Friday, May 25, 2018

A few juicy SCOTUS relists (to temper the guideline-vagueness denials) for sentencing fans

Over at SCOTUSblog, John Elwood continues his yeoman's work via his "Relist Watch" postings which highlight cases that the Supreme Court considered but did not resolve during  recent certiorari review conferences.  In this week's installment of "Relist Watch," we get started with a review of the news, blogged here, that cert was (somewhat surprisingly) denied on oft-relisted vagueness challenges to pre-Booker mandatory application of career-offender guideline.  But thereafter we get the details on some interesting new additions to the relist watch that should intrigue criminal justice fans (with links from the original):

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States.  So long Allen v. United States17-5684; farewell Gates v. United States17-6262; auf Wiedersehen, James v. United States17-6769; adieu, Robinson v. United States17-6877; smell ya later Lester v. United States17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence.  If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released....

Clark v. Louisiana16-9541, is a capital case involving a prisoner convicted of murder in connection with the death of a correctional officer during an attempt to escape from the Louisiana State Penitentiary at Angola.  The case raises four issues, but it’s safe to assume one is the particular focus of the Supreme Court.  Issue number one turns on the fact that Louisiana law requires jurors to “find beyond a reasonable doubt that at least one statutory aggravating circumstance exists,” but does not require the jury to employ that same beyond-a-reasonable-doubt standard applies to making a second determination, whether “the sentence of death should be imposed.”  The second issue is whether the “evolving standards of decency” standard forbids using the death penalty when jurors could not be sure which of several defendants inflicted the blows that caused the victim’s death.  The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going.  The fourth issue may explain why the case has been hanging around the docket since last October, and only recently was released and relisted: Clark alleges that his lawyer conceded his guilt in the aggravated escape during his first trial and only contested whether the death penalty should be imposed.  Clark says he represented himself at his second trial, where he was convicted, solely to prevent his counsel from conceding his guilt against his wishes. Because the court held on May 14 that the Sixth Amendment guarantees a defendant the right to insist that his counsel refrain from admitting guilt, even when counsel’s view is that confessing guilt offers the best chance to avoid the death penalty, I expect they’ll be taking a very close look at this case.

The last four new relists consist of two sets of related criminal cases arising out of states whose names begin with the letter O. And all four involve the court’s repeated use of the murky procedure of “rescheduling” cases — ordinarily meaning the court moved them from one conference to another before considering them at conference.  Wood v. Oklahoma17-6891, and Jones v. Oklahoma17-6943, have been rescheduled nine times each — and both have been rescheduled even since they were relisted.  Lee v. Ohio17-7213, and Belton v. Ohio17-7233, have both been rescheduled four times.  So perhaps these cases will at last shed some light on the rescheduling procedure.

The first two cases are from a place where, if my sources are to be believed, the wind comes sweepin’ down the plain, where there is plenty of air and plenty of room. In the years around Y2K, Tremane Wood and Julius Jones, two African-Americans, were convicted in central Oklahoma of unrelated murders of white men and sentenced to death. In 2017, after Jones had finished state and federal collateral proceedings, and as Moore would soon complete them, a statistical study on capital-sentencing patterns in Oklahoma was published, concluding that nonwhites accused of killing white males are statistically more likely to receive a death sentence, even controlling for aggravating circumstances. Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just 60 days to file a second or successive post-conviction application based on newly available evidence.  Both filed post-conviction applications arguing that the study constituted newly discovered evidence that they were convicted and sentenced in violation of the Sixth Amendment right to a fair trial, the Eighth Amendment bar on cruel and unusual punishment, and the 14th Amendment right to due process of law. But the court denied their applications on the basis of a state procedural bar, saying that neither had shown that “the identified patterns of race and gender disparity were not ascertainable through the exercise of reasonable diligence” at the time of their original post-conviction proceedings. The petitions in Wood v. Oklahoma17-6891, and Jones v. Oklahoma17-6943, present two main questions: First, whether the study indicating a risk that racial considerations entered into Oklahoma’s capital sentencing determinations proves that their death sentences are unconstitutional under the Sixth, Eighth, and 14th amendments; and second, whether Oklahoma’s post-conviction statute, as applied by the Oklahoma courts, denied Wood and Jones an adequate corrective process for the hearing and determination of their federal constitutional claims in violation of their rights under the 14th Amendment’s due process and equal protection clauses.

To avoid further depressing our reader, we will refrain from quoting songs about our second O-state– at least beyond the upbeat kind that just spell its name.  Ohio’s legislature has enacted a statute that requires that minors be tried as adults when the defendant is a 16-year-old (or a 14- or 15-year-old recidivist) who is charged with homicide or a handful of other serious offenses (kidnapping, rape, and the aggravated forms of arson, robbery and burglary), generally either while using a firearm or as a recidivist.  In 2016, the Supreme Court of Ohio invalidated the statute as unconstitutional. After two justices retired, Ohio successfully sought rehearing, and less than a year later issued a decision upholding the mandatory transfer law as constitutional. To make things more confusing, Justice Kennedy wrote the majority opinion reversing course, while Justice O’Connor (actually, Chief Justice O’Connor) wrote the dissent — just not the ones you think.  The petitioners in Lee v. Ohio17-7213, and Belton v. Ohio17-7233, both were convicted of killing people in botched robberies.  Both argue that mandatory trial as an adult violates the Constitution, relying on recent Supreme Court decisions emphasizing the lesser culpability of juvenile offenders and their greater potential for rehabilitation.

May 25, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, May 24, 2018

Prez Trump posthumously pardons boxer Jack Johnson

As reported in this new CNN piece, "President Donald Trump on Thursday granted a posthumous pardon to boxer Jack Johnson on the advice of actor Sylvester Stallone."  Here is more:

"Today I've issued an executive grant of clemency, a full pardon, posthumously, to John Arthur 'Jack' Johnson ... The first African-American heavyweight champion of the world, a truly great fighter. Had a tough life," Trump said.  Trump was joined in the Oval Office by Stallone, current heavyweight champion Deontay Wilder, and Johnson's great-great niece Linda Bell Haywood, among others.

"We have done something today that was very important, because we righted a wrong," Trump said. "Jack Johnson was not treated fairly, and we have corrected that, and I'm very honored to have done it." Last month, Trump said he was considering the pardon....

Johnson, the first African-American world heavyweight boxing champion, was convicted in 1913 under the Mann Act for taking his white girlfriend across state lines for "immoral" purposes.  The Mann Act purported to prevent human trafficking for the purpose of prostitution, but critics have argued it was applied inconsistently to criminalize African Americans and those with dissenting political views. 

Johnson was convicted by an all-white jury in less than two hours and was imprisoned for a year.  The sentence and imprisonment destroyed the boxing career of the "Galveston Giant."  He died in 1946.

Stallone called Johnson an "inspirational character." "It's incredible that you've done this," the "Rocky" star told the President....

In 2016, then-Sen. Harry Reid, D-Nevada, and Sen. John McCain, R-Arizona, along with Reps. Peter King, R-New York, and Gregory Meeks, D-New York, petitioned the Obama administration to grant a pardon to Johnson. The bipartisan group of lawmakers sent a letter to the White House asking that the pardon be given in honor of the 70th anniversary of the boxer's death. "While it is unfortunate that this unjust conviction was not corrected during the boxer's lifetime, a posthumous pardon today represents the opportunity to reaffirm Jack Johnson's substantial contributions to our society and right this historical wrong," the letter said.

In March 2017, Sen. Cory Booker, D-New Jersey, joined with McCain, King and Meeks to reintroduce a resolution urging Johnson's pardon. "Despite this resolution passing both chambers of Congress several times in recent years, no pardon has been issued to date," McCain said in a statement at the time. "I hope President Trump will seize the opportunity before him to right this historical wrong and restore a great athlete's legacy."

In an era in which there are so many living people subject to excessive sentences and unfair convictions and collateral consequences, I am generally not a huge fan of posthumous pardons. But these kinds of actions reveal that a chief executive knows and is willing to acknowledge mistakes and injustices in the operation of the justice system, and (one hopes) they can serve as a precursor to more meaningful use of the clemency power on behalf of people still alive to benefit from it.

This USA Today article from last month provides an interesting review of two previous exampled of posthumous Prez pardons: "Bill Clinton and the Buffalo soldier" and "George W. Bush and the godfather of the Israeli air force"

May 24, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Monday, May 21, 2018

Without explanation, SCOTUS rejects vagueness challenges to pre-Booker mandatory application of career-offender guideline

It was a "civil" morning for US Supreme Court today, with two opinions from the civil side of its docket (one big, one little) and four cert grants on matters that are mostly civil and somewhat procedure (although one, Royal v. Murphy, deals with tribal jurisdiction over a capital prosecution).   But there was still some interesting news for sentencing fans in today's SCOTUS order list in the form of somewhat surprising denials of certiorari in cases dealing with the residue of the Johnson vagueness ruling for guideline-sentenced defendants before Booker make the guidelines advisory.

This part of this SCOTUSblog Relist Watch post by John Elwood from a few weeks ago spotlights cases I have had my eye on:

Lester v. United States17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States17-5684Gates v. United States17-6262James v. United States17-6769 (all relisted nine times) and Robinson v. United States17-6877 (relisted seven times). 

Sentencing gurus know that the Supreme Court in Beckles decided that the Court's big vagueness ruling in Johnson dealing with a key clause of the Armed Career Criminal Act did not entail constitutional problems for a parallel clause of the sentencing guidelines because the guidelines are now advisory, not mandatory.  But defendants in the cases above, which SCOTUS had been mulling over now for many months, were sentenced with the problematic parallel clause of the sentencing guidelines before Booker made the guidelines advisory.  But because judges could (and sometimes did) depart from the guidelines even before Booker made them mandatory (but cannot depart from applying ACCA), these cases presented an interesting and uncertain push-pull between the Johnson ruling and Beckles' gloss on its application.

I had been hoping that the collection of these cases as "serial relists" meant that SCOTUS was busy looking for the right vehicle for considering these post-Johnson matters.  But today, as noted above, certiorari was denied by the Supreme Court in all these cases without any explanation.  Of course, explanations for cert denials are not common.  But because relists often lead to a cert grant or at least some discussion by some justice of the issue, I am starting my week bummed that an interesting intricate piece of sentencing jurisprudence did not prompt any substantive SCOTUS engagement.

May 21, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Saturday, May 19, 2018

"Federalism and Constitutional Criminal Law"

The title of this post is the title of this new paper authored by Brenner Fissell now available via SSRN.  As the title itself suggests, Eighth Amendment jurisprudence is among the area of Supreme Court decision-making discussed in this paper. Here is the abstract:

A vast body of constitutional law regulates the way that police investigate crimes and the way that criminal cases are handled at trial.  The Supreme Court has imposed far fewer rules regarding what can be a crime in the first place, how it must be defined, and how much it can be punished. What explains this one-sided favoring of “procedure” over “substance?”

This Article aims to unearth and assess the justification that the Court itself most often uses when it refuses to place constitutional limits on substantive criminal law: federalism. While the Court often invokes the concept to rationalize its restraint, this Article argues that federalism is not a universally effective argument against the imposition of these types of constitutional limits.  Instead, different variants of “federalism” vary in their strength when used to resist different types of constitutional rules, and often the federalism-based argument is unjustified.

May 19, 2018 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, May 17, 2018

"Legal Innocence and Federal Habeas"

The title of this post is the title of this notable new paper available via SSRN authored by Leah Litman that is a must read for anyone following post-Miller or post-Johnson litigation (and who isn't?). Here is the abstract:

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence — the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted.  The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant.  The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. 

This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so.  As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate.  These cases raise similar concerns and implicate many of the same features of our criminal law system.  By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.

May 17, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

Tuesday, May 15, 2018

Lots of juvenile sentencing developments as Oklahoma sorts through application of Miller

Last week brought interesting developments in the arena of juvenile sentencing in Oklahoma thanks to all three branches of the state government.   As this local article details, the Oklahoma legislature earlier this month passed, with some controversy, a new law to seeking to operationalize existing Eighth Amendment limits on LWOP sentences for juveniles:

Senate Bill 1221 would put sentencing for teen killers in the hands of a judge, not the jury that convicted them....  The bill passed Wednesday in the state Senate would require judges to determine sentencing based on a number of factors including the underage killers’ maturity, psych tests, and take jury’s out of the sentencing equation.

But some lawmakers cried foul. “We are going to circumvent an Americans right to equal protection under the law because the kid is 17 years old not 21,” said Senator AJ Griffin (R) Guthrie....  “It’s disrespectful to the citizens of this state that elected us and put us here in order to do our job. If an adult deserves a jury a kid deserves a jury,” Senator Griffin said.

As this excerpt indirectly reveals, because jury sentencing is the norm in Oklahoma, this new law would have created a distinctive judge-centric sentencing procedure just for juvenile murders in Oklahoma.  But before Oklahoma's Governor acted on this bill, the Oklahoma Court of Criminal Appeals (the state's highest criminal court) handed down a big new juve sentencing ruling in Stevens v. Oklahoma, 2018 OK CR 11 (Ok. Crim. App. May 10, 2018) (available here). Stevens is yet another notable example of another state court working through just how Miller and Montgomery should be applied, and it includes these notable passages (with most cites removed):

In all future trials where the State intends to seek a sentence of life without the possibility of parole for an offender who committed his or her offense under the age of eighteen (18) years of age the State shall give notice of this fact by stating at the bottom of the Information in bold type: "The State is seeking the punishment of life without the possibility of parole for the offense of Murder in the First Degree, as Defendant (state last name here) is irreparably corrupt and permanently incorrigible." See Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986 (adopting notice pleading). Both parties shall be afforded full discovery on this issue in accordance with established discovery law. 22 O.S.2011, § 2001 et seq. The assigned trial judge has the authority under our Discovery Code to issue any orders necessary to accomplish this task.

The Sixth Amendment demands that the trial necessary to impose life without parole on a juvenile homicide offender must be a trial by jury, unless a jury is affirmatively waived. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The defendant's trial shall be bifurcated and the issue of the defendant's guilt shall be separately determined from the enhancement of his or her sentence.... [E]ach party shall be afforded the opportunity to present evidence in support of its position as to punishment in the second stage of the trial. The trial court shall submit a special issue to the jury as to whether the defendant is irreparably corrupt and permanently incorrigible....

