increase from 10 years earlier. The increase came as many states, faced with budget shortfalls, were saving money by using alternatives to incarceration for nonviolent offenders. During the same period, arrests for most other types of crime steadily dropped.
Researchers said the growing racial disparities in marijuana arrests were especially striking because they were so consistent even across counties with large or small minority populations. The A.C.L.U. report said that one possible reason that the racial disparity in arrests remained despite shifting state policies toward the drug is that police practices are slow to change. Federal programs like the Edward Byrne Justice Assistance Grant Program continue to provide incentives for racial profiling, the report said, by including arrest numbers in its performance measures when distributing hundreds of millions of dollars to local law enforcement each year.
Phillip Atiba Goff, a psychology professor at the University of California, Los Angeles, said that police departments, partly driven by a desire to increase their drug arrest statistics, can concentrate on minority or poorer neighborhoods to meet numerical goals, focusing on low-level offenses that are easier, quicker and cheaper than investigating serious felony crimes. “Whenever federal funding agencies encourage law enforcement to meet numerical arrest goals instead of public safety goals, it will likely promote stereotype-based policing and we can expect these sorts of racial gaps,” Professor Goff said.
The ACLU report and materials on which this story is based can be found through this webpage, which provides links to reports, graphics, videos and other related coverage of this significant story. The full 187-page ACLU report is titled "The War on Marijuana in Black and White," and can be accessed at this link.
In addition to believing this potent new ACLU data should provide civil rights groups with a strong reason to become even more vocal in support of marijuana legalization, I hope it will force opponents of marijuana legalization to recognize and reflect on who really bears the brunt of marijuana prohibition. Though the rich and powerful like Michael Phelps and Justin Bieber might get a little negative press when seen smoking pot, it is people concentrated in poorer and minority neighborhoods who endure real burdens from the persistence of modern pot prohibition.
Unless and until supporters of marijuana prohibition face up to this disturbing data and aggressive advocate ways to reduce this racial skew in enforcement patterns, I think they can and should be accused of being complicit in perpetuating racial dispaprities in the operation of modern American criminal justice systems. That's right, President Barack Obama and Attorney General Eric Holder, I am talking about you two first and foremost. Unless and until you express at least some support for state marijuana legalization efforts, I will continue to accuse the first black president and the first black attorney general of being complicit in perpetuating racialized American criminal justice system.
Monday, June 03, 2013
As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling
As covered via a number posts on this blog, a split Sixth Circuit panel decided in Blewett, based on Equal Protection principles, that the new lower statutory mandatory-minimum thresholds for crack offenses established in the Fair Sentencing Act are applicable in motions to reduce otherwise-final sentences for incarcerated offenders. (The Blewett panel ruling was first discussed in this post, and further here and here.)
As predicted in these posts, the federal government is not happy with this ruling, and late Friday it finally filed a petition for rehearing en banc. Here is the opening paragraph of the argument section from that filing, which can be downloaded below:
The majority’s holding is legally incorrect, in conflict with prior Sixth Circuit decisions, in conflict with the law of every other circuit, and inconsistent with Dorsey. Moreover, the effect of the decision will be widespread if it is allowed to stand. The panel majority’s core reasoning is seriously flawed in multiple respects, but two central errors highlight the need for en banc consideration. Download Blewett_petition for rehearing
I would be truly shocked if the full Sixth Circuit did not grant this petition for rehearing. Indeed, in my view the only real procedural questions now are (1) how long will it take the full Sixth Circuit to grant the petition, and (2) what kind of briefing and argument schedule will be set for this important case. (I would urge the Sixth Circuit to give plenty of time for briefing because I know that a number of public policy groups are likely to be eager to file amicus briefs in this matter.)
As I briefly explained in my first post on Blewett, I think a Fifth Amendment equal protection theory used by the majority in the Blewett panel decision provides a very shaky constitutional foundation for giving the new crack statutory sentences of the FSA retroactive effect. But I also think, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could provide a more reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.
Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
- How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
- Two weeks later, has there been any significant and noteworthy Blewett blowback?
June 3, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack
Sunday, June 02, 2013
"Monitoring the Plea Process"The title of this post is the title of this notable new paper by Susan Klein now avaiable via SSRN. Here is the abstract:
Gideon versus Wainwright heralded a new age in American criminal prosecutions. Indigent blacks in the South would have the same opportunity to fight felony criminal charges and receive the same sentencing discounts of favorable guilty pleas as rich white northerners, and the innocent would be accurately separated by adversarial testing from the guilty. Yet fifty years later, indigent defendants (who comprise 80% of total defendants), often get substandard counsel, and innocent individuals are rarely, but sometimes convicted or plead guilty. Some of the blame falls squarely on the Court for settling on the contours of our current two-pronged test in Strickland versus Washington, that determines when counsel is ineffective and the defendant is accordingly prejudiced. Some blame falls on legislators for failing to adequately fund defense counsel. Our criminal justice evolved from an adversarial system to what Judge Lynch calls, "a defacto administrative regime". The criminal justice system is the plea bargaining system.
In this essay, the author posits that last term's Lafler versus Cooper and Missouri versus Frye gave us another chance to both police equality of sentences for the guilty, and to mandate better investigation of the underlying offense to ferret out the innocent. Information and resource disparity skews the system. The defense bar cannot buck a system stacked so heavily against them. Large-scale structural reform such as legislation or proper funding for defense is equally unlikely. Plea bargaining has failed.
Professor Klein suggests that our most politically feasible hope for reform is for federal and state judges to amend the rules of criminal procedure in order to monitor and record the discovery and plea negotiation process via nonwaivable conferences. A second proposal is for the Department of Justice and local District Attorneys' Offices to implement internal guidelines to regulate the timing and content of plea negotiations and discovery procedures. Though the Court imposed its new Sixth Amendment duties on the defense bar, it is prosecutors who have the incentive to ensure the finality of guilty pleas and to stave off potentially harsher legislative or judicial action in this area.
Friday, May 24, 2013
Would a death sentence given by a second sentencing jury to Jodi Arias survive constitutional challenges?As reported in this Reuters article, an "Arizona jury failed on Thursday to reach a unanimous verdict on whether Jodi Arias should be put to death for the brutal murder of her ex-boyfriend, prompting the judge to set a date for a new sentencing phase of the trial." Here is more on the latest development in this high-profile capital case:
Arias, a former waitress from California, was found guilty this month of murdering Travis Alexander, whose body was found slumped in the shower of his Phoenix-area home in June 2008. He had been stabbed 27 times, had his throat slashed and been shot in the face.
Maricopa County Superior Court Judge Sherry Stephens, who had told the jury on Wednesday to resume deliberations after the panel indicated it was struggling to reach consensus, set July 18 as the date for a retrial of the penalty phase and ordered a status hearing for June with attorneys in the case.
Arias, a petite figure who had earlier pleaded with the eight men and four women on the jury to spare her life for the sake of her family, appeared to breathe a sigh of relief. Alexander's relatives wept and hugged in court....
Following the penalty phase deadlock, the state has the option to retry the sentencing portion of the trial and have a new death penalty jury impaneled. Should such a jury also deadlock, capital punishment would be taken off the table. Should prosecutors opt against a full penalty-phase jury retrial, the judge would be left to hand down a verdict of life in prison.
Maricopa County Attorney Bill Montgomery said in a statement that his office appreciated the jury's work and would now assess its next steps, but was proceeding "with the intent to retry the penalty phase."...
Among the issues that came up during the sentencing deliberations was whether a life term meant Arias would spend the remainder of her life in prison or would have the possibility of parole after 25 years.
Defense attorney Jennifer Willmott had advised jurors that if they sentenced Arias to life in prison, they were "sentencing her to die in prison," and there was no procedure in place to grant parole. Prosecutor Juan Martinez countered that while there was no mechanism now to grant Arias parole, one could be put in place later.
