Wednesday, May 04, 2016

Ninth Circuit explains why disappearing does not get one out of a plea agreement or a mandatory minimum sentence

A little criminal decision handed down by the Ninth Circuit today brought to my mind the Woody Allen quote that half of life is just showing up.  Specifically, US v. Ornelas, No. 14-50533 (9th Cir. May 4, 2016) (available here), reveals that if you do not show up after signing a plea agreement, you still will get sentenced and be stuck with 100% of the terms of agreement. Here is how the opinion for gets started:

Federal law gives defendants the right to be present at their trials and sentencings unless they voluntarily waive this right. In this case, after signing a plea agreement admitting to drug distribution, but before sentencing, Israel Ornelas disappeared and lost contact with his lawyer.  The district court proceeded with sentencing in absentia and imposed a prison term of 120 months — the mandatory minimum for the charged crimes.

Ornelas was subsequently arrested and now claims the district court’s sentencing without his presence violated both the Federal Rules of Criminal Procedure and the Due Process Clause to the Constitution.  Because we find the district court did not abuse its discretion or violate Ornelas’s constitutional rights by sentencing him in absentia, we enforce the appeal waiver and DISMISS this appeal.

May 4, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

"Should His PTSD Keep Him From Death Row?"

The question in the title of this post is from the second part of the headline of this Mother Jones article.  The first part of the headline explains "An Ex-Marine Killed Two People in Cold Blood," and here is how the piece starts:

At 12:44 p.m. on March 6, 2009, John Thuesen called 911. "120 Walcourt Loop," he told the dispatcher, breathing hard. "Gunshot victims." The dispatcher in College Station, Texas, asked what had happened. "I got mad at my girlfriend and I shot her," he said. "She has sucking chest wounds…"

He'd not only shot Rachel Joiner, 21, but also her older brother Travis.  Thuesen had broken into the house after midnight, not sure what he'd do but wanting to see his estranged girlfriend.  She was out with her ex-boyfriend, but when she returned later that morning, things "got out of hand."  Thuesen, a 25-year-old former Marine reservist, called 911 and almost immediately expressed remorse.  When he was arrested, he repeatedly asked the police about the victims and tried to explain why he'd kept shooting Rachel and her brother: "I felt like I was in like a mode…like training or a game or something."

The prosecution in the case gave its opening statement on May 10, 2010. With DNA evidence and no other suspects, it only took prosecutors three days to make their case.  Over the next week, the defense team touched on the facts that Thuesen suffered from depression and post-traumatic stress disorder (PTSD) from his service in Iraq, but pleaded for leniency in his sentence. None of that swayed the jury: On May 28, 2010, he was sentenced to death.

While on death row, Thuesen was given new lawyers, death penalty experts from the state's Office of Capital and Forensic Writs.  In Texas, there are often two trials, one to determine guilt or innocence and the second to determine sentencing.  Lawyers argued in their 2012 petition to have both the death penalty and the conviction vacated, and for a new sentencing trial, arguing that if his lawyers had served him adequately, "John Thuesen would not be on death row today, awaiting an execution date." In July 2015, Judge Travis Bryan III — the same judge who had presided over the criminal trial — agreed, and ruled that Thuesen's lawyers hadn't adequately explained the significance of his PTSD to jurors, and how it had factored into his actions on the day of the murders.  Bryan also ruled that Thuesen's PTSD wasn't properly treated by the Veterans Health Administration.  He recommended that Thuesen be granted a new punishment-phase trial.  The Texas Court of Criminal Appeals could rule on Bryan's recommendation at any time.

The ruling on his case has implications for a question that has concerned the military, veterans' groups, and death penalty experts: Should service-related PTSD exclude veterans from the death penalty?  An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, according to the Death Penalty Information Center.  But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.

Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion."  Juveniles receive such treatment, as do those with mental disabilities.  In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service."  In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence.  "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.

That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence.  To him, a categorical exclusion would be an "extreme step" that would mean "one factor — always, in every case — necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."

May 4, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, May 03, 2016

Prominent Floridians call for state Supreme Court to reverse all past Florida death sentences

As reported in this AP piece, now with "the fate of hundreds of Florida death row inmates in limbo, a group of former top judges and legal officials called on the state Supreme Court to impose life sentences on nearly 400 people now awaiting execution." Here is more about a notable amicus filing:

The group, which includes three former state Supreme Court justices and two former presidents of the American Bar Association, filed a legal brief Tuesday in a case that could determine the fate of Florida's death penalty.

After the U.S. Supreme Court declared Florida's death sentencing law unconstitutional in January, the state's high court halted two executions and state legislators overhauled the way convicted killers can be sentenced to death.  But the Florida Supreme Court still hasn't decided what should happen to the 389 people on death row under the previous sentencing scheme.  The court is taking the highly unusual step of this week of holding a second hearing before issuing a ruling — a sign that the seven-member court could be deeply divided.

The court said it wanted to hear from attorneys representing death row inmate Timothy Lee Hurst and the state on what affect the new sentencing law will have on his case....  In March, Gov. Rick Scott signed into law a new sentencing process for those convicted of murder.  The new law requires at least 10 out of 12 jurors recommend execution for it to be carried out.  Florida previously required that a majority of jurors recommend the death sentence. It remains one of only a handful of states that does not require a unanimous jury decision.  The new law also requires prosecutors to spell out, before a murder trial begins, the reasons why a death sentence should be imposed, and requires the jury to decide unanimously if there is at least one reason, or aggravating factor, that justifies it.

The decision to hold a second hearing in Hurst's case prompted three former state justices — Harry Lee Anstead, Gerald Kogan and former U.S. District Judge Rosemary Barkett — to join with two former heads of the bar association and an organization representing defense attorneys to argue that an existing state law requires those now on death row to have their sentences reduced to life in prison.

The state has objected and argued the U.S. Supreme Court ruling is not retroactive.

The full amicus brief referenced in this piece is available at this link, and here is its key heading:

Because the United States Supreme Court held Florida’s death penalty unconstitutional in Hurst v. Florida, section 775.082(2) of the Florida statutes requires that all persons previously sentenced to death for a capital felony be resentenced to life imprisonment without the possibility of parole.

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Eighth Circuit panel (sort of) finds severe erroneous career-offender sentence substantively unreasonable

A helpful reader alerted me to a notable Eighth Circuit panel ruling today in US v. Martinez, No 15-1004 (8th Cir. May 3, 2016) (available here). Here is how the majority opinion gets started and a few notable substantive statements:

Fernando Martinez pled guilty to possession of fifty grams or more of methamphetamine with the intent to distribute. The district court found Martinez to be a career offender based in part on the residual clause of § 4B1.2(a)(2) of the United States Sentencing Guidelines (U.S.S.G.) and sentenced him to 262 months' imprisonment.  It indicated, alternatively, it would sentence Martinez as a career offender even if he was not a career offender.  Martinez appeals, arguing he is not a career offender and his sentence is substantively unreasonable.

The government concedes Martinez is no longer a career offender under the guidelines following the United States Supreme Court's decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 2557 (2015), but asserts no remand is necessary because the district court imposed a reasonable alternative sentence that renders any error harmless. Because we conclude otherwise — that the district court's alternative sentence is substantively unreasonable — we reverse and remand for resentencing....

We infer from [a sentencing] statement that the district court believed the escape conviction was a crime of violence — and Martinez was a career offender — whether the guidelines classified it as a crime of violence or not.  In other words, the district court sentenced Martinez to an additional nine years because, as a nineteen-year-old, Martinez threw an elbow at a police officer without striking the officer and ran from police for a short distance.  This severe variance is unreasonable.

The district court's other justifications do not support the degree of the upward variance either.  First, Martinez's convictions do not warrant such a severe upward variance.  Martinez's two convictions undoubtedly demonstrate serious, violent behavior, but the guideline range already accounted for these prior convictions, each of which received three criminal history points....

Second, the evidence the government presented relating to Martinez's gang ties does not justify a nine-year upward variance either.  The government presented evidence Martinez appeared in music videos along with other members of the East Side Locos prior to his incarceration.  He also appeared with other East Side Locos gang members in photographs.  While these photos and videosshow Martinez's gang ties, they do not depict Martinez actively engaging in any violent behavior.  And, more importantly, they do not depict such egregious, violent behavior that they warrant the substantial upward variance the district court imposed.

May 3, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Some Dostoevsky-inspired insights on the death penalty delay canard

It is sometimes hard to find an academic eager to lambast death penalty abolitionists for even their weaker arguments, so I was somewhat surprised to see this new commentary by Noah Feldman titled "Delaying Execution Isn't Cruel and Unusual." Here are excerpts:

Following a view he has held since the 1990s, [Justice] Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.  The claim that death delayed is worse than death itself is a particularly shocking one because it's the converse of arguing that taking a human life before its natural endpoint is fundamentally immoral.  Instead, the view asserts that death must be administered quickly after sentencing to avoid the convicted person living on many years in prison -- even if that person wants to live as long as possible.

Make no mistake: in every case where an inmate has been on death row for many years, it’s by choice. In the case considered Monday, the defendant had been on death row for 32 years.  That’s the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts.  A defendant who wants to die can skip the appeals, like Timothy McVeigh, the Oklahoma City bomber, who waived his appeals and was executed expeditiously.

The judges who hear capital appeals understand all this perfectly well.  They could put death penalty cases on the top of the docket.  But they don’t, at least in part because they know that every day of delay is another day of life for the defendant.  It’s one of the persistent facts about the death penalty that almost every person who is sentenced to die chooses to fight the sentence.

In theory, it's easy to say you’d rather be executed than spend your life in prison.  That sentiment is a stock line in television and film.  And I confess that I share it – or at least I think I do.  But no matter how powerful the thought, the empirical evidence suggests that, when push comes to shove, the human instinct to live another day is overwhelming. That’s why so-called “volunteers” such as McVeigh are vanishingly rare in our legal system....

So in what sense could it be cruel and unusual not to execute someone over a long period of time while his appeals are pending?  The answer has to be that the long-term prospect of death is itself a kind of torture, worse than the experience of contemplating your own execution in the immediate future.

That insight seems to follow from our imagined scene of the prisoner in his cell awaiting execution, like a character out of Dostoevsky.  The trauma and psychological pain of contemplating one’s imminent mortality seem bad enough. Imagine if that same trauma and pain were repeated for 32 years. In these terms, the delay could be seen as an unconscionable form of quasi-permanent torture.

But the reality must surely be otherwise.  A prisoner on death row doesn’t actually expect to be executed every day that he is there. Yes, courts often set execution dates.  But they do so in the full knowledge that those dates will probably be deferred.

From the perspective of the prisoner, the mere setting of the date is no doubt terribly upsetting.  But over time, even the most sensitive prisoner would surely get used to the repetitive structure of sentencing date followed by delay.  To cite Dostoevsky again, if imprecisely: “Man can get used to anything -- the brute!”

It emerges, I think, that the so-called Lackey claim to which Breyer is still devoted is psychologically unconvincing.  To live every day in the knowledge that eventually one will die is in fact the universal human condition.  Many of us will die in the next 32 years.  And none of us knows exactly on what day that will occur.

Those who oppose the death penalty on moral grounds have plenty of strong arguments on their side.  They don’t need this one, which in fact undercuts their claims about the inherent value of every day of human life.  The remedy for death delayed, after all, can only be death itself.

Prior recent related post:

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Monday, May 02, 2016

Digging deeply into Virginia's crowded prisons and parole paractices

A local public radio station in Virginia now has available at this link a detailed look as corrections practices in the state.  The umbrella title for all the coverage is "Crowded Prisons, Rare Parole: A Five Part Series," and here are the subheadings and introductions for each part of the series:

May 2, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

At SCOTUS, "age-old principes of conspiracy law" produces brand new division of Justices

More than six months after oral argument, the Supreme Court this morning finally released its opinion in Ocasio v. United States, No. 14-361 (S. Ct. May 2, 2016) (available here), which concerns the application of a federal conspiracy law surrounding extortion. Justice Alito wrote the opinion for the Court, and here is how it gets started:

Petitioner Samuel Ocasio, a former officer in the Baltimore Police Department, participated in a kickback scheme with the owners of a local auto repair shop.  When petitioner and other Baltimore officers reported to the scene of an auto accident, they persuaded the owners of damaged cars to have their vehicles towed to the repair shop, and in exchange for this service the officers received payments from the shopowners.  Petitioner was convicted of obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. He now challenges his conspiracy conviction, contending that, as a matter of law, he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. We reject this argument because it is contrary to age-old principles of conspiracy law.

Few should be surprised that Justice Alito in Ocasio was not moved by a criminal defendant's effort to make more challenging pursuit of a conspiracy charge (a type of crime Judge Learned Hand famously describes as the "darling of the modern prosecutor's nursery").  But I was certainly surprised with how the votes of the other seven Justices broke down:

ALITO, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.

