Wednesday, July 17, 2013

New report suggests ways to eliminate criminal justice racial and ethnic disparities

Racial_disparity_report_featureThe National Association of Criminal Defense Lawyers has this new press release reporting on a notable new report about American criminal justice systems.   Here is how the press release starts (with a link to the report):

Issued today, a groundbreaking report on a matter of immense public importance — Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System — is a critically important and inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them.

This conference report prepared by Consultant Tanya E. Coke is based upon a multi-day, open and frank discussion among a distinguished group of criminal justice experts — prosecutors, judges, defense attorneys, scholars, community leaders, and formerly incarcerated advocates.  This three-day convening was held October 17-19, 2012, at the New York County Lawyers’ Association’s historic Home of Law and was co-sponsored by the following organizations: the Association of Prosecuting Attorneys, the Brennan Center for Justice at New York University School of Law, the Foundation for Criminal Justice, the National Association of Criminal Defense Lawyers, the Center for NuLeadership on Urban Solutions, and the New York County Lawyers’ Association.

The conference was designed not only to acknowledge that racial and ethnic disparities exist in the system, but to examine best practices around the country that address and seek to remedy those disparities.  This report summarizes the candid, sometimes painful panel discussions, and identifies the panoply of remedies that may advance the goal of eliminating the disparate racial and ethnic impact from America’s criminal justice system. More than 2.2 million people are behind bars in America — an absolute and per capita figure that exceeds any other nation on earth. According to the latest available data, nearly 60% of those incarcerated people are Blacks and Latinos, more than double the percentage of these groups in the general population.  And a staggering 65 million adults in the United States — approximately one in four — now have a criminal record, and all of the debilitating consequences of such a record.

As set forth in detail in the report, what lies behind these shocking figures is a system in which racial and ethnic minorities are disproportionately represented as defendants and incarcerated persons.  The report explains the factors that have led to this outcome and, while the conference focused on the criminal justice system in New York City, the recommendations put forward by the participants have broad implications for reform nationally.

July 17, 2013 in Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Tuesday, July 16, 2013

Notable comments on self-defense laws by Attorney General Eric Holder

Attorney General Eric Holder spoke at great length today about the Zimmerman case in this speech to the NAACP National Convention.  Here is the heart of an interesting legal discussion about self-defense laws that most caught my attention as a criminal law professor who will be teaching a group of brand new new law students about these topics only a few months from now:

Separate and apart from the case that has drawn the nation’s attention, it’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods. These laws try to fix something that was never broken. There has always been a legal defense for using deadly force if — and the “if” is important — no safe retreat is available.

But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely.  By allowing and perhaps encouraging violent situations to escalate in public, such laws undermine public safety.  The list of resulting tragedies is long and — unfortunately — has victimized too many who are innocent. It is our collective obligation — we must stand our ground — to ensure that our laws reduce violence, and take a hard look at laws that contribute to more violence than they prevent.

We must also seek a dialogue on attitudes about violence and disparities that are too commonly swept under the rug — by honoring the finest traditions established by generations of NAACP leaders and other nonviolent advocates throughout history; and by paying tribute to the young man who lost his life here last year — and so many others whose futures have been cut short in other incidents of gun violence that pass, too often unnoticed, in our streets: by engaging with one another in a way that is at once peaceful, inclusive, respectful — and strong.

As we move forward together, I want to assure you that the Department will continue to act in a manner that is consistent with the facts and the law.  We are committed to doing everything possible to ensure that — in every case, in every circumstance, and in every community — justice must be done.

July 16, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Thursday, July 11, 2013

Full Sixth Circuit grants en banc review in Blewett

A mere days after the Sixth Circuit panel in the Blewett case (which concerns possible retroactive relief for some crack defendants) decided not to alter its original opinion (details here), the full Sixth Circuit today entered this order:

ORDER filed granting petition for en banc rehearing filed by [AUSA] Ms. Candace G. Hill, to reinstate appeals. The previous decision and judgment of this court is vacated, the mandate is stayed. The Clerk has directed the parties to file supplemental briefs. Final briefing will be concluded on August 29, 2013. These cases will be argued before the en banc court on October 9, 2013, 1:30 P.M., EST.