It is the State's burden to prove, beyond a reasonable doubt, that the defendant is irreparably corrupt and permanently incorrigible. Luna, 2016 OK CR 27, ¶ 21 n. 11, 387 P.3d at 963 n. 11; see also Ring v. Arizona, 536 U.S. 584 (2002) (holding facts increasing punishment beyond the maximum authorized by a guilty verdict must be proven beyond a reasonable doubt). The State shall have the opportunity to present any evidence tending to establish this fact subject to the limitations of 12 O.S.2011, § 2403. Generally, this will include, but not be limited to, evidence concerning the defendant's: (1) sophistication and maturity; (2) capability of distinguishing right from wrong; (3) family and home environments; (4) emotional attitude; (5) pattern of living; (6) record and past history, including previous contacts with law enforcement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions; and (7) the likelihood of the defendant's rehabilitation during adulthood. See Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962; Cf. 10A O.S.2011, § 2-5-205(E).

Similarly, the defendant must be permitted to introduce relevant evidence concerning the defendant's youth and its attendant characteristics. Miller, 567 U.S. at 489 ("[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for a juveniles."). Generally, this will include, but not be limited to, evidence concerning the defendant's: "(1) chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the incompetencies associated with youth--for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys; and (3) whether the circumstances suggest possibility of rehabilitation." Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962 (quotations and citation omitted).

If the sentencer unanimously finds that the defendant is irreparably corrupt and permanently incorrigible it is then authorized to consider imposing a sentence of life without the possibility of parole.  If the sentencer does not make this finding it is prohibited from considering a sentence of life without the possibility of parole and may only impose a sentence of life imprisonment.

Notably, Oklahoma's Governor followed up all this activity by vetoing the bill that would allow for juvenile sentencing to be before a judge.  Gov Mary Fallin's veto statement here states:

Senate Bill 1221, also known as the Alyssa Wiles Juvenile Life Without Parole Sentencing Act, has provisions that, are in my opinion, in violation of the United States Supreme Court decision in Miller v. Alabama, 567 U.S. 460, 132 SCt. 2455, 183 L.Ed.2d 407. That decision was followed by the Oklahoma Court of Criminal Appeals in its decision rendered May 10, 2018, in Roberts A. Stevens v. The State of Oklahoma. Case No. PC-2017-219.

In case anyone cares, I believe there is at least a plausible argument that Apprendi jurisprudence does not demand that a jury make the essential "findings" that Miller and Montgomery seem to make constitutionally required under the Eighth Amendment for sentencing a juvenile to life without parole.  Readers with long memories may recall that I have long argued that Blakely's Sixth Amendment rule makes most sense only when applied to offense facts rather than to offender characteristics.  The Supreme Court has vaguely, but not conclusively, rejected such a conceptual distinction in the reach of the Sixth Amendment.  But even though I can see possible constitutional uncertainty as to how offender-eligibility factors are must be adjudicated under the Supreme Court's Sixth and Eighth Amendment jurisprudence, I think it may well be sound practice for these kinds of determinations to be given to juries (perhaps particularly in a state with a strong tradition of jury involvement in sentencing decision-making).

May 15, 2018 in Assessing Miller and its aftermath, Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, May 14, 2018

Among lots of CJ work, SCOTUS finds capital defendant's Sixth Amendment rights violated by counsel's unauthorized concession of guilt

The US Supreme Court got back to business this morning with a lot of notable activity in the criminal justice arena.  As noted in this prior post, there were a bunch of significant Dimaya GVRs.  In addition, the Court handed down five opinions in argued cases.  Four of the cases decided today involve criminal defendants, though the biggest of the rulings should also be of great interest to criminal justice fans as it addresses the relationship between federal prohibitions and state laws.  The federalism case, Murphy v. NCAA, No. 16–476 (S. Ct. May 14, 2018). (available here), may be of particular interest to advocates for state-level marijuana reforms, and I have this initial post on that case over at Marijuana Law, Policy & Reform.

Criminal procedure is the focal point of the four other SCOTUS cases handed down this morning: Byrd v. United StatesDahda v. United StatesMcCoy v. LouisianaUnited States v. Sanchez-Gomez.  This alphabetic list of these four rulings may also roughly approximate their order of importance/significance, though I welcome reader input on whether there are some important elements to a set of decisions that all seem somewhat narrow and fact-specific.  The ruling that may be of greatest interest to sentencing fans in McCoy, which split the Court 6-3 and starts with these paragraphs from Justice Ginsburg writing for the Court:

In Florida v. Nixon, 543 U.S. 175 (2004), this Court considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial “when [the] defendant, informed by counsel, neither consents nor objects,” id., at 178.  In that case, defense counsel had several times explained to the defendant a proposed guiltphase concession strategy, but the defendant was unresponsive. Id., at 186.  We held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, id., at 181, “[no] blanket rule demand[s] the defendant’s explicit consent” to implementation of that strategy, id., at 192.

In the case now before us, in contrast to Nixon, the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. App. 286–287, 505–506.  Yet the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant “committed three murders. . . . [H]e’s guilty.” Id., at 509, 510.  We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands.  With individual liberty — and, in capital cases, life — at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.

May 14, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

A couple dozen Dimaya GVRs in federal criminal cases in latest SCOTUS order list

The US Supreme Court this morning handed down this order list, and criminal justice fans should take notice of the significant number of federal criminal cases in which certiorari is granted followed by the "judgments are vacated, and the cases are remanded to the United States Court of Appeals ... for further consideration in light of Sessions v. Dimaya." 

Based on a quick scan, it would appear that SCOTUS has now "GVRed" at least one of every type of post-Dimaya case that John Elwood flagged in this SCOTUSblog "Relist Watch" post a few weeks ago (though in one case it appears SCOTUS said the GVR was to allow further consideration in light of Beckles).

Long story short: the fall-out from the Dimaya vagueness ruling seems likely to take many months (perhaps years) and many rulings to sort out.  Of course, I said this same thing about the Johnson vagueness ruling in 2015, and Dimaya et al three years later is really just itself one big part of the post-Johnson fall-out.  And because Johnson was fundamentally the product of the late Justice Scalia's continued railing against the residual clause of the Armed Career Criminal Act, the long tail of the Johnson/Dimaya jurisprudence serves as an interesting (and perhaps never-ending) part of his constitutional legacy.

May 14, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Friday, May 11, 2018

Nevada defense attorney loses latest battle, but may still be winning war, in effort to preclude an execution defendant apparently seeks

This local article, headlined "Nevada Supreme Court overturns lower court ban on using a paralytic in Scott Dozier execution, citing procedural issues," reports on a state Supreme Court ruling that might (or might not) increase the chance of the first execution in Nevada in more than a decade.  This matter seems to have a notable (and disturbing?) backstory, and here are the basics (with a few points emphasized):

Nevada’s Supreme Court has ordered a lower court to vacate its decision blocking part of the state’s proposed three-drug lethal injection combination, although one of the drugs it needs to carry out an impending execution has expired and it’s uncertain if and when the state can replace it.

The unanimous ruling comes two days after oral arguments were held in the case of 47-year-old Scott Dozier, whose execution was scheduled for November 2017 but has been indefinitely delayed.  Dozier, who was convicted of two murders in Nevada and Arizona, voluntarily gave up his appeals and says he wants to be put to death.

While a federal public defender raised the prospect that including the third drug and final drug in the protocol, a paralytic, could lead to a torturous execution that would violate prohibitions on cruel and unusual punishment, the justices focused their ruling on the procedural elements of the case. The justices rebuked both the District Court judge and federal public defenders representing Dozier, saying the challenge to the execution protocol was “procedurally improper” and led to confusion and a failure to follow the correct procedures for appealing a death penalty case.

The decision said the federal public defender didn’t file a 1983 action or another appropriate mechanism to challenge the execution method, and instead raised the challenge as part of a “Motion for Determination Whether Scott Dozier’s Execution Will Proceed in a Lawful Manner” in a post-conviction proceeding that had already been suspended....

Togliatti ruled in November that the state’s proposed drug combination to carry out the execution presented a “substantial risk of harm” to Dozier as the method had never been tested and because prison officials presented little evidence in court. The court found that the inclusion of the paralytic could mask symptoms that the first two drugs were not working, leading to the possibility that Dozier would be aware but unable to communicate as he suffocated.   Justices noted in a footnote that the federal public defender’s actions appeared to “be at odds” with Dozier’s directive that his counsel not take any actions to delay the execution.

A representative of the attorney general’s office told justices this week that the state’s supply of diazepam — the first of the three drugs proposed to be used in the execution — had expired on May 1, but said it might be possible to replace the drug. Pharmaceutical companies that have barred the use of their drugs for executions have made it difficult for states to carry out the killings. Lawyers for Dozier didn’t immediately respond to requests for comment Thursday on what their next steps would be.

A spokeswoman for the Nevada Department of Corrections said the agency was waiting for the issuance of a warrant of execution before they could get started setting a date for Dozier to be put to death.

I am generally sympathetic to what might be called "creative" lawyering by capital defense attorneys when an execution date looms and their client requests pursuing every possible means to block an execution.  But in this case, according the Nevada Supreme Court, the death-row defendant has "consistently stated that he wanted the State to carry out the death sentence and did not want counsel to take actions that might disrupt his execution."  Under these circumstances, I am troubled by the "creative" lawyering deployed here to thwart the express wishes of the capital client.

The defendant here has not only been languishing on death row for an extra seven months while a procedurally improper motion was litigated all the way up to the Supreme Court, but now Nevada may no longer have "valid" drugs it needs to carry out the execution that the defendant presumably still wants.  I assume the defense attorney here and perhaps others may be urging Dozier to reconsider his request to have his execution go forward, and it will be interesting to watch if any further appeals are brought whenever the state can get another execution date scheduled.  But unless and until one thinks the rule of law can and should be ignored whenever the stakes are high enough, the capital litigation backstory story should be considered disconcerting.

May 11, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20)

Thursday, May 10, 2018

Oregon Supreme Court upholds 112-year aggregate sentence for juve mass murderer Kip Kinkel

A helpful reader made sure I did not miss the notable Oregon Supreme Court's ruling today in Kinkel v. Persson, 363 Or 1 (Oregon May 10, 2018) (available here). The defendant in this case, Kip Kinkel, is a high-profile juvenile offender because back in 1998, at age 15, he killed his parents and then the next day at his high school shot two classmates and wounded 25 others.  The start of the Oregon Supreme Court majority opinion explains the sentencing proceedings and the court's ruling: 

Petitioner pled guilty to four counts of murder and 25 counts of attempted murder, as well as pleading no contest to a twenty-sixth count of attempted murder.  As part of a plea bargain, petitioner and the state agreed that he would receive concurrent 25-year sentences for the four murders.  They also agreed that each side would be free to argue that the mandatory 90-month sentences for each of the attempted murders should run consecutively or concurrently.  After a six-day sentencing hearing, the trial court ordered that 50 months of each 90-month sentence for attempted murder would run concurrently but that 40 months of each of those sentences would run consecutively to each other and to the four concurrent 25-year sentences. As a result of that ruling, petitioner’s aggregate sentence totals slightly less than 112 years.

In this post-conviction proceeding, petitioner argues that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibits the imposition of an aggregate sentence that is the functional equivalent of a life sentence without the possibility of parole. Petitioner’s federal argument entails primarily three issues.  The first is whether, as a matter of state law, petitioner’s Eighth Amendment claim is procedurally barred.  See ORS 138.550(2) (barring post-conviction petitioners from raising grounds for relief that were or reasonably could have been raised on direct appeal); Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015) (applying a related statute).  If it is, the second issue is whether Montgomery v. Louisiana, ___ US ___, 136 S Ct 718, 193 L Ed 2d 599 (2016), requires this court to reach petitioner’s Eighth Amendment claim despite the existence of that state procedural bar.  Third, if petitioner’s Eighth Amendment claim is not procedurally barred, the remaining issue is whether and how Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed 2d 407 (2012), applies when a court imposes an aggregate sentence for multiple crimes committed by a juvenile.

As explained below, we hold that, even if ORS 138.550(2) does not pose a procedural bar to petitioner’s Eighth Amendment claim, his claim fails on the merits.  More specifically, the issue in Miller was whether the Eighth Amendment prohibited a juvenile from being sentenced to life imprisonment without the possibility of parole for a single homicide.  The Court held that such a sentence could be imposed but only if the trial court found that the crime reflected irreparable corruption rather than the transience of youth.  The Court did not consider in Miller whether a juvenile who has been convicted of multiple murders and attempted murders, as in this case, may be sentenced to an aggregate consecutive sentence that is the equivalent of life without the possibility of parole.  This case thus poses a different issue from the issue in Miller.  Beyond that, we conclude that the facts in this case, coupled with the sentencing court’s findings, bring petitioner within the narrow class of juveniles who, as Miller recognized, may be sentenced to life without the possibility of parole.

May 10, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, May 09, 2018

Lots of sentencing fun — thanks to enduring Johnson fallout — to be found in cert pool relists

The Justice of the Supreme Court will have a conference tomorrow to discuss cert petitions, and that means John Elwood has another of his always valuable "Relist Watch" posts up at SCOTUSblog. This version of relists has lots that should interest sentencing fans, and I will reprint those parts here:

Before we head on to this week’s new relists, a word about the old. The big tangle of Sessions v. Dimaya relists returns this week. During the intervening week, yet another court of appeals has weighed in on one of the issues awaiting resolution in the wake of Dimaya, namely whether yet another criminal code provision defining “crime of violence” with a problematic residual clause, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague in light of Johnson v. United States (and now Dimaya). The U.S. Court of Appeals for the 10th Circuit has now weighed in, favoring defendants. These Section 924(c)(3)(B) cases strike me as the best candidates of the remaining Dimaya relists for an outright grant. But we’ll see soon whether four justices agree, or whether they call an audible and do something else....

Lester v. United States17-1366, would justify readers in feeling a bit of déjà vu all over again.  The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States17-5684Gates v. United States17-6262James v. United States17-6769 (all relisted nine times) and Robinson v. United States17-6877 (relisted seven times).  This case is unusual in that the improbably named petitioner Stoney Lester filed his petition before the court of appeals had even ruled on his case, and certiorari before judgment is a rare (and rarely successful) move.  Lester’s petition was filed after Allen and Gates and James had already been relisted five times, making me wonder whether my boy Jack rushed to file a petition hoping the court would pick this case to be the sole combatant on this issue.  This case has one benefit: According to Lester, his case, alone among all cases presenting the question, was granted a certificate of appealability by the relevant court of appeals.  But the government waived its right to file a responsive brief, so unless the court calls for a response, Lester is a longshot for bringing home the roses.