Because I do not spend all that much time thinking about either extortion or conspiracy, I doubt I will have much more to say about Ocasio. But I would be grateful to hear from readers in the comments as to whether they think this opinion was worth the wait and/or whether the unusual divides of the Justices has a possible significance beyond this one case.

May 2, 2016 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Justice Breyer dissents alone(!) in California capital case concerning long delays before execution

At the end of this morning's Supreme Court order list, Justice Breyer has a brief two-page dissent from the Court's decision to deny certiorari review in a capital case in which "Richard Boyer [who] was initially sentenced to death 32 years ago" requested that the Justices "consider whether the Eighth Amendment allows a State to keep a prisoner incarcerated under threat of execution for so long."  Here is part of what Justice Breyer has to say:

These delays are the result of a system that the California Commission on the Fair Administration of Justice (Commission), an arm of the State of California, see Cal. S. Res. 44 (2004), has labeled “dysfunctional.” Report and Recommendations on the Administration of the Death Penalty in California 6 (2008)....  It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the State.  Indeed, only a small, apparently random set of death row inmates had been executed. See ibid. A vast and growing majority remained incarcerated, like Boyer, on death row under a threat of execution for ever longer periods of time....

Put simply, California’s costly “administration of the death penalty” likely embodies “three fundamental defects” about which I have previously written: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”  Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 2); see Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); see also Valle v. Florida, 564 U. S. 1067 (2011) (BREYER, J., dissenting from denial of stay); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari). 

Notably, not a single other Justice joined this dissent, not even Justice Ginsburg who was along for ride a little less than a year ago when Justice Breyer wrote his anti-death penalty magnum opus dissent in Glossip.  That reality reinforces my belief that death penalty abolitionists should not be especially hopeful that a majority of Justices will find capital punishment per se unconstitutional anytime soon.

May 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, April 30, 2016

"Why Vague Sentencing Guidelines Violate the Due Process Clause"

The title of this post is the title of this new article by Kelsey Heilman now available via SSRN. Here is the abstract:

The United States Sentencing Guidelines are the mandatory starting point and the lodestone for the sentences of 75,000 federal defendants each year.  Though advisory after the 2005 Supreme Court decision in United States v. Booker, the Guidelines continue to exert tremendous influence over federal sentencing practice.  Last term, in Johnson v. United States, the Supreme Court struck down as unconstitutionally vague a sentencing provision of the Armed Career Criminals Act.  In the ensuing year, a circuit split developed regarding whether that decision dooms a textually identical provision of the Guidelines, with some courts holding advisory sentencing guidelines are completely immune from due process challenges.  In this Article, I argue the Guidelines violate the Due Process Clause of the United States Constitution if they are so vague they deny fair notice to defendants and invite arbitrary enforcement by judges.

April 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (3)

Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation

The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision.  Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:

Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”

“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.

The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.

April 30, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Thursday, April 28, 2016

"Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"

The title of this post is the title of a US Senate Judiciary Committee press conference that took place this afternoon and can be watched at this link (though you need for fast-forward to about the 11:45 mark of the recorded video).  This Reuters article provides these highlights:

A revised criminal justice reform bill moved closer to a full U.S. Senate vote on Thursday when it gained support from more Republicans after being stalled for months in Congress.

In a legacy-shaping issue for President Barack Obama, the measure's sponsors announced four new Republican co-sponsor senators and a new version of the bill at a press conference in the Senate. The measure now has 37 co-sponsors, according to Senate Judiciary Committee Chairman Charles Grassley. Grassley said he had been waiting for the bill to be finalized before asking Senate Majority Leader Mitch McConnell to bring it up for a full Senate vote, but that "it is time for those discussions to start right now."

As revised, it still lowers mandatory minimum sentences for some non-violent federal drug offenders, but it no longer applies to anyone convicted of a serious violent felony. That change was a response to conservative critics of the bill, which is central to Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding. That effort has been a rare example of Republican and Democratic agreement in the polarized Congress.

The bill's advocates have said they hope the revisions and new co-sponsors, such as Republican senators Mark Kirk of Illinois and Steve Daines of Montana, will convince McConnell to bring up the bill for a Senate vote.  Daines and Kirk lent their support after adding minor requirements, including a provision that savings from it go toward purposes such as fighting gangs of national significance.

After a group of conservative Republican senators led by Tom Cotton of Arkansas claimed in January the reforms would release violent felons, the bill’s authors began excising parts of the proposal that eased the sentences of violent criminals. The bill now includes a new mandatory minimum sentence for crimes involving the opiate fentanyl, mirroring parallel sentencing reforms that await a floor vote in the U.S. House of Representatives.

The House legislation is likely to contain changes to "mens rea" laws that govern criminal intent, said Senator John Cornyn, a sponsor of the Senate bill, at Thursday's press conference. Mens rea reform was excluded from the Senate measure because its authors were divided on the issue. Democratic lawmakers generally oppose strengthening mens rea requirements on the grounds it would enable more corporate malfeasance as it is difficult to prove the "intent" of a corporation.

To exclude violent criminals from the Senate bill, the authors removed a section that lowered minimum sentences for unlawful gun owners with three prior convictions for violent felonies or serious drug offenses, known as “armed career criminals.” Such criminals represent nearly a fifth of the 12,908 current inmates who would have been eligible for resentencing under the old bill, according to the U.S. Sentencing Commission.

The folks at FAMM have this press release responding to this news, headlined "Strengthen, Don’t Weaken, Sentencing Reforms," which includes this quote from FAMM leader Julie Stewart:

“It’s hard not to get caught up in the enthusiasm of having a tenacious group of bipartisan Senators seek sentencing reform. However, this bill was very modest to begin with, and Congress should be strengthening it, not weakening it. In the last several days, Oklahoma, Maryland, and Iowa lawmakers have passed bold reforms that reduce or eliminate mandatory minimum drug sentences. Congress should be following that example, capitalizing on public support for sentencing reform and passing significant reform that will seriously impact who goes to prison and for how long."

The folks at the Brennan Center have this press release headlined "Senate Should Swiftly Pass Revised Sentencing Bill."

These developments make me somewhat more optimistic that a big sentencing reform bill will get to Prez Obama's desk in the next few months, but I am still not quite ready to say enactment of such reforms are now probable.

A few 2016 related posts:

April 28, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, April 27, 2016

Reviewing the final SCOTUS oral argument week that was full of criminal justice issues

As noted in this post last week, three of the final five cases that the Justice were scheduled to hear during this last week of the Term's oral arguments involved criminal justice issue.  The highest-profile and perhaps most consequential of these cases was argued today  concerning the public corruption verdict against former Virginia Gov Bob McDonnell.  Thanks to the always great folks at SCOTUSblog, I can link here to two posts about the McDonnell and to single post on the two other cases heard yesterday:

April 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel

A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent.  Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively. 

What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals:

Indiana appellate courts are authorized to independently “review and revise” sentences.  Ind. Const. Art. 7, § 4; Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011).  This authority is implemented through Indiana Appellate Rule 7(B), which provides that the appellate court may revise a sentence if after due consideration of the trial court’s decision the appellate court finds the sentence is inappropriate in light of the nature of the offense and the character of the offender.  Pierce, 949 N.E.2d at 352.  As Miller shows in his brief, Indiana appellate courts have not hesitated to use this authority; he cites no less than 11 cases in which Indiana appellate courts shortened sentences in similar cases.[FN 2]

[FN 2] Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (revising 124 year sentence on four counts of child molestation to 80 years); Sanchez v. State, 938 N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts of child molestation to 40 years); Harris v. State, 897 N.E.2d 927 (Ind. 2008) (revising consecutive sentences of 50 years on two counts of child molesting to concurrent); Smith v. State, 889 N.E.2d 261 (Ind. 2008) (revising four consecutive sentences of 30 years each, a total of 120 years, to a total of 60 years); Monroe v. State, 886 N.E.2d 578 (Ind. 2008) (reducing sentence of 100 years to 50 years); Estes v. State, 827 N.E.2d 27 (Ind. 2005) (revising sentence of 267 years on 14 counts of child molesting and sexual misconduct with a minor to 120 years); Serino v. State, 798 N.E.2d 852 (Ind. 2003) (revising sentence of 385 years on 26 counts of child molestation to 90 years); Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (revising consecutive sentences of 40 years on three counts, a total of 120 years, to 80 years total); Ortiz v. State, 766 N.E.2d 370 (Ind. 2002) (revising 30 year consecutive sentences on child molesting counts to run concurrently); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190 year sentence for child molesting and related offenses to 150 years); Walker v. State, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences of 40 years on two counts of child molesting to be concurrent).

April 27, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, April 25, 2016

Notable dissent from Eighth Circuit panel ruling affirming re-imposed stat-max 10-year sentence for possessing unregistered sawed-off shotgun

A helpful reader alerted me to an intriguing ruling by a split Eighth Circuit panel today in US v. Webster, No. 15-3020 (8th Cir. April 25, 2016) (available here). Here is the key substantive paragraph from the majority per curiam ruling in Webster:

Webster’s challenge to the substantive reasonableness of his sentence is reviewed under a deferential abuse-of-discretion standard.  See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).  As Webster notes, the district court imposed the same sentence on remand as Webster received in the first sentencing, and this court identified in the first appeal several mitigating sentencing factors that indicated a reasonable probability Webster would have received a shorter sentence but for the sentencing error.  See Webster, 788 F.3d at 893.  However, the fact that this court “‘might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.’”  Feemster, 572 F.3d at 462 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).  While “substantive review exists, in substantial part, to correct sentences that are based on unreasonable weighing decisions,” United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011) (quotation omitted), this court “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”  Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51).  In reimposing the 120-month sentence, the district court commented in part that the Guidelines did not adequately take into account the seriousness of the offense: Webster had discharged the subject firearm into a fleeing vehicle, narrowly missing the driver.  See U.S.S.G. § 5K2.6 (stating that court may depart if weapon was used in commission of offense; extent of increase depends on dangerousness of weapon, manner it was used, and extent its use endangered others; discharge of firearm may warrant “substantial sentence increase”).  In short, after careful review, this court cannot say that this is the “unusual case” where the district court’s sentence will be reversed as substantively unreasonable.  See Feemster, 572 F.3d at 464.

Judge Bright's dissent from this decision by the majority is what really makes Webster worth a full read by sentencing fans. Here are excerpts that provide a taste for why (with emphasis in the original and some cites omitted):

[O]ur reversal on the basis of substantive unreasonableness is often left to a district court’s decision to vary below the Guideline range.  Rarely, if ever, do we hold sentences above the Guideline range substantively unreasonable.  The pattern of failing to reverse above-Guideline sentences on the basis of substantive unreasonableness perpetuates our broken sentencing system.

As discussed by Former Attorney General Eric Holder, the problem with the federal sentencing system is the “outsized, unnecessarily large prison population.” See Eric Holder, Attorney Gen. of the U.S., U.S. Dep’t of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech- 130812 .html. As the Attorney General stated, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id.  Our sentencing policy has also resulted in “harsher punishments” for “people of color” throughout the United States.  Id. The White House recently highlighted the “decades of overly punitive sentencing policies” through the commutation of numerous prison terms....

Webster is an African-American man with a high school education.  At the time of the offense, Webster had no employment record and came from a broken home. In spite of his adverse life circumstances, Webster has a limited criminal record with the lowest category criminal history score.  At the resentencing hearing, Webster also informed the district court of his completion of a 14-hour drug treatment program, and attendance at both anger management and victim impact classes.  (Resent’g Tr. 11- 12). Thus,  in the year between Webster’s original sentence and the resentencing hearing, Webster showed the ability for successful rehabilitation....

Further, Webster was 20-years-old at the time of the offense. Since 2005, the Supreme Court, has consistently held young people are most likely to change during a period of incarceration. In fact, psychological research indicates the human brain does not reach its ultimate stage of development until adolescents reach their mid-twenties....

Based on the current move in this country to shorten federal sentences, coupled with Webster’s age [20], criminal history, education level, remorse, and efforts to rehabilitate himself, the district court’s punishment may well be excessive “under the totality of the circumstances in this case, judged in light of all of the § 3553(a) factors.” Kane, 639 F.3d at 1136.  Therefore, I would vacate Webster’s sentence and remand for reconsideration consistent with this opinion.

April 25, 2016 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (17)

SCOTUS grants cert on two new criminal cases

The Supreme Court, as previewed here, is wrapping up the oral arguments of its current Term with a considerable amount of criminal law work.  And today, via this new order list, the Justices took up two new criminal law cases for its docket next Term.  Here are the cases and the issues via SCOTUSblog for the two cases taked up by the Justices today:

Manrique v. United States

Issue: Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award.

Shaw v. United States

Issue: Whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argued here.