Some legal analysts questioned whether prosecutors should go forward with a new penalty-phase jury proceeding. "The jury that looked at all the evidence and heard five months of testimony could not agree that a death sentence was appropriate. Even though the state can take a second bite, this case should end now," said Dale Baich, an assistant federal public defender who represents death-row prisoners' appeals.
"The trial phase and the aggravation are going to have to be presented to this new jury, and Maricopa County has spent a lot of money on this case already. The question is, do they want to spend more?" Baich said....
Legal analysts also questioned how an impartial jury could be seated for a new penalty phase considering the wide attention the case had attracted. "This case has taken on the character of a circus rather than a trial," said Michael Kimerer, a criminal defense attorney in Phoenix. "I don't see how you are going to do it."
As the question in the title of this post suggests, even if Arias were to be sentenced to death by a new sentencing jury, there will be a wide of array of constitutional challenges that Arias could raise on appeal of a death sentence imposed by that new jury. Critically, there is established precedent from both the Ninth Circuit and the US Supreme Court that suggest the Double Jeopardy Clause permits giving prosecutors another shot at a death sentence through a second sentencing proceeding. But Arias could still reasonably raise a double jeopardy claim by urging these courts to reconsider these precedents and/or by claiming that some unique aspects of her case (e.g., that she presented a self-defense claim at her guilt trial or that Arizona has a unique three-stage capital sentencing process) should call for a different outcome on her behalf.
Beyond Double Jeopardy claims, Arias might also reasonable pursue Fifth Amendment due process claims and/or Eighth Amendment claims on appeal of a death sentence if imposed after a new sentencing phase trial before a new jury. As the article above suggests, all the publicity surrounding the first trial will make it hard to be confident that any new jury — especially after jurors are subject to the necessary "death-qualification process" — will be able to come without having prejudged some critical issues. In addition, the "evolving" nature of the Eighth Amendment means that any and every person sent to death row reasonable can, and usually will, challenge almost any and every novel aspect of the death sentencing process.
In part because of all these challenges facing prosecutors now and in the future, I would not be surprised if prosecutors might consider a deal that would allow Arias to secure an LWOP sentence in exchange for giving up some of her appeal rights. But whether Arias herself or the victim's family have an interest in such a deal, and how they might express their interests to Arizona's prosecutors, will surely impact whether and how a deal of any kind is struck.
Recent related posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Notable developments in penalty phase of Jodi Arias' capital trial
- Jodi Arias now pleading for a life sentence before sentencing jury
"Implicit Racial Bias in Public Defender Triage"The title of this post is the title of this intriguing new piece co-authored by law professor L. Song Richardson and psychology professor Phillip Atiba Goff. The piece is available now via SSRN, and here is the abstract:
Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not. Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions. There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime. This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.
A few recent related posts:
- New Brennan Center report on Gideon and indigent defense
- "Race and the Disappointing Right to Counsel"
- "Gideon Skepticism"
- Florida Supreme Court rules local public defenders may withdraw from cases based on excessive caseloads
- "The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)
- New Sentencing Project report notes recent changing racial make-up of prison populations
Monday, May 20, 2013
Notable developments in penalty phase of Jodi Arias' capital trialAs reported in this new USA Today article, the "sentencing hearing for convicted killer Jodi Arias ground to a halt Monday when her lawyers refused to call any witnesses and a judge refused their requests for a mistrial and to withdraw from the case." Here is more:
Judge Sherry Stephens stopped proceedings and released the jury for the day, telling them to return Tuesday morning. Defense attorney Kirk Nurmi later said he will allow Arias to speak to the jury Tuesday.
Nurmi clashed with Stephens over a motion he filed seeking a mistrial in the sentencing hearing. Nurmi said a witness who was supposed to testify regarding Arias' character had been threatened and was refusing to testify. Patricia Womack has been receiving "threats on her life if she were to testify on Ms. Arias' behalf," Nurmi wrote in the mistrial motion.
