Wednesday, July 27, 2016

Spotlighting the travesty of how the Eleventh Circuit is handling Johnson claims

I highlighted in this post here last week the potent opinions by a number of Eleventh Circuit judges explaining why they think the Circuit's precendents for dealing with prisoner petitions based on the Supreme Court's landmark ruling in Johnson v. United States, 133 S. Ct. 2551 (2015), are so very wrong and unjust.  A helpful reader made sure that I did not miss this recent Bloomberg commentary on this topic authored by Noah Feldman headlined "This Is What 'Travesty of Justice' Looks Like."  Here are excerpts:

Call it Scalia’s revenge. In one of the last cases that he authored before he died in February, Justice Antonin Scalia convinced his colleagues to strike down a key clause of the Armed Career Criminal Act because it was unconstitutionally vague.  As a result, thousands of convicted felons are now asking courts to have their sentences reduced.

The legal rules for considering such post-conviction requests are tricky and technical.  But in most of the country, prisoners are getting another day in court to have their ACCA convictions reviewed in the light of the new legal principle.  In the Eleventh Circuit, which includes Alabama, Georgia and Florida, the process has gone badly awry [and] a judge on the circuit's court of appeals cried foul, calling for a fundamental change in how its handling these cases....

Before a prisoner can go back to the district court for what’s called a “second, successive” post-conviction petition, he or she needs special permission from a federal court of appeals.  The stakes are high for the prisoners.  In some cases, the difference might be between the 15-year minimum imposed on felons with three prior convictions, and a sentence of 10 years or less for fewer convictions.

Consequently, the U.S. Court of Appeals for the Eleventh Circuit has been immersed in the time-consuming process of figuring out who should be allowed a second chance to file a petition in District Court seeking review of their sentence.  It's studying presentence reports to ascertain whether any of the prior convictions should still count, and, if so, how that might change the petitioner's sentence.  Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.

Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion ... declaring that the process in her court wasn’t working.  Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.

To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request.  The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means.  And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.

What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.

The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit.  And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem.  But real people are spending potentially many extra years in prison on the basis of an unconstitutional law.  That’s wrong.  In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.

July 27, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Tuesday, July 26, 2016

"The Death Penalty and the Fifth Amendment"

The title of this post is the title of this essay authored by Joseph Blocker and just published online by the Northwestern Law Review. Here is part of the introduction: 

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”?  If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

The dueling opinions in Glossip v. Gross have brought renewed attention to the constitutionality of the death penalty. In a dissent joined by Justice Ginsburg, Justice Breyer identified “three fundamental constitutional defects” with the death penalty.... Justice Breyer’s dissent marked the first time that two members of the current Court have announced a belief that the death penalty is likely unconstitutional “in and of itself,” and the opinion has justifiably been treated as a significant development.

In a blistering concurrence, Justice Scalia (joined by Justice Thomas) wrote that the dissent was full of “gobbledy-gook,” and that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.” Justice Scalia argued that the Fifth Amendment afforded a textual basis for the capital punishment’s continued constitutionality....   Announcing his concurrence from the bench, Justice Scalia made the point even more strongly, saying that “the death penalty is approved by the Constitution.” He and many others have made some version of this point...

The Fifth Amendment contains prohibitions, not powers, and there is no reason to suppose that it somehow nullifies other constitutional prohibitions — most importantly, the ban on cruel and unusual punishment.  The real target of the Fifth Amendment Argument can only be the Court’s longstanding Eighth Amendment doctrine, which is not limited to the punishments considered cruel and unusual at the time of the Constitution’s framing. Unless and until that doctrine changes, the Argument itself carries no weight.

To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so, only that the “constitutional defects” Justice Breyer identifies cannot be dismissed out of hand.  Glossip, along with other developments in law and practice, have made the continuing constitutionality of capital punishment a pressing question. That question should be answered without the distraction of the Fifth Amendment.

July 26, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

Saturday, July 23, 2016

Michigan prosecutor wants 71-year-old "juve lifer" to still have no chance of parole

This local AP article, headlined "Prosecutor: No sentencing break for Michigan's oldest juvenile lifer," reports on the disinclination of a Michigan prosecutor to be open to considering even the possibility of parole for an elderly prisoner given LWOP more than a half-century ago. Here are the details:

Oakland County prosecutor Jessica Cooper said Friday she'll seek another no-parole sentence for a 71-year-old man who is the oldest so-called juvenile lifer in the Michigan prison system. Sheldry Topp has been in prison for nearly 54 years. He was 17 in 1962 when he ran away from a state hospital, broke into an Oakland County home and fatally stabbed the owner.

Life sentences with no chance for parole are no longer automatic for anyone under 18. Juvenile lifers have a right to new hearings as a result of a U.S. Supreme Court decision. Judges now have discretion and can consider an offender's childhood, education and a variety of other factors.

Prosecutors across Michigan are filing their sentencing proposals this week in more than 350 cases.

The prosecutor said she'll seek no-parole sentences again for 44 people who are in prison, including Topp. She declined to explain her position in Topp's case during an interview with The Associated Press, referring a reporter to a court filing, which wasn't available after business hours.

"When we talk about doing due diligence, we did an incredible amount of due diligence in these cases," said Cooper, a former judge. "The cases that we've been reviewing are not the kids who were at the wrong place at the wrong time. We're talking about stabbings, shootings and strangulations. ... I'm shocked."

Topp, who turns 72 in September, is in a prison in Muskegon. In a recent court filing, attorney Deborah LaBelle said he was in a hospital with heart problems. She couldn't be reached for comment Friday. In 1987 and 2007, the state parole board recommended that Topp's sentence be reduced, but governors declined.

Meanwhile, in Wayne County — the state's largest — prosecutor Kym Worthy said she would seek no-parole sentences again for at least 60 prisoners who were convicted of murder as teens.

Worthy said she'll ask that 81 people be given a certain number of years in prison instead of a no-parole sentence. That could lead to freedom for some who already have been locked up for decades.

July 23, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, July 21, 2016

California DA makes the case for mending rather than ending California's capital punishment system

The District Attorney of Sacramento County has this new commentary urging citizens of her state to vote for reform rather than repeal of the death penalty.  The piece is headlined "California’s broken death penalty system can be fixed," and here are excerpts:

In 1978, California enacted today’s California death penalty statute, the so-called Briggs Initiative. Now, Ron Briggs supports repealing the statute his “family wrote,” but his argument reads more like a surrender to death penalty abolitionists (“Death penalty is destructive to California”; Forum, July 10).  Instead of waving a white flag, Briggs should endorse Proposition 66, the Death Penalty Reform and Savings Act of 2016, as a worthy successor to his family’s work.  This initiative deals with the concerns Briggs raises about California’s death penalty system.

The reason that no executions have occurred in California for 10 years is the state’s delay in drafting regulations for a method of execution.  Otherwise, there could have been at least 15 sentences carried out during the past decade.  It’s outrageous that victims’ families were forced to sue the state to draft these regulations. Proposition 66 will prevent biased and unsympathetic politicians and government bureaucrats from interfering with this process.

Proposition 66 also addresses concerns about how death row inmates occupy their time, requiring them to work or lose their privileges.  If they owe restitution, it will come out of their wages. The proposal makes other significant reforms as well.  It addresses the backlog of cases at the state level by expanding the pool of qualified counsel for death row inmates.  The initiative expedites review of prisoners’ complaints by returning their cases to the original trial court and prompts the Judicial Council to develop standards for the completion of appeals in state court in five years. Victims’ families will have the right to sue to force them to meet deadlines.

Briggs believes abolition will benefit victims’ survivors by closing cases and sparing them further “wounds.”  That is offensive and presumptuous. In our experience, most survivors want “justice” for the murderers of their family members. Repealing the death penalty will not heal these peoples’ wounds; it keeps them permanently open.

Briggs naively touts life without parole as a sufficient alternative to the death penalty. He forgets that the last murderer executed in California, Clarence Ray Allen, was sentenced to death for the murder of three people, which he planned while already serving a life sentence for murder.  Life imprisonment was not enough to protect the public from Allen....

Finally, Briggs is dead wrong to assert that the death penalty has been conclusively shown not to deter crime. Experience and common sense confirm a deterrent effect.  Briggs risks lives on the unproven idea that the death penalty does not deter murder and that life sentences will protect public safety. Rather than capitulating to abolitionist arguments, he should support his families’ legacy and endorse Proposition 66.

Prior related posts:

July 21, 2016 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (9)

Tuesday, July 19, 2016

Perhaps previewing coming SCOTUS work in Beckles, four Eleventh Circuit judges make case against circuit's refusal to apply Johnson to guidelines

In this post after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career offender guideline of the US Sentencing Guidelines.  Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with that career offender guideline, which in turn has led to most circuit courts finding Johnson-based constitutional problems with sentences based on that guideline. 

But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  I considered this ruling suspect, but an amicus brief I helped put together urging en banc review in Matchett did not led to its reconsideration.  As blogged here last month, though, we know have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.

For a variety of reasons, I am expecting that SCOTUS will ultimately agree with the majority of circuits that Johnson's holding applies to the career offender guidelines and thereby reject the Eleventh Circuit's Matchett precedent.  What I did not expect was that a number of Eleventh Circuit judges would set forth, in essence, some amicus briefing to SCOTUS in order to explain in detail why they think their own circuit's work in Matchett was wrong.  But that is what I see via a series of recent concurring opinions in In Re: William Hunt and In re: Charles Therion Clayton, cases in which a panel felt duty-bound to reject habeas applications due to the Matchett precedent but then followed up with separate opinions by Circuit Judges Wilson and (Jill) Pryor and Rosenbaum and Martin all explaining why they think Matchett is so wrong and so troublesome as we await a SCOTUS ruling in Beckles.

If you have read this far into this post, you probably have some interest in the application of Johnson and its impact on the career offender guidelines, which in turns means you ought to find the time to read all the judicial thoughts shared in Hunt and Therion.  I know that is my plan for this evening, and to whet everyone's appetite I will close this post by quoting the closing paragraph authored by Judge Pryor in these cases:

If the Supreme Court decides in Beckles that the residual clause in the career offender guideline is void for vagueness, there may be new hope for the scores of inmates who have tried to obtain relief since Johnson, only to be turned away by this Court based upon Matchett.  I hope next time around we will avoid the mistakes I have identified. And I hope that, rather than being behind the march of justice, we, as our nation’s designated guardians, will be at the front.

July 19, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Sunday, July 17, 2016

Defense builds case for unconstitutionality of death penalty in federal court in Vermont

Those who follow the federal death penalty closely surely have heard of the long-running case from Vermont involving Donald Fell.  Fell was involved in the murder of three persons way back in 2000, and the feds have been trying to secure and preserve a death sentence for the last dozen years.  After an original death sentence reversed on appeal, Fell is getting a new opportunity to build a record in the District Court concerning his claims that the death penalty is unconstitutional.  This recent local article, headlined "Fell's defense: The federal death penalty is 'irrational'," reports on these recent developments.  Here are excerpts:

The final witness for the defense in the Donald Fell death penalty hearing in Rutland testified on the results of more than 20 years of research he’s gathered for the Federal Death Penalty Resource Council Project.

Based on that data, Kevin McNally, the project’s director and an attorney in Kentucky, said that the “federal death penalty is driven by irrational or illegal considerations,” including race, gender, geography, or luck. “It’s akin to being struck by lightning,” McNally said.

McNally cited the Donald Fell case as a prime example of the role luck and timing can play in capital cases and the authorization of the death penalty....

Fell was convicted in the brutal killing of Terry King, a North Clarendon grandmother, and sentenced to death in 2005. The verdict was overturned due to juror misconduct and a retrial is scheduled for early next year.  The two-week long hearings in Rutland could lead to a historic Supreme Court ruling on the constitutionality of the death penalty....

The lack of a uniform standard for seeking the death penalty is one of many factors that has eroded public trust in capital punishment, according to Richard Dieter, executive director of the Death Penalty Information Center, who also testified on Friday.  Although a majority of Americans still support the death penalty, Dieter said, growing numbers have expressed concern about the way it is applied....

Counsel for the U.S. government questioned whether the Death Penalty Information Center was a neutral source of information as Dieter characterized it.  Attorney Sonia Jimenez read the titles of several reports published by the center: “Struck by Lightning: The Continuing Arbitrariness of the Death Penalty”; “The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All”; and “A Crisis of Confidence: Americans’ Doubts About the Death Penalty.”

Asked if he was opposed to the death penalty, Dieter said he took a fact-based approach. “It’s not a philosophical issue for me,” he said. “It’s not a moral issue.”

“The present system is broken,” he continued. “Can it be fixed? Maybe it can’t be fixed.”

The government will present its case next week in Rutland District Court.

In this post over at PrawfsBlawg, Michael J.Z. Mannheimer provides some additional context and highlights his distinct interest in the case:

The defense filed the usual battery of motions for a capital case, arguing among other things that the death penalty has become cruel and unusual punishment.  Curiously, the court issued an order this past February calling for a hearing on the issue.  Citing Justice Breyer’s dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting), the court expressed an interest in the suggestion there that the risk of wrongful execution, the geographic disparities in the implementation of the death penalty, the long delays before execution, and the purported arbitrariness in meting out the death penalty all added up to its unconstitutionality.  However, the court seemed unsatisfied with deciding these issues without a factual record complete with testifying experts, and wrote that the purpose of a hearing “is to develop the fullest possible expression of both sides' factual and empirical arguments.”  In particular, while capital defendants typically repeat the same empirical assertions in their briefs, a hearing would provide the Government the opportunity to “cross-examine[] the sources of social and statistical information cited by the defense” and “offer[] its own empirical evidence in response.”...