April 25, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, April 22, 2016

Split Kansas Supreme Court, reversing itself in real time, ultimately decides that state's lifetime sex offender registration law is constitutional

In a significant ruling today in the Supreme Court of Kansas, the Court splitting 4-3 upheld the state's sex offender registration laws via an opinion in Kansas v. Petersen-Beard, No. 108,061 (Kansas April 22, 2016) (available here). This opinion has one of the strangest first paragraphs you will ever read:

Henry Petersen-Beard challenges his sentence to lifetime post-release registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).

This local article, headlined "Sex offenders win and lose in unusual rulings by the Kansas Supreme Court," explains how the court issued three rulings on these matters today and then overruled those via its final ruling in Petersen-Beard:

In an apparently unprecedented series of rulings, the Kansas Supreme Court on Friday overruled three of its own Friday opinions regarding state sex offender registration laws. In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect. But then in a fourth opinion also released Friday, the court found that those rulings were incorrect. The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.

The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions.

But for the fourth case, that district judge was replaced by the newest Supreme Court justice, Caleb Stegall.  That case was also decided 4-3, with Stegall casting the deciding vote. The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.

The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders does not violate federal and Kansas constitutional protections against cruel and unusual punishment.

In the three other cases, the court ruled that offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took affect after they committed their crimes. But those rulings apparently apply only to those three offenders. Others will be governed by the fourth ruling Friday.

April 22, 2016 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!

Virginia today is surely a state for lovers of voting rights in light of this remarkable news via the New York Times: "Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing his Republican-run Legislature."  Here is more:

The action overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans. The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.

Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons.

In Kentucky, Gov. Matt Bevin, a newly elected Republican, recently overturned an order enacted by his Democratic predecessor that was similar to the one Mr. McAuliffe signed Friday. In Maryland, Gov. Larry Hogan, a Republican, vetoed a measure to restore voting rights to convicted felons, but Democrats in the state legislature overrode him in February; an estimated 44,000 former prisoners who are on probation are now eligible to register to vote as a result.

“There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans — we should remedy it,” Mr. McAuliffe said Thursday, previewing the announcement he made on the steps of Virginia’s Capitol, just yards from where President Abraham Lincoln once addressed freed slaves. “We should do it as soon as we possibly can.”

The action, which Mr. McAuliffe said was justified under an expansive legal interpretation of his executive clemency authority, goes far beyond what other governors have done, experts say, and will almost certainly provoke a backlash from Virginia Republicans, who have resisted measures to expand felons’ voting rights. It was planned in secrecy, and came amid an intensifying national debate over race, voting and the criminal justice system. There is no way to know how many of the newly eligible voters in Virginia will register, but Mr. McAuliffe said he would encourage all to do so. “My message is going to be that I have now done my part,” he said.

The Republican Party of Virginia quickly issued a statement accusing Mr. McAuliffe of “political opportunism” and “a transparent effort to win votes.”

“Those who have paid their debts to society should be allowed full participation in society,” said the statement, issued by the party chairman, John Whitbeck. “But there are limits.” He said the governor was wrong to issue a blanket restoration of rights, even to those who “committed heinous acts of violence.”

Only two states — Maine and Vermont — have no voting restrictions on felons. Of the remaining 48, 12 states disenfranchise felons after they have completed probation or parole, said Marc Mauer, executive director of the Sentencing Project, a Washington policy organization that advocates restoring felons’ voting rights. Virginia is one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions. The Sentencing Project says one in five African-Americans in Virginia is disenfranchised....

Mr. Mauer called Mr. McAuliffe’s decision a stunning development, and one that will have lasting consequences because it will remain in effect at least until January 2018, when Mr. McAuliffe leaves office. It covers those convicted of violent crimes, including murder and rape. “This will be the single most significant action on disenfranchisement that we’ve ever seen from a governor,” Mr. Mauer said, “and it’s noteworthy that it’s coming in the middle of this term, not the day before he leaves office. So there may be some political heat but clearly he’s willing to take that on, which is quite admirable.”

Advocates who have been working with the governor say they are planning to fan out into Richmond communities Friday afternoon to start registering people. Until now in Virginia, felons were allowed to apply to have their voting rights restored, but the process could be cumbersome and those who have committed violent crimes faced a waiting period. That will be eliminated by Mr. McAuliffe’s action. “That is a huge deal,” said Tram Nguyen, an executive director of the New Virginia Majority, an advocacy group. “We talk about needing to raise up your voice so that we can impact policy makers, and these people are saying to us, ‘We don’t have a voice, no one is going to listen to us, we don’t even have our right to vote.’ ”

Experts say that with the stroke of his pen, Mr. McAuliffe has allowed convicted felons to begin registering to vote, and that their voting rights cannot be revoked — even if a new governor rescinds the order. But the move could expose the governor to accusations that he is playing politics; he is a longtime friend of — and top fund-raiser for — Hillary Clinton, the likely Democratic nominee for president, and former President Bill Clinton....

The order builds on steps the governor has previously taken to restore voting rights to 18,000 Virginians since the beginning of his term, and he said he believed his authority to issue the decision was “ironclad.” Professor A. E. Dick Howard of the University of Virginia School of Law, who was the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once. “I’m assuming that the complaint will be that he has to act one pardon at a time, one person at a time, that he’s not permitted to act wholesale,” Professor Howard said. “I think the language of the Constitution and the theory of the pardoning power all point to the same conclusion — that he can.”

Virginia’s Constitution has prohibited felons from voting since the Civil War; the restrictions were expanded in 1902, as part of a package that included poll taxes and literacy tests. In researching the provisions, advisers to the governor turned up a 1906 report quoting Carter Glass, a Virginia state senator (and later, a member of Congress who was an author of the 1933 Glass-Steagall Act that regulated banks) as saying they would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

Mr. McAuliffe, who took office in 2014 and campaigned to restore voting rights to felons, said that he viewed disenfranchisement as “a remnant of the poll tax” and that he had been “trying to figure out what more I can possibly do.” He has been working with his legal team for months to live up to his campaign promise. His action Friday will not apply to felons released in the future; the governor’s aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover more people as they are released. “People have served their time and done their probation,” Mr. McAuliffe said. “I want you back in society. I want you feeling good about yourself. I want you voting, getting a job, paying taxes. I’m not giving people their gun rights back and other things like that. I’m merely allowing you to feel good about yourself again, to feel like you are a member of society.”

The official statement and executive order can be found at this link.

As long-time readers may recall, I have long been an advocate for letting even prisoners vote (as noted here), and thus I have long opposed any and all form of felon disenfranchisement. Throw in the fact that there is evidence to suggest that former offenders who vote are less likely to recidivate, and I am quite pleased about what Gov. McAuliffe had the courage (and political savvy) to do here.  Perhaps this action by a sitting Gov not far from the US capital will inspire the President to see what bold useful work can be done through bold use of clemency authority.

April 22, 2016 in Clemency and Pardons, Collateral consequences, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Just how should sentencing law deal with a truly habitual petty criminal?

This morning I came across this recent Huffington Post piece lamenting in its headline a seemingly a very severe application of Louisiana's habitual offender law: "Louisiana Man May Face Life For Shoplifting Snickers Bars: Critics say the case shows how habitual-offender laws can bully small-time crooks into pleading guilty rather than risking the consequences of a trial." To its credit, the HuffPo piece use this latest shoplifting case story to talk more generally about how severe mandatory sentencing laws can functionally place tremendous pressure on a defendant to plead guilty to try to avoid an extreme prison term.

But, rather use this story to reiterate my long-standing disaffinity for severe mandatory sentencing provisions (especially because of the often unchecked power it can place in the hands of prosecutors), I did a bit of digging into the story behind the habitual offender now in big trouble for his candy caper, and what I found prompted the question in the title of this post.  Consider specifically the factual backstory reported in this local piece headlined "Accused New Orleans candy thief, facing 20 years to life, turns down deal for 4 years":

New Orleans shoplifter Jacobia Grimes, facing a possible sentence of 20 years to life for stuffing $31 worth of candy bars into his pockets at a Dollar General store, has rejected a plea offer from District Attorney Leon Cannizzaro’s office that would have seen him serve a four-year sentence as a double offender, his attorney said Friday.

The offer was the same sentence that Grimes agreed to serve when he pleaded guilty in 2010 to swiping socks and trousers in a similar shoplifting attempt. Grimes, 34, did not appear in court for a hearing Friday. He remains jailed on a violation of his $5,000 bond, having tested positive last week for opiates, cocaine, oxycodone and marijuana.

But Criminal District Court Judge Franz Zibilich again suggested to prosecutors and Grimes’ attorneys that they work out a deal for less jail time, followed by probation and drug treatment. Zibilich noted Grimes’ lengthy criminal record, which includes more than a dozen arrests since 2000. Most of the nearly nine years he has spent in prison since 2001 were the result of shoplifting convictions, records show. “I agree he has to pay the consequences, even though it’s candy. I would like to see some sort of split sentence,” Zibilich said.

However, Assistant District Attorney Iain Dover said state law may not allow it, given Grimes’ status as a potential “quad” offender under the state’s habitual offender law. “I can’t see how we get there under the law,” Dover said.

Cannizzaro’s office charged Grimes in a bill of information Feb. 3 under a state statute for theft of goods by someone with multiple convictions for the same thing. His earlier convictions elevated his alleged candy heist, on Dec. 9 at a Dollar General store on South Claiborne Avenue, to a felony. Whether Grimes would face 20 years to life if he’s convicted of the candy theft would be up to Cannizzaro’s office. State laws give prosecutors discretion following a conviction to raise the ante by filing a “multiple bill.”

His case, given the nature of the crime and the possible penalty, has gained wide attention, prompting Cannizzaro to publicly dismiss the notion that he would seek such a heavy sentence for a shoplifter. Dover argued that Grimes’ criminal record shows that slaps on the wrist don’t seem to work. “It’s not the state’s fault. It’s this guy’s fault. He’s had a chance. He’s had the opportunities,” Dover said.

Zibilich suggested that both sides could agree to go below the mandatory minimum prison sentence in a plea deal that includes treatment, so long as nobody challenged it. “Do we have to be married to every single syllable of this book?” he asked of the state’s penal code.

Grimes’ trial is scheduled for May 26. His attorneys, Miles Swanson and Michael Kennedy, have opted to forgo a jury and let Zibilich decide the case.

This only things that seems really obvious to me in this case is that even some extended stints in state prison are not working to help Jacobia Grimes stop being a petty criminal.  Even recognizing that incapacitating this petty criminal via incarceration is likely not especially cost effective for the taxpayers of Louisiana, at this point what other punishment options would you suggest the prosecutor and judge seriously consider under these circumstances?

April 22, 2016 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, April 21, 2016

Reviewing the SCOTUS week that was and the SCOTUS week to come via SCOTUSblog

In this post last Friday, I (not-so) boldly predicted this current week might be a big one at the Supreme Court for criminal justice developments.  As regularly readers now know, the Justices did not disappoint.  And next week may be more of the same.  Helpfully, the fine SCOTUSblog folks have had all these posts to help us keep track of all the SCOTUS criminal justice action:

I do not feel too guilty cribbing all this content from SCOTUSblog because I wrote the second of these listed posts (the one with the awful pun in the title).

April 21, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, April 20, 2016

Graphic portrayal of the sentencing price of prosecutorial misconduct in post-Katrina shooting case

Dt.common.streams.StreamServerAs reported in this local article, headlined "Ending decade-long Danziger Bridge case, federal judge accepts guilty pleas from 5 ex-NOPD officers," today a set of significant pleas were entered in a high-profile local police misconduct prosecution that ultimately resulted in high-profile federal prosecutorial misconduct. The reprinted graphic from the piece and these excerpts from the press article highlight why this all became (like so many matters) ultimately a sentencing story:

Five former New Orleans police officers involved in the Danziger Bridge shootings after Hurricane Katrina, or the coverup that followed, pleaded guilty in federal court in New Orleans on Wednesday, taking reduced sentences and avoiding another trial after their previous convictions were thrown out.

The plea deals bring an end to a case that has stretched on for more than a decade and come to symbolize the chaos and government negligence that followed the storm. The former officers received dramatically shorter prison terms than they did after a federal jury convicted them on numerous charges in 2011. The original sentences ranged from six years to 65. Those read out in court on Wednesday ranged from 3 years to 12.

The original convictions were tossed out in 2013 by U.S. District Judge Kurt Engelhardt over the online commenting scandal that by then had engulfed the office of former U.S. Attorney Jim Letten. In his ruling, Engelhardt said the anonymous comments that Letten’s top lieutenants had been making on news websites amounted to “grotesque prosecutorial misconduct,” even though those prosecutors were not on the trial team that convicted the Danziger defendants.

On Wednesday, Engelhardt outlined guilty pleas from the five officers, all but one of whom have remained behind bars while lawyers on both sides of the case prepared for the possibility of another trial. Arthur “Archie” Kaufman has been free on bond; Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso were brought to court from prison in orange jumpsuits.

