Wednesday, July 23, 2014

After SCOTUS vacates First Amendment stay, Arizona Supreme Court delays execution

As reported in this new AP story, after the US Supreme Court late yesterday vacated the novel stay imposed by the Ninth Circuit based on lethal injection drug secrecy concern, "Arizona's highest court on Wednesday temporarily halted the execution of a condemned inmate so it could consider a last-minute appeal."  Here is more:

Joseph Rudolph Wood, 55, was scheduled to be put to death Wednesday morning at the state prison in Florence, but that was delayed when the Arizona Supreme Court said it would consider whether he received inadequate legal representation at his sentencing. The appeal also challenges the secrecy of the lethal injection process and the drugs that are used.

The state Supreme Court could still allow the execution to move forward later Wednesday once it considers the arguments.

The U.S. Supreme Court on Tuesday cleared the way for Arizona to carry out its third execution in the last year following a closely watched First Amendment fight over the secrecy issue. Wood's lawyers used a new legal tactic in which defense attorneys claim their clients' First Amendment rights are being violated by the government's refusal to reveal details about lethal injection drugs. Wood's lawyers were seeking information about the two-drug combination that will be used to kill him, including the makers of the drugs.

A federal appeals court ruled in Wood's favor before the U.S. Supreme Court put the execution back on track. The 9th U.S. Circuit Court of Appeals decision marked the first time an appeals court has acted to delay an execution based on the issue of drug secrecy....

Wood was sentenced to death for killing Debra Dietz and her father, Eugene Dietz, in 1989 at the family's automotive shop in Tucson.... On the day of the shooting, Wood went to the auto shop and waited for Dietz's father, who disapproved of his daughter's relationship with Wood, to get off the phone. Once the father hung up, Wood pulled out a revolver, shot him in the chest and then smiled. Wood then turned his attention toward Debra Dietz, who was trying to telephone for help. Wood grabbed her by the neck and put his gun to her chest. She pleaded with him to spare her life. An employee heard Wood say, "I told you I was going to do it, I have to kill you." He then called her an expletive and fired two shots in her chest....

Arizona has executed 36 inmates since 1992. The two most recent executions occurred in October.... The fight over the Arizona execution has also attracted attention because of a dissenting judge's comments that made a case for a firing squad as a more humane method of execution.

Recent related posts:

July 23, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

"Fewer Prisoners, Less Crime: A Tale of Three States"

The title of this post is the title of this notable new 11-page report coming from the folks at The Sentencing Project.  Here is how the report begins and concludes:

Although the pace of criminal justice reform has accelerated at both the federal and state levels in the past decade, current initiatives have had only a modest effect on the size of the prison population.  But over this period, three states — New York, New Jersey, and California — have achieved prison population reductions in the range of 25%. They have also seen their crime rates generally decline at a faster pace than the national average.

Key findings:

• New York and New Jersey led the nation by reducing their prison populations by 26% between 1999 and 2012, while the nationwide state prison population increased by 10%.

• California downsized its prison population by 23% between 2006 and 2012. During this period, the nationwide state prison population decreased by just 1%.

• During their periods of decarceration, violent crime rates fell at a greater rate in these three states than they did nationwide. Between 1999-2012, New York and New Jersey’s violent crime rate fell by 31% and 30%, respectively, while the national rate decreased by 26%.  Between 2006-2012, California’s violent crime rate drop of 21% exceeded the national decline of 19%.

• Property crime rates also decreased in New York and New Jersey more than they did nationwide, while California’s reduction was slightly lower than the national average. Between 1999-2012, New York’s property crime rate fell by 29% and New Jersey’s by 31%, compared to the national decline of 24%. Between 2006-2012, California’s property crime drop of 13% was slightly lower than the national reduction of 15%.

These prison population reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay.  The experiences of these states reinforce that criminal justice policies, and not crime rates, are the prime drivers of changes in prison populations.  They also demonstrate that it is possible to substantially reduce prison populations without harming public safety....

At least in three states we now know that the prison population can be reduced by about 25% with little or no adverse effect on public safety.  Individual circumstances vary by state, but policymakers should explore the reforms in New York, New Jersey, and California as a guide for other states.

There is also no reason why a reduction of 25% should be considered the maximum that might be achieved. Even if every state and the federal government were able to produce such reductions, that would still leave the United States with an incarceration rate of more than 500 per 100,000 population — a level 3-6 times that of most industrialized nations.

In recent years a broader range of proposals has emerged for how to reduce the prison population and by various scales of decarceration.  In a recent right/ left commentary Newt Gingrich and Van Jones describe how they will “be working together to explore ways to reduce the prison population substantially in the next decade.”  The experiences of New York, New Jersey, and California demonstrate that it is possible to achieve substantial reductions in mass incarceration without compromising public safety.