Irrespective of how the court rules, it appears that the court is attempting to get as complete a factual record as possible in order to tee the unconstitutionality issue up for appeal.  My interest in this particular case stems from the fact that this is a federal capital prosecution for crimes occurring in a non-death penalty State (well, here, two separate non-death penalty States).  I have appeared in the case as an amicus and have filed an amicus brief on my own behalf making the argument, based on my prior scholarship, that the Cruel and Unusual Punishments Clause forbids the imposition of the federal death penalty under these circumstances.  Presumably, the court will ultimately address that issue as well, unless it is mooted by a broader ruling that the death penalty is unconstitutional full stop.

July 17, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (15)

Wednesday, July 13, 2016

Wisconsin Supreme Court rejects due process challenge to use of risk-assessment instrument at sentencing

In prior posts here and here, I noted the notable Loomis case in Wisconsin in which the defendant was contesting on due process grounds the reliance by a sentencing court on risk-assessment tools.  Today the Wisconsin Supreme Court issued this lengthy opinion rejecting the defendant's constitutional challenge.  The Court's extended introduction to its extended opinion is thoughtful, and includes these passages:

In 2007, the Conference of Chief Justices adopted a resolution entitled "In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism." It emphasized that the judiciary "has a vital role to play in ensuring that criminal justice systems work effectively and efficiently to protect the public by reducing recidivism and holding offenders accountable." The conference committed to "support state efforts to adopt sentencing and corrections policies and programs based on the best research evidence of practices shown to be effective in reducing recidivism."

Likewise, the American Bar Association has urged states to adopt risk assessment tools in an effort to reduce recidivism and increase public safety. It emphasized concerns relating to the incarceration of low-risk individuals, cautioning that the placement of low-risk offenders with medium and high-risk offenders may increase rather than decrease the risk of recidivism. Such exposure can lead to negative influences from higher risk offenders and actually be detrimental to the individual's efforts at rehabilitation.

Initially risk assessment tools were used only by probation and parole departments to help determine the best supervision and treatment strategies for offenders. With nationwide focus on the need to reduce recidivism and the importance of evidence-based practices, the use of such tools has now expanded to sentencing.  Yet, the use of these tools at sentencing is more complex because the sentencing decision has multiple purposes, only some of which are related to recidivism reduction....

Use of a particular evidence-based risk assessment tool at sentencing is the heart of the issue we address today. This case is before the court on certification from the court of appeals. Petitioner, Eric L. Loomis, appeals the circuit court's denial of his post-conviction motion requesting a resentencing hearing.

The court of appeals certified the specific question of whether the use of a COMPAS risk assessment at sentencing "violates a defendant's right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment's scientific validity, or because COMPAS assessments take gender into account."

Loomis asserts that the circuit court's consideration of a COMPAS risk assessment at sentencing violates a defendant's right to due process.  Additionally he contends that the circuit court erroneously exercised its discretion by assuming that the factual bases for the read-in charges were true.

Ultimately, we conclude that if used properly, observing the limitations and cautions set forth herein, a circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.

We determine that because the circuit court explained that its consideration of the COMPAS risk scores was supported by other independent factors, its use was not determinative in deciding whether Loomis could be supervised safely and effectively in the community.  Therefore, the circuit court did not erroneously exercise its discretion.

Prior related posts:

July 13, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, July 11, 2016

First Circuit finds sentence enhanced based on a song (and thrice longer than guideline range) substantively unreasonable

Thanks to Howard Bashman at How Appealing, I did not miss the interesting First Circuit panel ruling in Alvarez-Núñez, No. 15-2127 (1st Cir. July 9, 2016) (available here), declaring an above-guideline sentence substantively unreasonable. Here are excepts from an opinion that has a wordy flair that would justify reading in full:

In this case, the sentencing court confused the message with the messenger. That led the court to blur the line between the artistic expression of a musical performer and that performer's state of mind qua criminal defendant. Concluding, as we do, that this line-blurring undermined the plausibility of the court's sentencing rationale (and, thus, rendered the sentence substantively unreasonable), we vacate and remand for resentencing....

Evidence extrinsic to the protected words or conduct may make clear that a performance or artistic work speaks to a defendant's motive, state of mind, or some other attribute in a way that is relevant to sentencing.  In the absence of such extrinsic evidence, the mere fact that a defendant's crime happens to resemble some feature of his prior artistic expression cannot, by itself, establish the relevance of that expression to sentencing.

Evidence that might support such an inference is conspicuously lacking in this case. Nothing in the record indicates that the lyrics or music videos had any direct application either to the defendant or to his lifestyle.  Nor is there any basis for a claim that they are unlawful in any respect.  By like token, there is no hint that the defendant had any prior involvement with illegal firearms, much less with violence or murder.  The government did not so much as attempt to prove any uncharged conduct, nor did the district court make any findings about the defendant's involvement in any other criminal activity. To the contrary, the PSI Report — accepted in this regard both by the government and the district court — confirms that, at age 34, the defendant had no adult criminal history.

The district court's conclusions — that the lyrics and music videos comprised "objective evidence . . . that this [crime] was not a mistake," that they reflected that the defendant had a history of involvement "with firearms, with violence, [and] with murders," and that they made it likely that the defendant possessed the gun for nefarious purposes — thus rested entirely on naked inferences drawn from the content of the lyrics and music videos....

Taking the lyrics and music videos as "objective evidence" of factors relevant to sentencing, without an iota of corroborating evidence, results in a sentencing rationale wholly unsupported by the record. Like a house built upon a porous foundation, a sentence built upon a rationale that is unsupported by the record cannot stand.

July 11, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, July 08, 2016

The demise of irreducible life sentences in the Netherlands

I am pleased to be able to provide this guest posting from Dirk van Zyl Smit, who runs the Life Imprisonment Worldwide Project at the University of Nottingham, concerning a big recent ruling from the Netherlands:

The Netherlands has long been an exception to the general European rule that all persons sentenced to life imprisonment must have a realistic prospect of release before they are too old or ill to again lead a full life in free society. There are only a small number of life-sentenced prisoners in the Netherlands, 32 at the last count, but they all serve sentences akin to US-style life without parole, and are rarely, if ever, released. On 5 July 2016, that position changed dramatically. The Hoge Raad, the Supreme Court of the Netherlands, ruled that the remote possibility of a pardon, which hitherto has been the sole mechanism by which Dutch life-sentenced prisoners theoretically could be released, was inadequate. The current pardon system did not provide them with a clear prospect of being considered for release and was therefore contrary to Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment.

In coming to this conclusion the Hoge Raad quoted extensively from the standards developed by the Grand Chamber of the European Court of Human Rights (ECtHR) in 2013 in Vinter and others v United Kingdom and in 2016 in Murray v The Netherlands but then set them out and developed them further in its own words. (The translations are my own.)

The Hoge Raad began cautiously (para 3.2), noting

that the life sentence is not inherently contrary to the provisions of art. 3 of the ECHR, even if it is fully executed. From the jurisprudence [of the European Court of Human Rights] however, it follows that life imprisonment cannot be imposed if it is not already clear at the time of imposition that in due course there will be a real opportunity to reassess the life sentence, which in the appropriate cases can lead to the shortening of the sentence or (conditional) release. This does not mean that providing an opportunity for review of the sentence will always lead to a reduction of the penalty. Reassessment can indeed also lead to a finding that there is no ground for reducing the sentence.

The Hoge Raad then explained the various conditions it regarded as essential prerequisites for a review of a life sentence (para 3.3):

In the review, the question that needs to be addressed is whether there have been such changes on the part of the convicted person and whether he or she has made such progress in their resocialisation that the continued implementation of life imprisonment is no longer justified. The criteria used in this context should not be so stringent that release is allowed only when a serious illness or other physical obstacle stands in the way of the further implementation of life imprisonment, or upon reaching an advanced age. The review must be based on information with respect to the convicted person as an individual as well as the opportunities offered for resocialisation. Moreover, at the time of the imposition of a life sentence, it must be clear to the convicted person to a sufficiently precise extent what objective criteria will be applied in the review, so that he knows what requirements must be met, if he wants - eventually – to be considered for a reduction of his sentence or for (conditional) release.

The point of departure in the future must be that the review must take place after no more than 25 years after the imposition of life imprisonment and that after that period the possibility of periodical re-assessment is required. The reassessment shall be surrounded with sufficient procedural safeguards. The case law of the European Court of Human Rights does not require that a provision to curtail a life sentence can only consist of a statutory periodic review of the sentence by a judge. That does not detract from the view of the Hoge Raad that assigning the reassessment to a judge in itself represents an important guarantee that the implementation of life imprisonment will take place in accordance with Art. 3 of the ECHR.

Finally, in order to provide a real opportunity for reassessment, it is important that the convicted person during the execution of the life sentence - even before the reassessment takes place - must be able to prepare for a possible return to society and that, related to this, possibilities for resocialisation should be offered within the framework of the implementation.

The very basis of this decision is a rejection of official Dutch policy on the treatment of life-sentenced prisoners, for until now they have not been offered opportunities for resocialisation, because it had been presumed that they would never be released. The prison regimes for these prisoners will have to change.

The remedy that the Hoge Raad put forward is equally drastic. It ordered the Dutch government to legislate in order to reform the law relating to life imprisonment so that it would meet the standards it had spelled out. Such reforms have to be introduced by 5 September 2017. The Hoge Raad will remain seized with the case until then, when it will again consider the matter and decide whether the legislative reform meets the standards it has now set.

The decision of the Hoge Raad of 5 July 2016 is recognition that Dutch jurisprudence on life imprisonment must move forward to take account of the development in European human rights law that has led to a clear rejection of irreducible life sentences. It stands in contrast to the much more conservative approach of the English Court of Appeal, in R v Mcloughlin, which has insisted that English provisions that would allow life-sentenced prisoners, subject to a whole life order, to leave prison only when ill or dying are sufficiently flexible to be regarded as a form of release to meet the standards of Art. 3 of the ECHR. This interpretation of European standards by the Court of Appeal has been challenged before the Grand Chamber of the ECtHR in Hutchinson v the United Kingdom. Judgment in this last case, which was argued in October 2015, is keenly awaited. What remains to be seen is how the British authorities, including the UK courts, will respond if the ECtHR follows the trend that the Dutch Supreme Court has endorsed and rejects the interpretation of the Court of Appeal. The recent British referendum in favour of leaving the European Union does not affect the legal status of the United Kingdom as a party to the ECHR. However, there has been much press speculation that a decision against the United Kingdom in this latest case about irreducible life sentences may prompt a reconsideration of Britain’s relationship with the ECtHR and lead eventually to a formal withdrawal from its jurisdiction. The measured decision of the Hoge Raad on 5 July 2016 is an example of a less confrontational approach to European jurisprudence by a national apex court. One can only hope that the courts and indeed the government of the United Kingdom will learn from it.

July 8, 2016 in Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

Wednesday, July 06, 2016

"Implementing Proportionality"

The title of this post is the title of this notable new paper authored by Perry Moriearty and now available via SSRN. Here is the abstract:

Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama.  Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.  

In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades.  Yet, three of the five decisions simply have not yielded in practice what they promised in principle.  The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences.  In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.

This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.”  In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States.  On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.  

While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context.  The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield.  By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach.  I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.

July 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Jackson and Miller Eighth Amendment cases, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Split Eighth Circuit panel affirms three-month sentence for Iowa egg executives whose company caused salmonella outbreak

As reported in this AP piece, the Eighth Circuit today rejected an array of challenges to upheld short jail sentences for two egg industry executives who pleaded guilty to misdemeanor corporate crimes. Here is more about the case and the ruling:

In a 2-1 decision, the 8th U.S. Circuit Court of Appeals upheld three-month jail sentences issued last year to 82-year-old Austin "Jack" DeCoster and his son Peter DeCoster, 53.

The DeCosters were aware of unsanitary conditions at their sprawling Iowa egg farms but failed to improve them before the outbreak, which sickened up to 56,000 people and left some with permanent injuries, Judge Diana Murphy wrote. "We conclude that the record here shows that the DeCosters are liable for negligently failing to prevent the salmonella outbreak," Murphy wrote, joined by Judge Raymond Gruender.

The case, a rare prosecution against those responsible for an outbreak of foodborne illness, was closely watched by advocates for consumer safety and food and drug manufacturers. The Justice Department praised the ruling, saying the DeCosters disregarded basic food safety standards for years and deserved jail time....

At issue was whether corporate executives could face imprisonment for violating the federal Food, Drug, and Cosmetic Act, which allows "responsible corporate agents" to be held criminally liable even if they were not aware of the wrongdoing. The DeCosters, who owned and operated Quality Egg LLC, had pleaded guilty to violating the law by introducing adulterated eggs into interstate commerce. They said they did not know the eggs were contaminated but acknowledged they were in a position to stop the problems had they known.

U.S. District Judge Mark Bennett ordered the jail time in April 2015, saying they knew or should have known about the risks posed by the presence of salmonella in and around millions of egg-laying hens. But he allowed the DeCosters to stay free while they appealed the sentences, which they argued were unconstitutional and unreasonably harsh.

Business groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers, filed friend-of-the-court briefs backing the DeCosters' appeal. They argued that it would be unfair to send corporate executives to prison for violations that they were unaware of or that were committed by subordinates.

Murphy rejected those arguments, saying Congress did not require executives to have known about the violations to be subject to the food safety law's criminal penalties. She said the jail terms were relatively short, within federal guidelines and "not grossly disproportionate to the gravity of their misdemeanor offenses." Gruender added in a concurring opinion that the DeCosters were not being punished for the acts of others, saying their own failure to take steps to prevent the outbreak was to blame.

Dissenting Judge C. Arlen Beam said prosecutors failed to show that the DeCosters had criminal intent, and therefore "there is no precedent" for sending them to jail. He said they were not aware the products were tainted with salmonella and that they immediately recalled hundreds of millions of eggs once the outbreak was confirmed "at great expense."...