But Stephens refused his motion, saying she could not determine why Womack would not testify because she was not present in the courtroom. Nurmi and co-counsel Jennifer Willmott then asked to drop out of the case. Stephens again refused.
Nurmi then refused to present any witnesses, and Stephens called for the recess. Nurmi later said Arias will speak Tuesday. Also previously scheduled to testify on Arias' behalf was a former boyfriend of Arias'.
Arias, 32, was found guilty May 8 of first-degree murder for the 2008 slaying of Travis Alexander, 30, who was found dead in his suburban Mesa, Ariz., home. He had been shot in the head and stabbed nearly 30 times, and his throat was slit. Arias said she killed Alexander, her secret lover, in self-defense; the jury thought otherwise.
Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Travis Alexander's brother and sister as they described how his killing has torn their lives apart.
Now the jury is to consider mitigating factors — evidence about Arias' character and background that may sway them not to impose a death sentence. Stephens instructed jurors that they could consider a handful of factors when deciding what sentence to impose, including Arias' lack of a prior criminal record and assertions that she was a good friend, had an abusive childhood and is a talented artist....
Under Arizona law, if the jury cannot reach a unanimous decision on sentencing, the panel would be dismissed and a new jury would hear arguments and determine a sentence. If the second panel cannot reach a unanimous agreement, the judge then would sentence Arias....
Earlier this week, her lawyers asked to be allowed to step down from the case, but a judge denied the request. Legal experts say the decision was not a surprising one because the lawyers have a conflict of interest with their efforts to save her life after Arias said she would rather die.
Recent related posts:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
Sunday, May 19, 2013
How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?
As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date. This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.
Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the (Sixth Circuit) land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean. Here is part of what it says:
Blewett can only help federal (not state) prisoners who (1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND (2) received a mandatory minimum sentence for a crack cocaine offense, AND (3) were sentenced before August 3, 2010. The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine....
We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion. If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it. This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be. This opinion could be reversed, in which case it would not help anyone....
If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you. FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.
A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences. That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit.
Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could (and I think should) file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law.
Related posts on Blewett:
- On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
- "Crackheaded Ruling by Sixth Circuit"
May 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17) | TrackBack
Friday, May 17, 2013
On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentencesWith thanks to all the folks who alerted me while I was dealing with other matters, I am finally back on-line and able to report on a remarkable new split panel ruling by the Sixth Circuit today in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here). The start of the majority opinion (per Judge Merritt) will highlight for all federal sentencing fans why this ruling is a very big deal:
This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.
In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.” The Collapse of American Criminal Justice 184 (2011). He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.
In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.
The start of the dissent (per Judge Gilman) will highlight for all federal sentencing fans why this ruling seems sure to get en banc and/or Supreme Court review:
I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.
As the title of my post hints, though I really like the effort, I am not sure a Fifth Amendment equal protection theory provides a strong constitutional foundation for giving the new crack sentences retroactive effect. But I have long thought, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.
If (dare I say, when) this notable Blewett ruling gets subject to further review, I hope to have a chance to fully explicate (perhaps via an amicus brief) my Eighth Amendment approach to reaching the conclusions reached by the majority here on distinct constitutional grounds. In the meantime, we have an interesting Friday ruling to debate through the weekend.
May 17, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (8) | TrackBack
Friday, May 10, 2013
Are there (and/or should there be) special death penalty rules for female murderers?The question in the title of this post is prompted by this new article in the Christian Science Monitor, which is headlined "Jodi Arias case: What's trend line on women getting the death penalty?." Here are excerpts:
Whether Jodi Arias gets her wish — to be executed rather than spend her life in prison — is now up to the Arizona jury that on Wednesday found her guilty of brutally murdering her one-time boyfriend, Travis Alexander, in a jealous rage on June 4, 2008, in a Phoenix suburb.