July 23, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Tuesday, July 22, 2014

After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?

The question in the title of this post follows up the news, reported here by the AP, that the full Ninth Circuit yesterday denied Arizona officials en banc review of the remarkable panel ruling putting in place an execution stay on First Amendment grounds (basics here).   The AP reports that Arizona is, unsurprisingly, planning to ask SCOTUS to vacate the stay, and I suspect First Amendment challenges to executions protocols will become commonplace nationwide if SCOTUS leaves the stay in place.

Chief Judge Alex Kozinski make extra sure his dissent — which is available here along with another dissent authored by Judge Callahan for 11 other members of the Ninth Circuit — garnered extra attention by providing these candid comments at the close of his operion about the fundamental problems with lethal injection as an execution method:

Whatever happens to Wood, the attacks [on lethal injection execution procedures] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Scalia, J., concurring in denial of certiorari) (“How enviable a quiet death by lethal injection . . . .”). But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.

July 22, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, July 21, 2014

Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell

Among a large number of major sentencing developments last week, the biggest in the capital punishment arena was clearly, as discussed here and here, U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional.  The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts here and here), and I am now pleased to reprint another insightful bit of analysis sent my way over the weekend.  Specifically, Professor Richard Broughton sent me an e-mail with his reaction ot the Jones ruling and kindly permitted me to reprint this excerpt:

It looks to me as if the case should (or at least could) have been disposed of on Teague v. Lane grounds.

I was troubled that California didn't raise Teague, and was glad that Judge Carney addressed it sua sponte.  But his analysis was entirely perfunctory and merely glossed over, or simply failed to cite, a number of important Supreme Court precedents on Teague and "new rules."  (Chaidez, Summerlin, Lambrix, etc.).  I suppose one could argue that Jones was asking for a substantive rule rather than a procedural one, and could therefore avoid the Teague bar.  That strikes me as a stronger way to avoid Teague in this case. But Judge Carney didn't articulate his ruling this way.  Instead, Judge Carney simply said the rule was not "new," thus alleviating any need to categorize it as a substantive or procedural rule.  In light of the Supreme Court's (and other courts') consistent rejection of delay-as-cruel-and-unusual-punishment claims, it would seem to me that a reasonable jurist would not have felt compelled by precedent to conclude that Jones was entitled to relief.  Hence, the rule here was "new."

Judge Carney's effort to avoid the "new" rule bar by claiming that this ruling fits within the dictates of Furman and its progeny with respect to the wanton and freakish imposition of the death penalty strikes me as entirely wrong (and barred, if we are talking about a procedural rule).  Jones wasn't merely trying to have Furman apply to a new set of facts -- it was an effort to extend Eighth Amendment doctrine to situations where there are long delays, an extension that was not dictated by Furman and that courts have routinely rejected (indeed, if the rule was dictated by precedent, why has it been so often rejected?).  I would think the State could plausibly argue that, despite Furman and its progeny, the precise rule that Jones was seeking -- that delays in his execution render his sentence unconstitutional because California's death penalty system has not followed procedures that would expedite capital cases -- was not dictated by precedent when his conviction became final.  Therefore, there would have been a need to decide whether it was substantive or procedural, and if procedural, it would be barred.  There is, in fact, Ninth Circuit precedent on this very matter, applying the Teague bar to a Lackey claim.

I read Bill Otis's post at C&C on Jones as essentially requiring a Miranda-type prophylaxis.  I agree substantially with that view (though I think few other federal courts would come out and say this is what they are requiring), and I think California and others may start thinking about some legislative reforms to address the problem that Judge Carney identifies.  I think even those of us who support the death penalty acknowledge that delays are a problem, though for different reasons than the capital defense bar thinks.  But if Otis's view is accurate, doesn't that simply serve to reinforce the reality that Teague bars the rule that Judge Carney set forth?

Of course, I am troubled by many aspects of the case, not just the Teague analysis.  That's just the tip of the iceberg for me.  But I didn't see anyone else talking about Teague. Maybe there's a good reason for that; maybe my view of the Teague issue is premature and I'm ultimately wrong.  My mind is open.  But I am concerned that this view could take hold not just in more California cases on habeas review, but in other jurisdictions, as well. And I think California and the others should be prepared to assert the Teague bar (if my instincts are right).   At a minimum, I think Teague is a plausible basis for rejecting these kinds of claims, and that the case should have at least dealt more extensively with that doctrine. 