Preparations for Wednesday’s hearing took place with an unusual amount of secrecy. It was not until Wednesday morning that documents were unsealed in the court record showing that the re-arraignment and sentencing would take place. In the meantime, extra security and an overflow room had been arranged at the downtown federal court building, where family members of the victims gathered to watch the conclusion of a decade-long ordeal.

The following are the original prison terms handed down to each of the five officers, and the new terms outlined on Wednesday. All of the officers will receive credit for time served.

Kenneth Bowen: originally 40 years, now 10 years.

Robert Gisevius: originally 40 years, now 10 years.

Robert Faulcon: originally 65 years, now 12 years.

Anthony Villavaso: originally 38 years, now 7 years.

Arthur Kaufman: originally 6 years, now 3 years.

The only remaining loose ends in the Danziger case are the charges pending against Former Sgt. Gerard Dugue, who was charged with abetting the coverup and was tried separately from the other officers in 2012. Engelhardt called a mistrial after a prosecutor mentioned an unrelated case that was supposed to be off-limits, and the government has not sought to retry the case since.

April 20, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Lots of interesting post-Booker guideline talk as federal defendant gets another sentencing win from SCOTUS

The Supreme Court today handed down its opinon this morning in Molina-Martinez v. US, No. 14-8913 (S. Ct. April 20, 2016) (available here), a little case about the application of plain error review of guideline calculation errors.  Excitingly, because the majority opinion authored by Justice Kennedy has lots of dicta about post-Booker sentencing, and because a concurrence by Justice Alito complains about some of that dicta, Molina-Martinez is now a must-read for all sentencing practitioners.  

I will likely have some further commentary about Molina-Martinez after I get a chance to read it thoroughly.  In the meantime, here are a couple of key passages from the majority opinion:

This case involves the Federal Sentencing Guidelines. In sentencing petitioner, the District Court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Court of Appeals refused to correct the error because, in its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error....

The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect.

Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error....

In the ordinary case the Guidelines accomplish their purpose. They serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence. It follows, then, that in most cases the Guidelines range will affect the sentence. When that is so, a defendant sentenced under an incorrect Guidelines range should be able to rely on that fact to show a reasonable probability that the district court would have imposed a different sentence under the correct range. That probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief under Rule 52(b).

And here is the start of the concurrence authored by Justice Alito:

I agree with the Court that the Fifth Circuit’s rigid approach to unpreserved Guidelines errors is incorrect. And I agree that petitioner has shown a reasonable probability that the District Court would have imposed a different sentence in his case if his recommended Guidelines sentence had been accurately calculated. Unlike the Court, however, I would not speculate about how often the reasonable probability test will be satisfied in future cases. The Court’s predictions in dicta about how plain-error review will play out are predicated on the view that sentencing judges will continue to rely very heavily on the Guidelines in the future, but that prediction may not turn out to be accurate. We should not make predictions about the future effects of Guidelines errors, particularly since some may misunderstand those predictions as veiled directives.

April 20, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity

A helpful reader altered me to a remarkable concurrence authored by Eleventh Circuit Judge Beverly Martin in In re Robinson, No. 16-11304 (11th Cir. April 19, 2016) (available here). Here is the full text of the concurrence, which serves as an explanatory preamble to a list of 110 Welch impacted cases within the circuit:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause.  I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson.  Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.  As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.  See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).

Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson.  I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications.  I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory).  I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.

Because these cases all involve prisoners seeking collateral review of their prison terms, the Sixth Amendment does not provide them with a constitutional right to the assistance of counsel. I believe district judges may have discretion to appoint lawyers for these prisoners under the Criminal Justice Act, and federal defenders and private lawyers can take up their cases upon their own initiative. I hope many will.  Indeed, I cannot help but wonder if some lawyers still working through thousands of federal clemency petitions (all of which wouls seem to have limited chance of success) might reallocate some of their energies to helping Johnson/Welch claimants on this list and elsewhere throughout the country.

April 20, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (9)

Monday, April 18, 2016

Two thoughtful reactions to the quick SCOTUS retroactivity work in Welch

As first noted here, this morning the US Supreme Court ruled in Welch v. United States that its recent significant ruling in Johnson that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague is to be applied retroactively.  I provided my first reaction to the consequential Welch decision in this post, and now I can link to two other thoughtful takes on Welch:

From Steve Sady at the Ninth Circuit Blog here, "Welch: Building Blocks For Retroactively Challenging Unconstitutional Career Offender Designations"

From Steve Vladeck at PrawfBlawg here, "The Subtle But Serious Flaw in the Supreme Court's Welch Ruling"

April 18, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Seeing Montgomery and Welch as SCOTUS Teague make-up calls

2000px-Seal_of_the_United_States_Supreme_Court.svgA few years ago I wrote this extended article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," which made the case for modern doctrines to be far less concerned about sentence finality, and far more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences.  Though I did not in that article call for the Supreme Court's Teague doctrines to be ignored, passages from it suggesting Teague's limit on retroactivity ought to be narrowly construed appeared in amicus briefs I signed in Montgomery and Welch

I have been pleased that Montgomery and now Welch both resulted in a significant block of Justices declaring prior Eighth And Fifth Amendment rulings fully retroactive.  But how the Court majority has gotten there has been more than a bit puzzling because, as I see, the Court keeps massaging Teague while it suggests that it is faithfully applying the doctrine.  In Montgomery, as I explain in this new commentary, six Justices signed on to an opinion (including Chief Justice Roberts) that seems, at least indirectly, to rewrite significantly the very foundational legal basis for Teague.  And, in the final line of his solo dissent in Welch today, Justice Thomas complains that the majoity opinion in Welch (which has the votes of both Chief Justice Roberts and Justice Alito) shows that "the Court keeps moving the [retroactivity] goalposts" through its "unprincipled expansion of Teague [so that] every end is instead a new beginning."

I bring all this up because, upon reading Welch, this one passage from the majority opinion stood out for a couple of reasons: 

[W]here the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest.  As Justice Harlan wrote, “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey, 401 U. S., at 693 (opinion of Harlan, J.).

First and foremost, I am pleased and I think it potentially quite important (and in harmony with my own writings) to see the Supreme Court state expressly that "finality interests are at their weakest" when substantive law has changed and a defendant is still dealing with the consequences of the conviction or sentence based on the now-changed substantive law.  

Second, as explained in the title of this post, the quote from Justice Harlan seems especially notable here in describing the limited societal interest in "permitting the criminal process to rest at a point where it ought properly never to repose."  I suspect that Chief Justice Roberts was somewhat more comfortable with the Teague rewriting in Montgomery and that both the Chief and Justice Alito were content with the Court's work in Welch because they may have come to the conclusion the Court ultimately took unfairly long before finally finding constitutional problems with mandatory juve LWOP and the residual clause of ACCA.  In both settings, lots and lots of defendants subject to really long prison terms have been persistently complaining for decades that these extreme sentencing laws were constitutionally problematic.  I would guess that, as judicial umpires calling balls and strikes, the Chief and Justice Alito could live with a "Teague" make-up call to help the defendants who before kept getting strikes called against them.

April 18, 2016 in Assessing Miller and its aftermath, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Supreme Court swiftly rules in Welch declaring Johnson ACCA vagueness decision retroactive

As reported here, just a few weeks ago the Supreme Court heard oral argument in Welch v. United States to address the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague.   Justice Kennedy authored this opinion for the Court in its 7-1 ruling, and here is the heart of the opinion's analytical conclusion:

Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision.

In the wake of the oral argument, I find this substantive ruling not at all surprising. What is a bit surprising, though, is that Justice Thomas not Justice Alito is the sole dissenter. Here is how his dissent gets started:

Last Term the Court held in Johnson v. United States, 576 U. S. ___ (2015), that because the residual clause of the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B)(ii), “combin[es] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” it is unconstitutionally vague.  576 U. S., at ___ (slip op., at 6).  Federal prisoners then sought to invoke Johnson as a basis for vacating their sentences in federal collateral review proceedings.  See 28 U. S. C. §2255(a).

Today the Court holds that Johnson applies retroactively to already final sentences of federal prisoners.  That holding comes at a steep price.  The majority ignores an insuperable procedural obstacle: when, as here, a court fails to rule on a claim not presented in a prisoner’s §2255 motion, there is no error for us to reverse.  The majority also misconstrues the retroactivity framework developed in Teague v. Lane, 489 U. S. 288 (1989), and its progeny, thereby undermining any principled limitation on the finality of federal convictions.  I respectfully dissent.

April 18, 2016 in Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Sunday, April 17, 2016

"Montgomery's Messy Trifecta"

A few weeks ago, I finally found a bit of extra time to dig into the doctrinal particulars of the Supreme Court's important ruling in Montgomery v. Louisiana, which finally clarified that its 2012 ruling in Miller v. Alabama was to be applied retroactively. Because I was pleased with the substantive outcome in Montgomery, at the time of the decision I did not give too much attention or thought to just how the Justices got to that outcome. But once I found time to focus on the doctrine developed in Montgomery, I decided I was not too impressed. Indeed, troubled by the Montgomery doctrinal particulars, I got motivated to write this little commentary which carries the same title as the title of this post. And, via SSRN, here is the abstract for my short commentary about Montgomery:

Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law.  First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments.  Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.

In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications.  Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.

April 17, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Recommended reading, Sentences Reconsidered | Permalink | Comments (1)

Friday, April 15, 2016

Supreme Court of Canada declares a one-year(!) mandatory-minimum drug sentence unconstitutional

In the United States, some defendants can and have received mandatory life without parole sentences for drug offenses, and most federal mandatory minimum drug sentences come in 5- and 10-year chunks of required prison time even for first offenders. And, to date, none of these laws have been found constitutionally problematic largely because, back in 1991, the Supreme Court held in Harmelin v. Michigan that the Eighth Amendment's cruel an unusual clause did not preclude Michigan from imposing a mandatory LWOP sentence on a defendant convicted of possessing more than 650 grams of cocaine.

Fast forward a quarter-century and this news about a new Canadian court ruling shows our neighbor jurists to the north have a much different conception of what kind of mandatory drug sentence violates a constitutional provision precluding cruel and unusual punishments.  The article is headlined "Rulings from Canada's top court strike down mandatory minimum sentences for drugs and bail conditions," and here are the basics:

The Supreme Court of Canada has ruled that two key "tough on crime" measures brought in by the previous Conservative government are unconstitutional. In the first case, the court ruled 6-3 that a mandatory minimum sentence of one year in prison for a drug offence violates the Charter of Rights and Freedoms. It centres on Joseph Ryan Lloyd, a man with drug addictions in Vancouver's Downtown Eastside, who was convicted of trafficking after police caught him in 2013 with less than 10 grams of heroin, crack cocaine and crystal methamphetamine.

The court ruled the sentence cast too wide a net over a wide range of potential conduct, catching not only the serious drug trafficking that is its proper aim, but also conduct that is "much less blameworthy. "

"If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentence," the decision reads. "In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment." The dissenting view argued that the law as drafted was narrow enough, and that it did not amount to cruel and unusual punishment.

The sentence imposed stemmed from the so-called "omnibus crime bill" brought in by the Stephen Harper government in 2012. The Safe Streets and Communities Act, also known as C10, made sweeping changes to Canada's criminal justice system, including mandatory minimum sentences for non-violent drug offenders.

On Friday, Prime Minister Justin Trudeau said the Liberal approach to criminal justice is to protect public safety while respecting rights. He said mandatory minimums are appropriate in some conditions, and noted that past Liberal governments have imposed them for certain crimes like murder. "At the same time, there is a general sense, reinforced by the Supreme Court decision, that mandatory minimums brought in by the previous government in a number of cases went too far," he said after an event in Waterloo, Ont.

A mandate letter from Trudeau to Justice Minister Jody Wilson-Raybould called for an overhaul of the measures brought in by the Conservatives. "You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system," the letter reads.

In the other case, the Supreme Court was unanimous in ruling that a person who is denied bail because of prior convictions should be able to receive credit for time served before sentencing. Normally, a person denied bail can get 1.5 days of credit for each day spent in pre-sentence custody, reflecting what are often harsh conditions with a lack of access to programs. Under sentencing reforms introduced by the Conservatives in 2009, a person denied bail because of a previous conviction is not eligible for enhanced credit.

The mandatory minimum ruling in R. v. Lloyd can be accessed at this link, and here is one key passage from the majority opinion in Lloyd:

The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.  This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.  If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences.  In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.

Insofar as s. 5(3)(a)(i)(D) of the CDSA requires a one‑year mandatory minimum sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter.  This violation is not justified under s. 1. Parliament’s objective of combatting the distribution of illicit drugs is important.  This objective is rationally connected to the imposition of a one‑year mandatory minimum sentence under s. 5(3)(a)(i)(D) of the CDSA. However, the provision does not minimally impair the s. 12 right.