The jury must consider whether the cruelty, brutality, and depravity of her attack on Mr. Alexander deserves a sentence of death, a finding that would make Ms. Arias the fourth woman to be awaiting execution on Arizona’s death row. (The state has not executed a woman since Eva Dugan, a cabaret dancer, was hanged in 1930.) Against that possibility, jurors will weigh potential mitigating circumstances, such as Arias's allegations of abuse, which she outlined at length during the trial....
The Maricopa County jury will deliberate against a backdrop of evolving societal views about female murderers. On one hand is a somewhat chivalrous sense that women are not capable of brutality at the same level as men and resort to it under extenuating circumstances — such as sexual abuse that Arias claimed at the hand of her victim. On the other is a sense that women can indeed be cold-blooded killers who are every bit as deserving of execution as male murderers.
James Acker, a criminal justice professor at the State University of New York at Albany, describes the “competing theories" this way. One is that "this is about chivalry, where we’re all bending over backward to make sure no women, or members of the fairer sex, are treated this way, versus the less-sexist notion that women ... who do [commit capital murder] somehow tend to lose their identity as female and become a demonic killer that overwhelms the definition of a woman — that to dispatch someone to execution you almost have to relegate them [to being] outside the human family." Still, he adds, "it’s more difficult to do that with a woman than a man.”
The Arias case alone probably won’t provide much of a guidepost to the direction of sentiment in the US regarding executing women. But the sentencing phase comes at a peculiar time in the annals of death row — chiefly that the share of women murderers entering death row has stayed constant even as the percentage of men sentenced to die has noticeably dropped.
Recent related post:
Tuesday, April 30, 2013
"D.C.’s Race Disparity in Marijuana Charges Is Getting Worse"
The title of this post is the headline of this notable recent commentary by Rend Smith appearing in Washington's City Paper. Here are excerpts (with links from the original):
[D]ozens of marijuana activists converged on the National Mall to celebrate 4/20 and push for the drug's legalization. If photos and videos are any indication, most of the attendees were white. As a black man, I find their efforts laudable and hearteningly altruistic. D.C.'s campaign against marijuana is racist. If it wasn't, District marijuana enforcement would look a lot less abominable.
In 2010, I wrote about how Jon Gettman, a public policy professor at Shenandoah University, pored through the city's 2007 marijuana arrest records to discover the District had arrested more pot offenders per capita than any other jurisdiction in the country. Gettman also found that the overwhelming majority of pot miscreants the city went after that year — 91 percent — was black.... In 2007, a black person was eight times more likely to be arrested for a District marijuana offense than a white person, even though researchers have exposed what any college pot dealer can tell you from the comfort of his Barcalounger: Members of both racial groups consume cannabis at nearly equal rates.
D.C.'s dope divide is just as striking when you zoom out. According to arrest numbers obtained from the Metropolitan Police Department and crunched by a statistician, between 2005 and 2011, D.C. cops filed 30,126 marijuana offense charges. A staggering number of those — 27,560, or 91 percent — were filed against African-Americans. Only 2,097 were filed against whites.
Blame-the-victim folklore contends that pot-arrest asymmetries, which show up in various cities around the country, are about blacks smoking outside and getting their pot on street corners. Recent studies contradict that. And if D.C.'s shameful pot disparity was about anything but racial bias, we'd see it narrowing.
Instead, though the number of black and white pot charges filed fluctuated from year to year, reefer charges filed against blacks rose 6 percent and declined 10 percent for whites between 2005 and 2011.
Over the last decade, the federal city's black population has wavered as its white population shot up. If municipal pot arrests were impartial, that should have equaled more white potheads learning what the inside of a squad car looked like as arrests of black potheads became scarcer. Latinos, moving into the city in steady if not overwhelming numbers, for instance, saw their pot arrests rise 40 percent between 2005 and 2011, from 93 pot charges to 153.