This is not a big surprise, and I think it likely means that the full Sixth Circuit is not too keen on the equal protection arguments used by the Blewett panel.  I fear that the full Sixth Circuti might not also be too keen on the Eighth Amendment arguments I put forward in this case late last month (details here), but that is not likely to deter me from filing additional papers concerning my Eighth Amendment ideas come August. I also may ask the Sixth Circuit for argument time (through I am not especially confident that anything which transpires at oral argument in this kind of case is going to move the opinions of many of the judges).

 Related posts on Blewett:

July 11, 2013 in New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, July 09, 2013

After supplemental Blewett briefing, Sixth Circuit panel stands pat

As regular readers likely recall, almost two month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  And last month, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. "  I reported on the amicus brief covering Eighth Amendment issues that I wrote and filed on behalf of NACDL via this post, and I have been overdue in uploading these supplemental filings sent in by the parties:

Thanks to the fact that I am now in the case via my amicus efforts, I received via the automatic notification system this report on activity in the case this week:

Activity has occurred in the following cases: 12-5226 [USA v. Cornelius Blewett], judge order filed

ORDER filed. The judges of the panel adhere to their respective original opinions. The panel directs that the responses of the parties and the amicus brief of the National Association of Criminal Defense Lawyers be made part of the record in this case. Gilbert S. Merritt, Boyce F. Martin , Jr., and Ronald Lee Gilman, Circuit Judges.

This order is not especially surprising, but it is still noteworthy. And it now puts the onus on other judges of the Sixth Circuit to take up this case en banc within the next month, as the Sixth Circuit rules provides that "[a]ny active judge or any member of the panel whose decision is the subject of the rehearing may request a poll within 14 days from the date of circulation of the petition and the panel's comments. If a poll is requested, 14 days are allowed for voting." In other words, within the next 28 days, we should know for sure if the full Sixth Circuit will rehear the Blewett case or if instead the feds will have to ask SCOTUS to review the consequential work of the Blewett panel. Related posts on Blewett:

July 9, 2013 in New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 06, 2013

Accounting for the high costs of a lingering death row in Connecticut

This local article from the Nutmeg State, headlined "Taxpayers' Costs Top $3.5 Million For Death Row Inmates' Lawsuit," details that the statutory repeal of the death penalty in Connecticut has not repelled all the costs of capital litigation.  Here are the pricey basics:

The cost to taxpayers of a long-running racial-bias lawsuit by death-row inmates has topped $3.5 million, with more possible before an expected judge's ruling within a few months — and then a possible appeal by whoever loses.  News coverage of the habeas corpus lawsuit in state Superior Court has centered on the trial late last year of claims by five convicted killers that Connecticut's death penalty is biased racially, ethnically and geographically....

[The] totals [now of] slightly more than $3.5 million .... doesn't include the time devoted to the case by the salaried staff members of [Chief State's Attorney Kevin] Kane's office, who have opposed the inmates' claims of bias in the administration of the death penalty. Kane was asked for an estimate more than a week ago, but said it would be difficult to compile and didn't come up with one by Friday.

The tally also doesn't include possible additional payments to the expert witness for the inmates, Stanford Law School professor John J. Donohue III. Records show that Donohue was paid $100,000 from 2006 to 2008. But he's done a lot of work since then, including testifying at the trial last year, said the lead lawyer for the inmates, David Golub of Stamford.  For all the time Donohue has put in, he might be owed "millions," Golub said, although he didn't know how much of that the state would actually end up paying him.

The inmates pursuing the bias suit want their sentences converted to life imprisonment without parole.  The trial of the case ended in December and Judge Samuel J. Sferrazza is expected to render a decision within several months....

The trial was conducted for more than 10 days from September to December in a makeshift courtroom inside Northern Correctional Institution in Somers, which houses the state's 11 death-row inmates. The 11 men on death row still face execution despite the state legislature's abolition of the death penalty in 2012. The abolition doesn't apply to people already on death row whose crimes predated the legislation....

The inmates' claims grew out of a study of Connecticut death penalty prosecutions first authorized by the state Supreme Court in 1995 after it was presented with information indicating that the administration of the death penalty had been disproportionally applied to black defendants, or to defendants whose victims were white. The Supreme Court directed that the information be analyzed to explain any racial disparities. That led to a study by Donohue of all homicides prosecuted in Connecticut between 1973 and 2006. Donohue concluded, and testified in court, that there has been bias. Michelson, the state's expert, has disputed that.