Recent related posts:

July 21, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons"

The title of this post is the title of this important and timely new paper authored by two terrific criminologists, Professors Joan Petersilia and Francis T. Cullen, and now available via SSRN. Here is the abstract:

A confluence of factors — a perfect storm — interfered with the intractable rise of imprisonment and contributed to the emergence of a new sensibility defining continued mass imprisonment as non-sustainable. In this context, reducing America’s prisons has materialized as a viable possibility.  For progressives who have long called for restraint in the use of incarceration, the challenge is whether the promise of downsizing can be met.

The failure of past reforms aimed at decarceration stand as a sobering reminder that good intentions do not easily translate into good results.  Further, a number of other reasons exist for why meaningful downsizing might well fail (e.g., the enormous scale of imprisonment that must be confronted, limited mechanisms available to release inmates, lack of quality alternative programs).  Still, reasons also exist for optimism, the most important of which is the waning legitimacy of the paradigm of mass incarceration, which has produced efforts to lower inmate populations and close institutions in various states.

The issue of downsizing will also remain at the forefront of correctional discourse because of the court-ordered reduction in imprisonment in California. This experiment is ongoing, but is revealing the difficulty of downsizing; the initiative appears to be producing mixed results (e.g., reductions in the state’s prison population but increased in local jail populations). In the end, successful downsizing must be “liberal but not stupid.”  Thus, reform efforts must be guided not only by progressive values but also by a clear reliance on scientific knowledge about corrections and on a willingness to address the pragmatic issues that can thwart good intentions.  Ultimately, a “criminology of downsizing” must be developed to foster effective policy interventions.

July 21, 2014 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

How many of nearly 50,000 federal prisoners need a lawyer to help with drug sentence reduction efforts? How many will get a lawyer?

The questions in the title of this post are my first "practical aftermath" questions in the wake of the US Sentencing Commission's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive (basics here).  As hard-core federal sentencing fans likely already know, most lower federal courts have ruled that federal prisoners do not have a Sixth Amendment right to counsel applicable at the sentence modification proceedings judges must conduct to implement reduced retroactive sentencing guidelines.  Consequently, none of the nearly 50,000 federal drug offense prisoners who may soon become eligible for a reduced sentence have any right to legal assistance in seeking this reduced sentence.

Fortunately for many federal prisoners seeking to benefit from previous guideline reductions, many federal public defender offices have traditionally made considerable efforts to provide representation to those seeking reduced sentences.  But even the broadest guideline reductions applied retroactively in the past (which were crack guideline reductions) applied only to less than 1/3 of the number of federal prisoners now potentially eligible for reductions under the new reduced drug guidelines.  I suspect that pubic defenders are unlikely to be able to provide significant legal help to a significant number of drug offenders who will be seeking modified sentences under the new reduced drug guidelines.

I raise this point not only to highlight the legal services need created by the USSC's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive, but also to wonder aloud whether lawyers who have been gearing up to help with clemency applications might be now usefully "detailed" to help with retroactive application of reduced drug sentences.  In contrast to clemency petitions, in which legal arguments are somewhat less important than equitable claims, the proper application of new reduced drug offense guidelines can involve various legal issues that may really need to be addressed by sophisticated legal professionals.

Some recent related posts on reduced drug guideline retroactivity:

July 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns

BartAs reported in this new New York Times piece, a "federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team." Here is more about a ruling sure to garner more attention (and litigation) in the week ahead:

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. “This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death....

Arizona officials ... Sunday ... appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.

Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality....

Mr. Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed on Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.

The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.

Lawyers for Mr. Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A Federal District Court sided with the state, but on Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”

The majority Ninth Circuit panel opinion runs 28 pages, is available at this link, and concludes this way:

Because we conclude that Wood has raised serious questions as to the merits of his First Amendment claim; that the balance of equities tips sharply in his favor; that he will face irreparable harm if the injunction is not granted; and that the injunction is in the public interest; we conclude that the district court abused its discretion in denying Wood’s preliminary injunction request.  We do not decide with certainty that a First Amendment right exists to the information Wood seeks, nor do we resolve the merits of the Plaintiffs’ underlying § 1983 claim. We do, however, reverse the district court’s denial of Wood’s preliminary injunction motion. We grant a conditional preliminary injunction, staying Wood’s execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed.

The dissenting opinion by Judge Bybee runs 35 pages, is available at this link, and makes these concluding points:

The decision to inflict the death penalty is a grave and solemn one that deserves the most careful consideration of the public, the elected branches of government, and the courts. We must be cognizant that a life is at stake. But we cannot conflate the invocation of a constitutional right belonging to the public at-large — such as the First Amendment right of public access to certain proceedings and documents — with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court.