Also, at a time when weed has become another chic amenity, there's a good chance that the city's affluent whites have most of D.C.'s stash. Last year, Washingtonian ran a gleeful article about the massive amount of weed rambling through D.C.'s elite neighborhoods courtesy of drug-dealing stroller moms and tony pot-delivery services....
The only politician explicitly working to address the dope divide is longshot at-large D.C. Council candidate Paul Zukerberg, who's made marijuana decriminalization part of his platform. He attributes the disparity to cops using stop-and-frisk powers on young black males. "In D.C., we’re giving young people twice as many marijuana arrests as high school diplomas," he writes on his website.
Other D.C. politicians I contacted, like Mayor Vince Gray, wouldn't comment on the matter or didn't return messages. But when I mentioned the dope divide to Police Chief Cathy Lanier (who told the Washington Post she’d tried weed as teen) during an email exchange last year, the top cop seemed concerned. “Broad statement,” she wrote. “Mixed feelings on enforcement here...” When I tried to get Lanier to say more, she referred me to her spokesperson, who told me that MPD doesn't insert itself into politics.
Unsurprising (and justifiable?) gender sentencing disparities in NJ teacher-student sex casesAs detailed in this local story, an award-winning, 31-year-old female teacher in New Jersey avoided any prison time at her sentencing yesterday following a plea to sex charges after an illegal relationship a 15-year-old student. Here are the basics:
Erica DePalo was in the prime of her teaching career. Just 31-years-old, with nearly a decade of teaching behind her, letters show the Essex County Teacher of the Year was loved by students and respected by colleagues. But hidden behind her cheerful facade was a woman suffering from extreme depression and anxiety, DePalo’s lawyer told the court — leading to an illicit sexual relationship with a 15-year-old student....
The former West Orange high school teacher, who admitted to the relationship with her student, was sentenced in state Superior Court today to a three-year suspended sentence, which means she will not serve any prison time if she cooperates with the conditions of her parole. DePalo also must register as a sex offender under Megan’s Law and cannot seek public or government office nor have any contact with the victim.
The non-custodial plea was largely influenced by DePalo’s psychiatric condition at the time of the sexual relationship, attorneys said. Months before DePalo began the relationship with the boy, she was diagnosed with bipolar disorder, [defense attorney Anthony] Alfano said. A doctor incorrectly prescribed anti-depressants which affected her sense of entitlement and judgment....
In court, DePalo took responsibility for the affair, apologizing to the victim in a quivering voice, tears running down her cheeks. "I feel nothing but remorse for my actions and deep, deep sadness for all I’ve lost because of them," she said.
Police charged DePalo in August with first-degree aggravated sexual assault, second-degree sexual assault and endangering the welfare of a child. The first two charges were dropped as part of the plea deal. If DePalo had gone to trial and been convicted, she could have faced up to ten years in prison.
The non-custodial sentence was previously criticized by West Orange superintendent James O’Neil as too lenient. Both Alfano and Assistant Prosecutor Tony Gutierrez said the victim’s family consented to the plea. Gutierrez said the 15-year-old boy, who was a student in DePalo’s honor’s English class, was the only victim and that the relationship lasted a few weeks.
Alfano said gender was never brought up in plea negotiations, referencing a Star-Ledger analysis of 97 cases which revealed men serve about 40 percent longer jail terms and go to prison more often than women in these cases.
The referenced analysis on the study of NJ teacher-student sex cases appears in this companion article, which provides this accoutning:
Critics have called the punishment for the former Essex County teacher of the year too lenient and reflective of a double standard that disproportionately penalizes men for similar relationships with students.
A Star-Ledger analysis of 97 cases in New Jersey over the past decade reveals significant disparities: Men are on average sent to jail in more cases and receive longer sentences. The data about 72 men and 25 women also shows:
• Male defendants went to prison in 54 percent of cases compared with 44 percent of cases for female defendants;
• Men averaged 2.4 years in prison compared with 1.6 years in prison for women, or 50 percent more time;
• Ninety-three of the 97 cases ended in plea deals;
• Forty-seven cases ended in noncustodial sentences, which typically involved pre-trial intervention programs or probation.