Finally, I am at a loss for what might have enticed the court to relist Kitchen v. United States17-7521.  Neither of the issues it presents is very promising.  First, the petitioner argues that a prior Florida conviction for drug trafficking that rests upon the mere possession of drugs does not qualify as a “controlled substance offense” for purposes of a federal sentencing guidelines enhancement, because the Florida statute lacks an element of intent to distribute.  But the case simply involves the construction of one of the sentencing guidelines, and the court usually just allows the Sentencing Commission to resolve such splits.  The other issue the petition raises — whether the federal prohibition on felons possessing firearms exceeds Congress’ authority under the commerce clause when applied to intrastate possession of a handgun — is interesting, but splitless, and would be reviewed only for plain error because Kitchen did not raise it in district court. Which raises the question why this case is here. Did the cert-pool author have too much vino rosso? Maybe the court simply kept the case around because of the petitioner’s unusual name: Sadonnie Marquis Kitchen.

May 9, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Detailed review of Illinois juve offenders serving just barely "less than life"

Less-than-life-featureThe Chicago Sun-Times has published this extensive look by Injustice Watch at how the Illinois has sentenced (and largely failed to resentence) a set of juvenile offenders serving extreme long prison sentences . The full lengthy title of this piece sets forth its essential elements: "Less than life: Across the country, juvenile offenders are being released from prison based on recognition that human brains continue to develop for the first two and a half decades of life.  Nevertheless in Illinois, many who commit crimes as teenagers are likely destined to die in custody."  Here is an excerpt:

In Illinois, it is rare for juveniles who did not receive automatic life prison terms to win new chances at sentencing, leaving most of those with long sentences to languish in prison for decades, an Injustice Watch review found.

A review of custody data from the Illinois Department of Corrections revealed that, as of last December, at least 167 current inmates were arrested for crimes as juveniles and are set to serve 50 years or more in prison without parole eligibility, leaving them likely to die in custody but not eligible for resentencing under the dictates of Miller. (It is not possible to know the exact number of young offenders serving long sentences at the Illinois Department of Corrections because the agency does not specifically keep track of that information.)

The imposition of long sentences is especially harsh in Illinois, a state which does not afford parole to most prisoners and which requires offenders convicted of murder to serve 100 percent of their punishment, with no chance of early release based on factors like good conduct or rehabilitation. Such sentences almost certainly lead these inmates to either spend the rest of their lives incarcerated or be released with precious little life left.

Research indicates that incarceration has a jarring effect on life expectancy. In studying a group of inmates released from New York state correctional facilities over a 10-year period, Vanderbilt University Professor Evelyn Patterson found that the former prisoners could expect to shave two years off of their average life expectancy for every one year of incarceration. Furthermore, Patterson found, undoing the negative effect on longevity takes time. It took former inmates two-thirds of the time spent in custody back on the outside to recover from the harm of incarceration on life expectancy. The United States Sentencing Commission considers a 39-year prison sentence the equivalent of life.

Because Illinois almost entirely abolished parole in 1978, these juvenile offenders do not get the same chance to show rehabilitation and change that they might get in other states. About a third of states do not currently employ the traditional practice of parole for newly convicted inmates, according to a report published by the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice, but Illinois is one of three states nationwide that stopped utilizing parole four decades ago, making it nearly non-existent for the current prison population.

The approximately 80 juvenile offenders in Illinois who became eligible to have their sentences reconsidered [after Miller] all were convicted of killing more than one person — Illinois law mandates life for anyone convicted of multiple murders. By contrast, Illinois state appellate judges have mostly declined to find that the cases of other violent youthful offenders ... fall under the protections outlined in Miller.

There is no national legal standard on how many years is too many for a juvenile to serve. Courts across the country have differed on the issue, creating varied standards on what length of a prison term can legally be considered a life sentence. “Getting rid of formal life without parole was the tip of the iceberg,” said Marsha Levick, deputy director and chief counsel for the Pennsylvania-based Juvenile Law Center, which has advocated for lesser sentences for juveniles convicted of crimes.

Across the country, about a dozen states have passed laws requiring that young defendants sentenced to long prison terms get a chance at parole. Legislators in Illinois have proposed a bill that would give periodic parole opportunities to newly convicted young offenders; so far those efforts have stalled.

May 9, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Friday, May 04, 2018

Georgia execution back on; stay lifted with clemency denied by state parole board

As reported in this prior post, earlier this week the Georgia Board of Pardons and Paroles issued an unusual stay on the even of a scheduled execution.  But now, as reported in this article headlined "Murdered Georgia man’s father thanks God inmate’s execution is back on," it appears that the execution will go forward only 48 hours after it had been originally scheduled. Here are the basics:  

Not long after halting the scheduled execution of Georgia inmate Robert Earl Butts Jr., the State Board of Pardons and Paroles lifted its own stay, putting the death penalty wheels back in motion.  Butts is now scheduled to die by lethal injection Friday at 7 p.m.  Before the parole board issued a stay Wednesday night, Butts was expected to get the needle Thursday evening for the 1996 murder of off-duty correctional officer Donovan Corey Parks.

“Oh Lord,” said Freddie Parks, the victim’s father. “I’m nervous. I’m really happy to hear the good news. I’ve been going through it 22 years. Nobody knows what I’ve been going through but me and the Lord. And I’ve been really talking to Him.” Just hours earlier, Parks, a 75-year-old retired prison guard, was angry and despondent at the same time over the stay of execution. “It wasn’t fair the way it came out, putting it off. Another blow,” he said at the time.

When the board issued its 90-day stay Wednesday night, its spokesman said the five-member panel needed time to review the “considerable amount of additional information” it received in a meeting with Butts’ attorneys, as well as in a subsequent session with those who wanted to see the execution carried out.  “Knowing the gravity of its decisions, the board extended deliberations in order to consider supplemental information submitted during the meeting that members had not previously reviewed,” spokesman Steve Hayes said. “Completing that process, the board voted to deny clemency.”

While the parole board has the sole constitutional authority to grant clemency, the courts have the ultimate power to decide whether to spare an inmate’s life. So Butts’ attorneys continued to file appeals on Thursday.

If Butts, 40, is executed, he will be the second man Georgia has put to death this year.

Prior related post:

UPDATE: This local article reports on the completed execution:

Robert Earl Butts Jr. was put to death by lethal injection Friday at the Georgia Diagnostic and Classification Prison. He was pronounced dead at 9:58 p.m. When asked for a final statement, Butts replied, “I’ve been drinking caffeine all day.”  Then he declined an offer for a prayer.

Butts kept his eyes closed from the moment he was placed on the gurney. He never looked at the father and brother of his victim, sitting on just the other side of the window that separates the witness area from the execution chamber.  Nor did he look at Baldwin County Sheriff Bill Massee or Putnam County Sheriff Howard Sills, who was chief deputy in Baldwin County at the time of the murder.

Two minutes after the pentobarbital began to flow into the vein in his arm, Butts mumbled, “It burns, man.” After that, he yawned and took a series of deep breaths until there was no movement about a minute before he was pronounced dead.

Butts, 40, was sentenced to death for the March 1996 murder of 25-year-old Donovan Corey Parks in Milledgeville. Butts and his co-defendant, Marion Wilson Jr., asked Parks — an off-duty correctional officer — for a ride from a local Walmart store, then minutes later ordered him from the car and shot him in the head. Butts was 18 at the time.

May 4, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Thursday, May 03, 2018

Oregon Supreme Court orders resentencing upon finding violation of crime victim's right to be heard at sentencing

The Supreme Court of Oregon handed down an interesting unanimous opinion yesterday concerning the rights of a victim at sentencing under the Oregon Constitution in Oregon v. Ball, 362 Or 807 (Or. May 2, 2018) (available here). Here is how the opinion gets started:

The Oregon Constitution provides that the victim of a crime has the right “to be heard at * ** sentencing.” Or Const, Art I, § 42(1)(a).  Appellant, who is a crime victim, filed a claim in the trial court, pursuant to ORS 147.515, alleging that the trial court violated her right to be heard when it sentenced the defendant who had committed crimes against her. Specifically, appellant alleged that the trial court violated her right to be heard when it interrupted her victim impact statement and when it later terminated the statement without warning or explanation.  The trial court denied the claim, and appellant brought this appeal, pursuant to ORS 147.535.

This case requires us to determine the scope of a crime victim’s constitutional right to be heard during a sentencing hearing.  As explained below, we hold that a trial court has the authority and responsibility to conduct a sentencing hearing in an orderly and expeditious manner and may exclude certain statements by victims, including those that are irrelevant, unfairly prejudicial, or cumulative.  In addition, a trial court may limit a victim impact statement if the victim disregards the trial court’s appropriate instructions regarding the content or length of the statement.  We further hold that, in this case, the trial court’s interruptions of appellant’s statement, which were for the permissible purpose of having appellant focus on the charged crimes and her own experiences with the defendant, did not violate appellant’s right to be heard.  However, the trial court’s termination of appellant’s statement, when appellant was discussing a relevant topic that was not outside the limits imposed by the trial court, did violate appellant’s right to be heard.  Therefore, we reverse the trial court’s decision denying appellant’s claim, vacate defendant’s sentence, and remand the case to the trial court for a new sentencing hearing.

May 3, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (1)

An uncertain execution stay for uncertain reasons from the Georgia Board of Pardons and Paroles

As reported in this AP piece, "Georgia's parole board on Wednesday issued a decision halting the scheduled execution of a condemned inmate less than 24 hours before he was set to be put to death." Here is more about the decision that strikes me as full of uncertainties:

Robert Earl Butts Jr., 40, had been scheduled to die at 7 p.m. Thursday at the state prison in Jackson.  The State Board of Pardons and Paroles issued its decision just before 8:30 p.m. Wednesday to grant a stay of up to 90 days to give board members more time to consider the case.

"Due to the considerable amount of additional information the Board has received regarding the case and because the Board understands the importance and seriousness of its authority and responsibility, a stay was issued," board spokesman Steve Hayes said in an emailed statement....  The board could issue a final decision in the case during the stay period or at the end of the 90 days, Hayes said. 

Earlier Wednesday, the board held a closed-door hearing to listen to arguments for and against clemency for Butts.  A judge in the Superior Court of Baldwin County, where Butts was sentenced to death, last month issued the order for the execution to be carried out within a window starting Thursday and ending May 10.  If the board decides to lift the stay and denies clemency within that period, the execution could go forward without a new execution order.

The board also has the option to commute Butts' death sentence to a sentence of life in prison with or without the possibility of parole.

Butts and Marion Wilson Jr., 41, were convicted of murder and armed robbery in the March 1996 slaying of Donovan Corey Parks in central Georgia.  The two men asked Parks for a ride outside a Walmart store in Milledgeville and then ordered him out of the car and fatally shot him a short distance away.  Prosecutors have said Butts fired the fatal shot.

Authorities said Butts and Wilson were gang members who had gone looking for a victim when they drove Butts' car to the Walmart store.  Juries in separate trials found sufficient evidence to sentence both men to death because Parks was killed during the commission of an aggravating felony, armed robbery.  Wilson's case is still pending in the courts.

Butts' attorneys had asked the parole board in a clemency application filed last week to spare his life.... His attorneys insisted in the clemency application that Butts wasn't the shooter. A jailhouse witness, Horace May, who testified at trial that Butts confessed to being the shooter has now signed a sworn statement saying he made the story up out of sympathy for Wilson, whom he also met in jail....

Butts' attorneys also argued in his clemency petition that the single aggravating factor wouldn't warrant a death sentence in Georgia today.  They also ask the board to consider commuting Butts' sentence to life in prison after weighing abuse and neglect during Butts' childhood, the fact that he was just 18 when the crime occurred and that he has expressed remorse.

Butts' lawyers submitted a supplement to the clemency application to the board at the clemency hearing Wednesday. In that supplement, they argued that evidence in the case indicates that Wilson consistently had possession of the gun used to kill Parks. They also said there's no evidence that Butts was a member of a gang or that Parks' killing was gang-related. They wrote that the fact that the two tried to sell the car at a chop shop shows the crime was financially motivated.

Because Georgia sets a week for an execution time, it seem possible that the clemency petition will be denied in the coming days and the execution still goes forward. Thus, I find it uncertain whether this stay connotes a real likelihood that this defendant will avoid execution in the coming day. And that uncertainty is itself built on top of uncertainty about what the Georgia Board might be finding troubling in this case.  Notably, this local article provides this account of the last time this kind of stay was granted and its aftermath: "The last time the board stayed an execution was on April 17, 2012. Daniel Green was scheduled to be executed for a 1991 Taylor County murder. The board commuted Green’s sentence to life without parole on April 20, 2017."

May 3, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, May 01, 2018

Should Prez Trump grant clemency to former Illinois Gov. Rod Blagojevich?

The question in the title of this post is prompted by this notable new commentary authored by Kristen McQueary for the Chicago Tribune. Here are excerpts:

Former Illinois first lady Patti Blagojevich is back in the spotlight, pulling every lever to convince President Donald Trump to award clemency to her imprisoned husband. In several media interviews, she has tried to build camaraderie with Trump by painting former Gov. Rod Blagojevich as a victim of FBI targeting and an overzealous prosecution.

That is sure to get Trump’s attention. But the better play might be appealing to Trump’s inside knowledge of the swamp — the trading of favors and campaign contributions between politicians and special interest groups. Trump knows it well. He was part of it. “Nobody knows politicians better than I do,” Trump said during a meeting with the Tribune Editorial Board in June 2015, shortly after he announced his candidacy for president. He was in town to speak to the City Club of Chicago and the editorial board invited him to stop by. He did, along with son Donald Jr.

During the meeting, we asked him about Blagojevich, who by then had been in prison for three years. The two had met on the set of “Celebrity Apprentice” in 2010 while the former governor’s corruption case was winding through the courts.

Here’s what Trump said then: “It was good having him on. I found him to be, I can only speak for myself, I found him to be a very nice guy. Not sophisticated. Had little knowledge of computers and things and you know we found that out … We found him to be very nice,” Trump said. “Now, he was under a lot of pressure at that point.

“I think that’s an awfully tough sentence that he got for what supposedly he did,” Trump said. “Because what he did is what politicians do all the time and make deals.”

Boom. What politicians do all the time. That has been the most compelling defense of Blagojevich throughout his controversial arrest, double trial and convictions. The feds placed two bugs and six wiretaps on his home telephone, his campaign office phone and his cellphone, and also bugged his friends and chief of staff. How many other politicians would end up in prison if the government listened to their conversations?

Yes, at two trials Blagojevich was rightfully found guilty on a total of 18 corruption counts for, among other things, trying to trade an Illinois U.S. Senate seat appointment for personal gain. Blagojevich deserved to go to prison. He lied to the FBI about a firewall that he claimed existed between his campaign fund and his government responsibilities. He tried to shake down campaign donors by withholding legislation they sought from state government....