April 15, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (6)

Thursday, April 14, 2016

California board recommends parole for former "Manson family member" Leslie Van Houten

Though the federal system and a number of states have abolished parole, a number of states still have this method of prisoner release and high-profile cases often provide a reminder of this important reality. And, as highlighted by this new Los Angeles Times article, headlined "Board recommends parole for Charles Manson follower Leslie Van Houten," high-profile parole cases can reach back to crimes committed nearly a half-century ago. Here are the details and some context:

A California review board recommended parole Thursday for former Charles Manson family member Leslie Van Houten, who was convicted in the 1969 killings of Leno and Rosemary LaBianca. The decision was issued following a hearing earlier in the day at the California Institution for Women in Chino.  Van Houten has been denied parole 19 times since she was convicted of murder in the deaths of Leno LaBianca, a wealthy grocer, and his second wife at their Los Feliz home.

After the ruling is reviewed by the parole board's legal team, it will be forwarded to Gov. Jerry Brown, who could decide to block Van Houten’s release.  Los Angeles County Dist. Atty. Jackie Lacey expressed disapproval after the decision was announced: "We disagree with the board's decision and will evaluate how we plan to proceed."

The youngest of Manson’s followers, Van Houten, 66, has been considered the least blameworthy member of the group, and has been portrayed by supporters as a misguided teen under the influence of LSD on the night of the killings. A former homecoming queen from Monrovia, Van Houten did not join in the Aug. 9, 1969, killings of Sharon Tate, the wife of film director Roman Polanski, and four others at the Benedict Canyon home that Tate was renting.

But the following day, then-19-year-old Van Houten joined in slaying the LaBiancas. Van Houten and another woman held down Rosemary LaBianca as Charles “Tex” Watson stabbed Leno LaBianca. After Watson stabbed Rosemary LaBianca, he handed Van Houten a knife. She testified to stabbing Rosemary at least 14 more times. The blood of the victims was used to scrawl messages on the walls, as had been done at the Benedict Canyon home.

In prior bids for parole, Van Houten's attorneys have characterized her as a model inmate who has obtained a college degree behind bars and has been active in self-help groups. At a 2002 parole board hearing, Van Houten said she was “deeply ashamed” of what she had done, adding: "I take very seriously not just the murders, but what made me make myself available to someone like Manson."...

Van Houten's attorney, Richard Pfeiffer, said he believed the two-member board was most persuaded by her exemplary behavior behind bars. "Since 1980, there were 18 different doctors who did psychiatric evaluations of her. Every single one found she was suitable for parole," Pfeiffer said.

Van Houten told her attorney that she was left "numb" by the decision handed down Thursday. Pfeiffer said he's hopeful that Brown opts to grant her parole. "The opposition to parole has always been the name Manson," he said. "A lot of people who oppose parole don’t know anything about Leslie’s conduct. Her role was bad. Everyone’s was. But they don’t know what she’s done since then and all of the good she’s done."

Last summer, a parole board recommended parole for Manson associate Bruce Davis, who was convicted in the 1969 killings of Gary Hinman and Donald “Shorty” Shea. But in January, Gov. Brown rejected parole for the 73-year-old, stating that “Davis' own actions demonstrate that he had fully bought into the depraved Manson family beliefs.” Davis was not involved in the killings of the LaBiancas, Tate and four others.

April 14, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Two timely stories of marijuana reform not yet helping those serving "Outrageous Sentences For Marijuana"

From two very different media sources today, I see two very notable stories of defendants convicted of marijuana-related offenses serving extreme sentences for a type of behavior that is now "legal" at the state level in some form throughout much of the United States. 

First, the New York Times has this new editorial headlined "Outrageous Sentences for Marijuana," which starts this way:

Lee Carroll Brooker, a 75-year-old disabled veteran suffering from chronic pain, was arrested in July 2011 for growing three dozen marijuana plants for his own medicinal use behind his son’s house in Dothan, Ala., where he lived.  For this crime, Mr. Brooker was given a life sentence with no possibility of release.

Alabama law mandates that anyone with certain prior felony convictions be sentenced to life without parole for possessing more than 1 kilogram, or 2.2 pounds, of marijuana, regardless of intent to sell.  Mr. Brooker had been convicted of armed robberies in Florida two decades earlier, for which he served 10 years. The marijuana plants collected at his son’s house — including unusable parts like vines and stalks — weighed 2.8 pounds.

At his sentencing, the trial judge told Mr. Brooker that if he “could sentence you to a term that is less than life without parole, I would.” Last year, Roy Moore, chief justice of the Alabama Supreme Court, called Mr. Brooker’s sentence “excessive and unjustified,” and said it revealed “grave flaws” in the state’s sentencing laws, but the court still upheld the punishment.

On Friday, the United States Supreme Court will consider whether to hear Mr. Brooker’s challenge to his sentence, which he argues violates the Eighth Amendment’s ban on cruel and unusual punishments. The justices should take the case and overturn this sentence.

Second, AlterNet has this new piece with this lengthy headline, "As Marijuana Goes Mainstream, California Pioneers Rot in Federal Prison: Luke Scarmazzo and Ricardo Montes opened a dispensary in Modesto. Now they're doing 20 years in federal prison. Their families want them home. "  Here is how it starts:

Behind the headlines about President Obama’s historic visit to federal prisons and highly publicized releases of non-violent drug offenders, the numbers tell a different story. Despite encouraging and receiving more clemency petitions than any president in U.S. history — more than the last two administrations combined, nearly 20,000 — very few federal prisoners are actually being granted clemency.

Nowhere is this irony more glaring than in the world of legal cannabis. Cannabis is now considered the fastest-growing industry in the nation, yet remains federally illegal. The sea change from the Department of Justice since 2009 has allowed state-legal cannabis industries to thrive. Federal solutions seem to be around the corner and for the first time cannabis businesses are being publicly traded and receiving legal Wall Street investment.

Ricardo Montes and Luke Scarmazzo are two of the 20,000 federal prisoners appealing to President Obama for clemency. They have exhausted their appeals and are serving 20-year mandatory minimum sentences for openly running a dispensary in the early days of California’s pioneering medical cannabis law. The irony isn’t lost on them that their crimes are now legal and profitable, but their appeals for clemency aren’t based on justice anymore — they just want to be home with their kids. Their daughters, Jasmine Scarmazzo, 13, and Nina Montes, 10, are appealing directly to President Obama to release their fathers via a Change.org petition.

Given that the Supreme Court has often stated and held that the Eighth Amendment's "scope is not static," but "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958), I think both these cases should be pretty easy constitutional calls if courts and/or executive branch officials took very seriously a commitment to updating and enforcing Eighth Amendment limits on lengthy prison terms in light of the obviously "evolving standards of decency" concerning medical use of marijuana throughout the United States and the world.  But, while hoping for some judicial or executive action in this arena, I am not holding my breath that any of these medical marijuana offenders will be free from incarceration anytime soon.

April 14, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, April 12, 2016

Ninth Circuit talks through requirements for Miller resentencing a decade after mandatory LWOP

The Ninth Circuit yesterday issued an interesting opinion faulting a district court for how it limited the evidence it considered and other problems with how it conducted a resentencing of a juvenile murderer given a mandatory LWOP sentence a decade before such a sentences was deemed unconstitutional by the Surpeme Court.  Miller fan will want to read US v. Pete, No. 14-103 (9th Cir. April 11, 2016) (available here), in full, and here is how the opinion starts and along with some key passages from the heart of its analysis: 

Branden Pete was 16 years old when he committed a crime that resulted in a mandatory sentence of life without the possibility of parole.  Later, Miller v. Alabama, 132 S. Ct. 2455 (2012), held unconstitutional for juvenile offenders mandatory terms of life imprisonment without the possibility of parole.  On resentencing, the district court refused to appoint a neuropsychological expert pursuant to 18 U.S.C. § 3006A(e) to help Pete develop mitigating evidence.

Our principal question on appeal is whether the district court abused its discretion in declining to appoint such an expert to aid the defense.  We conclude that it did, and so remand for appointment of an expert, and for resentencing after considering any expert evidence offered.  We also consider, and reject, Pete’s other challenges to his resentencing....

In rejecting the motion to appoint an expert, the district court ... noted that Pete’s upbringing and the circumstances of the crime have not changed, and maintained that because a psychiatric evaluation had been done in 2003, a second evaluation would be “duplicative.” “[I]t is difficult to conceive how,” the district court stated, “the passage of time may impact [the psychiatric] evidence” presented during the pretrial proceedings nearly ten years before.  Further, the district court held that the impact of incarceration on Pete “is not the type of mitigating evidence which Miller contemplates.”  We disagree with the district court as to all three aspects of its reasoning....

When the district court ruled that no expert testimony was “necessary,” it ignored Miller’s reasoning and directives.  At the time of resentencing, Pete’s neuropsychological condition had not been evaluated in more than a decade.  An updated evaluation could have revealed whether Pete was the same person psychologically and behaviorally as he was when he was 16.  Rather than being “duplicative,” as the district court believed, a new evaluation could have shown whether the youthful characteristics that contributed to Pete’s crime had dissipated with time, or whether, instead, Pete is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citation omitted); see also Montgomery, 136 S. Ct. at 733.  Similarly, without current information relating to the policy rationales applicable specifically to juvenile offenders, Pete was hamstrung in arguing for a more lenient sentence.

More specifically, the significant mitigating evidence available to Pete at resentencing, other than his own testimony and that of his lawyer (neither of which the district court credited), would have been information about his current mental state — in particular, whether and to what extent he had changed since committing the offenses as a juvenile. This information was directly related to Pete’s prospects for rehabilitation, including whether he continued to be a danger to the community, and therefore whether the sentence imposed was “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see id. (a)(2)(C), (D).  Such information is pertinent to determining whether, as Miller indicates is often the case, Pete’s psychological makeup and prospects for behavior control had improved as he matured, with the consequence that his prospects for rehabilitation and the need for incapacitation had changed.

April 12, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Taking a close look at the prosecutor dealing with Miller and Montgomery on the ground in Philly

Daniel Denvir has this intriguing piece in Salon about the resentencing of juvenile murderers in the City of Brotherly Love and Sisterly Affection. The full headline highlights its themes: "The unconstitutional outrage of juvenile life sentences: Why Philadelphia will be a case study for this criminal-justice reform: The city is faced with deciding what to do about 300 now-unconstitutional juvenile life sentences." Here is how it starts:

Children convicted of committing murder on Philadelphia’s violent streets long faced the prospect of receiving the harshest sentence short of death: life without parole. Today, the city has more juvenile offenders locked up for life than any other. It has been a grim and predictable cycle: Young black men mourned at premature funerals and their killers packed into state prisons with only the narrowest hope of ever leaving. And then the tough-on-crime pendulum began to swing back.

In 2012, the U.S. Supreme Court ruled that mandatory life without parole for juveniles was unconstitutional, and in a January decision they made that ruling retroactive. And so Philadelphia District Attorney Seth Williams has roughly 300 big decisions to make: How long will he seek to imprison the onetime juveniles, many now much older, who until recently were set to die behind bars?

States responded to the 2012 Miller v. Alabama decision in a hodgepodge manner, including by abolishing juvenile life without parole entirely. In Pennsylvania, however, then-Gov. Tom Corbett signed a law that angered reform advocates for its harshness, changing the sentence for first-degree murder to 35 years to life for older juveniles, and 25 to life for younger ones. Those convicted of second-degree murder now face sentences of 20 or 30 years to life.

Critically, the law did not make the new sentences retroactive, leaving hundreds of Pennsylvania juvenile lifers in limbo. The Court’s January decision in Montgomery v. Louisiana means that prosecutors and judges throughout Pennsylvania will soon face a deluge of prisoners asking to be re-sentenced. In Philadelphia, advocates are concerned that Williams, who has taken a tough line in the past, will fight to keep many behind bars for a long time.

“The District Attorney has a pretty stark choice,” emails Marc Bookman, director of the Atlantic Center for Capital Representation. “He can either follow the very obvious trend away from sentencing juveniles to life without parole sentences, or he can swim against the tide and against the dictates of the Supreme Court and continue to seek such sentences.”

Williams’ office, which declined to comment for this story, must navigate the gap between the Supreme Court and the current state law. It’s unclear how he will proceed. The Supreme Court only barred mandatory life without parole sentences, so he could try to keep some locked up. The Court did make it clear, however, that life without parole sentences should only be applied in rare cases where an offender is “irreparably corrupted.”

Brad Bridge, a lead attorney at the Defender Association of Philadelphia, criticized Williams’ past opposition to making Miller retroactive and says that he should move quickly to resolve the cases of those who have been incarcerated the longest. “Based upon [these court rulings,] we now must re-sentence over 300 juvenile lifers in Philadelphia,” emails Bridge. “Given that over 100 of these juvenile lifers have been incarcerated for over 30 years, we should quickly resolve those cases immediately by agreeing to release those who have done well in prison. It is only by prompt resolution of 100, and maybe 200, of these cases that the resources of the judiciary, prosecutor and defense can be properly focused on the 100 cases that cannot be resolved by agreement.”