There are various reasons for the disparities in these cases, experts say, including the perception that girls and women need to be protected and are more vulnerable than their male counterparts, the availability of evidence, and the willingness of the student to participate in the prosecution.
"There’s a general societal disposition that does continue to treat women as the gentler sex, so typically the threshold for sending women to prison is higher," said Martin Horn, director of the New York State Sentencing Commission and a professor at the John Jay College of Criminal Justice.
All cases studied involve teachers, substitute teachers, coaches or school personnel who admitted to, or were convicted of, engaging in sexual relationships with students connected to their school. "Juries and judges sort of make a consideration about how exploitative the crime is and how predatory the perpetrator is," Horn said. "The system is supposed to make discriminations or make distinctions between individuals based on their perceived levels of culpability."
Most of the 97 cases analyzed were described in reports as consensual in nature (though not in the eyes of the law). In New Jersey, the age of consent is 16, but a person in a supervisory role, such as a teacher, can be guilty of sexual offenses even if a student is 16 or 17.
Because New Jersey’s Administrative Office of the Courts does not keep separate records on sex crimes committed by educators, The Star-Ledger used reports filed by the state Board of Examiners detailing teacher license suspensions. The suspension reports that described inappropriate student relationships were cross-checked with court records to obtain necessary information. This is not inclusive of every teacher-student case in the past 10 years.
April 30, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (27) | TrackBack
Monday, April 29, 2013
"Is 100 Years a Life Sentence? Opinions Are Divided"The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak. Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling. Here are excerpts from the column:
If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison. That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.
One is formal. The court may have meant only to bar sentences labeled “life without parole.” On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....
The other way to understand the decision is practical. If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.
The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question. Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16. He was sentenced to 89 years. Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.
Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.” An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.
“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.
Mr. Henry is black and was born in 1989. The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it. “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.
That is a reasonable question. But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one. “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said. It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....
The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds. Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task. “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote. “If the Supreme Court has more in mind, it will have to say what that is.”
April 29, 2013 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, April 18, 2013
"Race and the Disappointing Right to Counsel"The title of this post is the title of this notable new article by Gabriel (Jack) Chin now available via SSRN. Here is the abstract:
Critics of the criminal justice system observe that the promise of Gideon v. Wainwright has been unfulfilled. They decry both the inadequate quality of representation available to indigent defendants, and the racially disproportionate outcome of the process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This essay is doubtful that better lawyers will significantly address that problem.
When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of claims of innocence at trial, with important, pro-defense decisions in the areas of confrontation, jury fact-finding, the right to present a defense and in other areas.
The Court's second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly; the Court attempted to deal with racial discrimination without explicitly addressing it. This timidity was portentous. Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch; three years after Gideon, the Court allowed prosecutors to exercise peremptory challenges of jurors based on race. Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement and in sentencing practices are essentially unchallengeable.
Since Gideon, racial disproportionality in the prison population has increased. Not only might Gideon not have solved the problem, it may have exacerbated it. To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution and sentencing for indigent white defendants that they cannot for clients of color. For these reasons, racial disparity likely cannot be remedied indirectly, with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination, and having fewer crimes on the books, fewer arrests, and fewer prosecutions.
I am very pleased to see Jack Chin's willingness to note not only that Gideon may not have solved the problem of a racialized criminal justice system, but even that Gideon "may have exacerbated it." In many ways, Jack's piece here is another articulation of this recent provocative New York Times op-ed by Paul Butler last month, headlined "Gideon’s Muted Trumpet," which highlighted various ways in which the modern criminal justice evolved for the worse during half century after Gideon became the law of the land. And I echoed another variation on these ideas when I asked in this post, "Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?."