July 6, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (14) | TrackBack

Wednesday, June 26, 2013

"Texas carries out 500th execution with Kimberly McCarthy"

The title of this post is the headline of this new AP article, which gets started this way:

Texas marked a solemn moment in criminal justice Wednesday evening, executing its 500th inmate since it resumed carrying out capital punishment in 1982.  Kimberly McCarthy, who was put to death for the murder of her 71-year-old neighbor, was also the first woman executed in the U.S. in nearly three years.

McCarthy, 52, was executed for the 1997 robbery, beating and fatal stabbing of retired college psychology professor Dorothy Booth.  Booth had agreed to give McCarthy a cup of sugar before she was attacked with a butcher knife and candelabra at her home in Lancaster, about 15 miles south of Dallas.  Authorities say McCarthy cut off Booth's finger to remove her wedding ring.  It was among three slayings linked to McCarthy, a former nursing home therapist who became addicted to crack cocaine.

She was pronounced dead at 6:37 p.m. CDT, 20 minutes after Texas prison officials began administering a single lethal dose of pentobarbital.

Texas has carried out nearly 40 percent of the more than 1,300 executions in the U.S. since the Supreme Court allowed capital punishment to resume in 1976. The state's standing stems from its size as the nation's second-most populous state as well as its tradition of tough justice for killers.

June 26, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (20) | TrackBack

Tuesday, June 25, 2013

"Equal justice: An appeals court wisely rules on drug sentencing"

The title of this post is the headline of this notable new editorial appearing in today's Pittsburgh Post-Gazette discussing and praising last month's Sixth Circuit ruling in Blewett (basics here).   Here are excerpts:

In the nation's long, costly and practically futile war on drugs, severe sentencing disparities between crack and powder cocaine stand out as an egregious and misguided policy that was stoked by near-hysteria.

Convinced that crack cocaine was 100 times more dangerous than powder cocaine, lawmakers in 1986 enacted a notorious 100-to-1 sentencing scheme that levied the same prison sentence for possessing 5 grams of crack as it did for 500 grams of powder.

A 2010 law, the Fair Sentencing Act, restored some sanity to federal sentencing laws by narrowing considerably the disparities in sentencing between crack and powder. Unfortunately, the law did not spell out whether the new standards applied retroactively to people who were sentenced before it was enacted.

This month, however, a federal appeals court in Cincinnati ruled correctly that those sentenced for crack cocaine violations before the 2010 law was enacted can be resentenced under the new law. The cleanest and best solution would be for Congress to amend the Fair Sentencing Act to make it fully retroactive.

Until then, the ruling by the appeals court opens the door for thousands of inmates to ask federal judges to shorten their prison sentences. It expands a U.S. Supreme Court ruling last year that applied the Fair Sentencing Act to people who committed crack cocaine crimes shortly before more lenient penalties took effect in 2010.

It's time to undo fully these unjust and irrational sentences, which treated powder cocaine users -- who were typically white and often affluent -- far more leniently than the mostly black and poor users of crack cocaine.

Related posts on Blewett:

June 25, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21) | TrackBack

Friday, June 14, 2013

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "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."  In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.

I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett

RE: Case Nos. 12-5226/5582

USA v. Cornelius D. Blewett and Jarreous J. Blewitt

Dear Counsel:

In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”).  The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.

Download Blewett Letter

I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?

Related posts on Blewett:

June 14, 2013 in Drug Offense Sentencing, 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, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, June 11, 2013

Celebrity injustice?: NFL player Chad Johnson gets 30-days in county jail for lawyer butt pat

0610-chad-johnson-video-launch-1As 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.  

June 11, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Friday, June 07, 2013

"A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"

Edith-Jones-Judge-Edith-H-Jones-Edith-Hollan-JonesThe 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:

June 7, 2013 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, June 06, 2013

Some more thoughtful thoughts on DNA collection and Maryland v. King

UCP text imageAlan 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:

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.

Recent related posts:

June 6, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

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:

June 5, 2013 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty

As 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.

June 5, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (25) | TrackBack

Tuesday, June 04, 2013

Would legalizing marijuana be a huge step toward a less racialized criminal justice system?

Web-Jus-MJ-1-Header-V02The 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. 

June 4, 2013 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (43) | TrackBack

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:

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.

June 2, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

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:

May 24, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

"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:

May 24, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, May 20, 2013

Notable developments in penalty phase of Jodi Arias' capital trial

As 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:

May 20, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14) | TrackBack

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:

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