Bridge and the Juvenile Law Center, a leading critic of juvenile life without parole, have called for the prisoners to be re-sentenced on third-degree murder, carrying a sentence of 20 to 40 years. But Richard Long, executive director of the Pennsylvania District Attorneys Association, has argued that the harsher sentences meted out by the state’s new law should be applied.

Seth Williams is the association’s vice president, and last fall conveyed his opposition to re-sentencing, telling WHYY that the prisoners “aren’t kids in fifth grade doing these things… We’re talking about killings. Not someone who stole someone’s laptop. We’re talking about the loss of life. And us having to look into the eyes of victims’ families, who want something done.”

April 12, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, April 10, 2016

Detailing the desuetude of the death penalty in Pennsylvania

This new local story, headlined "In Pa. and elsewhere, death penalty is dying a slow death," tells a capital tale that has grown old in the Keystone State. Here is how the article gets started:

The crime was horrific: LaQuanta Chapman fatally shot his teenage neighbor, then dismembered him with a chainsaw. The Chester County District Attorney's Office promised it would seek the death penalty — and it delivered.

Chapman was sent to death row in December 2012.  But he remains very much alive, and two weeks ago the state Supreme Court reversed his death sentence, citing prosecutorial error.  Chapman is just the latest example of a death-row inmate spared execution.

In fact, no one has been executed in Pennsylvania since Philadelphia torturer-murderer Gary Heidnik in 1999.  And he requested it.  He is one of only three prisoners put to death since the reinstatement of the death penalty in 1976.

In Pennsylvania and in other states around the nation, the death penalty — once a hot-button political issue — has been dying a quiet death.  Experts cite a variety a reasons, including a general decline in crime nationwide that has turned voters' attentions elsewhere.

District attorneys and other law enforcement officials continue to advocate for it, but as a political issue, it has all but disappeared.  "Let's face it, how many people actually get put to death?" said G. Terry Madonna of Franklin and Marshall College, calling the death penalty "virtually nonoperative" in Pennsylvania.  "In many states, it's a dead letter."

Gov. Wolf last year imposed a moratorium on executions pending a bipartisan committee's report on the commonwealth's use of capital punishment.  The report, more than two years overdue, is looking at costs, fairness, effectiveness, alternatives, public opinion, and other issues.

The committee, formed in 2011 during Gov. Tom Corbett's administration, has been collecting data with Pennsylvania State University's Justice Center for Research, which has just begun to analyze the information.  The basis for the center's death-penalty analysis will be 1,106 first-degree murder cases completed between 2000 and 2010, said Jeff Ulmer, a Pennsylvania State University professor working on the analysis.

The committee's report should follow before the end of the year, said Glenn Pasewicz, executive director of the state commission that oversees the committee.  Richard Long, executive director of the Pennsylvania District Attorneys Association, which supports the death penalty, said the report needs to come out as soon as possible.

The moratorium, he said, "becomes less and less temporary with every day that passes." State Sen. Stewart Greenleaf (R., Bucks), one of the leaders of the state task force, stressed the need for it to be thorough.  "I think it's going to be a landmark review of the death penalty, certainly in Pennsylvania, maybe nationally," he said.

The American Bar Association and the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System are among the groups that have criticized the inequality of Pennsylvania's capital punishment system and have urged changes.  About 150 death sentences and capital convictions in the state have been overturned in the post-conviction process, according to the Death Penalty Information Center, a nonprofit anti-capital punishment group. Of those, 120 have had new sentences imposed.

But juries continue to issue death sentences.  Pennsylvania has 180 people on death row, the fifth largest number in the country.  The 178 men and two women are housed in three state correctional institutions.

April 10, 2016 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

Friday, April 08, 2016

Latest USSC retroctivity data suggest prison savings approaching $2 billion from drugs-2 guideline amendment retroactivity

The US Sentencing Commission's website has this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated April 2016, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782.  The data in this report reflects all motions decided through March 25, 2016 and for which court documentation was received, coded, and edited at the Commission by March 29, 2016."

The official data in the report indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, now 26,850 federal prisoners have had their federal drug prison sentences reduced by an average of two years.  So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $1.9 billion dollars.  

As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.  Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be cautious in his use of his clemency power, this data provides still more evidence that the work of the US Sentencing Commission in particular and of the federal judiciary in general remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.

April 8, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, April 07, 2016

"Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment"

The title of this post is the title of this interesting new article by Alex Reinert now available via SSRN. Here is the abstract:

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application.  This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.  In particular, I argue that the phrase “cruel and unusual punishment” was intertwined with pre- and post-Revolutionary notions of the permissible limits on the treatment of slaves.

The same standard that the Framers adopted for the treatment of prisoners in 1787 was contemporaneously emerging as the standard for holding slaveholders and others criminally and civilly liable for harsh treatment of slaves.  Indeed, by the middle of the nineteenth century, constitutional law, positive law, and common law converged to regulate the treatment of prisoners and slaves under the same “cruel and unusual” rubric.  Thus, when the Supreme Court of Virginia referred to prisoners in 1871 as “slaves of the State,” the description had more than rhetorical force.

Going beyond the superficial similarity in legal standards, examining how the “cruel and unusual” standard was explicated in the context of slavery offers important insights to current debates within the Eighth Amendment.  First, the contention by some originalists that the Punishments Clause does not encompass a proportionality principle is in tension with how courts interpreted the same language in the context of slavery. Indeed, relationships of subordination had long been formally governed by a principle of proportional and moderate “correction,” even though slavery in practice was characterized by extreme abuse.  Second, to the extent that dynamic constitutional interpretation supports limiting criminal punishment according to “evolving standards of decency,” the comparative law frame used here raises questions as to how far our standards have evolved.  This, in turn, should cause commentators and jurists to reconsider whether the twenty-first century lines we have drawn to regulate the constitutional bounds of punishment are adequate to advance the principle of basic human dignity that is thought to be at the heart of the Eighth Amendment.

April 7, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (2)

New Jersey Supreme Court reverses murder sentence after trial judge says he always gives that sentence

A unanimous New Jersey Supreme Court today issued an interesting sentencing opinion today in NJ v. McFarlane, No. 075938 (April 7, 2016) (available here), which gets started this way:

Defendant chased an unarmed man, whom he was attempting to rob, and shot him in the back with a revolver.  The victim was alive and gasping for air after he fell to the ground, but defendant robbed him and left him to die.  Defendant was convicted of first-degree murder, among other things, and sentenced to sixty years in prison.

We are called upon to determine whether defendant’s sentence should be vacated and the matter remanded for resentencing before a different judge, because the trial judge remarked during a subsequent, unrelated status conference that he always gives sixty-year sentences to a defendant convicted by a jury of first-degree murder.  While we acknowledge the judge’s subsequent explanation for his remarks, preservation of the public’s confidence and trust in our system of criminal sentencing requires that the matter be remanded for resentencing by another judge of the same vicinage.

April 7, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, April 06, 2016

"Normative Retroactivity"

The title of this post is the title of this timely new piece by William Berry now available via SSRN. Here is the abstract:

When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule.  The current retroactivity doctrine relies on a confusing substance-procedure dichotomy.  Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question.  Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.

This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity.  Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations.  Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.

April 6, 2016 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Examining how Michigan, thanks to Montgomery, is struggling through Miller retroactivity

Me_lifers_juvenile_040516A couple of month ago I flagged here a press report on the legal and practical challenges unfolding in Pennsylvania after the Supreme Court's ruling in Montgomery v. Louisana forced the state to start dealing with all its now-unconstitutional mandatory juve LWOP sentences.  Now I see this similar story from Michigan headlined " Hundreds of Mich. juvenile lifer cases to be reviewed."  The lengthy and details article gets started this way:

Hundreds of killers sentenced to mandatory life without parole while in their teens could be resentenced this year, but a debate over how to process the cases has left prosecutors and lawyers in limbo. The Michigan Court of Appeals has been asked to decide whether a judge or jury should consider whether to give offenders new sentences. A hearing is anticipated, but a date to make arguments hasn’t been set.

The U.S. Supreme Court ruled in 2012 that sentencing a person under 18 to life in prison without parole constitutes “cruel and unusual punishment.” The decision potentially affects 363 cases in Michigan dating to 1962.

Prosecutors have been required to provide a list to the chief judge in every county of the cases that may require resentencing. Wayne County has the most, at 152. Oakland is second with 49, followed by Genesee with 26 and Kent with 24. Macomb has 12 cases to be reconsidered for sentencing. Prosecutors will have to make legal motions to resentence those they feel still deserve life without parole. Other defendants will get a minimum of 25-40 years and a maximum of 60 years to serve before automatically being considered for parole.

Critics, including families of victims, argue mandatory resentencing may be unjust and open old wounds for victims who thought their cases were settled. Local law enforcement officials and prosecutors predict the process will be lengthy, costly and could further traumatize families.

Gov. Rick Snyder has recommended adding $1.1 million to the state budget to fund 11 full-time employees at the State Appellate Defenders Office for compliance with the Supreme Court ruling. But prosecutors, struggling with smaller staffs and tighter budgets, say they need more money too. Defense and appellate attorneys agree it’ll cost money to process the cases, but they argue it’s the right thing to do.

Many young offenders are immature, act impulsively and often are under the direction of older defendants, advocates say. Some juvenile lifers already have served beyond the minimum sentences that would have otherwise taken effect under resentencing, but for the pending hearing in the Michigan Court of Appeals.

“The bottom line is we’re not opening the doors and letting them all out — there will be a process and a hearing and some will be determined unfit for release,” said Valerie Newman, an assistant defender in the State Appellate Defenders Office. “And there will still be parole hearings.”

County prosecutors in Michigan say the process will take time, money and care to ensure that people who should be in prison stay there. St. Clair County Prosecutor Michael Wendling, who recently testified before a state Senate subcommittee on potential problems with resentencing, said: “It will tie up my staff and also challenge our resources — and I have only four cases; some counties have more than a hundred.” Wendling said after it is determined a case will be resentenced, it will mean locating victims, witnesses and experts and diverting assistant prosecutors from new cases.

Among Wendling’s old cases is one from 2010 in which Tia Skinner, then 17, plotted with a boyfriend to kill her parents after they took away her cellphone. Skinner has been resentenced twice, Wendling said. Another involves James Porter, then 17, of Yale who on one morning in 1982, balanced a .22 rifle on the handlebars of his bicycle, pedaled to the house of a friend with whom he had a dispute and fatally shot the teen and four family members. “I suspect we will be seeking the same sentences on all four of our juvenile lifers — these aren’t shoplifting cases,” Wendling said.

April 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, April 05, 2016

More reflections and criticisms of clemency work past, present and future

I reprinted here over the weekend a lovely and positive report by Lisa Rich about all the activity emerging from the White House last week on the important topic of clemency.  Thanks to Mark Osler, I have now learned that Thursday's extended "White House Briefing on Life After Clemency" can be watched in full via YouTube here. Here is how the event is described:

Building on the President's efforts to make our criminal justice system more fair by granting clemency to men and women sentenced under outdated sentencing rules, the briefing brings together academics, advocates and Administration officials seeking to remove obstacles to successful reentry. The briefing provides a collaborative environment to discuss and share ideas on the President's clemency initiative and ways to improve paths to reentry.

Critically, not everyone is having warm feelings about the work of Prez Obama and his administration's work to date in this arena.  In particular, Mark Osler followed up his participation in the White House briefing with this New York Times op-ed headlined "Obama’s Clemency Problem." Here are excerpts:

In the spring of 2014, the Obama administration announced an initiative to consider granting clemency to thousands of federal prisoners serving what Mr. Obama called “unjust” sentences for low-level drug crimes.  Federal prisoners were notified of the project, and more than 30,000 responded by submitting surveys to begin the process.

Despite the relatively high number of commutations that Mr. Obama has now granted, there are still more than 9,000 pending commutation cases, many of the sort singled out in the 2014 initiative as potentially worthy. So why has the president acted on so few?  Typically, a reluctance to exercise the pardon power is a result of political timidity.  But in this case, the Obama administration already took the political risk two years ago when it announced the clemency initiative.

The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process.  Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice.  Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general.

When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates.  It is not an incidental fact that Ms. Yates is a career prosecutor.  When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases.

I was a federal prosecutor for five years.  In that job, deciding someone’s fate is a necessary but difficult emotional commitment.  The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear.  We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.

President Obama can and should fix this problem with a simple executive order that places the Office of the Pardon Attorney in the White House, rather than at the bottom of the institutional structure at the Department of Justice.  An empowered pardon attorney (or perhaps a pardon board, as we find in many states) would then report directly to the president.  That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.