I do not surmised that Jack or Paul are saying, and I know that I am not saying, that Gideon was wrongly decided or that our current criminal justice system would be better without Gideon. But I do think we are all eager to encourage reflection on the reality that there may be a lot more wrong with our modern criminal justice systems than poor funding and poor functioning of some defense lawyers.
Recent related posts:
- "The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)
- Great symposium at Washington & Lee on Gideon a half-century later
- Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?
Monday, April 15, 2013
Interesting coverage of media coverage of crime and prison punishments
Thanks to this post at How Appealing, I discovered that the the March / April 2013 issue of Columbia Journalism Review has a set of articles concerning the ways in which the media covers (and has trouble covering) some modern crime and punishment stories. I am very pleased to see the Columbia Journalism Review provide this significant coverage of aspects and limits of modern media coverage, not only because I sorta/kinda play the role of a new media journalist on-line through this blog, but also because these articles are part of a broader issue devoted to the modern media's less-than-inspiring "coverage of race, class, and social mobility."
As regular readers will not be surprised to hear from me, I think issues of crime and punishment are among the most central and least examined aspects of our enduring struggles with the array of dynamic issues relating to race, class, and social mobility in the United States. Thus, I am not only generally happy to see coverage of media coverage of crime and prison punishments, but I am particularly pleased that this issue of the Columbia Journalism Review links its article to the broader concerns of "coverage of race, class, and social mobility."
With that wordy preview, here are links to the set of pieces appearing in the the March / April 2013 issue of Columbia Journalism Review that all look like must-reads:
"Dark shadows: In Washington, murder turns out to be color-coded" by Clay Shirky
Thursday, April 11, 2013
Latest proof that every issue, including gay marriage, has a sentencing angleOne of many reasons I love to obsess over sentencing is because I see sentencing issues in everything other issue of public or private concern. Indeed, as my students (and reader of this blog) often hear from me, I see any and every issue of public policy concern to really be a crime and punishment issue in some way. The latest proof of this sentencing-is-everything perspective comes today with a gay marriage spin thanks to this new article from the New York Daily News. The piece is headlined "Openly gay daughter of Colombo gangster pleads for mercy in sentencing," and here are excerpts:
As federal sentencing gurus know, there is a long-running (and never quite resolved) debate over whether and how "family ties and responsibilities" can and should impact a federal sentencing decision. This story provides a timely reminder that whether and where same-sex marriage is allowed can and will, in turn, impact whether and how defendants with gay relatives can and will be able to tell a more modernized story of the importance of "family ties and responsibilities."
The openly gay daughter of Colombo gangster Dennis Delucia has outed her father as a supporter of same-sex marriage. In a moving letter seeking mercy from the judge who will sentence him, Donna Delucia says her father is a family man in the truest sense.
“My dad was the one who told me he would love me no matter what I would do or tell him,” Donna Delucia wrote to Judge Kiyo Matsumoto. “I finally came out at 22 years old. My mother did not handle it well and pushed me away .... I was scared, frightened and afraid of my dad’s reaction,” she continued in the letter filed in Brooklyn Federal Court.
“My dad accepted me, embraced me and has supported me. His love and acceptance helped me through the rough times and growing pains.”
Dennis Delucia, 71, a reputed capo in the crime family, pleaded guilty last year to extortion and faces 46 months in prison. He admitted using a couple of extra-large goons who made him look like a “midget” to intimidate the operator of a rival gambling club in the Bronx.
She conceded her father is a “chauvinist” and recalled his “king of the castle” views that included prohibiting her brothers from cleaning off the dinner table because they were boys. But after Donna fell in love with her partner and informed him they were planning to have a baby, the mobster cried. “He made me so proud,” Donna wrote.
Delucia helped pay for Donna and her spouse to move from Philadelphia to New York where same-sex parents pass parental rights to their partner. Today, they live in Kentucky, “far from the hype of Italian-Americans,” where they are raising their 9-year-old son. “Please let him come home,” Donna begged the judge. “I want my son to spend long days with his grandfather. I want him to know my dad.”
April 11, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (7) | TrackBack