Quality Egg paid a $6.8 million fine after pleading guilty to felony charges of shipping eggs with false processing and expiration dates and bribing a U.S. Department of Agriculture inspector to approve sales of poor-quality eggs.

The full ruling in US v. DeCoster, No. 15-1890 (8th Cir. July 6, 2016), is available at this link.

July 6, 2016 in Offense Characteristics, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Examining Justice Sonia Sotomayor's unique SCOTUS voice on criminal justice issues

This past week as brought these two notable examinations of the work of Justice Sonia Sotomayor on criminal justice issues:

July 6, 2016 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Might the Nebraska death penalty repeal referendum in 2016 be even more important symbolically than the dueling California capital initiatives?

As highlighted in prior posts here and here, death penalty opponents and supporters will surely be focused on California during the 2016 election season as voters there will be have a clear capital punishment reform choice between "end it" and "mend it" based on two competing ballot proposals. But this local article from Nebraska, headlined "Death penalty debate heats up," provides a useful reminder that citizens in a very different state will also be voting on the future of the death penalty in their jurisdiction. Here are the basics:

Nebraskans will go to the polls four month from now and vote for an array of issues-one being whether or not to reinstate the death penalty in Nebraska. The legislature voted 30-19 to repeal it in the Spring of 2015, but supporters of capital punishment were able to get enough signatures to get the issue on the November ballot.

“It's a very complicated system, the system is broken and it doesn't work,” said Retain a Just Nebraska campaign manager Darold Bauer [campaign website here]. “The repeal of the death penalty was very unpopular across the state,” said Rod Edwards, state director for Nebraskans for the Death Penalty [campaign website here].

Those for the death penalty say murder victim’s families want justice. “They want that just penalty for the people who killed their loved ones,” said Edwards.

However the group Retain a Just Nebraska said the system doesn’t work and actually harms murder victim’s families. “Eliminate years and years of appeals, and eliminate the possibility of executing an innocent person,” said Bauer.

Both sides of this issue are now ramping up their campaigns this summer coordinating their army of volunteers and getting their message out. “We are re-energizing those volunteers we are working with our Facebook followers to make sure they get the message out and working with those 166-thousands signature gathers to expand that to an electorate,” said Edwards.

Even churches are getting involved-handing out materials urging their people to vote for a specific item. This past weekend, some parishioners likely saw a bit of politicking in the pews. “We are getting help from a number of different churches and different denominations, we are not turning anyone away, if they believe what we do in eliminating the death penalty, we welcome their support,” said Bauer.

Both campaigns will start airing ads on TV and radio soon.

Because California has the nation's largest death row (as well as the largest population of any state in the nation), the outcome of the death penalty reform initiatives in that state will, practically and politically, be far more consequential in the short-term than whatever happens in Nebraska.  But, as the question in the title of this post is meant to suggest, I think the vote in Nebraska could have more symbolically importance and long-term significance for the future of the death penalty in the United States.

California is, of course, a "deep-blue" state and its quirky and complicated history with the death penalty will make it relatively easy for whichever side that loses in November to claim that the result is not really representative of the views of the national as a whole.  But Nebraska is a "deep-red" state, and its legislative repeal of the death penalty was driven by conservative elected officials.  If Cornhusker voters embrace capital repeal at the ballot this November, I think death penalty abolitionists can and will assert forcefully that this vote shows that even conservative citizens want to see an end of capital punishment int he US. But if Nebraska voters reject the repeal, and especially if they do so by a large margin, supporters of capital punishment can and still will be able to point to the outcome as proof that most voters in most states still support the punishment of death for some murderers.

July 6, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, June 30, 2016

Split Iowa Supreme Court upholds state's broad felon disenfranchisement provisions

As reported in this local article, headlined "Iowa Supreme Court upholds ban on felons voting in Iowa," a divided state Supreme Court rejected a challenge to Iowa's felony disenfranchisement laws. Here is how the press report on the decision starts:

The Iowa Supreme Court ruled against an expansion of voting rights for convicted criminals on Thursday, finding that all felonies are "infamous crimes" resulting in disenfranchisement under the state constitution. The 4-3 decision upholds what critics say is one of the harshest felon disenfranchisement laws in the nation, and means the state will not see a significant shift in voter eligibility ahead of the 2016 election.

Iowa's top elections officer immediately cheered the ruling, while criminal justice reform advocates said they would begin exploring their options for constitutional and legislative reforms. "This ruling goes in line with 150 years of precedence and has been reaffirmed by the people of Iowa and their elected representatives on multiple occasions," Iowa Secretary of State Paul Pate said in a statement. Pate's office oversees elections in the state, and he was named as the defendant in the case.

The American Civil Liberties Union of Iowa, which argued the case before the court, had sought to limit disenfranchisement to a handful of felonies directly relating to elections and governance. If the court had upheld that view, thousands of Iowans with felony convictions could have had their voting rights restored ahead of this November's presidential election. "This is no way (to) run a democracy," ACLU attorney Rita Bettis said in a statement following the decision. The group now intends to draft a constitutional amendment allowing offenders to vote after completing their sentences.

The lengthy ruling from the Supreme Court of Iowa is available at this link, and the majority opinion authored by the court's Chief Justice gets started this way:

This appeal requires us to decide if the crime of delivery of a controlled substance is an “infamous crime” under the voter disqualification provision of the Iowa Constitution. The district court held the crime is an infamous crime, and a conviction thereof disqualifies persons from voting in Iowa. Following the analysis we have used in the past to interpret provisions of our constitution, we agree and affirm the judgment of the district court.

The term “infamous crime” was generally recognized to include felony crimes at the time our constitution was adopted. This meaning has not sufficiently changed or evolved to give rise to a different meaning today. In addition, unlike some past cases when we have interpreted provisions of our constitution, the facts and evidence of this case are insufficient to justify judicial recognition of a different meaning. Constrained, as we must be, by our role in government, we conclude our constitution permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship. This conclusion is not to say the infamous-crime provision of our constitution would not accommodate a different meaning in the future. A different meaning, however, is not for us to determine in this case. A new definition will be up to the future evolution of our understanding of voter disqualification as a society, revealed through the voices of our democracy.

Among other interesting aspects of this ruling is the wide array of cites to recent legal scholarship appearing in both the majority opinion and the longest dissent. (I bring that fact up not only because it makes me pleased given how much time I give to reading and writing such scholarship, but also because it helps reinforce my belief that Judge Posner is way off base with some recent (and past) comments about the legal academy failing to work on projects of any interest and importance to the bench and the practicing bar.)

June 30, 2016 in Collateral consequences, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, June 29, 2016

Sixth Circuit affirms way-below guideline five-year child porn sentence based in part on jury poll urging sentence even lower

A number of helpful readers made sure that, despite being on the road all day, I did not miss the remarkable Sixth Circuit panel decision today in US v. Collins, No. 15-3236 (6th Cir. June 29, 2016) (available here).  I first blogged about this case here after initial sentencing, recounting these basic details via a news account:

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

Unhappy with this outcome, federal prosecutors appealed the sentence as unreasonable, but now has lost before a unanimous Sixth Circuit panel. The Court's relatively short opinion includes these passages:

The government also argues that the jury poll was an “impermissible factor[]” for the district judge to consider in crafting an appropriate sentence. Conatser, 514 F.3d at 520. We again disagree. Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence....

District courts also have the authority to “reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts.” United States v. Kamper, 748 F.3d 728, 741 (6th Cir. 2014). Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements. See United States v. Bistline (Bistline I), 665 F.3d 758, 762-64 (6th Cir. 2012) (finding that the district court “did not seriously attempt to refute” the judgments underlying the guidelines).

When establishing the Sentencing Commission, Congress directed it to take “the community view of the gravity of the offense” into account when crafting appropriate criminal sanctions. 28 U.S.C. § 994(c)(4). As reflected in his writing on the subject, and briefly in the sentencing hearing below, the district judge reasons that the Commission fell short of this directive. See Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 HARV. L. & POL'Y REV. 173, 185 (Winter 2010)....

Though we reiterate that juries lack “the tools necessary for the sentencing decision,” Martin, 390 F. App’x at 538, they can provide insight into the community’s view of the gravity of an offense. See Gwin, supra at 193-94; see also Ring v. Arizona, 536 U.S. 584, 615-16 (2002) (BREYER, J., concurring) (jurors “reflect more accurately the composition and experiences of the community as a whole” and are “better able to determine in the particular case the need for retribution”) (internal quotations and citations omitted). The jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.

June 29, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4)

Tuesday, June 28, 2016

Final SCOTUS order list has nine Mathis GVRs ... and I suspect hundreds more cases will be impacted

The Supreme Court this morning finished up its work before heading out on summer vacation by issuing this order list. Though the Justices granted review in eight new cases, none appear to involve criminal justice issues. But the order list still had a bit of sentencing intrigue by including nine GVRs based on its Mathis ACCA ruling from last week (basics here).

Though it is never surprising to see a spate of GVRs in the wake of any significant ruling about a federal sentencing statute, I suspect that the fall-out from Mathis will extended to many more cases because, as reported via Justice Alito's dissent, it seems the ruling means that "in many States, no burglary conviction will count" as a possible ACCA predicate offense. That reality not only can impact many past, present and future ACCA cases, but also could also echo through the application of burglary (and even other crimes) in past career offender guideline cases.

Ultimately, I would be very surprised in the impact and import of Mathis end up nearly as grand or as complicated as last Term's Johnson ruling. But the consequential sentencing math of Mathis still may be major.

June 28, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, June 27, 2016

Eager to hear various perspectives on the SCOTUS sentencing Term that was

R-2958783-1407368094-7528.jpegIn this post last September, I previewed the SCOTUS Term that just wrapped up this morning by asking "Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?".  (I thereafter followed up with a grand total of one post promoting the silly hashtag, #BESTEA = Best Ever SCOTUS Term for Eighth Amendment for this Supreme Court Term.)  

Looking back now, I do not think this past SCOTUS Term proved to be truly monumental for the Eighth Amendment, although I do think the Montgomery ruling is a (so-far under-examined) big deal.  Ironically, the surprising and sudden death of Justice Antonin Scalia may have been the biggest Eighth Amendment development: Justice Scalia had long been among the most vocal and frequent critics of the Court's modern "evolving standards" Eighth Amendment jurisprudence, and his eventual replacement, no matter who that ends up being, seems unlikely to be as hostile to this jurisprudence.  Indeed, the next new Justice will be joining a Court that seems to already have at least five, and maybe even six, Justices open to continuing to interpret the Eighth Amendment as a serious limit on serious punishment other than just the death penalty.  (I am counting the Chief Justice as the sixth, based in part on his surprising vote with the Kennedy majority opinion in the Montgomery case.) 

Of course, there were a number of notable constitutional cases/developments outside of the Eighth Amendment context this past Term involving important sentencing issues.  For death penalty followers, the Sixth Amendment ruling in Hurst was and will remain a very big deal for the forseeable future (especially in Alabama, Delaware and Florida).  And the shock-waves of the Johnson Fifth Amendment ruling from the end of last SCOTUS Term has and will continue to rumble through the Welch retroactivity ruling and today's grant in the Beckle case to address the application of Johnson to the career offender provision of the federal sentencing guidelines.

In the coming days and weeks, I will likely to some writing about the SCOTUS sentencing Term that was along with some predictions about what the future might hold for SCOTUS sentencing jurisprudence.  In the meantime, though, I would be eager to hear from readers (in the comments or via email) concerning what sentencing case(s)/opinion(s) they think were most important or significant or telling or consequential.  And anyone who can provide perspectives on the SCOTUS sentencing Term that was wth a Tom Lehrer flair will be sure to get extra praise and promotion in this space.

June 27, 2016 in Recap posts, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

Per the Chief, SCOTUS unanimously vacates former Gov's conviction while adopting "more bounded interpretation" of corruption statute

Wrapping up yet another remarkable Term with a notable bit of unanimity, the Supreme Court's final opinion for this SCOTUS season was a win for a high-profile federal defendant McDonnell v. United States, No. 15-474 (S. Ct. June 27, 2016) (available here). Chief Justice Roberts authored the opinion for the unanimous Court, and here are some key excerpts from the start and center of the ruling:

In 2014, the Federal Government indicted former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, on bribery charges.  The charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office.  Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine, a compound found in tobacco.  Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.

To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts.  The parties did not agree, however, on what counts as an “official act.”  The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five “official acts.”  Those acts included “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning studies of anatabine.  Supp. App. 47–48.  The Government also argued more broadly that these activities constituted “official action” because they related to Virginia business development, a priority of Governor McDonnell’s administration.   Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official — without more — does not count as an “official act.”

At trial, the District Court instructed the jury according to the Government’s broad understanding of what constitutes an “official act,” and the jury convicted both Governor and Mrs. McDonnell on the bribery charges.  The Fourth Circuit affirmed Governor McDonnell’s conviction, and we granted review to clarify the meaning of “official act.”...

Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of “official act.”  Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”...

It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter.  Instead, something more is required: §201(a)(3) specifies that the public official must make a decision or take an action on that question or matter, or agree to do so....

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of “official act.”

June 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants

Confirming that the Second Amendment has far more bark than bite when push comes to shove (puns intended), the Supreme Court this morning rejected a narrow interpretation of the federal criminal statute that forever prohibits any firearm possession by any persons who are convicted of certain misdemeanors. The opinion for the Court authored by Justice Kagan in Voisine v. US, 14-10154 (S. Ct. June 27, 2016) (available here), gets started this way:

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. §922(g)(9).  That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.”  §921(a)(33)(A).  The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.