And while Professor Osler is concerned about the slow and cumbersome process for considering clemency requests, this letter to AG Loretta Lynch authored by Senator Richard Shelby highlights that others are troubled by some of the few offenders who have already received sentence commutations.  Here is how Senator Shelby's letter gets started:

I am writing to you in response to yesterday’s announcement that President Barack Obama granted sentence commutations to 61 individuals. I have strong concerns that 12 of these 61 individuals were convicted of one, if not more, firearm-related offenses. These include:

  • Seven convictions of possession of a firearm in furtherance of a drug trafficking crime;
  • Four convictions of possession of a firearm by a felon; and
  • Two convictions of use of a firearm in furtherance of a drug trafficking offense.

In August 2014, the Department of Justice announced its rubric for considering federal inmates for the President’s new initiative for executive clemency. Part of these criteria included: non-violent individuals who would not pose a threat to public safety if released; low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; inmates who do not have a significant criminal history; and those who have no history of violence prior to, or during, their current term of imprisonment.

By my count, the President has commuted the sentences of over 200 of these “non-violent” federal inmates, of which 33 were convicted of firearm-related offenses.  I am troubled by the nature of the firearm-related convictions and the fact that some individuals are previously convicted felons who continued to commit crimes.  This announcement clearly demonstrates that the Administration is not following its own selection criteria.  Frankly, I am left wondering why the President and the Justice Department consider individuals who carry guns to drug deals as “non-violent”.

April 5, 2016 in Clemency and Pardons, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, April 04, 2016

Lots of little SCOTUS criminal justice work to start April

April is always an exciting month for me as both a sports fan and a SCOTUS watcher: as a sports fan, I have the certain joys of the start of the MLB baseball season, the Masters, and the start of the "real" season in the NBA and NHL; as a SCOTUS watcher, I have the uncertain joys of anticipating the Justices winding down its current Term by perhaps handing down some big criminal justice opinions or cert grants.  And just as the MLB season is off to something of a cold April start — e.g., it was 39 degrees for the very first pitch yesterday in Pittsbugh, and today's Yankees game has already been postponed — so too is SCOTUS keeping it cool in the criminal justice arena at the start of April.

Specifically, the Justices kicked off one of my favorite months with three little criminal justice developments:

  1. A cert grant in Pena-Rodriguez v. Colorado to consider "whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury";

  2. A per curiam opinion in Woods v. Etherton to summarily reverse on AEDPA defenence grounds a decision by the Sixth Circuit in favor of a state habeas petitioner;

  3. A unanimous opinion in Nichols v. US to hold that SORNA did not require a sex offender to update his registration in Kansas once he departed the State for the Phillipines. 

If I did not have to obssess over a number of other matters this morning (including whether I managed to acquire any fantasy baseball sleepers during my draft this past weekend), I might be able to find some sleeper SCOTUS story to discuss within these developments. But absent readers helping me identify something big in these seemingly little developments, I am likely to move on to other bloggy matters (such as continuing to speculate how Justice Scalia's untimely demise has been impacting the Court's work in criminal justice cases).

April 4, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Sunday, April 03, 2016

"Subconstitutional Checks"

The title of this post is the title of this great-looking new paper authored by Shima Baradaran Baughman now available via SSRN. Here is the abstract:

Constitutional checks are an important part of the American justice system.  The Constitution demands structural checks where it provides commensurate power.  The Constitution includes several explicit checks in criminal law. Criminal defendants have the right to counsel, indictment by grand jury, trial by jury, the public or executive elects or appoints prosecutors, legislatures limit actions of police and prosecutors, and courts enforce individual constitutional rights and stop executive misconduct.  However, these checks have rarely functioned as intended by the constitution and criminal law has failed to create — what I call — “subconstitutional checks” to adapt to the changes of the modern criminal state.

Subconstitutional checks are stopgaps formed in the three branches of government to effectuate the rights in the constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when two or more branches have colluded with one another.  The need for sub constitutional checks is evident in the criminal arena. In the modern criminal state, plea agreements have virtually replaced jury trials, discipline and electoral competition between prosecutors is rare, separation of powers does not serve its purpose because the interests of all branches are often aligned, and individual constitutional rights have little real power to protect defendants from the state.

As a result, the lack of structural constitutional checks in criminal law has lead to constitutional dysfunction.  Though never recognized as such, constitutional dysfunction in criminal law is evidenced by mass incarceration, wrongful convictions, overly harsh legislation, and an inability to stop prosecutor and police misconduct.  This Article sheds light on the lack of constitutional checks by performing an external constitutional critique of the criminal justice system to explore this structural gap in the three branches and concludes that creating subconstitutional checks has the potential of reducing criminal dysfunction and creating a more balanced criminal justice system.

April 3, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

A more positive spin on clemency developments and more positive aspects

LisaRichRegular readers may grow somewhat tired of hearing me kvetch about President Obama being much more willing to talk the talk than walk the walk when it comes to criminal justice reform generally and clemency developments in particular. For that reason (and others), I invited always sunny Lisa Rich to provide for blogging her sunny perspective on clemency events that transpired at the White House last week. Here is what she was kind enough to send my way for posting:

A somewhat sentimental post by Lisa A. Rich, former director of Legislative & Public Affairs at the U.S. Sentencing Commission and current director of the Texas A&M School of Law Residency Externship Program in Public Policy:
Last Week, I had the privilege of joining not only the tireless advocates of the Justice Roundtable and White House staff but over two dozen recipients of clemency spanning four presidencies during the Justice Roundtable and White House Briefings on “Life After Clemency.”
Personally, it was a joy to see all of the people — Nkechi Taifa, Mark Osler, Cynthia Rosenberry, Jesselyn McCurdy, Julie Stewart, Margy Love, and so many others who have been working tirelessly to answer the Obama Adminstration’s call to action on clemency.  I am in awe of the ceaseless dedication these advocates demonstrate every day in their pursuit of hope and justice for those human beings who deserve a chance to be something so much more than a statistic in our cycle of mass incarceration. These advocates and those for whom they do their jobs are the role models I discuss in my classes and they are the ones who inspire me to be better.
But more than my personal connection with those I miss because I am no longer living in D.C., the events over these past three days were important for two reasons.  First, all of us, including the President and White House staff saw and heard what hope is all about.  We heard from clemency recipients about heartache, mistake, and loss being turned into determination, faith, and commitment.  We heard people who genuinely want to make their communities and their lives better, stronger, and happier.  I am delighted that policymakers inside and outside of Washington are taking the opportunity to get to know these people — as people, not numbers, not workload, not files on a desk.
Second, I was pleased that two of my students were in the audience — and in fact had been given the opportunity to be involved in preparing for these events.  As part of Texas A&M School of Law’s new externship program in public policy, these students got to see policymaking in action from start to finish; they got to see firsthand the effects of both good and bad policy decisions.  Their experiences may not seem all that different from the hundreds of law students who go to D.C. and elsewhere each semester to partake in policy but it actually was a defining moment for me and them.  These students are the future policymakers and advocates.  To me, the events of these past three days were not just about hope for those impacted by outdated laws and poor decision making, but hope that the next generation of lawyers, policymakers, and advocates being trained by the brilliant people who participated in these events will learn from our mistakes; that they will engage in sound decision making based on evidence and best practices; that they will carry on the work done so well by so many. As an advocate and a teacher that is what hope is all about.

April 3, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Thursday, March 31, 2016

A telling, but still unsatisfying, SCOTUS discussion of retroactivity during oral argument in Welch

As previewed in this post, yesterday the Supreme Court heard oral argument in Welch v. United States, which is principally concerned with the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague.  I am deeply interested in this Welch case, not only because I helped with this law professor amicus brief in Welch, but also because I have authored this law review article to explain my view that traditional SCOTUS retroactivity doctrines — so called Teague doctrines — developed with unique concern for the importance of preserving the finality of convictions are not necessarily the best was to examine whether and when a new sentencing rule ought to apply retroactivity.

Helpfully, Rory Little has followed up his terrific Welch oral argument preview post at SCOTUSblog with this spot-on oral argument review post titled "Argument analysis: A likely decision in favor of retroactivity?."  Having read the full argument transcript in Welch (which is available here), I fell well positioned to assert that Rory's analysis is a much better and more enjoyable read, and it includes these essential insights at its start and end:

While it is not possible to describe the intricacies of retroactivity doctrine here — let alone wise if we want to keep our readers awake — it looks like last Term’s decision in Johnson v. United States will be declared to apply retroactively for all purposes, including on first and even successive (assuming they are timely filed) habeas corpus petitions. And as I explained in my preview, that result is likely, although not certain, to result in substantial sentencing reductions for a significant number of convicted federal defendants....

The law of retroactivity presents intellectual conundra that may never be fully settled.  The decision in this case is likely to be simply one more precedent in the wavering doctrinal line.  We will never know what Justice Harlan, or Justice Scalia, thinks of it.  But convicted federal felons whose sentences are reduced by five or more years will not care about the intricacies, while young law professors aspiring to tenure will have new grist for their mills.

Though I am no longer a young law professor, the intricacies of retroactivity doctrines as articulated in Teague and its progeny are a source of frustration and concern for me.  And the Welch oral argument leaves me concerned that the current Justices are going to be content to apply existing Teague doctrines in a quirky manner to a quirky case (as they have recently show they are wont to do in Montgomery v. Louisiana decided a few months ago).  As I suggest in this law review article, applying traditional Teague doctrines in retroactivity cases that involving only sentencing issues necessarily involves banging a square equitable peg into and round Teague doctrinal hole.  And yet, after reading the Welch transcript, it seems the Justices are for now content to just keep banging away.

March 31, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Extraordinany (and extraordinarily timely) issue of the Annals of the American Academy of Political and Social Science

The March 2016 issue of The ANNALS of the American Academy of Political and Social Science has an extraordinary collections of essays by an extraordinary array of legal scholars and sociologists and criminologists under the issue title "The Great Experiment: Realigning Criminal Justice in California and Beyond." Though many of the articles focus on California's unique and uniquely important recent criminal justice reforms experiences, all folks interested in and concerned about sentencing and corrections reform in the United States ought to find the time to read most or all of the articles in this collection.

The special editors of this issue, Charis Kubrin and Carroll Seron, authored this introduction to the collection under the title "The Prospects and Perils of Ending Mass Incarceration in the United States."  Here is an excerpt from that introduction:

This volume of The ANNALS represents the first effort by scholars to systematically and scientifically analyze what Joan Petersilia (2012) has described as “the biggest criminal justice experiment ever conducted in America.”  She went on to note that “most people don’t even realize it’s happening,” a point underscored by Franklin Zimring in the volume’s concluding remarks.  At a historic moment in which imprisonment patterns across the U.S. are shifting for the first time in nearly 40 years, the California case is ripe for in-depth examination.  The political landscape around decarceration is also shifting in ways that do not fit the debate of the last 40 years.  The initiative behind the prison buildup was largely an offshoot of more conservative, law and order political agendas, but as the nation debates a move toward prison downsizing and decarceration, there is support from both the Left and the Right for this fundamental shift in policy (Aviram, this volume; Beckett et al., this volume) — unusual bedfellows at a time of political polarization.  While this political convergence will no doubt be contested, as Joan Petersilia emphasizes in the volume’s preface, it nonetheless represents an important moment to have a systematic, rigorous, and scientific evaluation of California’s experiment and its implications on hand for policy-makers.

March 31, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Fair Punishment Project releases first major report: "Juvenile Life Without Parole in Philadelphia: A Time for Hope?"

In this post yesterday I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  Today I received an email concerning the great new work of this great new initiative.  Here is part of this email reporting on this new report from FPP:

As Pennsylvania prepares for hundreds of resentencing hearings, a new report released today by the Fair Punishment Project and Phillips Black highlights Philadelphia’s frequent use of life without parole sentences for juveniles, calling the county an “extreme outlier” in its use of the punishment.  The report urges District Attorney Seth Williams to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively.

The report, Juvenile Life Without Parole in Philadelphia: A Time for Hope?, notes that Philadelphia County is responsible for the highest number of juvenile life without parole sentences in the country.  By way of comparison, Philadelphia County is home to just .5% of all Americans, but at least 9% of all juveniles sentenced to life without parole — or nearly one in 10.

“The latest scientific research show us that juveniles have a tremendous capacity to change their behaviors as they age,” stated Johanna Wald, a spokesperson for the Fair Punishment Project. “It is an injustice, and waste of taxpayer resources, to keep individuals locked up until their death for crimes they committed when they were teenagers. They should have an opportunity to prove they are worthy of a second chance.”

Wald notes that the Supreme Court has set a high bar to justify a life without parole sentence for juveniles. “The court has said that juvenile life without parole sentences should be reserved for exceptional cases that reflect ‘irreparable corruption.’ Given that adolescent brains are not fully developed and the capacity children have to change, the court rightfully assumes that it will be rare for an individual to meet this standard.”...

“Philadelphia has sentenced more juveniles to life without parole than anywhere else in the United States,” said John Mills of Phillips Black. “It is an outlier jurisdiction that, thanks to the court’s ruling, now has the opportunity to right the harsh punishments of the past by providing a thoughtful and measured approach to resentencing.”