Blagojevich has served six years of a 14-year sentence. Isn’t that enough?

Trump could grant him clemency and consider time served as punishment enough for what Blagojevich plotted. Remember, prosecutors arrested him before any transactions occurred.  They got him primarily on intent, not completion.  They also indicted Blagojevich’s brother to squeeze him but dropped the charges for the second trial, an admission that perhaps they were overzealous in their pursuits....

Trump knows the swamp.  He was the real estate mogul with a fat checkbook before he was president of the United States.  Plenty of politicians courted him and vice versa.  Will he look sympathetically on a fellow swamp thing?  He might.  He should.

Some of many older related posts on the Blagojevich case:

May 1, 2018 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Monday, April 30, 2018

Following a stay last month, SCOTUS grants cert on a method of execution Eighth Amendment case from Missouri

The US Supreme Court this morning issued this order list this morning that includes a trio of grant of certiorari.  The only criminal case of the three is Bucklew v. Precythe.  Interestingly, Bucklew only first came to SCOTUS last month when, as noted in this prior post, the Supreme Court Justice split 5-4 when granting Russell Bucklew a stay from his execution in Missouri based in part on his claim that any lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he has "blood-filled tumors [growing] in his head, neck, and throat."  

Here is how this SCOTUSblog case page describes the issues presented by Bucklew's cert petition: 

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

Interestingly, on the order list when granting cert, the Supreme Court asked the parties to brief some additional issues.  Here is what the Court said when granting cert:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. In addition to the questions presented in the petition, the parties are directed to brief and argue the following Question: Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

This Bucklew case likely will not be argued until October or November 2018, and likely will not produce an opinion from the Court until probably around this time next year. So, stay tuned.

April 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, April 29, 2018

First ripple of Dimaya disruptions appears in SCOTUS relists

In this post the day after the Supreme Court's big ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), I asked "How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?".  Though not providing a direct answer to this question, this most recent Relist Watch posting by John Elwood over at SCOTUSblog reinforces my sense that the Dimaya disruptions are likely to be plentiful and complicated. Here are amusing excerpts from John Elwood's post (with links from the original):

We have a record number of relists, at least during the seven-plus years I’ve been watching carefully: 44. Of those, 42 are cases that obviously were held for Dimaya, and now the court is trying to decide what to do with them. Just identifying all those relists on the court’s docket, and then figuring out the legal issues involved, was a big job for people who really do have other responsibilities.  But although the task was a bit dull, at least it involved an enormous amount of backbreaking labor. And so let me begin where I usually end: Thanks to Kevin Brooks for identifying all the relists, and thanks to Aurora Temple Barnes for sorting through the heaps of PDFs I lobbed at her and identifying the questions presented and creating tidy case pages. 

The Dimaya relists fall into three main groups.  First, there are many cases that simply present the very same question as Dimaya about the constitutionality of § 16(b). This group is enormous, including Sessions v. Magana-Pena15-1494Sessions v. Lopez-Islava15-1496, Sessions v. Miranda-Godinez16-398Sessions v. Baptiste16-978Sessions v. Shuti16-991Gonzalez-Longoria v. United States16-6259Solano-Cruz v. United States16-6288Perdomo v. United States16-7214Bello v. United States16-7667Alvaro-Velasco v. United States16-8058Castaneda-Morales v. United States16-8734Maldonado-Landaverde v. United States16-9318Linares-Mazariego v. United States16-9319Larios-Villatoro v. United States16-9660, Diaz-Esparza v. Session17-820Gomez-Ureaba v. United States17-5283Garcia-Hernandez v. United States17-5305Hernandez-Ramirez v. United States17-6065Ontiveros-Cedillo v. United States17-6721Gutierrez-Lopez v. United States17-6751Casabon-Ramirez v. United States17-7183, and -- so far as we can tell (the parties haven’t gotten back to us yet), Eaton v. United States17-6680.  These cases should have been easy to resolve by denying cert or granting, vacating and remanding for further consideration in light of Dimaya. That they were not is the clearest example that the volume was just too great.

The second group of Dimaya relists involves application of that case to a Sentencing Guidelines provision -- a type of claim the government argues is foreclosed by Beckles v. United States. Those cases include first-time relists United States v. Hernandez-Lara16-617Aguirre-Arellano v. United States16-8675and Rodriguez v. United States17-5476, as well as returning relist Robinson v. United States17-6877.

The third and final group of Dimaya relists involves cases that ask whether the logic of that case and Johnson v. United States invalidates 18 U.S.C. §924(c)(3)(B), yet another criminal code provision defining “crime of violence.”  This week’s new relists that involve that question include Taylor v. United States16-6392Prickett v. United States16-7373Glover v. United States16-8777Taylor v. United States16-8996Davis v. United States16-8997United States v. Jenkins17-97United States v. Jackson17-651McCoy v. United States17-5484Winters v. United States17-5495Lin v. United States17-5767Eizember v. United States17-6117Enix v. United States17-6340Ecourse-Westbrook v. United States17-6368, and Carreon v. United States17-6926.  The government argues that after Dimaya, these cases should be sent back to the courts of appeals to consider narrowing constructions of Section 924(c) that might resolve the constitutional issues.  Unsurprisingly, criminal defendants argue that the court should just grant review on this issue.  We’ll see which side prevails.

Prior related post:

April 29, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Wednesday, April 25, 2018

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

April 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Monday, April 23, 2018

"Leveraging Marijuana Reform to Enhance Expungement Practices"

The title of this post is the title of this new paper I have written for a forthcoming issue of the Federal Sentencing Reporter which is now available via SSRN.  Here is the abstract:

States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization.  State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system.  So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions.  In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements.

Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform.  Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions.  Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements.   This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.

Cross-posted at Marijuana Law, Policy & Reform.

April 23, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

SCOTUS grants cert on yet another set of ACCA cases, this time to explore when burglary qualifies as "burglary"

Though I am always excited when the Supreme Court takes up sentencing issues, I must admit growing somewhat annoyed that issues related to the application of the Armed Career Criminal Act continued to be the focal point of so much SCOTUS activity. That patterns continues today via this new SCOTUS order list in which cert was granted in these two cases (which were consolidated for one hour of argument):

United States v. Stitt, 17-765 (from the Sixth Circuit)

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

United States v. Sims, 17-766 (from the Eighth Circuit)

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Because the government was seeking cert on these cases after losing in big Circuit rulings and because there is a split in the circuits, I am not at all surprised by these grants. But I remain troubled that so many other issues that are so very consequential to so many more cases — e.g., the functioning of reasonableness review or the proper application of Graham and Miller — have been unable to get the Justices' attention while nearly a dozen ACCA cases have been taken up by SCOUS in the last decade.

April 23, 2018 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, April 22, 2018

SCOTUS to hear seemingly small sentencing case made slightly bigger by Government's advocate

On Monday afterneed the Supreme Court will hear oral argument in Chavez-Meza v. United States.  Here is the issue presented in the case (via SCOTUSblog):

Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

As this statement of the issue reveals, the Supreme Court likely was inclined to add this case to its docket in order to resolve a circuit split over just want amount of explanation is required when judges grant sentence modifications under 18 U.S.C. § 3582(c)(2).  But, it appears that only six months of a nine-year prison term is at issue in this case and, as Susan Klein explains via her SCOTUSblog argument preview, it seems unlikely that even a win for the defendant would be all that consequential for others:

I predict that whatever the Supreme Court does in this case will have little effect beyond amending future sentencing modification forms. A reversal would likely result in little more than a “ritualistic incantation” by the judge that she considered a specific Section 3553(a) factor, or that she considered a specific policy statement issued by the sentencing commission.

Of course, SCOTUS could always decide to use this case to talk up the importance of sentencing explanations, though I doubt even an opinion written with great ambition in this matter would have too much of an impact.  And still, though seemingly a small case, Chavez-Meza is getting an extra bit of attention because the Deputy Attorney General will be arguing the case on behalf of the feds.  This new Wall Street Journal article, headlined "Rosenstein Takes a Pause — to Argue a Case Before the Supreme Court," looks at this angle of the case.  (Last but not least, hard-core Breaking Bad fans might get a weird kick out of the fact that Adaucto Chavez-Meza "distributed methamphetamine in Albuquerque, New Mexico," though a bit later than when Walter White was supposedly cooking up the Blue Sky variety in that part of the world.)

April 22, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Thursday, April 19, 2018

Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?

The question in the title of this post is prompted in part by my work, recently and in prior years, on amicus briefs in which I have noted to the US Supreme Court that many judges and many commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review.   

A little more that a decade ago, the jurisprudential troika of Rita, Gall and Kimbrough provided an initial SCOTUS accounting of reasonableness review.  But it is now pretty easy to provide a string cite of commentary noting the mess that reasonableness review has become in the circuits.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

My decision to gripe on this front today is also prompted by this pending cert petition in Ford-Bey v. US recently brought to my attention.  Here is the question presented to the Supreme Court in this petition:

In Rita v. United States, 551 U.S. 338 (2007), the Court held that an appellate court could presume that a procedurally reasonable within-Guidelines sentence is also substantively reasonable. But the Court stressed that the presumption was rebuttable, reflecting only that a sentence is more likely to be substantively reasonable where the district judge and the Sentencing Commission agree.

A decade later, the majority of Circuits have never found Rita’s presumption rebutted. In that time, fewer than ten defendants nationwide have succeeded in rebutting Rita’s presumption.  Here, the Fourth Circuit issued a routine per curiam affirmance, despite petitioner’s extraordinary post-sentencing rehabilitation — and despite the Commission’s 2012 decision to withdraw all guidance on post-sentencing rehabilitation.

Has Rita’s non-binding presumption of reasonableness become effectively binding?

April 19, 2018 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Another Booker, this one in Florida, prevails on a notable Sixth Amendment Blakely claim

I came across a Florida intermediate appellate court opinion today finding Sixth Amendment problems in a Florida statute, but I likely would not have blogged about were it not for the surname of the defendant: Booker!  The name Booker (Freddie J.) will be forever connected to the transformation of the federal sentencing system.  Another Booker (Reginald Lee) seems unlikely to have quite the same impact on Florida sentencing, but his case is still interesting for hard-core Apprendi/Blakely fans.  Here are excerpts from Booker v. Florida, No. 1D15-3558 (Fla. 1st Dist. April 18, 2018)(available here):

The Florida Legislature, faced with budgetary challenges in 2009, sought to reduce the burden of prison expense on the Department of Corrections by mandating that specified, nonviolent offenders, who score under twenty-two points on their criminal scoresheet, be sentenced to nonstate sanctions — thereby shifting incarceration of these offenders to county jails for a maximum of up to one year.  [But it also provided] "if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility."  [This provision], which was used to enhance Booker’s sentence to a state prison sanction, is the focus of the Sixth Amendment claim at issue....

Given the momentous role of the jury in our country’s legal history, and the clarity of the stated principle in Apprendi and Blakely that judicial fact-finding is no substitute for jury factfinding if used for sentencing beyond a relevant statutory maximum, we conclude that the last sentence of subsection (10) violates this principle as applied to Booker.  It empowered precisely what Apprendi and Blakely condemn: giving a trial judge the power to make factual findings independent of the jury (here, about future public dangerousness) that are used to increase an offender’s sentence beyond the maximum allowable by the “facts reflected in the jury verdict alone.” Blakely, 542 U.S. at 303.  As applied to Booker, the result is that, rather than be subject to a maximum of up to a year in a county jail, he is sent to state prison for four years — based solely on factual findings as to his potential for future dangerousness upon which only a judge, not a jury, has passed....

Put simply, section 775.082(10)’s enactment shifted the sentencing paradigm markedly, and in the process eliminated the ability of a jury verdict alone to impose a state prison sanction.  Protection of the jury trial right does not hamstring the Legislature’s ability to achieve its policy goals, however.  For example, if section 775.082(10) required a jury — rather than a judge — to make factual findings about an offender’s potential for future dangerousness, the check on personal liberty that the Sixth Amendment’s right to a jury trial provides would be retained.  A simple legislative fix might be to amend subsection (10) to say: “. . . if the court a jury makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.”  Courts, except by rewriting a clearly-worded statute, cannot achieve this policy result.

Notably, this opinion concludes by noting conflicts with other Florida appellate rulings and then certifying the issue as of "great public importance" for the Florida Supreme Court. So maybe we have not heard the last of the name Booker in Florida.

April 19, 2018 in Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, April 18, 2018

SCOTUS examining reach of restitution awards under MVRA in Lagos v. United States 

A somewhat non-traditional sentencing issue is the subject of Supreme Court oral argument this morning.  SCOTUSblog has this argument preview authored by Cortney Lollar which started and ends this way:

Next week, the Supreme Court has another opportunity to consider the scope of criminal restitution. Lagos v. United States raises the question of whether private investigation costs and a victim’s attorney’s fees are considered compensable losses under 18 U.S.C. §3663A, the Mandatory Victim Restitution Act....

In recent years, both Congress and the Supreme Court have taken an increasingly expansive approach toward criminal restitution.  Although the MVRA’s language is undoubtedly distinct from that in other restitution statutes, the court may yet again take this opportunity to interpret the language capaciously, requiring a defendant to reimburse increasingly attenuated costs through restitution.

April 18, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?

The big Supreme Court vagueness ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), is properly being discussed as a significant immigration ruling: the Justice were considering (and struck down as vague) how Congress defined an offense of violence in 18 U.S.C. § 16(b) in a case involving a alien subject to deportation for committing a certain kind of crime.

But, critically, the now-unconstitutional definition of a "crime of violence" in § 16(b) is referenced throughout the federal criminal code within various criminal offenses and sentence enhancements.  And, notably, definitional language identical to § 16(b) appears in 18 U.S.C. § 924(c)(3)(B), which is part of a statute that adds significant amounts of prison time for any possession or use of a gun in connection with a crime of violence.  In other words, as the title of this post suggests, there are certainly some number of persons serving federal prison time based on a definition of a  "crime of violence" deemed unconstitutionally vague in Dimaya.

But, as my post title suggests, it is hard to know how many federal prisoners have viable Dimaya claims, while it is easy to know that all prisoners will face an array of possible procedural headaches when trying now to raise Dimaya claims.  Helpfully, Leah Litman thoroughly covers, in this lengthy new Harvard Law Review blog posting, the array of procedural hurdles that Dimaya defendants are likely to face.  Here is how her extended piece starts and ends:

The Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b) did so in part through sprawling, amorphous phrasing that could be interpreted and applied in capricious and largely unbounded ways to expand the category of “crime of violence.”  The impact of the Dimaya decision is potentially enormous, both for deportations (the case before the Court) and for criminal sentences....

Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review....

Dimaya spoke of “lesson[s] so hard learned” from Johnson and the ACCA debacle that Johnson corrected.  But another lesson that was hard learned from Johnson is that Johnson, or in this case Dimaya, will just be the beginning.  Whether those decisions will ultimately benefit the individuals who are currently wrongly incarcerated will depend on what comes next, and specifically on how courts interpret the many draconian restrictions on post-conviction review.

April 18, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Tuesday, April 17, 2018

"Will the Supreme Court Rein in Civil Forfeiture?"

The title of this post is the title of this new piece by Matt Ford at The Atlantic, and the question it poses strikes me as particularly timely in light of the notable discussion of civil sanctions by Justice Gorsuch in a concurring opinion this morning in Dimaya.  Here is part of the piece:

The state of Indiana really wants to take Tyson Timbs’s Land Rover, as punishment for dealing just a few hundred dollars’ worth of drugs. He’s now asking the U.S. Supreme Court to let him keep it.

Stories about civil forfeiture injustices are unfortunately common. What sets Timbs’s case apart is his legal argument: that the Eighth Amendment’s ban on excessive fines should shield his property from confiscation at the state level. If the Supreme Court takes up the case and agrees, the justices could impose some much-needed barriers on state and local governments’ voracious appetites for fees, fines, and forfeitures....

Undercover officers solicited from Timbs, buying just under four grams of heroin for less than $400. He was arrested and charged with dealing a controlled substance and conspiracy to commit theft. Timbs pleaded guilty and received a six-year sentence to be served outside prison walls. The state also tried to seize his Land Rover, kicking off the legal battle that ultimately brought him to the Supreme Court.

The trial court refused to authorize the seizure. Indiana law only allowed a $10,000 fine for Timbs’s sentence, and the court concluded that seizing a vehicle worth four times as much as that threshold would be “grossly disproportionate” relative to Timbs’s crime. The Indiana Court of Appeals upheld the decision after their own review of the circumstances. But the Indiana Supreme Court intervened and approved the seizure.

The judges’ unanimous opinion rested on a precedent, or lack thereof: The U.S. Supreme Court has never applied the Eighth Amendment’s Excessive Fines Clause to the states. Other lower courts have chosen to do so without waiting for the top justices, but Indiana’s Supreme Court was uninterested in following that path for Timbs’s benefit. “Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated,” the court declared. Timbs, with his petition in January, is now asking the U.S. Supreme Court to overturn that ruling.... But the Excessive Fines Clause is ripe for consideration in the age of mass incarceration. Impoverished Americans often lack the resources to pay off the fines and fees that can come from even a casual brush with the criminal-justice system. In a cruel twist, the inability to pay these costs can result in jail time itself. Keeping oneself out of trouble is also no guarantee of immunity: A 2014 Washington Post investigation, for example, found that police in multiple states use “highway interdiction” to target thousands of motorists for seizures of cash and property....

Civil-asset forfeiture, though still common, has come under increasing scrutiny across the political spectrum. Attorney General Jeff Sessions’s push last year to revive the practice at the federal level drew harsh rebukes from the ACLU and congressional Republicans alike. Justice Clarence Thomas set off a signal flare of sorts last April suggesting he had doubts about the practice’s constitutionality.

The Indiana case revolves around different legal questions that the ones Thomas was asking last year, but the underlying injustices are the same. Taking up the issue would give the justices a chance to set new limits on excessive fines and forfeitures for cash-hungry counties and cities. For Timbs and thousands of other Americans, that intervention would be a welcome relief.

April 17, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Two notable opinions from SCOTUS on vagueness and habeas review

The US Supreme Court handed down two big opinions this morning that criminal justice fans will want to check out. Here are the basics with links from How Appealing:

Justice Elena Kagan announced the judgment of the Court and delivered the opinion of the Court in large measure in Sessions v. Dimaya, No. 15-1498. Justice Neil M. Gorsuch issued an opinion concurring in part and concurring in the judgment. Chief Justice John G. Roberts, Jr. issued a dissenting opinion, in which Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito, Jr. joined. And Justice Thomas issued a dissenting opinion, in which Justices Kennedy and Alito joined in part.

Justice Stephen G. Breyer delivered the opinion of the Court in Wilson v. Sellers, No. 16-6855.  Justice Gorsuch issued a dissenting opinion, in which Justices Thomas and Alito joined. 

The Dimaya opinion, which runs nearly 100 pages in total, starts this way:

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

The Wilson opinion is much shorter, but its start is much longer:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).  Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons — both legal and factual — why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U.S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U.S. 86, 101–102 (2011).

This is a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. We have affirmed this approach time and again. See, e.g., Porter v. McCollum, 558 U.S. 30, 39–44 (2009) (per curiam); Rompilla v. Beard, 545 U. S. 374, 388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538 (2003).

The issue before us, however, is more difficult.  It concerns how a federal habeas court is to find the state court’s reasons when the relevant state-court decision on the merits, say, a state supreme court decision, does not come accompanied with those reasons.  For instance, the decision may consist of a one-word order, such as “affirmed” or “denied.” What then is the federal habeas court to do?  We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale.  It should then presume that the unexplained decision adopted the same reasoning.  But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

April 17, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

Sunday, April 15, 2018

Interesting intricate ruling from Wyoming Supreme Court about limits on extreme aggregate sentences for juve murderers

For whatever reason, the last few months have brought a number of big notable opinions from an array of courts concerning the reach and application of the Supreme Court's Eighth Amendment jurisprudence limiting severe sentences for juvenile offenders. See examples here and here and here and here from the Third Circuit, the District of Connecticut, and the Iowa Supreme Court and the Georgia Supreme Court. 

The latest (and perhaps longest) such opinion was handed down on Friday by the Wyoming Supreme Court in Davis v. Wyoming, 2018 WY 40 (April 13, 2018) (available here).  The majority opinion in Davis covers an array of substantive and procedural issues, and it start and ending provide a flavor of its work:

In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him.  Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery.  Following the decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), and the Wyoming Legislature’s amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing.  After the hearing, the district court declined to modify his original sentence.  Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing....

We find that the district court abused its discretion by weighing Mr. Davis’ youth as an aggravating instead of mitigating factor; considering the nature of the crime to only a limited extent and failing to consider the participation and potential peer pressure of Mr. Davis’ codefendant; placing undue significance on dated psychological evaluations; concluding that he was not capable of rehabilitation without the benefit of expert testimony concerning Mr. Davis’s potential for rehabilitation, and by considering Mr. Davis’ disciplinary record in prison without taking into account the fact that for the majority of his incarceration he had no hope of release, and without weighing his accomplishments and personal growth while in the penitentiary.  The district court’s failure to consider Mr. Davis’ family and home environment and whether he might have been convicted of a lesser offense but for incompetencies associated with youth, without providing an explanation for omitting analysis of those factors, also constituted an abuse of discretion. Finally, the district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors.  When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment.

Accordingly, we reverse.  At the time of the hearing and the district court’s decision, the parties and the district court did not have the advantage of our rulings concerning the procedure, burdens, and potentially relevant evidence for a Miller determination, contained here.  Consequently, remand for an additional sentencing hearing and resentencing is appropriate.  On remand, the sentencing court should approach the case with the understanding that, more likely than not, life without parole is a disproportionate sentence for Mr. Davis, and it should consider the Miller factors and decide whether he is the truly rare individual mentioned in Miller who is incapable of reform.

The dissent opinion in Davis likewise covers lots of group, but its start spotlights an issue that I suspect will be setting US Supreme Court attention relatively soon:

As I observed in Sam v. State, 2017 WY 98, ¶ 88, 401 P.3d 834, 862 (Wyo. 2017), reh’g denied, and Sen v. State, 2017 WY 30, ¶¶ 36-37, 390 P.3d, 769, 779 (Wyo. 2017) (Sen III), the United States Supreme Court has not prohibited consecutive sentences for juveniles who commit multiple crimes including murder.  The U.S. Supreme Court never found such sentences to be “the functional equivalent of life without parole.”  I continue to disagree with the concept of “de facto life without parole” arising from consecutive sentences for separate crimes.  In my opinion, the U.S. Supreme Court established a process to assure that a juvenile offender’s age, immaturity and potential for improvement are considered in sentencing.  Unfortunately, some courts, including this one, have focused on the result of the sentencing, rather than on the process.

I recognize some states have concluded that Miller, Graham and Montgomery point to a conclusion that lengthy consecutive sentences for juveniles, when aggregated, are the same as a single sentence of life without parole.  Other states have not done so.  I find the better logic supports those states who have not expanded the holdings in Miller, Graham and Montgomery.  Within the past year, Missouri, Colorado and Pennsylvania have all determined that Miller and Montgomery do not apply to the aggregation of consecutive term of years sentences for multiple crimes committed by a defendant under the age of 18.

April 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, April 13, 2018

Prez Donald Trump officially pardons Scooter Libby

Today the White House issued this "Statement from the Press Secretary Regarding the Pardon of I. “Scooter” Lewis Libby." Here is what it says:

Today, President Donald J. Trump issued an Executive Grant of Clemency (Full Pardon) to I. “Scooter” Lewis Libby, former Chief of Staff to Vice President Richard Cheney, for convictions stemming from a 2007 trial. President George W. Bush commuted Mr. Libby’s sentence shortly after his conviction. Mr. Libby, nevertheless, paid a $250,000 fine, performed 400 hours of community service, and served two years of probation.

In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said. The next year, the District of Columbia Court of Appeals unanimously reinstated Mr. Libby to the bar, reauthorizing him to practice law. The Court agreed with the District of Columbia Disciplinary Counsel, who stated that Mr. Libby had presented “credible evidence” in support of his innocence, including evidence that a key prosecution witness had “changed her recollection of the events in question.”

Before his conviction, Mr. Libby had rendered more than a decade of honorable service to the Nation as a public servant at the Department of State, the Department of Defense, and the White House. His record since his conviction is similarly unblemished, and he continues to be held in high regard by his colleagues and peers.

In light of these facts, the President believes Mr. Libby is fully worthy of this pardon. “I don’t know Mr. Libby,” said President Trump, “but for years I have heard that he has been treated unfairly.  Hopefully, this full pardon will help rectify a very sad portion of his life.”

I sure hope that Prez Trump might think to use his pardon powers for lots of other persons that he doesn't know that he may "have heard [were] treated unfairly" by our federal criminal justice system. So far, only a quite unrepresentative sample of four men have gotten clemency relief from this President.

April 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Wednesday, April 11, 2018

Can and will New Mexico carry out two executions even after its repeal of the death penalty?

The question in the title of this post is prompted by this local report on oral arguments before the New Mexico Supreme Court yesterday.  Here are some details:

Even before abolishing the death penalty, New Mexico had executed only one inmate in nearly 50 years. And that person, child-killer Terry Clark, had waived his right to further appeals, clearing the way for his death by lethal injection in 2001.

The rarity of the death penalty in New Mexico emerged as a key point in oral arguments Tuesday as the state Supreme Court wrestled with whether to allow the execution of the state’s only two inmates remaining on death row. Their crimes came before the 2009 repeal, making them still eligible for execution.

Much of Tuesday’s debate was technical, focusing on “proportionality” — whether death for these two inmates would be out of line with the sentences for similar defendants who’d committed similar crimes.

Justice Charles Daniels zeroed in on the question this way: New Mexico, he said, executed 27 people in the first 47 years of statehood, and then only one in a 57-year period after that. And there were certainly people who committed “horrible murders” but escaped the death penalty, he said.

That raises a question, he suggested, about whether the state was “evenhanded” in deciding which people to execute. “Can we really look in the mirror and say we’ve walked the talk and imposed the death penalty consistently in New Mexico?” Daniels asked at one point.

Hanging in the balance are the lives of Robert Fry and Timothy Allen — both convicted of murder, in separate cases. Allen faces a death sentence for strangling a 17-year-old girl, Sandra Phillips, in 1994. He also was convicted of kidnapping and attempted rape. Fry was sentenced to die for the killing of Betty Lee, a mother of five, in 2000. She was hit with a sledgehammer and stabbed.

Their attorneys asked the state Supreme Court on Tuesday to revisit how New Mexico handled death cases from that era, in light of the 2009 repeal.

A 1983 decision by the court outlined how the judiciary should go about determining whether an inmate’s death sentence is disproportionate to the penalties imposed on similar defendants. The justices that year established a narrow view of which cases are similar — requiring that the defendants being compared had been convicted under the same aggravating circumstances.

But the attorneys for Fry and Allen argued for a broader pool of cases for comparison, in which defendants receive life sentences. You could argue that the “universe of cases” ought to include any case where the death penalty could have been sought, but wasn’t, they argued. Furthermore, they said, New Mexico hasn’t properly tracked the handling and circumstances of cases to provide a meaningful way to search for comparable crimes, making the 1983 decision impractical to carry out....

Assistant Attorney General Victoria Wilson urged the Supreme Court to stick with its 1983 decision on comparable cases. State law doesn’t require the kind of data collection the inmates’ attorneys say is necessary, she said. The question before the court, Wilson said, was simply whether the death sentence had been imposed arbitrarily.

April 11, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, April 10, 2018

Federal district judge finds Michigan's elimination of good-time credit in Miller fix unconstitutional

As reported in this local article, a "federal judge has ruled a Michigan law violates the constitution by not allowing juvenile lifers to earn good-time and disciplinary credits while in prison." Here is more: 

Following [the Supreme Court's ruling in Miller], the state put into law the ability to sentence child killers to a number of years with a chance of parole. Because that law does not allow those offenders to earn good-time credits, Goldsmith ruled it is unconstitutional and ordered the state calculate good-time and disciplinary credits for those who have already been re-sentenced under that law within 14 days.

“Today’s ruling is a tremendous victory for fairness in our criminal justice system,” Dan Korobkin, ACLU of Michigan Deputy Legal Director and one of the plaintiffs’ attorneys said in a statement. “Hundreds of youth who were serving unconstitutional life sentences will now benefit from good-time credits they earned in prison for good behavior, credits that were taken away from them by mean-spirited retroactive legislation in 2014.”

There are more than 360 people in the system who were children at the time of their crimes, including four from St. Clair County: Jimmy Porter, Raymond Carp, Michael Hills and Tia Skinner. “Restoring these credits to individuals who earned them will likely save the state millions of dollars, and will give deserving individuals a chance to reunite with their families when they no longer pose a threat to society,” Korobkin said.