Justice Thomas authored a dissent in Voisine, which was partially joined by Justice Sotomayor.  His dissent is nearly twice as long as the opinion for the Court, and it starts and ends this way:

Federal law makes it a crime for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a firearm “in or affecting commerce.” 18 U.S.C. §922(g)(9).  A “misdemeanor crime of domestic violence” includes “an offense that . . . has, as an element, the use or attempted use of physical force . . . committed by [certain close family members] of the victim.” §921(a)(33)(A)(ii).  In this case, petitioners were convicted under §922(g)(9) because they possessed firearms and had prior convictions for assault under Maine’s statute prohibiting “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A) (2006).  The question presented is whether a prior conviction under §207 has, as an element, the “use of physical force,” such that the conviction can strip someone of his right to possess a firearm.  In my view, §207 does not qualify as such an offense, and the majority errs in holding otherwise.  I respectfully dissent....

At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.  Tr. of Oral Arg. 36–40.  Compare the First Amendment.  Plenty of States still criminalize libel....  I have little doubt that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel.  In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to “relegat[e] the Second Amendment to a second-class right.”  Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6).

In enacting §922(g)(9), Congress was not worried about a husband dropping a plate on his wife’s foot or a parent injuring her child by texting while driving.  Congress was worried that family members were abusing other family members through acts of violence and keeping their guns by pleading down to misdemeanors.  Prohibiting those convicted of intentional and knowing batteries from possessing guns — but not those convicted of reckless batteries — amply carries out Congress’ objective.

Instead, under the majority’s approach, a parent who has a car accident because he sent a text message while driving can lose his right to bear arms forever if his wife or child suffers the slightest injury from the crash.  This is obviously not the correct reading of §922(g)(9).  The “use of physical force” does not include crimes involving purely reckless conduct. Because Maine’s statute punishes such conduct, it sweeps more broadly than the “use of physical force.”  I respectfully dissent.

June 27, 2016 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

SCOTUS grants cert on Johnson application to career offender guidelines

As noted in this prior post, SCOTUS has been relisting throughout June two notable petitions on Johnson's applicability to the career offender guidelines.  Excitingly for sentencing fans, today's final Supreme Court order list includes a grant or certiorari in Beckles v. United States, No. 15-8544, which SCOTUSblog has described this way:

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whetherJohnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

IN other words, Beckle buckle-up your seat-belts, sentencing fans, as the post-Johnson criminal history bumpy ride is now sure to continue in the Supreme Court for at least the next Term and likely beyond.

Notably and significantly, the SCOTUS order list reports that "Justice Kagan took no part in the consideration or decision of ... this petition." In other words, it seems that Justice Kagan's prior history as Solicitor General has caused her to be conflicted out of this case. Ergo, it will likely be only be a seven (or perhaps and eight-member) Court that will be resolving the application of vagueness doctrines in this case.  

A few (of many) prior related posts:

June 27, 2016 in Federal Sentencing Guidelines, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Friday, June 24, 2016

Helpful review of Johnson's impact a year latter, just before ACCA prisoners need to file Johnson collateral appeals

A year ago, as first reported in this post and immediate follow-ups here and here, the Supreme Court  in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  This morning's Washington Post has this effective (and well-timed) extended article, headlined "Local Small words, big consequences for possibly thousands of federal prisoners,"looking at the impact of that ruling now a year later.  I recomment the piece in full, and here are excerpts: 

Hundreds if not thousands of federal prisoners are likely to have their sentences shortened — and in some cases get immediate release — due to one of the final opinions written by Justice Antonin Scalia. Scalia’s little-noticed opinion focused on one phrase in federal law but has created uncertainty and upheaval for judges, prosecutors and defense attorneys facing a pile of prisoner requests to have their cases reviewed.

Federal inmates have until Sunday to try to challenge their prison terms after the Supreme Court labeled 12 words in the criminal code “unconstitutionally vague” in an opinion announced by Scalia last June, eight months before his death.  The ruling eliminated a section of law that prosecutors relied on to seek stiffer penaltiesfor defendants they said were especially dangerous.  Defense attorneys had decried the wording because it was used to brand too many defendants as violent....

For defense attorneys, the court’s decision provides a new avenue to challenge lengthy sentences for prisoners who received severe penalties for nonviolent offenses, such as resisting arrest.  “It was a dumping ground,” said Amy Baron-Evans of the Sentencing Resource Counsel Project of federal public defenders.  “It ended up sweeping in crimes that no one would think of as being violent.”

Filings from inmates are piling up in judicial chambers throughout the country.  In Atlanta, one judge took the unusual step this spring of flagging the names of 110 prisoners from her district eligible to refile for shorter sentences to alert them to the deadline this month — one year from the date the Supreme Court decision was handed down.  In Richmond last month, the U.S. Court of Appeals for the 4th Circuit, which covers Virginia, Maryland, West Virginia, North Carolina and South Carolina, received more than 500 filings for sentence reviews, according to the clerk’s office. In the same period last year, there were 18.  More than 350 petitions have been filed in the 8th Circuit in St. Louis since May, contributing to a record number of filings in a single month....

The language overturned by the Supreme Court in the criminal code echoes in other parts of the justice system.  Nearly identical words about career offenders appear in federal sentencing guidelines, which use a formula to give judges a recommended range of possible prison time for the defendants who come before them.

Federal public defenders and the U.S. Justice Department agree that the Supreme Court ruling negates those words in the guidelines for defendants sentenced since Scalia’s 2015 opinion.  The Supreme Court separately is being asked to settle a dispute about whether inmates punished before the 2015 opinion should have another chance at sentencing.

The Justice Department says they should not, according to the government’s court filings.  The judges who handed down those prison terms were not bound to a particular mandatory sentence and imposed what they thought were appropriate punishments that should stand, the government says.  To the public defenders, that position is at odds with the Obama administration’s advocacy for clemency. If the court rules that the decision does apply retroactively to the guidelines, another 6,000 federal inmates sentenced between 1992 and 2015 could ask to have their prison time cut, according to an estimate from the public defenders’ sentencing project.

Prosecutors say “the sky is going to fall and all of these violent people are going to be let out,” said federal public defender Paresh Patel, who is handling appeals for the Maryland office.  “People are not getting a windfall. They were wrongly sentenced as career offenders.”

Justice Department spokesman Patrick Rodenbush said the administration’s position is “fully consistent” with its clemency efforts.  The guidelines apply “only to individuals convicted of specific crimes of violence and are wholly distinct from grants of clemency to drug offenders who have been vetted for public safety concerns.”

Prosecutors worry about the ripple effects of Scalia’s opinion. Inmates and their lawyers argue that the court’s decision to eliminate words in one law should stick to other areas of law with parallel language. These filings raise new questions about what types of crimes meet the technical definition of a “crime of violence” and how judges assess a person’s criminal past.

In response to the Supreme Court’s decision, attorneys for Dustin John Higgs in May asked the 4th Circuit for permission to challenge his death sentence.  Higgs was sentenced in 2001 for ordering the murders of three young women in Beltsville. The women were shot to death on a desolate stretch of federal land near the Patuxent Wildlife Research Center. Higgs was convicted of using a firearm during a “crime of violence” — in this case kidnapping and murder....

Even if Higgs does not personally benefit, prosecutors say, a new interpretation in his case could upend plea agreements with others facing similar firearms counts.  The uncertainty is already changing the way prosecutors draw up and negotiate charges.

The article states that "federal inmates have until Sunday to try to challenge their prison terms," based on the one-year statute of limitations in AEDPA for bringing 2255 collateral appeals following certain critical legal development. As the title of my post indicates, it seems clear that inmates serving ACCA sentences need to get Johnson claims filed now due to this statutory deadline. Less clear, though, is whether inmates eager to extend the reach of Johnson to the career offender guidelines or other statutes are subject to the smae deadline (and, as noted in this prior post, SCOTUS has been relisting throughout June two notable petitions on Johnson's applicability to the career offender guidelines). Also, I suppose, based on the right facts, equitable tolling arguments could be made (though probably would face an uphill battle) for any inmates who missed the AEDPA deadline for bringing Johnson claims in various settings.

Long story short, as I forecasted in some of the posts below right after the Johnson ruling last year, it seems all but certain that many thousands of inmates (and thousands of lawyers) are going to be having Johnson dreams or nightmares for many years to come.

A few (of many) prior related posts:

June 24, 2016 in Offender Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Thursday, June 23, 2016

California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms

As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:

Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.

"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."

Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.

The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.

Prior related posts:

June 23, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Another ACCA win for federal defendants in Mathis

The Supreme Court this morning handed down its last sentencing case this Term, and Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (available here), is another win for federal criminal defendants.  Here is the start of the Mathis opinion for the Court authored by Justice Kagan:

The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.”  To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense — i.e., the offense as commonly understood.  For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.

Justice Kennedy issued a concurring opinion, and so did Justice Thomas. Justice Breyer, joined by Justice Ginsburg, issued a dissenting opinion. And Justice Alito issued his own dissenting opinion.

June 23, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, June 22, 2016

Anyone interested in making bold predictions on the last four criminal cases still to be decided by SCOTUS this Term?

Amy Howe at SCOTUSblog has this helpful new post reviewing the final eight cases still to be resolved by the eight Justices before they take their summer vacations.  Some of these opinions will be handed down tomorrow and the others are likely to be released early next week.  Notably, four of the remaining eight are criminal cases (and I am leaving out of this accounting the big immigration case).  Here are Amy's review of the four criminal cases left:

Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence.  Voisine and Armstrong contend their state convictions (which the First Circuit affirmed) do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.

Birchfield v. North Dakota (argued April 20, 2016).  Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall.   The North Dakota and Minnesota Supreme Courts ruled in favor of the states, and now the Justices will weigh in.

Mathis v. United States (argued April 26, 2016).  After having been convicted of several burglaries in Iowa, Richard Mathis was later prosecuted by the federal government for being a felon in possession of a firearm and received a mandatory minimum sentence under the Armed Career Criminal Act based on his burglary convictions.  The Eighth Circuit affirmed his conviction.  The question before the Court is how to determine whether state convictions like Mathis’s qualify for federal mandatory minimum sentences and for removal under immigration law.

McDonnell v. United States (argued April 27, 2016).  Former Virginia governor Bob McDonnell is challenging his convictions for violating federal laws that make it a felony to agree to take “official action” in exchange for money, campaign contributions, or anything else of value. The Fourth Circuit affirmed, and so the Justices agreed to weigh in.  He argues that merely referring someone to an independent decision maker – in his case, in an effort to help promote a Virginia businessman’s nutritional supplement – doesn’t constitute the kind of “official action” that the statute bars.

I think it is possible that any of these cases could turn into a blockbuster, and Birchfield and McDonnell arguably require the Justices to do some "big" jurisprudential work to resolve the issues before them. Narrow/technical rulings seem more likely in Voisine and Mathis, though the former may get some extra attention in light of the on-going political discussions and sparring over gun control following the Orlando shootings and the latter seems sure to add yet another chapter to the lengthy and complicated ACCA jurisprudence.

As we await these final rulings (and especially because all are sure to be eclipsed in the mainstream media by the abortion, affirmative action and immigration cases also on tap), I would be eager to hear from readers about what they are expecting or even hoping for as the SCOTUS Term winds down.

June 22, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Ninth Circuit discusses timing and tolling for successor 2255 petitions making Johnson claims

Hard-core habeas fans know that all sorts of procedural issues can potentially trip up federal defendants serving Armed Career Criminal Act sentences from being able to bring claims collaterally attacking their sentences based on Johnson v. US.  Some of the procedural trip-wires, and potential work-arounds, are discussed today by a Ninth Circuit panel in Orona v. US, No. 16-70568 (9th Cir. June 22, 2016) (available here).

I am not sure any of the particulars discussed in Orona are that noteworthy, but I thought the case merited a blog mention because this week is, arguably, the last week in which defendants with long-final sentences can bring timely collateral attacks based on Johnson.

June 22, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Tuesday, June 21, 2016

"Society would benefit from rewarding attorneys for identifying the wrongly and unnecessarily imprisoned"

Regulation-summer-16-cover_0The title of this post is the subheading of this great new article in the latest issue of Regulation published by the Cato Institute. The article, authored Christopher Robertson and Jamie Cox Robertson, carries the main title of "Reducing Wasteful Incarcerations," and here are excerpts from the start and heart of the article:

Prisons are essential to a safe and civil society.  Prisons are also costly for the taxpayers whose government houses, feeds, medicates, and supervises millions of people underlock and key.  This expense is compounded by errors in the U.S. legal system that produces both false guilty verdicts and overly harsh penalties.  It’s time for the United States to take a closer look at these unnecessary incarcerations.  By working to release prisoners who don’t belong in prison, we can lower the costs of the prison system — not to mention restore freedom to people who are wrongly being deprived of it.  Unfortunately, it is difficult to identify which prisoners are wrongly incarcerated, and itwould take an enormous investment of professional expertise and money to produce that information.  However, we could make valuable progress on this issue by offering appropriate incentives for attorneys to identify some of these wasteful incarcerations, thus saving public money and serving the ends of liberty....

Under current law, most prisoners probably deserve to be there, and there is no simple algorithm for identifying which ones don’t.  The challenge is to separate the wheat from the chaff, and that requires professional skills and the investment of both time and money.  Currently, to do this sorting, we largely depend on charity, luck, and pluck, which is no way to run a multibillion dollar government enterprise.

A better approach would be for the government to increase funding for public defenders so they can do more post-conviction litigation.  Some public defenders already have in-house innocence projects.  Still, funding for public defenders’ offices is notoriously scarce, the salaries offered for these cases often fail to attract the best attorneys needed to undertake such complex work, and the overworked offices naturally triage in favor of new cases.