March 31, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, March 30, 2016

Harvard Law School launches "Fair Punishment Project"

While I was on the road yesterday, I received an email with some exciting news from my law school alma mater.  Here is the text of the email announcement:

We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.

We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.

And here are titles and links to some of the notable sentencing-related content already up at the FPP website:

March 30, 2016 in Death Penalty Reforms, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Prez Obama commutes the sentence of 61 more federal drug offenders

As reported in this Washington Post piece, "President Obama commuted the sentences of 61 inmates Wednesday, part of his ongoing effort to give relief to prisoners who were harshly sentenced in the nation’s war on drugs." Here is more on this notable clemency news:

More than one-third of the inmates were serving life sentences. Obama has granted clemency to 248 federal inmates, including Wednesday's commutations.  White House officials said that Obama will continue granting clemency to inmates who meet certain criteria set out by the Justice Department throughout his last year....  Since the Obama administration launched a high-profile clemency initiative, thousands more inmates have applied.  Another 9,115 clemency petitions from prisoners are still pending....

But sentencing reform advocates said that many more prisoners are disappointed they have not yet heard from the president about their petitions. “Sixty-one grants, with over 10,000 petitions pending, is not an accomplishment to brag about,” said Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency.  “I know some of those still waiting, men who were grievously over-sentenced, who have reformed themselves, and never had a record of violence.  My heart breaks for them, as their hope for freedom — a hope created by the members of this administration — slips away.”

The White House has argued that broader criminal justice reform is needed beyond the clemency program. “Despite the progress we have made, it is important to remember that clemency is nearly always a tool of last resort that can help specific individuals, but does nothing to make our criminal justice system on the whole more fair and just,” said White House counsel W. Neil Eggleston. “Clemency of individual cases alone cannot fix decades of overly punitive sentencing policies.  So, while we continue to work to resolve as many clemency applications as possible — and make no mistake, we are working hard at this — only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences.”

Among those granted clemency on Wednesday was Byron Lamont McDade, who had an unusual advocate in his corner.  The judge who sent McDade to prison for more than two decades for his role in a Washington-area cocaine conspiracy personally pleaded McDade’s case for early release. U.S. District Judge Paul L. Friedman said McDade’s 27-year punishment was “disproportionate” to his crime, but that he had no choice but to impose the harsh prison term in 2002 because of then-mandatory sentencing guidelines. Over the years, the judge had urged the Bureau of Prisons and the White House to reduce McDade’s sentence to 15 years.  He received no response until now....

On Thursday, the White House will hold an event called Life after Clemency that will include former inmates and their attorneys, along with some prison reform advocates. The president’s senior adviser, Valerie Jarrett, is meeting with advocates, former inmates and family members of prisoners Wednesday at the White House for an event about women and the criminal justice system.

This White House Press release provides basic details on the full list of 61 offenders who today learned that they now have a "prison sentence commuted to expire on July 28, 2016." Many of those listed appear to have been involved in a crack offense, though other drug cases sentenced both before and after Booker can be found in the group.  Notably, this NACDL press release reports that "25 of [these 61 offenders] were applicants whose petitions were supported by Clemency Project 2014."  This White House blog post authored by White House counsel W. Neil Eggleston provides more details and context concerning these grants:

Today, the President announced 61 new grants of commutation to individuals serving years in prison under outdated and unduly harsh sentencing laws.  More than one-third of them were serving life sentences.  To date, the President has now commuted the sentences of 248 individuals more than the previous six Presidents combined. And, in total, he has commuted 92 life sentences.

Underscoring his commitment not just to clemency, but to helping those who earn their freedom make the most of their second chance, the President will meet today with commutation recipients from both his Administration and the previous administrations of Presidents George W. Bush and Bill Clinton.  During the meeting, the commutation recipients will discuss their firsthand experiences with the reentry process and ways that the process can be strengthened to give every individual the resources he or she needs to transition from prison and lead a fulfilling, productive life. 
 
Building on this conversation, tomorrow the White House will host a briefing titled Life After Clemency with advocates, academics, and Administration officials to discuss and share ideas on the President’s clemency initiative and ways to improve paths to reentry. In addition to officials from the White House and the Department of Justice, experts, academics, and commutation recipients will share their expertise and insights on returning to society after years behind bars.  To watch the briefing live, tune in tomorrow, Thursday, March 31, at 2:00 PM EDT at www.whitehouse.gov/live.

March 30, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Fascinating SCOTUS Sixth Amendment splintering in Luis v. United States

The Supreme Court this morning handed down an opinion this morning that is fascinating based simply on the line-up of Justices: "BREYER, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., filed a dissenting opinion." This line-up ruled for the criminal defendant in Luis v. United States, No. 14-419 (S. Ct. March 30, 2016) (available here), and here is how Justice Breyer's plurality opinion starts:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property “obtained as a result of ” the crime, (2) property“traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her frompaying her lawyer.  She claims that insofar as it does so, it violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree.

March 30, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (9)

"Sentencing Reductions versus Sentencing Equality"

The title of this post is the title of this interesting and timely new paper by Susan Klein now available via SSRN.  Here is the abstract:

The Sentencing Reform Act of 1984 was enacted by an odd conglomeration of Democrat and Republican who agreed that federal sentences should be based upon relevant offender and offense characteristics, not including such things as race, gender, geography, ideological bent of the sentencing judge, or citizenship. That goal has become lost and less relevant in today’s world of draconian and mandatory minimum sentencing, especially in the drug trafficking, child pornography, and fraud arenas. Mass incarceration has run rampant. Sentences are so out-of-whack with most basic principles justice that the fact that female offenders may receive slightly lower prison terms than their male counterparts should no longer be the very top of our reform agenda.

This is not to suggest that scholars and the public shouldn’t be concerned with sentencing disparity, especially based on race. However, the disparity between federal and state sentences is so much wider (and occurs so much more frequently) than the disparity among similarly-situated federal offenders that the latter appears less of a significant issue in absolute terms. Whatever reform capital policy-makers and scholars retain should be poured into championing alternatives to criminalization (such as fines, drug treatment, and apologies) and alternatives to long prison terms (such as probation and parole). Reforms must focus on discovering what offenses we could safely decriminalize, and what programs are effective in keeping individuals out of prison in the first place (or in curbing recidivism once incarceration has occurred).

If giving judges more discretion at sentencing means lower average prison terms, this will probably rebound to the benefit of our minority populations as a whole, even if it might mean that in particular cases minority defendants receive slightly higher sentences for the same conduct as their white counterparts. Likewise, if sentencing, parole, and probation decisions based upon “risk assessment” leads to lower overall incarceration rates, we may have to tolerate this even if it generates higher risk numbers for certain minority offenders. Critics of every substantive criminal-law and sentencing reform proposal need to remember the big picture, and not lose sight of the forest of mass incarceration for the trees of unwarranted sentencing disparity.

March 30, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Federal court to hear challenge to "scarlet passport" provision of International Megan’s Law

ImagesAs reported in this Wall Street Journal article, a constitutional challenge to a contoversial aspect of a law passed by Congress last month is schedule for a federal court hearing today in California. The article is headined "Law Creating Passport Mark for Sex Offenders Faces First Challenge: Lawsuit targets ‘unique identifier’ for passports of those convicted of sex crimes involving minors," and here are excerpts:

A new federal law requiring the State Department to mark the passports of certain convicted sex offenders is expected to face its first test in federal court on Wednesday. A group of convicted sex offenders has asked a federal judge in Oakland, Calif., to block the measure pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality.

The law, International Megan’s Law to Prevent Demand for Child Sex Trafficking, mandates the State Department to add a “unique identifier” to passports of Americans convicted of sex crimes involving minors and that U.S. officials to alert foreign governments when those Americans travel abroad.

The judge, Phyllis J. Hamilton, is scheduled to hear arguments on Wednesday on whether to suspend implementation of the passport mark and the notification requirement. The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional.

“For the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship,” says the lawsuit, filed on Feb. 8 in federal district court in Oakland, Calif.

The new law codifies a nearly decade-old program called Operation Angel Watch, which U.S. officials said has helped to curb child-sex tourism by alerting countries of sex offenders traveling to them. Supporters say the law will help countries with a lack of resources deal with child predators and encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S. “Knowledge is power in terms of protection,” said Rep. Chris Smith (R., N.J.), who sponsored the bill. Rep. Smith said the passport mark to be created by the State Department will help keep Americans covered by the law from concealing their destination by traveling to a foreign country by way of another to engage in sex tourism.

The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe.... Rep. Smith said he got the idea for International Megan’s Law during a meeting with a delegation of Thai officials about human-trafficking. He asked them what they would do if the U.S. alerted them when a registered offender was traveling to their country and “They said, ‘Well, we wouldn’t give them a visa,’ ” Mr. Smith recalled....

Janice Bellucci, a lawyer who represents the lawsuit’s plaintiffs, said she found few precedents for the passport identifier in her research. Among them: The Nazis confiscated Jewish passports and marked them with a “J,” and the internal passports in the Soviet Union singled out Jews by listing their ethnicity as Jewish, while other citizens were identified by their place of birth, she said.

Mr. Smith rejected the lawsuit’s comparisons and said California Reform Sex Offender Laws, a group Ms. Bellucci is president of, and others have long sought to weaken sex-offender laws. “U.S. law denies passports to delinquent taxpayers, deadbeat parents and drug smugglers,” the congressman wrote in a recent op-ed published in the Washington Post. “The law’s passport provision, however, does not go this far.”

International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to Ms. Bellucci. Nor does it exempt those who were minors at the time of their offense.

Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about 200,000 of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court. “This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.”

March 30, 2016 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Tuesday, March 29, 2016

Oklahoma creates Death Penalty Review Commission full of prominent folks .... which will likely achieve ....?

Though I generally think of myself as an optimist, this notable news item out of Oklahoma, headlined "Oklahoma Bipartisan Death Penalty Review Commission formed, supported," triggers the cynical little voice in my head that comes out when I hear about the creation of a blue-ribbon commission in the sentencing arena.  (For those curious about aesthetic backstories, this Wikipedia entry highlights why we color expert panels blue instead of, say, having pink-ribbon commissions.)  Before I go cynical, here are the details of the latest governmental gathering of note:

A group of prominent Oklahomans joined together Monday (March 28) to form a blue-ribbon, bipartisan Oklahoma Death Penalty Review Commission.  The Commission will conduct what a press statement called “the first-ever independent, objective and thorough review of the state’s entire capital punishment system.”...

“Oklahoma has an opportunity to lead the nation by being the first state to conduct extensive research on its entire death penalty process, beginning with an arrest that could lead to an execution,” said former Gov. Brad Henry, of Henry-Adams Companies, LLC, one of the group’s co-chairs.“The Commission includes distinguished Oklahomans with differing views and perspectives on capital punishment who are donating their time to work together on a research-driven review,” he said.

Joining Gov. Henry as co-chairs are Reta Strubhar, a judge on the Oklahoma Court of Criminal Appeals (1993-2004) and an Assistant District Attorney of Canadian County (1982-1984); and Andy Lester, of the Spencer Fane law firm and a former U.S. Magistrate Judge for Western District of Oklahoma who served on President Ronald Reagan’s Transition team for the Equal Employment Opportunity Commission (1980-1981).

Members of the Commission have experience in a variety of aspects of the capital punishment system, including victim advocacy, policymaking, prosecution, defense, and judging. They also include leading lawyers, business leaders, and scholars.  In addition to the co-chairs, the members are Robert H. Alexander, Jr., of The Law Office of Robert H. Alexander, Jr.; Howard Barnett, President of OSU-Tulsa; Dean Andrew Coats, Dean Emeritus of OU College of Law; Dean Valerie Couch, Oklahoma City University School of Law; Maria Kolar, Assistant Professor of OU College of Law; Rob Nigh, Chief Public Defender, Tulsa County; Christy Sheppard, a victims’ advocate; Kris Steele, Director of The Education and Employment Ministry (TEEM) and former Speaker of the House; and Gena Timberman, founder of The Luksi Group.

“Our goal is to provide a resource for Oklahomans to allow them to make informed judgments about our state’s capital punishment system that, we hope, will benefit both Oklahoma and the country as a whole,” said Henry.

Though I have long been a fan of any "research-driven review" of any sentencing system, I am not optimistic based on my own experiences in Ohio that this kind of death penalty review commission will be able to achieve all that much other than producing a lengthy report that will be embraced or rejected by political leaders based entirely on their already established views on the death penalty.  This cynical prediction is based on how an array of ABA reports on state death penalty systems and how a recent Ohio Death Penalty Task Force report was received.

Critically, I do not mean to be asserting that this Oklahoma Death Penalty Review Commission is unimportant or sure to inconsequential.  But I do mean to assert that basic political dynamics rather than refined policy analysis defines and often limits the possibilities for reforming the administration of the death penalty.

March 29, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)