The full ruling in Hill v. Snyder, No. 10-cv-14568 (April 9, 2018), is available at this link. Here is how it begins:

The United States Supreme Court has ruled that juveniles convicted of first-degree murder cannot be subject to mandatory life sentences without parole.  Because of their lesser culpability and greater capacity to change, they must be sentenced under a process that gives them an individualized opportunity to present mitigating circumstances to avert such a harsh sentence.  In response, the Michigan legislature enacted legislation that purported to comply with the Court’s ruling, which included the possibility of being resentenced to prison for a term of years.  However, the legislature provided that in calculating any such sentence, the youth offenders were not to receive any credit -- known as good time or disciplinary credit -- even though such credits were earned while the youth offenders served their illegally imposed sentences.  In that respect, the legislative response ran afoul of our Constitution’s ban on ex post facto laws -- the constitutional guarantee that laws may not retroactively criminalize conduct or enhance the punishment for criminal acts already perpetrated.  For this reason, the Court must declare that provision of the statute unconstitutional and order that the youth offenders receive the credit that they have previously earned.

April 10, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

Monday, April 09, 2018

Big Third Circuit panel ruling asserts age of retirement should be central to applying Eighth Amendment limits on long juvenile sentences

The Third Circuit today handed down a huge ruling today in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), to address the application of Eighth Amendment limits on juvenile sentences.  The panel opinion runs nearly 50 pages (followed by a 10+ page partial dissent), but these paragraph sets up the context and part of the heart of the opinion (with emphasis in original):

This case presents several difficult challenges for this Court. It calls upon us to decide a novel issue of constitutional law: whether the Eighth Amendment prohibits a term-of-years sentence for the duration of a juvenile homicide offender’s life expectancy (i.e., “de facto LWOP”) when the defendant’s “crimes reflect transient immaturity [and not] . . . irreparable corruption.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Next, if we find that it does, then we must decide what framework will properly effectuate the Supreme Court’s determination that the Eighth Amendment affords nonincorrigible juvenile offenders a right to a meaningful opportunity for release. Furthermore, we must take great pains throughout our discussion to account for the substantive distinction that the Supreme Court has made between incorrigible and non-incorrigible juvenile offenders in order to ensure that the latter is not subjected to “a punishment that the law cannot impose upon [them].” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)).

Our decision today therefore represents an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders....

[W]hat is clear is that society accepts the age of retirement as a transitional life stage where an individual permanently leaves the work force after having contributed to society over the course of his or her working life.  See, e.g., Retirement, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Termination of one’s own employment or career, esp. upon reaching a certain age . . . .”). It is indisputable that retirement is widely acknowledged as an earned inflection point in one’s life, marking the simultaneous end of a career that contributed to society in some capacity and the birth of an opportunity for the retiree to attend to other endeavors in life.

As we stated above, a non-incorrigible juvenile offender is not guaranteed an opportunity to live a meaningful life, and certainly not to a meaningful retirement.  Nevertheless, in order to effectuate the Eighth Amendment’s requirement of meaningful opportunity for release, a juvenile offender that is found to be capable of reform should presumptively be afforded an opportunity for release at some point before the age of retirement.  Cf. Graham, 560 U.S. at 58 (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” (internal quotation marks omitted) (quoting Estelle, 429 U.S. at 102)).  A sentence that preserves the juvenile offender’s opportunity to contribute productively to society inherently provides him or her with “hope” to “reconcil[e] with society” and achieve “fulfillment outside prison walls.” Id. at 79.  It also accounts for the Court’s trepidation that LWOP sentences deprive non-incorrigible juvenile offenders of vocational training opportunities, which presumably otherwise prepare them to become productive members of society’s working class.  See id. at 74.

Accordingly, lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform.  Critically, under all circumstances, lower courts must only consider the uniform national age of retirement.  Otherwise, estimates of retirement ages that account for locality, state, gender, race, wealth or other differentiating characteristics raise similar constitutional concerns to those plagued by reliance on life-expectancy tables alone. Without fixing the age of retirement to a uniform standard, classes of juvenile defendants that retire on average later in life would unreasonably be subjected to longer sentences.  Cf. Mathurin, 868 F.3d at 932 (sentencing juveniles based solely on mortality tables “would unquestionably lead to challenges from defendants from longer-living ethnic groups who would be subject to longer sentences based on that ethnicity”).

Because I am on the road today, I may not be able to review and further comment on this big opinion for some time. But I surmise there is a whole to worth discussing in this opinion, and I hope commentors might share a range of thoughts about it.

April 9, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Guest Post: "Do Two Misdemeanors a Felony Make?"

The question in the title of this post is posed by by North Caroline lawyer Bruce Cunningham to set up his discussion of a notable recent decision from his state's top court.  Bruce was kind enough to write up the following for this blog on the ruling:

Last Friday, the North Carolina Supreme Court flirted with, but unfortunately avoided, one of the most important questions impacting modern criminal sentencing; “What is the nature of a prior conviction?”  Can it be used as an ‘element’ of a substantive criminal offense?”  Or, must its role be confined solely to increasing the level of punishment for a crime, but not the level of the crime itself?”

State v Howell, opinion here, involved a conviction for possessing marijuana, a Class 1 Misdemeanor, which carries up to 4 months in jail.  Because the defendant had previously been convicted of the same offense, the Defendant faced being “punished as a Class 1 Felony.” The prosecutor also charged the Def. with being an habitual felon, under the N.C. three strike law.

As a result Howell was sentenced to 29 to 36 months in prison, which was suspended for 36 months on probation.  So, Howell’s conduct on the day of the offense exposed him to 4 months in jail, and his prior record earned him the additional 32 months.

The narrow issue presented in Howell related to the “intent of the legislature” concerning whether the phrase “be punished as a class I felony,” is the equivalent of “committed a class I Felony.  The N.C Supreme said it was.  Because the defendant did not argue a federal constitutional claim, the case will go no further, which leaves open the issue of whether the use of prior convictions as elements of crime passes constitutional muster.

During oral argument in United States v Johnson, both Justice Scalia and Justice Stevens questioned if two misdemeanors can make a felony.  Johnson, No 08-6935, Oral argument transcript p. 49 (October 6, 2009).  Justice Scalia inquired, “Have we ever approved that, by the way, kicking a misdemeanor up to the felony category simply because of recidivism?”

It appears that in McDonald v Massachusetts, 180 U.S. 311 (1901) not only did the Court address the question, it answered “No”.  In McDonald, the Court considered whether habitual felon statutes violated double jeopardy, and stated, “The allegation of previous convictions is not a distinct charge of crimes but is necessary to bring the case within the (habitual felon) statute, and goes to the punishment only.”

There are many felonies in N.C. which are charged because a defendant commits the same misdemeanor twice. Felonious Stalking, Breaking into a Coin Machine, Habitual DWI, Habitual Misdemeanor Assault, etc. There may be other states which have similar “recidivist felonies”

Howell said that it is okay to kick up a misdemeanor to a felony if the legislature intended the elevation of the second misdemeanor.  Justice Scalia’s question of whether the notion of two misdemeanors making a felony passes constitutional muster, must await another day.

April 9, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, April 08, 2018

Interesting Vermont Supreme Court ruling on sex-offender probation conditions

As reported in this local press article, the "Vermont Supreme Court ruled on Friday that the state cannot uniformly declare pornography off-limits to sex offenders." Here is more from the press report:

The decision does allow a sex offender’s probation to include such restrictions, but only if they are deemed specifically appropriate to the individual offender.  The 18-page decision dealt with the probation conditions of a man convicted of sexual assault in 2012 in Chittenden County....

[Yetha L. Lumumba] appealed several conditions of his probation, including one that prohibited him from “purchasing, possessing or using pornography or erotica and going to adult bookstores, sex shops, and topless bars,” according to court records.  The condition was described at the sentencing hearing as a standard one for sex offenders because pornography is seen as contributing to an increased risk of reoffending

“Vermont’s probation statute makes it clear that a court cannot prohibit a probationer from engaging in lawful behavior unless the prohibition relates to the defendant’s rehabilitation or public safety,” the Supreme Court justices wrote.  “Other courts have persuasively concluded that a sentencing court must provide at least some support on the record for imposing a probation condition restricting a defendant’s use of pornography, even when the defendant was convicted of a sex offense.”

The full ruling in Vermont v. Lumumba, 2018 VT 40 (Vt. April 6, 2018), is available at this link and covers lots of ground and cites a lot of law beyond the Green Mountain state. Here is how the unanimous opinion gets started:

Defendant challenges so-called standard and special sex-offender probation conditions that the trial court imposed following his conviction for sexual assault.  Defendant argues that this Court should strike a number of the standard conditions imposed by the trial court in its written order because the conditions were not orally pronounced during the sentencing hearing and were not sufficiently connected to his crime or rehabilitation.  He also argues that the sex-offender condition prohibiting defendant from purchasing, possessing, or using pornography or erotica and from going to “adult bookstores, sex shops, topless bars, etc.” is unrelated to his offense and unconstitutionally vague.  We conclude that defendant failed to properly preserve his objections to the standard conditions and review them for plain error.  Based on the particular provisions and the State’s concessions, we strike some conditions, remand some conditions, and affirm the remaining conditions.  We strike the challenged special condition as unsupported by the record.

April 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Thursday, April 05, 2018

Supreme Court of Illinois rejects claim that state prohibition on sex offenders in parks is violative of substantive due process

The Supreme Court of Illinois today in Illinois v. Pepitone, 2018 IL 122034 (Ill. April 5, 2018) (available here), overturned a lower court ruling that found a sex offender restriction to violate substantive due process.  Here is how the opinion starts and concludes:

Section 11-9.4-1(b) of the Criminal Code of 2012 provides, “It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). The sole issue in this case is whether that statute is facially violative of substantive due process. The trial court rejected defendant Marc Pepitone’s due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant’s conviction and sentence....

We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.  Avila-Briones and Pollard correctly identified a constitutional nexus.  In Avila-Briones, 2015 IL App (1st) 132221, ¶ 84, the appellate court stated: “[B]y keeping sex offenders who have committed offenses against children away from areas where children are present ***, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend.”  The Avila-Briones court added that whether the statutory scheme covering sex offenders is “a finely tuned response to the threat of sex offender recidivism is not a question for rational-basis review; that is a question for the legislature.” Id.  And in Pollard, 2016 IL App (5th) 130514, ¶ 41, the appellate court concluded, “There is also a direct relationship between the *** presence restrictions of sex offenders and the protection of children.” See Standley v. Town of Woodfin, 661 S.E.2d 728, 731 (N.C. 2008) (upholding a municipal ordinance barring registered sex offenders from entering town parks and stating that the town “has a legitimate government interest in desiring to decrease and eliminate sexual crimes in its parks, and prohibiting those most likely to commit criminal sexual acts — persons previously convicted of such conduct — from entering the town’s parks is a rational method of furthering that goal”).  Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process. People v. Jackson, 2017 IL App (3d) 150154, which followed the appellate court’s decision in this case, is overruled to the extent that it also found section 11-9.4-1(b) unconstitutional.

April 5, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13)

Wednesday, April 04, 2018

The intricate realities of the drug war on full display in recent Seventh Circuit ruling on ineffective assistance of counsel in plea negotiations

A helpful reader alerted me to an interesting panel ruling by the Seventh Circuit handed down yesterday in Brock-Miller v. US, No. 16-3050 (7th Cir. April 3, 2018) (available here). The reader rightly noted that this opinion provides a thorough discussion of ineffective assistance of counsel in plea negotiations before ordering the district court to hold a hearing to explore claims of deficient performance by the defendant's lawyer.  I also found remarkable the case's accounting of how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.

Specifically, as the panel opinion explains, LeeAnn Brock-Miller pleaded guilty, "pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute heroin [resulting in] the agreed-upon sentence of ten years’ imprisonment."   What did she do to get this decade-long sentence?  According to the opinion, she was driving with three other men (one of whom it seems was her husband) on a highway headed to purchase 54 grams of heroin in Chicago; and according to sentencing testimony: "this car trip was an isolated incident, where she agreed to give the others a ride in exchange for one gram of heroin for herself.  Brock-Miller had an extensive criminal history that corroborated her claim that she did not sell drugs but was an addict who simply bought drugs for personal consumption."

Problematically for Brock-Miller, (1) that lone car trip allowed the Government to claim she was part of a drug conspiracy to traffic more than a kilo of heroin, triggering a possible 10-year mandatory minimum, and (2) she had a prior Indiana conviction for “Unlawful Possession of Syringes or Needles” which the Government claimed was a predicate drug felony under 851 that doubled her potential mandatory minimum term to 20 years in federal prison(!).  With the feds threatening this big hammer, the defendant here understandably was amenable to her defense counsel's advocacy to accept a plea deal that called for "only" a 10-year sentence.

But as the Seventh Circuit goes on to explain, the defendant's prior Indiana conviction was not actually a qualifying predicate to double her applicable mandatory minimum and she had a reasonable trial argument that not foreseeable was the "full kilogram of heroin charged in the indictment [for] someone who joined the conspiracy at the very end, in a deal involving only 54 grams."  In other words, the defendant had a winning legal argument that her mandatory minimum should not have been doubled, and a viable argument that she should not be subject to any mandatory minimum term at all.  Luckily for the defendant, a Seventh Circuit panel helped figure this out and the apparent ineffectiveness of her counsel may allow her to get resentenced in a more fitting way.

But I must conclude by stressing the dark cloud that overwhelms any Brock-Miller silver lining: the very possibility that "an addict who simply bought drugs for personal consumption" could be threatened with a 20-year mandatory minimum federal prison term reveals how dysfunctional and morally bankrupt our federal sentencing laws can be.  And I am quite certain that LeeAnn Brock-Miller is not the first person nor the last person to be chewed up by these laws; indeed, sadly, there are many thousands that have come before her, and likely many thousands still to come.

April 4, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (21)

Tuesday, April 03, 2018

AEDPA accelerant: examining prospects for speedier capital appeals for "opt-in" states

Remarkably, it has been almost a quarter century since Congress reformed federal habeas procedures through the Antiterrorism and Effective Death Penalty Act. But in all that time, a dormant part of AEDPA has been its provisions seeking to enable states a quicker route through federal capital habeas review if they provided adequate counsel for state collateral review. But as highlighted by this lengthy new article, headlined "‘Express lane to death’: Texas seeks approval to speed up death penalty appeals, execute more quickly," this part of AEDPA may have some new life. Here are the basics:

Texas is seeking to speed up executions with a renewed request to "opt in" to a federal law that would shorten the legal process and limit appeals options for death-sentenced prisoners.