Of course, we could spend more on public defenders.  But as a centrally planned solution, it’s hard to assessthe optimal level of investment.  Prior reform efforts suggest that additional spending on public defenders may also be politically infeasible because it is often viewed as providing a service for criminals.

Instead, governmentsshould consider using a contingent-fee system for post-conviction counsel.  Attorneys would only receive this fee if they successfully show that a prisoner’s continued incarceration is wrongful.  The fee could be based on a simple proportion of the estimated amount the government would save by stopping the incarceration — perhaps 50% of those costs.  Or, the system could be set up like the statutory fee paid to civil rights attorneys, taking into account a reasonable hourly rate multiplied by a factor to recognize the low chances of prevailing.  In the False Claims Act, passed during the Civil War to root out fraud by government contractors, and the more recent whistle blower statute that the Internal Revenue Service uses to expose tax evaders,we have precedents for paying financial rewardsthat align the interests of knowledgeable individuals and the government.

The advantage of a contingent fee is that it gives attorneys an incentive to search for worthy cases and bring them to prosecutors and the courts, which is exactly what a cost-conscious government needs.  Unlike desperate and unskilled prisoners representing themselves, attorneys would have no incentive to clog the courts with frivolous claims for post-conviction relief.  Any such claim would require the investment of time and money without promise of return.  Instead, we should expect a small industry of specialist attorneys to develop, at first focusing on the low-hanging fruit, but then becoming more specialized to identify entire categories of cases where review is most promising.

June 21, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Open letter from large group of reform advocates urges Prez Obama to "accelerate the process" for granting clemency

As reported in this new USA Today piece, headlined "Experts warn White House that time is running out for clemency initiative," an impressive group signed on to this open letter to Prez Obama discussing his clemency activities.  Here are excerpts from the USA Today reporting providing some pf the leteer's context and content:

Thousands of federal inmates could be eligible to have their sentences reduced under the Obama administration's initiative to free non-violent offenders from prison, but experts are warning the White House that time is running out for the president to take action.

A record-setting number of clemency petitions, lack of resources and a confusion over eligibility have hampered President Obama's plan to use his constitutional pardon power to shorten sentences, particularly for low-level drug offenders serving mandatory minimum sentences.  If those inmates are going to have any hope, President Obama needs to personally intervene in the process, a group of advocates, law professors and attorneys said in a letter to the president Tuesday.

"The initiative has been plagued by bureaucratic inefficiencies that have kept petitions that meet all of your stated criteria from reaching your desk," the letter said.  "We are concerned that as your days in office diminish, the clemency initiative is moving too slowly to meet the goals you set when you announced it in 2014."

The letter was signed by 41 people, led by Julie Stewart of Families Against Mandatory Minimums and including and law professors from Harvard, Yale, Georgetown, Berkeley, Columbia, Northwestern, New York University and others. Also notable: former White House special adviser Van Jones and former U.S. District Judge Nancy Gertner.

In response, the White House said Obama "has demonstrated a commitment to the commutations process not seen by any other president in the modern era."  He's issued more commutations than the past seven presidents combined, written personal letters to clemency recipients and met with recipients to urge society to give them second chances.

"As we have said, the president will continue to issue additional commutations throughout the remainder of his time in office," said Assistant White House Press Secretary Brandi Hoffine.  "The clemency process alone, however, will not address the vast injustices in the criminal justice system resulting from years of unduly harsh and outdated sentencing policies."

Obama has stepped up the pace of commutations in his last year in office, no longer waiting until the end of the year to announce clemency decisions. Obama granted 61 commutations in March, 58 in May and 42 this month — part of what White House Counsel Neil Eggleston said was a deliberate attempt to grant clemency on a more regular basis. In all, Obama has commuted the sentences of 348 people, more than any president since Franklin Roosevelt.  (He's also granted just 70 pardons, fewer than any full-term president since 1800.)

But according to the Office of Pardon Attorney, 11,861 commutation petitions were still pending as of June 6, fueled largely by the Judtice Department's call for more applications from volunteer defense attorneys in 2014. And this isn't the first time there have been warnings of a backlog in the process.  A year ago, former Pardon Attorney Deborah Leff told defense lawyers that "the clock is running," and that petitions weren't coming in quickly enough.  There were questions about the eligibility criteria, and many cases required a complete re-examination of court and prison records.  Then in January, Leff resigned, citing a lack of resources and interference from Deputy Attorney General Sally Quillian Yates that prevented her recommendations from reaching the president's desk.

I had the honor of being asked to sign on to this open letter, and I agree with nearly all of its sentiments.  But, as I stressed in this post a few months ago, I have been clamoring for clemency reform since Prez Obama's first day on the job, and I remain deeply disappointed and troubled that there seems to have been no serious interest or commitment to any kind of structural/institutional reform in this space.  As a result, I did not feel I could comfortable sign this letter because it includes a sentence stating that, in th clemency arena, the signers "believe [Prez Obama's] leadership will bring lasting change to the country and set the table for further reforms in future administrations."

I certainly do not want to unduly criticize Prez Obama's (still very important) efforts in this arena, and I am especially pleased to see this open letter getting press attention.  But, unless Prez Obama does something more than just grant a few hundred more commutations (which is what I am expecting to see in the coming months), I am still going to view his Presidency in terms of a unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.

June 21, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, June 20, 2016

A couple of SCOTUS wins for prosecution in procedural cases

There really are no more big sentencing cases pending on the SCOTUS docket, but the Supreme Court is still resolving a number of cases dealing with a number of criminal justice issues.  Today, two such cases were handed down, and here are the basics (with links) via How Appealing:

Justice Samuel A. Alito, Jr. delivered the opinion of the Court in Taylor v. United States, No. 14-6166. Justice Clarence Thomas issued a dissenting opinion.... 

Justice Thomas delivered the opinion of the Court in Utah v. Strieff, No. 14-1373. Justice Sotomayor issued a dissenting opinion, in which Justice Ginsburg joined in part. And Justice Kagan issued a dissenting opinion, in which Justice Ginsburg joined. 

For some early commentary, here are two posts from Crime & Consequences on these cases:

I expect C&C and SCOTUSblog and others will have more commentary on these cases before too long, though neither appear to blockbusters. And because I am on the road most of the rest of the day, I hope commentors will flag anything in these opinions that ought to be of special interest to sentencing fans.

June 20, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

GVRs based on Foster generates opinions, including dissent from Justices Alito and Thomas

Last month, as reported here, the Supreme Court's reversed a conviction in Georgia capital case, Foster v. Chapman, because the Court had a "firm conviction" juror strikes in the case were "motivated in substantial part by discriminatory intent." Today, at the end of this order list, the Court now has relied on Foster to issue this order in a few cases:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of Mississippi for further consideration in light of Foster v. Chatman, 578 U. S. ___ (2016).

Justice Ginsburg explains this order via a concurrence in one of the cases, while Justice Alito joined by Justice Thomas cries foul.  Here is how Justice Alito starts his dissent on one of these cases:

This Court often “GVRs” a case—that is, grants the petition for a writ of certiorari, vacates the decision below, and remands for reconsideration by the lower court—when we believe that the lower court should give further thought to its decision in light of an opinion of this Court that (1) came after the decision under review and (2) changed or clarified the governing legal principles in a way that could possibly alter the decision of the lower court. In this case and two others, Williams v. Louisiana, No. 14–9409 and Floyd v. Alabama, No. 15–7553, the Court misuses the GVR vehicle. The Court GVRs these petitions in light of our decision in Foster v. Chatman, 578 U.S. ___ (2016), which held, based on all the circumstances in that case, that a state prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking potential jurors based on race. Our decision in Foster postdated the decision of the Supreme Court of Mississippi in the present case, but Foster did not change or clarify the Batson rule in any way. Accordingly, there is no ground for a GVR in light of Foster.

June 20, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, June 19, 2016

Alabama appeals court says, in essense, "roll tide" to its capital sentencing process

78f550493aece6b4d5c83d32617bce5eAs reported in this post from a few months ago, a county judge had declared Alabama's capital murder sentencing scheme unconstitutional because it allows judges to override jury recommendations of life without parole and instead impose the death penalty.  But, as reported by this local article, late last week an Alabama appeals court took a different view.  Here are the basics:

An Alabama appeals court on Friday ordered a Jefferson County judge to vacate her rulings earlier this year that declared the state's capital punishment sentencing scheme unconstitutional. In its order the Alabama Court of Criminal Appeals says the state's capital sentencing scheme is constitutional and told Jefferson County Circuit Court Judge Tracie Todd to vacate her March 3 order in the pending capital murder cases of four men that says otherwise.

The Alabama Attorney General's Office had filed four petitions for a writ of mandamus asking the Alabama Court of Criminal Appeals to direct Todd to vacate her orders and allow the state to decide whether to seek imposition of the death penalty in those cases if it decides.

The cases involve Kenneth Eugene Billups, Stanley Brent Chapman, Terrell Corey McMullin, and Benjamin Todd Acton who were all indicted for various counts of capital murder. Chapman and McMullin are charged in the same case and the others in separate cases. Before their trials, the men each filed a motion to bar imposition of the death penalty in their cases and to hold Alabama's capital-sentencing scheme unconstitutional based on the United States Supreme Court's decision in January declaring Florida's death sentencing system unconstitutional....

Todd agreed and declared the capital murder sentencing law unconstitutional in a 28-page order. "The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd stated in her ruling. "As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner."

The Court of Criminal Appeals, however, said Friday that the state's capital sentencing law is constitutional. "Alabama's capital-sentencing scheme is constitutional under (U.S. Supreme Court rulings) Apprendi, Ring, and Hurst, and the circuit court (Todd) erred in holding otherwise and prohibiting the State from seeking the death penalty in capital-murder prosecutions," the appeals court opinion on Friday states.

The Alabama Attorney General's Office established the prerequisites for the appeals court to issue an order to Todd telling her to vacate her opinion, the appeals court stated in its order. "Therefore, the circuit court (Todd) is directed to set aside its order holding Alabama's capital-sentencing scheme unconstitutional and to allow the State to seek the death penalty in capital-murder prosecutions if it chooses to do so.

The appeals court ruled that under Alabama's capital-sentencing scheme a capital murder defendant "is not eligible for the death penalty unless the jury unanimously finds beyond a reasonable doubt, either during the guilt phase or during the penalty phase of the trial, that at least one of the aggravating circumstances ... exists."

The court noted that Florida's law, which was struck down by the U.S. Supreme Court in January as unconstitutional, was conditioned on a first-degree-murder defendant's eligibility for the death penalty based on a finding by the trial judge, rather than the jury, that an aggravating circumstance existed. The appeals court also criticized the fact that the Attorney General was not given a the required notice that a state law was being challenged as unconstitutional and that Todd then didn't allow an assistant AG to speak at the hearing she held before making her ruling. Todd also had pre-written her ruling before the hearing, the court stated.

Judges Mike Joiner and Liles Burke concurred with the majority although they differed on some points in separate opinions. Both Joiner and Burke criticized Todd's order. Todd's order "contains sparse analysis on the application of Hurst to Alabama's capital-sentencing scheme," Burke wrote. "The majority of the order is devoted to the trial court's opinions regarding partisan politics, the effects of an elected judiciary, court funding, and the propriety of the death penalty in general," Burke states. "Additionally, the trial court extensively cites secondary sources, including materials from "Project Hope to Abolish the Death Penalty" as well as from the Web site of the Equal Justice Initiative, a nonprofit organization whose attorneys are representing the defendants in this very proceeding." "In reviewing the materials that were filed with this Court, I find no mention of these issues," Burke writes. "Thus, I question whether the trial court's (Todd's) ultimate conclusion is based on its analysis of Hurst or on the trial judge's personal opinions regarding Alabama's death penalty."

Alabama's attorney general reacted to the ruling early Friday night. "Today's decision by the Alabama Court of Criminal Appeals is the first case to affirm under Hurst that Alabama's capital sentencing is constitutional," Alabama Attorney General Luther Strange stated in a Friday evening press release. "The Appeals Court vacated the Jefferson County Court's March order and thereby held that Alabama can continue to seek the death penalty in capital murder prosecutions."

It's unclear, however, how Friday's ruling might affect recent orders by the U.S. Supreme Court telling the Alabama Court of Criminal Appeals to reconsider the appeals of three Alabama death row inmates in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.

The full 58-pages of opinions from the Alabama Court of Appeals can be accessed at this link.

Some prior related posts:

June 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, June 16, 2016

Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive

Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), has this notable new Huffington Post commentary headlined "The Least Congress Can Do on Criminal Justice Reform." Here are extended excerpts:

Five and a half years ago, I wrote an op-ed in this space in which I urged Congress to apply retroactively the recently passed Fair Sentencing Act of 2010 (FSA).  The FSA reduced the indefensible disparity between crack and powder cocaine sentences from 100:1 to 18:1.  Every member of the U.S. Senate, including Senator Jeff Sessions (R-AL), supported the FSA because they recognized that there was simply no scientific or public safety rationale for the disparity and yet ample evidence of its racially discriminatory effect.  Yet five and a half years later, Congress still has not approved FSA retroactivity.

There are approximately 4,900 individuals still serving the crack cocaine sentences Congress repudiated when it passed the FSA.  They are the people whose cases we used to illustrate why the law needed to change, yet they did not benefit.  After the FSA passed, the U.S. Sentencing Commission fixed all of the non-mandatory minimum crack sentences by lowering its guidelines consistent with the new law.  But the Commission only has authority to changes its guidelines, not mandatory minimum punishments set by Congress and found in statutes.

Today, legislation to make the FSA retroactive is included in a broader sentencing reform bill, which was introduced by Senator Chuck Grassley (R-IA) and is pending in the Senate....  [T]he U.S. Sentencing Commission, at FAMM’s urging and with FAMM’s support, has done all it can to reduce drug sentences and make those reductions retroactive for tens of thousands of federal prisoners.  Notably, those who received retroactive relief from the Commission have reoffended at a lower rate than those who served their full sentences.

We recognize that bipartisan consensus and compromise are essential to passing criminal justice reform through the Congress. Because of the hard work of key senators and outside advocates from across the ideological spectrum, we believe that Senator Grassley’s bill would receive more than the 60 votes necessary to invoke cloture and would probably receive closer to 70 votes on final passage.  But in an election year, especially a presidential election year, consensus is not enough. The bar is much higher.  Unanimity, not broad consensus, is required. Without unanimity, any reform bills will require floor time and will be subject to hostile amendments that could significantly weaken them.

Unanimity is lacking today because of a number of factors.  A couple of vocal but mistaken members of Congress insist that any drug sentencing reform will endanger the public, an election-year fearmongering tactic that has no basis in fact. There is also strong disagreement about whether to include minimum criminal intent requirements (“mens rea”) in any final reform bill.  House Judiciary Chairman Bob Goodlatte (R-VA) and Senator Orrin Hatch (R-UT) support broad mens rea protection; the White House and most Democrats strongly oppose it.  The congressional calendar presents an equally daunting challenge.  We are in June of an election year.  The Senate only plans to be in session for roughly 40 days between now and the November election....

For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive.  Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice.  The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.

June 16, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Delaware Supreme Court struggles to tame the post-Hurst hydra

Download (1)As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases. This local article reports on the Delaware Supreme Court arguments yesterday trying to sort out the constitutionality of the state's death penalty law in the wake of Hurst.  Here are excerpts:

After two sides argued their cases Wednesday morning, justices on Delaware’s highest court departed to consider the constitutionality of the most severe punishment of all – death.

The Delaware Supreme Court is weighing the merits of a judge’s role in capital punishment sentencing and how it relates to the right to a jury trial. “We understand how important this is (to all you),” said Chief Justice Leo E. Strine Jr. before exiting the packed courtroom with his four Supreme Court colleagues.

The issue arose after the U.S. Supreme Court determined in January that Florida’s death penalty statute was unconstitutional and that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” After the ruling, all death penalty trials in Delaware were stopped until more clarity was brought to the state’s process and how it relates to the constitution.

According to the Supreme Court in an order, there are over two dozen capital cases pending in Superior Court, four scheduled for trial, in less than 120 days.

Questions to the court were raised in the currently pending murder case of Benjamin Rauf. On Wednesday, attorneys presented their beliefs before the court in a scheduled 60-minute session, at times engaging in question and answer discussions with the justices.

Since a jury decides whether a case is death penalty eligible in Delaware, the state maintains that constitutional requirements are currently met. Deputy Attorney General Sean Lugg argued for the state on Wednesday. Mr. Lugg said Delaware’s sentencing scheme, which was revised in 2002 in response to a previous U.S. Supreme Court ruling, meets all of the elements outlined by the Supreme Court in the Florida decision, according to the Associated Press. “The fundamental right to a jury is provided by the Delaware statute,” he said....

In Delaware, judges have the final say on whether a death sentence is ordered; a jury must find at least one statutory aggravating factor unanimously and beyond a reasonable doubt to make a defendant death penalty eligible. In Florida, judges had the responsibility to find any “aggravating factors” that qualify it for possible capital punishment sentencing.

Assistant Public Defender Santino Ceccotti argued for the appellant. “The Sixth Amendment requires not a judge, but a jury, to find each fact,” he said.

Prior related post:

June 16, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 15, 2016

Split Second Circuit panel reverses (on procedural grounds, sort of) 60-year sentence for production and possession of child porn

A few helpful readers helped make sure I did not fail to note the interesting split Second Circuit panel decision handed down yesterday in US v. Brown, No. 13‐1706 (2d Cir. June 14, 2016) (available here).  Here area key passages from the majority opinion authored by Judge Pooler explaining its (procedural?) basis for reversal of a 60-year prison term (with most cites omitted) for the production of child pornography:

At sentencing, the district court noted “the trauma to these three children,” the fact that “three children” would have to “worry for the rest of their li[v]e[s]” about the photographs, and that Brown “destroyed the lives of three specific children.” App’x at 100‐01.  The district court’s explanation suggests that the 2 individual harm suffered by each of Brown’s three victims played a critical role in the district court’s decision to impose three consecutive 20‐year sentences.  But the sentencing transcript also suggests that the district court may have misunderstood the nature of that harm as to Brown’s third victim.  Three times the court emphasized the mental anguish that “three specific children” would suffer as a result of Brown’s abuse. App’x at 100‐01. Brown’s third victim, however, has “no knowledge of having been victimized by Brown.” PSR ¶ 35. Her mother declined to submit a victim impact statement specifically because her daughter “was unaware of the abuse” and had experienced “no negative impact.” PSR ¶ 51.  To be sure, the district court was entitled to punish Brown for that abuse regardless of whether the victim was aware of it.  But given the district court’s repeated emphasis on the fact that Brown had destroyed the lives of “three specific children,” we conclude that it is appropriate to remand for resentencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.

It is possible that, on remand, the district court will reimpose the same 60‐year sentence that it imposed at the original sentencing. Although we express no definitive view on the substantive reasonableness of that sentence at this time, we respectfully suggest that the district court consider whether an effective life sentence is warranted in this case. We understand and emphatically endorse the need to condemn Brown’s crimes in the strongest of terms.

But the Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)....

The sentencing transcript suggests that the district court may have seen no moral difference between Brown and a defendant who murders or violently rapes children, stating that Brown’s crime was “as serious a crime as federal judges confront,” App’x at 101, that Brown was “the worst kind of dangerous sex offender,” App’x at 102, and that he was “exactly like” sex offenders who rape and torture children, App’x at 100.  Punishing Brown as harshly as a murderer arguably frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior.”...

Finally, to the extent that the district court believed it necessary to incapacitate Brown for the rest of his life because of the danger he poses to the public, we note that defendants such as Brown are generally less likely to reoffend as they get older.

Judge Droney authored a lengthy dissent, which gets started this way:

The majority simply disagrees with the length of the imprisonment imposed upon the defendant by the district court, yet it cloaks that disagreement as procedural error.    There was no procedural error, and the sentence was well within the discretion of the district court.  It was also appropriate.  The defendant sexually abused at least three very young girls, recorded that abuse, installed secret cameras in public areas where children changed clothes, and possessed over 25,000 images of child pornography on his computers, including many scenes of bestiality and sadistic treatment.    No doubt this was a lengthy sentence, but it was warranted.   

I dissent.  The district judge committed no error whatsoever— procedural or substantive. 

June 15, 2016 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Tuesday, June 14, 2016

Split en banc Ninth Circuit tries its level best to sort through what Freeman means for crack guideline retroactivity eligibility

This Courthouse News Service article, headlined "Ninth Circuit Tackles Sentencing Disparities," does a nice job explaining the context and particulars of the ruling on a Ninth Circuit en banc court yesterday in US v. Davis, No. 13-301335 (9th Cir. June 13, 2016) (available here). Here are snippets from the press reporting:

Davis pleaded guilty to distributing at least 170.5 grams of crack cocaine in 2005. U.S. District Judge Ronald Leighton, a George W. Bush appointee, sentenced Davis on the higher end of the 188- to 235-month federal guidelines range a year later.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity ratios between crack and powder cocaine down to 18-to-1. The U.S. Sentencing Commission passed an amendment the following year that would allow more than 12,000 drug offenders — 85 percent of whom were black — to apply for retroactive relief. But prosecutors claimed that Davis waived his right to contest his sentence when he signed his plea agreement back in 2005.

After losing two rounds of appeals, Davis notched a small courtroom victory that may help hundreds who received disproportionate sentences. In addressing Davis's case, the San Francisco-based Ninth Circuit Court of Appeals tried to settle a controversy that has raged since the Supreme Court's uncertain conclusion five years ago in Freeman v. United States, which did not clearly define whether defendants could be eligible for retroactively reduced sentences if they pleaded guilty under guidelines that were subsequently reduced.

Although five justices agreed that the appellant in that case should receive reconsideration of his sentence, only four concurred on the lead opinion. Four judges dissented, and Justice Sonia Sotomayor wrote a special concurrence. This left lower courts to puzzle over whether Sotomayor had broken the tie. "To say that Freeman divided the court would be an understatement," U.S. Circuit Judge Richard Paez wrote for a divided 11-judge panel in Monday's majority opinion. "Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor's concurrence."...

Davis has received a fresh opportunity to reduce his sentence, but this does not guarantee that the district judge will grant him relief. Jones Day attorney Nathaniel Garrett, who represents Davis, said in a phone interview that his client's recommended sentence under the federal guidelines should drop dramatically when it returns to the lower court. Garrett noted sentencing guidelines without the 100-to-1 crack-to-powder disparity would range between 78 and 97 months in prison, and Davis already has served 143 months behind bars.

The U.S. Sentencing Commission noted two years ago that at least 71 applications for sentence reductions have been denied because of plea agreements like the one Davis signed, but Garrett believes his client's case would open the way for others to find relief. "What we don't know is how many individuals are in prison who haven't applied because the courts told them that they can't," he said.

Nancy Talner, a senior staff attorney for the American Civil Liberties Union's Washington state affiliate, said in a phone interview that the opinion underscores "how unfair the old crack-cocaine sentencing was."...

In a concurring opinion, U.S. Circuit Judge Morgan Christen agreed that Davis deserved the opportunity to reduce his sentence, but quibbled about how courts should interpret plurality decisions with no clear victors. The majority opinion leaves the possibility open to take dissenting opinions into account, but Christen thought that this could sow more confusion.

"This is not to say that dissents serve no purpose," Christen wrote. "They can and should be read to provide context and a deeper understanding of the court's decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision."

Dissenting Judge Carlos Bea would have rejected Davis's effort entirely. "The district court correctly determined that it lacked jurisdiction to resentence Davis, and the panel should affirm on that basis," he wrote.

Defense attorney Garrett predicted, however, that the majority's "reasoned and thoughtful and thorough" opinion would serve as a guide for other circuit judges who have struggled to interpret the Supreme Court's plurality decisions.

June 14, 2016 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, June 13, 2016

"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"

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

The U.S. punishment system is in turmoil.  We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions.  Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented.  The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.

The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means.  This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices.  Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand.  This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.

For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment.  While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender.  For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed.  Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.

June 13, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Intriguing Ninth Circuit ruling about restitution and forfeiture and the Excessive Fines Clause

The Ninth Circuit handed down an interesting new opinion dealing with various challenges to various financial sanctions in US v. Beecroft, No. 12-10175 (9th Cir. June 13, 2016) (available here). Here are snippets from the start and heart of the extended ruling:

Following her convictions for participating in an extensive mortgage-fraud conspiracy, a defendant was ordered to pay more than $2 million in restitution and to forfeit more than $100 million. We must decide whether either amount was erroneously calculated or unconstitutionally excessive....

As noted, Beecroft has not demonstrated error in the district court’s calculation of the amount of losses suffered by the banks injured by Beecroft’s actions. Without error in the loss calculation, Beecroft cannot show that requiring her to pay that amount back to the victims was somehow excessive or grossly disproportional to her crimes, which caused the loss in the first place. And we reiterate that Beecroft was not ordered to pay anything approaching the full amount of the banks’ losses. Uncontroverted evidence was presented to the district court showing that the scheme in which Beecroft participated caused losses in excess of $50 million; requiring her to pay slightly more than $2 million of that back is not an unconstitutional and excessive punishment....

The $107 million Beecroft was ordered to forfeit for the conspiracy (Count 1) stands apart. As with the other counts of conviction, for Count 1 Beecroft could be fined no more than $1 million (with a Guidelines range beginning as low as $20,000). In other words, for Count 1, Beecroft was ordered to forfeit a sum more than 100 times greater than the maximum fine allowable and more than 5,000 times greater than the lower-end of the Guidelines range. Even accounting for the fact that Beecroft faced potentially significant prison time as well, see Mackby, 339 F.3d at 1018, this is a tremendous disconnect between the forfeiture amount and Beecroft’s legally available fine. Indeed, such a disconnect stands out even among forfeiture orders which have previously been held grossly disproportional....

The government cites no case upholding a forfeiture order with a disparity similar to the one here, and it has not attempted to argue that the $107 million otherwise corresponds to injuries sustained by the government or the banks....

We have little doubt that the Eighth Amendment allows Beecroft to be ordered to forfeit a substantial sum of money for her participation in such an extensive and damaging conspiracy. But difficulty remains with the exceptional amount of forfeiture the court did impose. Without even an argument supporting the propriety of the $107 million forfeiture, we have no choice but to conclude that an order which so vastly outpaces the otherwise available penalties for Beecroft’s criminal activity runs afoul of the Excessive Fines Clause. Even on plain-error review, we must vacate the forfeiture order with respect to Count 1 and remand to the district court for reconsideration of that amount in light of the Eighth Amendment’s Excessive Fines Clause.

June 13, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (2)

Friday, June 10, 2016

Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on

This week's entry in the always amusing and informative Relist Watch SCOTUSblog posting by John Elwood has flagged two cases of note for sentencing fans, especially for those especially interested in the continued fall-out from the Supreme Court's big Johnson vagueness ruling last year.  I will reprint, with all the humor and links, Elwood's coverage of these cases:

Our next new relist is Jones v. United States, 15-8629. No, not that one.  Not that one either.  Or that.  Now you’re trying my patience.  Can we just agree it’s a pretty common case caption?  And indeed, this case has been up to the Court once before.  The petitioner in Jones was sentenced to about twenty-one years’ imprisonment under the residual clause of the U.S. Sentencing Guidelines’ career-offender provision.  During its last trip to One First Street, the Court granted cert., vacated the judgment, and remanded (“GVR”) in light of Johnson v. United States, which declared an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) unconstitutionally vague and therefore void.  On remand, the Third Circuit determined that Johnson was inapplicable because Jones’s career-offender designation relied not on the residual clause, but on its “Application Note,” which specifically lists robbery as a predicate offense.  During Jones’s stay in the Third Circuit, the Court held in Welch v. United States that Johnson announced a new substantive constitutional rule that applies retroactively to ACCA cases on collateral review.  Jones poses three questions: (1) whether Johnson applies retroactively to collateral cases challenging the residual clause of the Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the Guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.”