Defense attorneys worry it would lead to the execution of innocent people and — if it's applied retroactively, as Texas is requesting — it could end ongoing appeals for a number of death row prisoners and make them eligible for execution dates. "Opt-in would speed up the death penalty treadmill exponentially," said Kathryn Kase, a longtime defense attorney and former executive director of Texas Defender Services.

A spokeswoman for the state's attorney general framed the request to the Justice Department as a necessary way to avoid "stressful delays" and cut down on the "excessive costs" of lengthy federal court proceedings. "Opting-in would serve several purposes for Texans, including sparing crime victims years of unnecessary and stressful delays, ensuring that our state court judgments are respected by federal judges as cases progress, and reducing the excessive costs of lengthy federal court proceedings," said the spokeswoman, Kayleigh Lovvorn....

The request — which comes after years of declining executions — has sparked a federal lawsuit and hundreds of pages of comments from a broad coalition of concerned parties including the ACLU, the American Bar Association, Mexico's government, a former federal judge and dozens of defense attorneys.

There's doubt among the defense bar whether Texas actually meets the qualification criteria. Approval is up to Attorney General Jeff Sessions, the nation's top law enforcement officer who recently advocated for capital punishment for drug dealers in some cases. If Sessions gives the green light to the Lone Star State's application, it will be the first opt-in approval in the more than two decades since the law's inception....

The state's hopes for fast-tracking a path to execution date back to at least 1996, when Congress passed the Antiterrorism and Effective Death Penalty Act. Written in the tough-on-crime 1990s and in the aftermath of the 1995 Oklahoma City bombing that killed 168 people, the law set time limits to expedite federal appeals in death penalty cases and gave greater deference to state courts....

But in addition to what is already in place, the law opens the door to creating even tighter deadlines with a special opt-in provision under a section called Chapter 154. In order to qualify for Chapter 154 certification, states have to prove they offered good enough lawyers earlier in the process, during the so-called "state habeas" appeal. If the condemned were all able to get competent, sufficiently paid attorneys with the funds to afford things like investigators and specialists during the state habeas appeal, then the law would permit speeding up the later federal habeas appeal....

The letters submitted to the government early this year were highly critical of Texas' current defense system, calling it "inadequate" and "infected" by "well-publicized failures," pointing out that the state doesn't even guarantee counsel for all types of post-conviction proceedings.

So far no state has qualified. But in November, Sessions fired off letters to Texas and Arizona — two states that previously put in certification requests — and asked if they still wanted to apply. They did.

The states' affirmative responses prompted a required comment period, during which Texas Defender Services and other capital defense organizations produced a 247-page comment — bolstered by more than 100 appendixes — criticizing Texas' application, calling it "little more than a whitewash of the state's persistent historic failures" that includes "no evidence at all." The application itself doesn't explain why the state wants to opt in.

Kent Scheidegger, death penalty supporter and legal director of the Criminal Justice Legal Foundation touted opt-in as a way to speed up the process. "We talk about due process of law — I call this overdue process of law," he said. "The victims' families just get frustrated beyond belief with all this reexamination when in most cases the guy is guilty beyond any doubt. The fact that a federal court overturns the judgment doesn't mean that that's a just result."

Houston-based capital defense attorney Patrick McCann stressed that federal courts are where many condemned men —including those wrongfully convicted like Anthony Graves, and those deemed too intellectually disabled to execute, like Bobby Moore — have gotten relief. "This is a political quest," he said. "It's an appeal to Gov. Abbott's base to make it very proudly explained that we have an express lane to death."...

If Sessions approves it, opting in would include limitations on how long federal courts have to resolve cases, restrictions on judges' abilities to grant stays of execution, and limits on the claims that prisoners can raise in federal habeas proceedings.

But what's sparking the most concern among defense lawyers is a change that would halve the time attorneys have to file the first part of their federal appeal. If Texas opts in, attorneys would have six months instead of a year to interview witnesses, hire investigators and familiarize themselves with sometimes a decade or more of case files to sift out any possible past lawyering mistakes, suspicion of withheld evidence or proof of actual innocence stuffed away in boxes and boxes of materials.

"Doing all that in one year is already extraordinarily difficult, and any further limitations would only exacerbate the existing problem," said Emily Olson-Gault, director of the Death Penalty Representation Project at the American Bar Association. "We know that errors are made in capital cases," she added. "The more that the allotted time to prepare is limited, the greater the risk that serious constitutional errors will stand uncorrected."

And if claims aren't raised in the first filing, they can't always be raised later. "They're valid concerns but you gotta consider the other side of the coin," said Scheidegger "The state and the victims have an interest in seeing these sentences carried out and at present it is taking far too long."

Death penalty lawyer Kenneth McGuire — who is among those suing in federal court in Washington, D.C., to challenge the certification process — called the shorter time frame "completely impractical" and said it would "only guarantee a miscarriage of justice." Attorney James Rytting concurred, adding that sometimes it takes "several months" for the courts to appoint federal habeas lawyers.

April 3, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Monday, April 02, 2018

"Racial Equity in Algorithmic Criminal Justice"

The title of this post is the title of this notable new paper now available via SSRN authored by Aziz Huq. Here is its abstract:

Algorithmic tools for predicting violence and criminality are increasingly used in policing, bail, and sentencing contexts.  Although some attention has been given to their procedural due process implications, how these instruments interact with the enduring and complex racial legacies of the criminal justice system is presently not well understood.

This Article analyzes the questions of racial equity raised by these new predictive instruments using two lenses: constitutional doctrine and emerging technical standards of “algorithmic fairness.”  I demonstrate that constitutional doctrine is poorly adapted to addressing the range of racial issues that potentially arise with algorithmic criminal justice.  Instead, I demonstrate that the difficult questions of racial equity in this domain are best framed and evaluated though certain, but not all, emerging technical standards of algorithmic fairness.

April 2, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

SCOTUS grants cert on yet another ACCA case(!) while Justice Sotomayor is in fine dissenting form on other criminal justice matters

Before taking another two week break from oral arguments, the US Supreme Court this morning issued this order list which included a cert grant on yet another case interpreting the application of the Armed Career Criminal Act. As it does so well, SCOTUSblog already has this case page for the new ACCA case providing this basic accounting:

Stokeling v. United States

Docket No. 17-5554 (opinion below from 11th Circuit)

Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Today's order list is also noteworthy for two lengthy dissents authored by Justice Sotomayor that together take up more than half of the entire order list.  The long one, which has Justice Ginsburg also on board, complains about the Court summarily reversing a Ninth Circuit ruling concerning a police officer's liability for shooting a suspect.  The shorter dissent has her complaining solo about the Court's denial of cert in a Florida capital case.  The closing substantive paragraph and footnote of this dissent struck me as blogworthy:

Therefore, the Florida Supreme Court has (again)[FN4] failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences post-Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges.  This Court can and should intervene in the face of this troubling situation.

[FN4] “Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer.” Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) (“Everything has been said already; but as no one listens, we must always begin again”).

April 2, 2018 in Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, March 30, 2018

US District Judge concludes Miller applies to 18-year-old murderer to find his mandatory LWOP sentence violates the Eighth Amendment

I just saw this fascinating federal ruling handed down yesterday by US District Judge Janet C. Hall, the Chief Judge of the US District Court for the District of Connecticut, in Cruz v. US, No. 11-CV-787 (D. Conn. March 29, 2018) (available here). The ruling runs 50+ pages, so I will need to read it carefully before opining about it at length. But these excerpts from the start art end of the opinion should reveal why it is worth attention:

Cruz turned 18 on December 25, 1993. On May 14, 1994, when Cruz was 18 years and 20 weeks old, Cruz and another member of the Latin Kings, Alexis Antuna, were given a mission by gang leader Richard Morales. See United States v. Diaz, 176 F.3d 52, 84 (2d Cir. 1999). The mission was to kill Arosmo “Rara” Diaz. See id. Carrying out that mission, Cruz and Antuna shot and killed Diaz and his friend, Tyler White, who happened to be with Diaz at the time. See id. Cruz testified at the hearing before this court that he now admits to committing both murders. See Cruz Tr. at 27. He further testified that Antuna informed him at the time that the leaders of the Latin Kings were debating what would happen to him as a result of his attempt to leave the gang. See id. at 19. According to his testimony, Cruz believed that, if he did not carry out the mission, he himself would be killed. See id....

[W]hen the Roper Court drew the line at age 18 in 2005, the Court did not have before it the record of scientific evidence about late adolescence that is now before this court.

Thus, relying on both the scientific evidence and the societal evidence of national consensus, the court concludes that the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.  As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old.

The court therefore holds that Miller applies to 18-year-olds and thus that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole” for offenders who were 18 years old at the time of their crimes.  See Miller, 567 U.S. at 479.  As applied to 18-year-olds as well as to juveniles, “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” See id.  As with Miller, this Ruling does not foreclose a court’s ability to sentence an 18-year-old to life imprisonment without parole, but requires the sentencer to take into account how adolescents, including late adolescents, “are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” See id. at 480.

I think it a near certainty that the feds will appeal this consequential ruling to the Second Circuit and it will be interesting to watch how that court approaches this issue. And, in all likelihood, whatever the outcome in the Second Circuit, a cert petition would follow. So, stay tuned.

March 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, March 27, 2018

SCOTUS day for considering rules for prison sentence modification based on changed guidelines

The US Supreme Court this morning hears oral argument in two cases involving application of 18 U.S.C. §3582(c)(2), which allows a federal judge to modify a federal prison term for a "defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission."  Here are links to the SCOTUSblog case pages and previews for both cases (the second preview I authored):

Hughes v. United States

Koons v. United States

Hundreds, perhaps thousands, of current federal prisoners might have their sentences directly impacted by these cases. Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines suggests that over 750 defendants may have been denied a reduced sentence based on the issue to be considered in Hughes and that nearly 3000 defendants may have been denied a reduced sentence based on the issue to be considered in Koons.  And, as always with criminal justice cases these days, I am especially interested to see if and how the new guy, Justice Gorsuch, approaches and frame the issue under consideration. 

March 27, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, March 26, 2018

High-profile New Jersey case highlights many challenges of sentencing drunk drivers who kill (and appellate review of sentences)

1360879220_amy-locane-bovenizer-lgThis local article, headlined "Former 'Melrose Place' actress to be re-sentenced -- again -- in fatal drunken crash," reports on yet another notable sentencing opinion from a high-profile state sentencing case. Here are the basics from the article, with the full opinion and follow-up thereafter:

Former "Melrose Place" actress Amy Locane who was convicted of killing a 60-year-old woman in a drunken 2010 crash will be re-sentenced -- for the second time. An appellate court ruling issued Friday lambasts the judge's lenient three-year sentence for Locane, calling it "striking."

"We expect our colleagues will agree that the sentence in this case, a hair's breath away from illegal, shocks the conscience," the appellate ruling states.

In August 2016, the state's Appellate Division ruled that the leniency granted by state Superior Court Judge Robert B. Reed in sentencing Locane in the Montgomery Township crash that killed Helene Seeman lacked enough explanation. Locane returned to court for resentencing on Jan. 17, 2017. Reed did not give her any additional jail time, angering the victim's family and leaving prosecutors bewildered.

It appears a three-judge appellate court panel is just as confused. "(Locane) went unpunished for the injuries inflicted upon Seeman, despite the fact she could have easily made alternative arrangements the night of the accident and could have easily avoided driving, was extremely intoxicated, and was engaging in risky maneuvers before the crash," the appellate ruling states. "That is an error we cannot correct."

Locane, who was driving with a blood-alcohol level three times the legal limit during the June 27, 2010, crash, was cleared of the manslaughter charge but found guilty of vehicular homicide and assault by auto.

Locane faced up to 15 years in prison. Reed imposed a sentence that was about a fifth of what she faced under the maximum penalty. He cited the former actress' two small children, including one with Crohn's disease, as a reason for the lenient sentence. Locane was out of prison in two-and-a-half years.

In a sit-down interview with NJ Advance Media in November, Locane said she hadn't touched alcohol since the crash. "I know Judge Reed went out on the limb for me and I'm not going to let him down," she said. "When someone sees the good in you like that and gives you a second chance, you don't want to disappoint them."

But Locane's fate this time around won't be up to Reed. "We are thus compelled to remand this matter for re-sentencing before a different judge," the appellate ruling says.

Locane's attorney, James Wronko, said the comments made by the appellate division about Reed "were simply unwarranted."

"Judge Reed is an excellent judge," he said. "We intend to file with the New Jersey Supreme Court to have them review the matter and then we'll proceed from there." Ironically, Wronko said, Locane was in Steinert High School in Hamilton speaking to students about the dangers of drinking and driving as the appellate court issued its ruling Friday morning.

Hard-core sentencing fans should take some time to check out the full opinion of the New Jersey Superior Court Appellate Division in NJ v. Locane, which runs 43 pages and is available at this link. Though a bit dense with Jersey-specific cites, this Locane opinion remarkably covers in various ways so many intricate issues of modern sentencing policy and practice.

Most fundamentally, this case highlights the challenging balance between offense and offender factors in sentencing, as the appellate court is concluding the trial court wrongfully downgraded the severity of the offense by being unduly moved my the defendant's remorse and rehabilitation. But is also, obviously, raises issue about the discretion of sentencing courts and review of that discretion on appeal. In addition, Sixth Amendment and double jeopardy issues arise in the Locane opinion. So too does the role of concurrent and consecutive sentencing, as well as punishment theory as it relates to sentencing drunk drivers (with a little hint to concerns about race, gender and class).  And the opinion's final paragraph highlights still other matters the opinion engages:

In the beginning of this opinion, we referred to the statements made by the victims during the State's presentation, pursuant to the Crime Victim's Bill of Rights, N.J.S.A. 52:4B36[n]. Their comments dovetailed the sentencing goals embodied in the Code, which in this case were not met. In Liepe, the defendant was sentenced to, in real time, life. In this case, defendant was sentenced to a NERA term of three years. The lack of uniformity is striking and in derogation of the Code.

Put slightly differently, anyone teaching a sentencing class might readily build a number of real interesting exam questions around this case and opinion.

March 26, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Wednesday, March 21, 2018

Highlighting new DAs working on new sentence review efforts to address excessive punishments

This Marshall Project article, headlined "The DAs Who Want to Set the Guilty Free: ‘Sentence review units’ would revisit harsh punishments from the past," spotlights ways prosecutors are now reconsidering past prosecutorial punitiveness.  Here is an excerpt:

None of these conviction review units [created in DA offices] have undertaken the far more ambitious task of examining cases where the conviction might be sound but the punishment doesn’t fit the crime.  That would mean poking into the sentences sought by a previous generation of prosecutors whose reflexive stance, for decades, was often to seek maximum charges carrying hefty terms behind bars.  “It might open the floodgates to reviewing thousands of sentences,” said Steven A. Drizin, a law professor at Northwestern University and an expert on wrongful convictions who said he supports sentence reviews.

Despite the daunting undertaking, the idea is gaining traction.  In Philadelphia, where former civil-rights attorney and public defender Larry Krasner was recently sworn in as district attorney, staffers are making plans for a sentence review program, likely the first of its kind in the country.  Nationally, nearly two dozen newly elected prosecutors are working with an advocacy organization called Fair and Just Prosecution to implement their own sentencing-review procedures in the coming year, said Miriam Krinsky, the group’s executive director and a former longtime federal prosecutor.

Such a massive undertaking is, like many of the ambitions of this new breed of prosecutors, far easier said than done.  Normally, courts allow a prosecutor to seek re-sentencing only in limited circumstances, such as when new evidence arises or when legislators pass a new sentencing law that needs to be applied retroactively.  For example, Maryland in 2016 revised its mandatory minimum sentences, with a clause allowing judges to use those changes to reduce the time that then-current prisoners were serving.  Sometimes, a prisoner can be rewarded with a reduced sentence for cooperating in a police investigation. The compassionate release process also lets corrections agencies and courts reduce sentences retroactively, usually when the prisoner is gravely ill.  But there is no mechanism in many states for requesting a new sentence for a current inmate simply because a newly elected prosecutor says it’s in the best interest of justice....

In Philadelphia, Patricia Cummings, head of the conviction integrity unit, already has a workaround in mind.  She said a group within the DA's office focused on sentencing — which she would likely direct but that still needs staff and funding — could start by looking into first- or second-degree murder cases the office prosecuted in the past.  In Pennsylvania, a conviction on those charges automatically ends in a sentence of life in prison without parole. More than 5,000 of the state’s prisoners are currently serving these sentences, the second-highest number in the nation, and about half are from Philadelphia.  If the unit identifies a case where they believe the facts did not warrant such a harsh sentence, it would ask the trial court to throw out the original conviction and accept a guilty plea on a lesser charge of third-degree murder or manslaughter. Those charges carry much lighter sentences. “We’re still kicking this around,” said Cummings, who previously ran the conviction integrity unit in Dallas....

Another precedent can be found in Seattle, where prosecuting attorney Dan Satterberg has been giving people in prison second chances for the past decade.  He and his staff review old cases in which defendants were banished to life in prison for relatively minor crimes, often under the state’s three-strikes-you’re-out law.  They then sign onto clemency petitions for some of those prisoners.  Three of the 16 prisoners who were effectively “re-sentenced” this way have committed new crimes since getting released. But, Satterberg said, “there’s no way to avoid that other than to leave everyone in prison forever.”

“I think a prosecutor has a continuing obligation to justice, past the sentencing date,” said Satterberg. “We have to be willing to roll up our sleeves, look through the files of old cases, and really... compare them to our contemporary law and practice.”

Most states don’t have such a robust clemency system that prosecutors can use it as a kind of back-door re-sentencing program.  In Pennsylvania, for example, only eight life sentences have been shortened through commutation since 1995.  State law requires a pardons board to agree unanimously on any such decision. That means the mechanism will have to differ by state, said Krinsky, the head of the prosecutors’ group.  It may even require lobbying efforts to pass new legislation granting DAs the power to file a special motion for amending a sentence.

I am very pleased to hear of these developments, though I cannot resist noting that I urged them nearly a decade ago in at a symposium about prosecutorial discretion at Temple School of Law.  A reprinting of my remarks appear here as Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers, 19 Temp. Pol. & Civ. Rts. L. Rev. 429 (2010). Here is part of what I said back then:

I strongly believe that modem criminal justice systems ought to incorporate formally some type of prosecutor-driven safety valve on the back-end of the system, a straightforward and relatively simple way for prosecutors to be involved in assessing and publicly noting who may be among the [many thousands of] people currently incarcerated in the United States who they now think, after taking the time to take a sound, sober, and sensible second look, can be safely released from prison and returned to freedom.

I suppose I should enjoy being old enough to see some of my old ideas become new again.

March 21, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, March 20, 2018

SCOTUS, by 5-4 vote, stays Missouri execution

As reported here by Amy Howe at SCOTUSblog, "over the objection of four justices, the Supreme Court tonight blocked Missouri from executing Russell Bucklew, who was scheduled to die tonight."  Here is more:

Bucklew was convicted for the 1996 murder of Michael Sanders, who was living at the time with Bucklew’s former girlfriend, Stephanie Ray. Bucklew kidnapped and raped Ray, and he wounded a state trooper during the shootout that preceded his capture.

Bucklew argues that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.”  If Bucklew has trouble breathing when the execution begins, he contends, the tumor in his throat could rupture, filling his mouth and airway with blood.  As a result, he tells the justices, his “execution will very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

The U.S. Court of Appeals for the 8th Circuit rejected Bucklew’s challenge to the constitutionality of his execution, holding that he had not shown that his suggested alternative method of execution —  lethal gas —  would significantly reduce the likelihood that he would suffer unnecessarily.

Last week Bucklew filed a petition asking the Supreme Court to review that ruling, which he described as resting on “3 distinct misreadings and dangerous extensions of this Court’s” earlier decisions on lethal injection. The state filed a brief opposing review, and Bucklew has filed his reply, but the case has not yet been scheduled for consideration at one of the justices’ private conferences. Tonight’s order staves off Bucklew’s execution to allow them to consider his petition. If the justices deny the petition, the stay will automatically end and the state can go forward with his execution; if they grant it, the stay will continue until the justices rule on the merits of his case.

I am inclined to speculate that the recent execution difficulties of Alabama and Ohio may have played at least some role in the willingness of swing Justice Anthony Kennedy in joining his colleagues voting for a stay in this case.

March 20, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Monday, March 19, 2018

Justice Sotomayor suggests "reconsideration of other sentencing practices in the life-without-parole context"

I noted in this prior post denial of cert in the closely-watched capital case of Hidalgo v. Arizona, and Justice Breyer's statement respecting the denial of certiorari in Hidalgo was not even the most interesting such statement on this morning's SCOTUS order list.  That honor goes to Justice Sotomayor's statement respecting the denial of certiorari in Campbell v. Ohio, which suggests importing more of the Eighth Amendment's procedural protections for the death penalty to life without parole sentencing. I recommend this four-page statement in full, and here are snippets:

Because of the parallels between a sentence of death and a sentence of life imprisonment without parole, the Court has drawn on certain Eighth Amendment requirements developed in the capital sentencing context to inform the life-without-parole sentencing context....

The “correspondence” between capital punishment andlife sentences, Miller, 567 U. S., at 475, might similarly require reconsideration of other sentencing practices in the life-without-parole context. As relevant here, the Eighth Amendment demands that capital sentencing schemes ensure “measured, consistent application and fairness to the accused,” Eddings v. Oklahoma, 455 U. S. 104, 111 (1982), with the purpose of avoiding “the arbitrary or irrational imposition of the death penalty,” Parker v. Dugger, 498 U. S. 308, 321 (1991). To that aim, “this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency.” Clemons v. Mississippi, 494 U. S. 738, 749 (1990)...

Our Eighth Amendment jurisprudence developed in the capital context calls into question whether a defendant should be condemned to die in prison without an appellate court having passed on whether that determination properly took account of his circumstances, was imposed as a result of bias, or was otherwise imposed in a “freakish manner.”  And our jurisprudence questions whether it is permissible that Campbell must now spend the rest of his days in prison without ever having had the opportunity to challenge why his trial judge chose the irrevocability of life without parole overthe hope of freedom after 20, 25, or 30 years.

March 19, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Three Justices join Justice Breyer questioning how Arizona's death penalty system operates

Many month ago, as highlighted here, the cert petition in Hidalgo v. Arizona generated considerable attention.  That matter ended today when the petition for a writ of certiorari was denied, along with this lengthy statement by Justice Breyer joined by Justices Ginsburg, Sotomayor and Kagan. I was expecting some Justices to say something really notable after all this build up, by the statement ends this way:

Although, in my view, the Arizona Supreme Court misapplied our precedent, I agree with the Court’s decision today to deny certiorari. In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty.  That evidence is unrebutted. It points to a possible constitutional problem.  And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation. However, in this case, the opportunity to develop the record through an evidentiary hearing was denied. As a result, the record as it has come to us is limited and largely unexamined by experts and the courtsbelow in the first instance. We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors).  Nor has it been fully explained whether and to what extent an empirical study would be relevant to resolving the constitutional question presented.  Capital defendantsmay have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here. And the issue presented in this petition will be better suited for certiorari with such a record.

Meh.

March 19, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, March 11, 2018

"'A Day Late and a Dollar Short': President Obama's Clemency Initiative 2014"

The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN.  Here is its abstract:

Over his last two years in office, President Barack Obama used his Article II Pardon Clause power to commute the sentences imposed on more than 1,700 drug offenders. In a 2017 law review article, he congratulated himself for reinvigorating the federal clemency process. His clemency initiative, however, was hardly the unqualified success that he claims.

Obama waited far too long before undertaking his effort. He should have started it in 2010, rather than in 2014.  That would have allowed the thousands of clemency decisions he made to be handled at a more reasonable pace and probably more accurately.  He also should have issued a general conditional commutation order rather than undertake a case-by-case re-examination of the sentence each clemency applicant received. That would have allowed district court judges, who are far better than any president could be at making sentencing decisions, to resentence each offender.  Finally, he should have reformed the clear structural defect in the federal clemency process.  The Department of Justice controls the clemency application process even though, as the agency that prosecuted every clemency applicant, the department suffers from an actual or apparent conflict of interest.  In sum, Obama could have done far more by doing far less or by doing something far different than by acting as the Resentencer-in-Chief.

March 11, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, March 10, 2018

Iowa Supreme Court issues latest major ruling on juve sentencing limits and process after Miller

As reported in this local article, the "Iowa Supreme Court on Friday offered guidance to judges for interpreting a 2015 law that lays out sentencing guidelines for juveniles convicted of murder."  Here is more from the press report about the latest in a series of rulings following up on the US Supreme Court's juve sentencing jurisprudence:

Some justices also signaled in concurring opinions that they believe rigid sentences for other crimes committed by juveniles should eventually be rolled back.

The court ruled Friday in a murder case in which Rene Zarate stabbed Jorge Ramos to death in 1999, when Zarate was 15.  Zarate, now 34, originally received a mandatory sentence of life without parole, but requested a resentencing hearing after a 2012 U.S. Supreme Court ruling prohibited such sentences for juveniles.  His new sentence makes him eligible for parole after 25 years, with credit for time served.

Zarate challenged his sentence as well as the constitutionality of a 2015 Iowa law that revised how juveniles who commit first-degree murder are sentenced. Under the law, the sentencing judge could choose from a variety of options including life without the possibility of parole, life with parole after a certain amount of the sentence is served, and life with the immediate possibility of parole.  The law further outlined 25 factors for the court to take into consideration when sentencing juveniles for murder.

In 2016, after that law was passed, the Iowa Supreme Court found that life sentences without parole are unconstitutional for juveniles.  But Friday's ruling was the first time the Iowa Supreme Court addressed the new law. A majority of justices said Friday that the guidelines laid out in the law are constitutional — except for the subsection that allowed for life sentences without parole....

They said judges must give juvenile offenders an individualized hearing taking the circumstances of the case into account, and must consider as mitigating factors things such as the offender's age at the time of the crime, family and home environment and the possibility for rehabilitation and change. But the district court judge who re-sentenced Zarate did so based on his belief that anyone that anyone who takes the life of another individual should spend a certain amount of time in prison, according to the opinion joined by four of the seven justices. "The sentencing judge allowed the nature of Zarate’s offense to taint his analysis by imposing a mandatory minimum sentence of imprisonment due to his belief that there should be a minimum term of imprisonment for anyone who commits murder, regardless of their age at the time of the offense," Justice Bruce Zager wrote in the majority opinion....

The court's remaining three justices issued separate concurrences urging the court to go further in striking down mandatory minimums for juveniles as unconstitutional. Justice Brent Appel, who authored the court's earlier opinion against life sentences without parole for juveniles, said it's time to re-examine the constitutionality of all mandatory minimum sentences for minors who commit crimes. "Instead of imposing mandatory minimums through an unreliable judicial guess, the constitutionally sound approach is to abolish mandatory minimum sentences on children and allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record," Appel wrote in his concurrence.

Justice Daryl Hecht, writing a concurrence joined by Justice David Wiggins, wrote that he believes mandatory minimums for juveniles are categorically prohibited by the Iowa Constitution. "Whether imposed by legislative mandate or by a sentencing court, the constitutional infirmity of mandatory minimum sentences for juvenile offenders is the same in my view," Hecht wrote.

The full opinion in Iowa v. Zarate, No. 15-2203 (Iowa Mar. 9, 2018), which rests much of its constitutional analysis on the Iowa Constitution's prohibition against cruel and unusual punishment (rather than the US Constitution's Eighth Amendment), is available at this link.

March 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, March 05, 2018

Spotlighting the modern realities and challenges of geriatric executions

Adam Liptak has this new Sidebar piece in the New York Times headlined "Too Old to Be Executed?  Supreme Court Considers an Aging Death Row." Here is how the piece gets started:

The nation’s death rows are starting to look like geriatric wards. Condemned inmates in many states are more likely to die of natural causes than to be executed.  The rare ones who are put to death often first spend decades behind bars, waiting.

It turns out that executing old men is not easy.  In November, Ohio called off an attempt to execute Alva Campbell, 69, after the execution team could not find a suitable vein into which to pump lethal chemicals.  The state announced that it would try again in June 2019, by which time he would have been 71.

But Mr. Campbell suffered from what one judge called an “extraordinary list of ailments.”  He used a walker, could barely breathe and relied on a colostomy bag.  He was found lifeless in his cell on Saturday, having died in the usual way, without government assistance.

In Alabama last month, state officials called off the execution of Doyle Lee Hamm, 61, also because they could not find a suitable vein. Mr. Hamm has at least two kinds of cancer, cranial and lymphatic, and he may not have long to live with or without the state’s efforts.

Last week, the Supreme Court agreed to hear the case of another Alabama inmate, Vernon Madison, 67, who suffers from dementia and cannot remember the crime that sent him to death row.  The court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.

Prior related posts:

March 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)