Jones, unsurprisingly, is not one of a kind: It has a doppelganger, Beckles v. United States, 15-8544, which is nearly identical right down to the GVR and raises the same three questions (except that Beckles’s third question presented involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions assert urgency because of the Antiterrorism and Effective Death Penalty Act’s one-year bar: “Prompt resolution of these issues is required because the one-year statute of limitations governing collateral Johnson claims will expire on June 26, 2016,” the petitioners say, adding that “a per curiam opinion on these issues without full briefing or oral argument may be appropriate.” The government opposes cert. because, among other things, the Sentencing Commission has adopted a Guidelines amendment, likely taking effect on August 1, 2016, that deletes the residual clause from the guideline in light of the Court’s concerns in Johnson: “The question of Johnson’s application to the current career offender guideline is therefore likely to be of no continuing importance.”   Both cases got something of a late boost when the Fourth Circuit deepened the split on Wednesday....

 

15-8629

Issue: (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.

(relisted after the June 2 Conference)

 

15-8544

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

(relisted after the June 2 Conference)

June 10, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Thursday, June 09, 2016

Seventh Circuit affirms above-guideline child porn sentence given to former Subway pitchman Jared Fogle

A panel of the Seventh Circuit made quick work of the appeal brought by former Subway pitchman Jared Fogle. Readers may recall Fogle received a federal sentence after pleading guilty to various child porn offense of 15 years and eight months, and on appeal Fogle asserted his sentence was unreasonable based on various alleged procedural and substantive errors. Oral argument on Fogle's appeal too place just a few weeks ago, and today this panel opinion affirmed the sentence given to Fogle and winds up this way:

Fogle attacks the district court’s overall reasoning in imposing his sentence. He characterizes the district court’s discussion as “puzzling” and claims that the various factors that the court relied upon cannot reasonably support an enhanced sentence.  For instance, he alleges that an enhanced sentence is not warranted because he only engaged in “[o]ne single act” of distribution. He tries to downplay this conduct by claiming that it was a mere “technical” violation of the statute because he only showed the video to “one individual with whom [he] was then involved with romantically and it occurred in the confines of a locked hotel room.”

Fogle’s arguments regarding substantive error are unpersuasive in light of the deference “we must give … to the district court’s determination that the § 3553(a) factors, taken as a whole, justified the extent of the variance” from the guidelines range.  Scott, 555 F.3d at 610.  The district court provided a thorough explanation for its imposition of an above-guidelines sentence, which is all that was required.  And contrary to Fogle’s allegation of double-counting, the district court properly invoked the § 3553(a) factors and explained why the aggravated nature and circumstances of Fogle’s offenses warranted a higher sentence for both counts.  Specifically, the district court noted that Fogle knew that his employee was secretly videotaping minors yet never reported this to law enforcement, as well as the fact that Fogle repeatedly acted on his attraction to minors rather than limiting himself to fantasies.  The court also discussed how Fogle’s lack of a difficult upbringing failed to mitigate the circumstances of his conviction, and how his celebrity status could be viewed as both a mitigating and aggravating factor.

In light of the district court’s sound exercise of discretion under the disturbing facts of this case, we uphold the aboveguidelines sentence as substantively reasonable.

Prior related posts:

June 9, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

SCOTUS overturns Pennsylvania death sentence because involved DA who became state justice did not recuse

A death row defendant in the Keystone State got a key win on a judicial bias claim from SCOTUS this morning in Williams v. Pennsylvania, No. 15-5040 (S. Ct. June 9, 2016) (available here). Justice Kennedy authored the opinion for the Court, while Chief Justice Roberts dissented in an opinion Justice Alito joined and Justice Thomas authored his own dissenting opinion. Here is how the Court's opinion gets started: 

In this case, the Supreme Court of Pennsylvania vacated the decision of a postconviction court, which had granted relief to a prisoner convicted of first-degree murder and sentenced to death.  One of the justices on the State Supreme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case.  The justice in question denied the prisoner’s motion for recusal and participated in the decision to deny relief.  The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment.

This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “‘is too high to be constitutionally tolerable.’” Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).  Applying this standard, the Court concludes that due process compelled the justice’s recusal.

June 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing whether the judicial recall effort in the controversial Standford sexual assault sentencing case is a good idea.  Here is the section's set up:

A California judge sentenced Brock Allen Turner to only six months in jail for raping an unconscious woman after a Stanford University fraternity party, despite her angry, eloquent, courtroom denunciation of the way she and other rape survivors are treated.  In response, a petition was started to hold a recall election to throw him off the bench.

But should judges be subject to recall because of an unpopular sentence or would that impede their independence?

Here are the contributions, with links via the commentary titles:

June 9, 2016 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Wednesday, June 08, 2016

Sixth Circuit on the drug war, immigrant crime, ineffective assistance, jury nullification, Alexander Hamilton and a circuit split all in seven pages

Long-time readers likely realize I do not cover federal circuit court rulings in this space nearly as much as I did in the early days after Blakely and Booker, largely because many of the federal sentencing issues that now occupy circuit have become of late much more settled (or, at times, just much more borring).  But a great little  new Sixth Circuit panel ruling today in Lee v. US, No. 14-5369 (6th Cir. June 8, 2016) (available here), reminded me of why I still make a regular habit of, and can sometime be greatly rewarded by, taking the time to see what the circuit courts are saying in criminal appeals.  As the title of this post highlights, there is a lot of "there there" in the short panel opinion in Lee, and I hope these snippets (with some cites omitted) will encourage everyone to check out the full opinion:

The case against him was very strong.  A government witness was prepared to testify that he had purchased ecstasy from Lee on a number of occasions, dozens of pills were discovered during a lawful search of Lee’s home, and Lee himself admitted not only that he had possessed ecstasy, but also that he had distributed the drug to his friends. In light of this, Lee’s trial attorney advised him to plead guilty in exchange for a lighter sentence.

Here’s the wrinkle: even though he has lived in the United States for decades, Lee, unlike his parents, never became an American citizen, and though he did eventually plead guilty, he did so only after his lawyer assured him that he would not be subject to deportation — “removal,” in the argot of contemporary immigration law.  This advice was wrong: possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable.  Lee understandably does not want to be deported, and he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, contending that he received ineffective assistance of counsel....

[T]he district court’s conclusion that the evidence of guilt was “overwhelming” is not clearly erroneous, and deportation would have followed just as readily from a jury conviction as from a guilty plea. Thus, aside from the off chance of jury nullification or the like, Lee stood to gain nothing from going to trial but more prison time. On the other hand, for those such as Lee who have made this country their home for decades, deportation is a very severe consequence, “the equivalent of banishment or exile,” as the Supreme Court memorably put it.  As a factual matter, we do not doubt Lee’s contention that many defendants in his position, had they received accurate advice from counsel, would have decided to risk a longer prison sentence in order to take their chances at trial, slim though they were.

But would such a decision be “rational”? Several courts, including this circuit, have said “no”: being denied the chance to throw “a Hail Mary” at trial does not by itself amount to prejudice.... Others have reached the opposite conclusion....  We have no ability, of course, as a panel, to change camps. A nd in that sense, this is a straightforward case. In Pilla we held that no rational defendant charged with a deportable offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.   Lee finds himself in precisely this position, and he must therefore lose. But given the growing circuit split (which, as best we can tell, has gone unacknowledged), we think it worthwhile to explain why we are convinced that our approach is the right one and to set out the role that we believe deportation consequences should play in evaluating prejudice under Strickland.

We begin, however, by giving the other side its due. As the Seventh Circuit noted in DeBartolo, strong evidence of guilt does not strip a defendant of his right to a jury trial, nor does it guarantee a guilty verdict.  The second point is especially true for defendants such as Lee, since it is well documented that many jurors are willing to acquit those charged with a first-time, non-violent drug offense, despite evidence of guilt. See id. (quoting Lawrence D. Bobo & Victor Thompson, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment, in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010)).

This possibility, at least according to many of this nation’s founders, is not a defect, but a feature of the jury system.  See, e.g., 2 John Adams, The Works of John Adams 254–55 (1850) (“It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Diary Entry, February 12, 1771)).  Indeed, the unreviewable power of juries to acquit, despite strong evidence of guilt, was perhaps the central reason why the right to a jury trial in criminal cases was enshrined in the Constitution.  See Rachel E. Barkow, Criminal Trials, in The Heritage Guide to the Constitution 340, 340–41 (David F. Forte & Matthew Spalding, eds. 2nd ed. 2014).  For the framers and ratifiers, the memory of how King George III had prevented colonial juries from nullifying unpopular English laws by “expand[ing] the jurisdiction of nonjury courts” was still fresh. Id. at 340.  And one of the grievances listed in the Declaration of Independence was that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.”  Declaration of Independence para. 20 (U.S. 1776).  It is thus not surprising that nearly all commentators active during the time of the founding favored the inclusion in the new Constitution of the right to a jury trial. See, e.g., The Federalist No. 83, at 432–33 (Alexander Hamilton) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001) (“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.”).

June 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Florida Supreme Court grapples with post-Hurst hydra and state's new capital punishment procedures

Download (1)As reported in this local article, headlined "Justices Try To Sort Out Death Penalty Law," the top judges in the Sunshine State yesterday heard oral argument in a case that requires them to find some clarity in the dark uncertainty concerning the constitutional requirements for death sentencing in the wake of the Supreme Court's Hurst ruling. Here are the details:

The Florida Supreme Court on Tuesday heard arguments in a case focused on whether the state’s new death penalty law is constitutional, and, if so, whether it applies to cases already in the pipeline when the law passed in March.

Tuesday’s hearing was the latest in the court’s months-long scrutiny prompted by a U.S. Supreme Court decision in January that struck down Florida’s death-penalty sentencing process because it unconstitutionally gave too much power to judges, instead of juries.

But the arguments Tuesday in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son, did little to clear up the murky situation surrounding the January ruling, in a case known as Hurst v. Florida, or the new law, hurriedly crafted by lawmakers and signed by Gov. Rick Scott in response to the decision.

“Clearly at this stage in our jurisprudence, we want to make sure that the statute is construed in a constitutional manner so that we don’t have another 15 years of death penalty — if the state wants the death penalty, which apparently it does — in flux,” Justice Barbara Pariente said.

Under Florida’s old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed. That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.

Florida’s new law requires juries to unanimously determine “the existence of at least one aggravating factor” before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed.

Of nearly three dozen states that have the death penalty, Florida is one of just three — including Alabama and Delaware — that do not require unanimous recommendations for a sentence of death. The lack of a unanimous recommendation — a flashpoint for lawmakers, prosecutors and defense lawyers during debate on the new law — was the focus of much of Tuesday’s hearing in the Perry case.

Because Florida’s Constitution requires that jury verdicts be unanimous for convictions, defense lawyers have argued that the death penalty should require a unanimous jury recommendation. Prosecutors, including Attorney General Pam Bondi’s office, disagree.

Chief Justice Jorge Labarga honed in on the issue Tuesday morning. “As you know, 32 states in our country have the death penalty. There are three states who are outliers in this country, Alabama, Delaware and Florida that only require something less than unanimous. … What is the history of Florida in requiring a unanimous verdict?” Labarga asked Martin McClain, a lawyer who has represented more than 250 defendants condemned to death and who made arguments Tuesday as a “friend of the court.” “It’s always been that way in Florida. Since before it was a state, Florida required unanimity in criminal cases for convictions,” McClain replied.

Since the Jan. 12 Hurst ruling, Florida’s high court indefinitely put on hold two executions and heard arguments in more than a dozen death penalty cases, repeatedly asking lawyers on both sides about the impact of the U.S. Supreme Court decision. The Florida court has yet to rule on whether the Hurst decision should be applied retroactively to all, or even some, of Florida’s 390 Death Row inmates.

Perry’s case, meanwhile, hinges on whether the new law should apply to defendants whose prosecutions were underway when the new law went into effect.  While Perry’s lawyer, J. Edwin Mills, argued that the new law should not apply in his client’s case, other defense lawyers are split on the issue. Mills contends his client should receive a life sentence.

Adding more pressure to the justices — who spend much of their time considering appeals in capital cases — lower courts have delayed hearings or decisions in death penalty cases while waiting for Florida Supreme Court to rule, both on the impact of the Hurst decision and on the Perry case.  “Until we get moving forward again, and get a determination from this court as to what Hurst actually means, everything is just sort of up in the air, which is not a good solution for anybody,” Assistant Attorney General Carol Dittmar told the justices Tuesday.

June 8, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 07, 2016

New York Times editorial calls for "federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights"

This new New York Times editorial, headlined "To Stop Bad Prosecutors, Call the Feds," call for improving state criminal justice systems by having more federal oversight of those system. Here is the full editorial, concerning which I am eager to hear reactions:

Prosecutors are the most powerful players in the American criminal justice system.  Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.  So why is it so hard to keep them from breaking the law or violating the Constitution?

The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions.  It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights.  There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.

Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.”  Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence.  Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases.  

Nowhere is this situation worse than in Louisiana, where prosecutors seem to believe they are unconstrained by the Constitution.  This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard.  Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway.  Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.  This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing.  But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.

David Brown’s case is a good example of how every part of the justice system bears some responsibility for not fighting prosecutorial misconduct.  State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear.  Professional ethics boards rarely discipline them.  And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of.  Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.

This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.

The department has used this power to monitor police departments in Los Angeles, New Orleans, Detroit and Seattle, among other municipalities with a history of brutality, wrongful arrests, shootings of unarmed civilians and other illegal or unconstitutional practices.  For the most part, the results have been positive.  Since prosecutors are also “law enforcement officers,” there is no reason they and their offices should be immune from federal oversight.

Of course, many district attorneys’ offices will balk at being put under a federal microscope.  But nothing else has worked to prevent misconduct by prosecutors, and the Justice Department is uniquely equipped to ferret out the worst actors and expose their repeated disregard for the law and the Constitution.

Because I do not closely follow local police practices or federal oversight of local police departments, I am not in a position to question (or concur with) the editorial's assertion that "for the most part, the results have been positive" from DOJ's monitoring of some big-city police departments. But even if DOJ has been generally successful at supervising problematic police practices, I am not certain that this means that it could or would be successful at supervising problematic prosecutorial practices. At the same time, there is good reason to be concerned that, at least in some local jurisdictions, it does seem that "nothing else has worked to prevent misconduct by prosecutors."

Personally, I would generally favor a "sunlight is the best disenfectant" approach to dealing with forms of significant lawyer misconduct: how about the feds calling for states to maintain public on-line registries of all public lawyers (both prosecutors and defense attorneys) who clearly have been found guilty of unconstitutional/unethical behavior. I suspect all criminal lawyers now know just how troublesome it can be to have an "on-line record," and so maybe the threat of such a record of misconduct will help deter such behavior in the first instance.

June 7, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Is SCOTUS essentially telling Alabama its capital punishment process in unconstitutional through Hurst GVRs?

The question in the title of this post is prompted by this notable new local article headlined "For third time in 5 weeks, Supreme Court tells Alabama to reconsider death row case." Here are excerpts:

For the third time in five weeks, the U.S. Supreme Court has told an Alabama appeals court to reconsider an Alabama death row inmate's appeal in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.

Two Alabama attorneys said Monday that the moves by the high court indicate justices may be looking at striking down Alabama's death sentencing scheme as unconstitutional. "Personally, I think its crystal clear the Supreme Court has real concerns about the constitutionality of our current death penalty and is clearly putting us on notice of that fact," said Birmingham attorney John Lentine.

Bryan Stevenson, executive director and founder of the Equal Justice Initiative in Montgomery, also stated in an email to AL.com on Monday that "we believe it's now very clear that the U.S. Supreme Court recognizes that Alabama's death penalty scheme is called into question following the Court's ruling in Hurst v. Florida earlier this year. There have been serious flaws in Alabama's process of imposing the death penalty for several years and state courts are going to have to now confront these problems."

The U.S. Supreme Court on Monday remanded the case of Alabama Death Row inmate Ronnie Kirksey back to the Alabama Court of Criminal Appeals for reconsideration of his appeal in light of the Hurst v. Florida decision in January.  The U.S. Supreme Court last month had also ordered the Alabama Court of Criminal Appeals to reconsider its decision in the appeals of Corey Wimbley and Bart Johnson in light of the Florida case....

At issue with Alabama's death penalty scheme is that Alabama permits judges to override a jury's recommendation for a life sentence and impose death. Alabama was one of only three states that allowed such an override. The others were Florida and Delaware. Legislators in Florida's legislature re-wrote its capital punishment sentencing law this spring.

Jefferson County Circuit Judge Tracie Todd in March ruled in four of her capital murder cases that Alabama's capital punishment sentencing scheme is unconstitutional based on the Hurst case. The Alabama Attorney General's Office has appealed Todd's ruling. The decision was spurred by the U.S. Supreme Court's ruling in January that Florida's sentencing scheme allowing judges to override juries in death penalty cases is unconstitutional. Alabama has a similar sentencing scheme.

A number of attorneys around the state have challenged on behalf of their clients the constitutionality of Alabama's capital murder sentencing scheme based on the Florida ruling. All but Todd, however, denied those requests.  District attorneys and Alabama Attorney General Luther Strange have said Alabama's law is not the same as Florida's.

First, Alabama's sentencing scheme was ruled constitutional in 1995 by the U.S. Supreme Court, state prosecutors say. They also have pointed out that the high court held in the Florida case that a jury must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system already requires the jury to do just that, according to an Alabama Attorney General's statement.

A few prior related posts:

June 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, June 06, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

SCOTUS grants cert two notable Texas capital cases

Those eager to see SCOTUS continue to question the operation of the death penalty in the US have some news to celebrate from the court via this new order list: the Justices this morning granted certain two capital cases from Texas, Moore v. Texas and Buck v. Stephens. Over at SCOTUSblog, Amy Howe has already provided this quick response to a question as to whether these Cases are notable:

They are both reasonably interesting.  Moore v. Texas includes both a question about the standard for determining whether an inmate is intellectually disabled and the question whether executing an inmate after a long stay on death row violates the Eighth Amendment's prohibition on cruel and unusual punishment.

The Buck case is about an expert witness for the defense (!) testifying that Buck was likely to be more dangerous and thus more a candidate for death sentence because he is black.

In other words, high-salience issues concerning race, mental disabilities and delays before execution are all before the Court in these cases. Among other likely echo effects from these grants, I suspect this means there will be lots and lots of (mostly abolitionist) commentary about these cases in the weeks and months to come, and also that hearings for the next SCOTUS nominee (whenever they might occur) will include some significant focus on the constitutionality of capital punishment.

UPDATE:  This revised version of the SCOTUS order list indicates that in Moore the Justices will only be considering the way Texas handles application of its Atkins intellectual disability limit on who can be eligible for the death penalty.  Still, as this SCOTUSblog post by Lyle Denniston details, these two cases will still provide plenty of grist for the capital case controversy mill.

June 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Sunday, June 05, 2016

Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing

The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process.  The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.  The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing.  The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.

Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.

Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders.  They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.  The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?”  Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.

Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision.  “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.

Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools.  Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.

Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women.  COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.

The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”

June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Might SCOTUS soon (finally!) take up the constitutionality of solitary confinement?

Way back in March 2009, I asked via this post "Why isn't there more constitutional litigation over the 'hellhole' that is extended solitary confinement?".  And last year, as noted this post, Justice Anthony Kennedy essentially asked the same question via a remarkable (off-point) concurrence in the SCOTUS ruling in Davis v. Ayala.  Consequently, I was intrigued to see this new Mother Jones article headlined "The Supreme Court Might Finally Take On Solitary Confinement: The court could announce Monday whether it will consider the long-term solitary confinement of a death row inmate." Here is how the piece gets started:

Bobby Moore has been on death row in Texas for more than 35 years, for a murder he committed in 1980 at the age of 20.  He's come close to dying twice; once, he was hours away from execution before a court intervened.  For the past 15 years, he's been in solitary confinement nearly 23 hours a day, unable to interact with other inmates, in a type of cell described in legal filings as "virtual incubators of psychoses."

The Supreme Court is now considering Moore's claim that his solitary incarceration and the long delay between his conviction and execution are violations of the Eighth Amendment's ban on cruel and unusual punishment.  Moore's petition has been pending for nearly a month, but a decision on whether the Supreme Court will hear it could come on Monday.  If the court takes up the case, its ruling could have profound implications for the nation's nearly 3,000 death row inmates, who are often confined to solitary cells and await execution for an average of more than 15 years.  If Moore wins, not only could he get off death row, but many inmates in his position could follow.

The high court has repeatedly refused to hear cases challenging an excessive delay of an execution as unconstitutional, and it's never directly confronted solitary confinement on death row.  But there are signs that the justices are seriously considering Moore's case.  The court grants only about 70 petitions a year, out of 9,000 filings, so most cases are dismissed quickly.  But it has relisted Moore's case for its weekly review conference three times, an unusual move.

Some of the court's liberal justices have spoken out about long solitary stays on death row for a long time.  Justice John Paul Stevens, who retired in 2010, was a notable advocate for the position that extended incarceration for capital offenders was a clear constitutional violation, one he first embraced more than 20 years ago.  Stevens gained an ally in Justice Stephen Breyer, who wrote in 1999, "It is difficult to deny the suffering inherent in a prolonged wait for execution."  Breyer cited these long waits in a lengthy dissent last year, in which he declared his view that capital punishment in any form is unconstitutional — a dissent joined by Justice Ruth Bader Ginsburg.  Last month, he objected to the court's refusal to take up a California death row case raising the issue, arguing that "unconscionably long delays...undermine the death penalty’s penological purpose."

The conservative justices, though, have been less sympathetic — that is, until 2014, when almost out of the blue, Anthony Kennedy, a Ronald Reagan appointee and the court's frequent swing vote, expressed concern about solitary confinement during oral arguments in a case.  He has since shown more signs that he could eventually be a decisive vote in forcing the court to confront the issue at last.

For various reasons, I would like to see the Supreme Court take up the constitutionality of extended solitary confinement in a non-capital case. But, obviously, that has not happened yet so I suppose my perspective now is that taking up the issue in a capital case is good enough for SCOTUS work.

Some of many prior related posts:

June 5, 2016 in Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, June 03, 2016

Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence

Images (2)Regular readers likely know the name Weldon Angelos and likely recall some of the details of his 55-year mandatory minimum federal sentence based on his convictions for low-level marijuana dealing and firearm possession.  And regular readers likely will also be intrigued and heartened to read this new Washington Post story, headlined "Utah man whose long drug sentence stirred controversy is released," indicating that Weldon was released earlier this week.  Here are the (somewhat mysterious) details:

One federal inmate who was released — but not under Obama’s clemency initiative — is Weldon Angelos, 36, a father of three from Utah who was sentenced in 2004 to a 55-year mandatory minimum prison term in connection with selling marijuana.

The specific circumstances of Angelos’s release are unclear because court records in his case are sealed. But after a long campaign from his supporters, including Sen. Mike Lee (R-Utah), Angelos was quietly released Tuesday after a federal court granted him an immediate reduction in sentence. He was able to immediately go home to his family without serving three months in a halfway house, as those who receive clemency are required to do. The release allowed Angelos to see the son he left at age 7 graduate from high school Thursday.

Angelos is one of the nation’s most famous nonviolent drug offenders and became a symbol of what advocates said was the severity and unfairness of mandatory sentences. His case was championed by the group Families Against Mandatory Minimums, former FBI director Bill Sessions, conservative billionaire Charles Koch and others. Three years ago, more than 100 former judges and prosecutors, former elected and appointed government officials, and prominent authors, scholars, activists and business leaders signed a letter urging Obama to grant Angelos commutation.

In February, former federal judge Paul G. Cassell, who sentenced Angelos, wrote a letter asking Obama to swiftly grant him clemency. Cassell said that the sentence he was forced to impose was “one of the most troubling that I ever faced in my five years on the federal bench” and that it was one of the chief reasons he stepped down as a judge.

But Obama never granted clemency to Angelos. The granting of mercy instead came from the Salt Lake City prosecutor who charged him in the case, according to his lawyer. “After three and half years of inaction on Weldon’s clemency petition, he is free because of the fair and good action of a prosecutor,” attorney Mark W. Osler said. “He returns to citizenship because of the actions of one individual — just not the individual I was expecting. Weldon’s freedom is a wonderful thing but remains just one bright spot among many continuing tragedies.”

A White House spokeswoman said that the White House cannot respond with details about any individual clemency case. Julie Stewart, president of Families Against Mandatory Minimums, called the release of Angelos “fantastic news and past due.”

I am inclined to guess, absent hearing any details to the contrary, that the Utah federal prosecutor agreed to what some have come to call a Holloway motion: a motion first engineered by former Judge John Glesson in the case of Francios Holloway (discussed here) by urging prosecutors to move to undo stacked federal gun charges that had resulted in acrazy-long mandatory minimum prison term.

A few of many prior related posts on Angelos and Holloway cases:

June 3, 2016 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Prez Obama commutes 42 more federal prison sentences

Chart_060316_commutations[1]As reported in this AP piece, this afternoon "President Barack Obama is commuting the sentences of 42 people convicted of drug-related offenses." Here is more:

Obama's latest round of clemency brings to 348 the total number of sentences Obama has commuted since taking office. The pace has increased substantially as Obama approaches the end of his presidency. Roughly half of the 42 receiving commutations Friday were serving life sentences. Most are nonviolent offenders, although a few were also charged with firearms violations.

Obama's commutation shortens their sentences, with most of the inmates set to be released October 1.

White House counsel Neil Eggleston says Obama will keep using his clemency power to give deserving individuals a second chance. Obama has pushed to overhaul the criminal justice system but a bipartisan effort has struggled to maintain momentum.

Via this blog post (which provides the graphic reprinted here), Prez Obama's counsel notes that that "President Obama Has Now Commuted the Sentences of 348 Individuals" and highlights that now "the President has commuted the sentences of more individuals than the past 7 presidents combined." Here is more from the blog posting:

Today, the President announced 42 additional grants of clemency to men and women serving years in prison under outdated and unduly harsh sentencing laws. The individuals receiving a presidential commutation today have more than repaid their debt to society and earned this second chance.

To date, the President has commuted the sentences of 348 individuals -- more than the previous seven Presidents combined. He remains committed to using his clemency power throughout the remainder of the Administration to give more deserving individuals that same second chance....

Despite these important efforts, only legislation can bring about lasting change to the federal system. There remain thousands of men and women in federal prison serving sentences longer than necessary, often due to overly harsh mandatory minimum sentences. That is one reason it is critical that both the House and the Senate continue to cooperate on a bipartisan basis to get a criminal justice reform bill to the President's desk.

June 3, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)