July 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, July 18, 2014

Split Iowa Supreme Court declares all mandatory juve sentencing terms violate state constitution

Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders.  The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)  

In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment.  The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student.  He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment.  For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts.  We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment.  We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.

The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:

By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court.  As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old.  Will the majority stop here?  Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds?  If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26?  As judges, we do not have a monopoly on wisdom.  Our legislators raise teenagers too.  Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?

July 18, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

USSC votes for full (though slightly delayed) retroactivity of new reduced drug guidelines

I just received this early report via a credible source as to what the US Sentencing Commission did this afternoon on the issue of making its new lower guidelines retroactive:

The Commission just voted unanimously to make the "drugs minus 2" amendment retroactive with a single limitation -- no order reducing a sentence can take effect until Nov. 1, 2015.  This is later than the Judicial Conference recommended (they proposed that it effect in May 2015 to give courts and probation time to prepare)....

The Commission predicts that more than 46,000 will be eligible to seek a reduction.  Part of the reason for the delayed effective date is to make sure each inmate is released with a re-entry plan and the opportunity for transitional steps such as halfway houses or home confinement.

UPDATE:  Here is a link to the USSC's official press release about its vote, which starts this way:

The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015.

The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward.  Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015.  Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate.

“This amendment received unanimous support from Commissioners because it is a measured approach,” said Judge Patti B. Saris, chair of the Commission. “It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015.

ANOTHER UPDATE: Here is a link to the official statement in response to this vote from AG Eric Holder, which runs this single paragraph:

“The department looks forward to implementing this plan to reduce sentences for certain incarcerated individuals. We have been in ongoing discussions with the Commission during its deliberations on this issue, and conveyed the department's support for this balanced approach. In the interest of fairness, it makes sense to apply changes to the sentencing guidelines retroactively, and the idea of a one-year implementation delay will adequately address public safety concerns by ensuring that judges have adequate time to consider whether an eligible individual is an appropriate candidate for a reduced sentence. At my direction, the Bureau of Prisons will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system."

July 18, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Furman and randomness (not just delay) at heart of California capital ruling

As discussed here and here, U.S. District Judge Cormac Carney earlier this week declared all of California's death penalty system unconstitutional in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here).  Because much of the opinion documents how "California’s death penalty system [has become] so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," much criticism of the opinion questions how a very long delay between a death sentence and an execution could alone render a sentence unconstitutional.  As noted before, Kent Scheidegger here at Crime & Consequesnces has stressed that few Justices have taken "seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it."  And now Orin Kerr here at The Volokh Conspiracy explains why he "found the [Jones] opinion unusually weak" given all the "obvious puzzles raised by delay-based Eighth Amendment claims."

Though decades of delay between a death sentence and possible execution is part of the equation of the Judge Carney's ruling in Jones v. Chappell, I see the concept of randonmess to be more fundamental and more fundamentally important to Judge Carney's constitutional conclusion.  Judge Carney cites repeatedly the various opinions in the Supreme Court's 1972 landmark ruling in Furman v. Georgia which found an Eighth Amendment violation based ina state's sentencing process making it essentially random (or "arbitrary") who ultimately gets sentenced to die among a large pool of eligible capital defendants.  I read Judge Carney's opinion as extending Furman by concluding that the Eighth Amendment is also violated if and when a state's appeals process makes it essentially random (or "arbitrary") who ultimately gets executed among among a large pool of condemned defendants sentenced to die

Because Furman remains good law (and obviously has nothing to do with execution delay), I think there is a little more "juice" to the ruling in Jones v. Chappell than suggested by those whose criticisms are focused only on execution delay aspects of the ruling.  Indeed, in order to keep the focus on Furman and randomness, consider a variation on a hypothetical statute present to students when discussing Furman.  Consider, dear readers, if you think a state would be constitutionally allowed to pass a capital law along these lines:

Because of the huge costs associated with adequate appellate review of death sentences, state appeals courts should randomly select (via a fair lottery process) only 1 out of every 50 death sentences to be subject to full and fair appellate review each year.  All death sentences shall be indefinitely stayed (and no execution date imposed) unless and until a death sentence has been is randomly selected for, and properly subject to, full and fair appellate review.

Of course, California has not formally passed such a law.  But Judge Carney's ruling (rightly) finds that California functionally operates its capital punishment system this way AND then (questionably) concludes such a capital punishment system violates the Eighth Amendment based on Furman

Recent related posts:

July 18, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Thursday, July 17, 2014

Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18

As this official public notice reports, on July 18, 2014 at 1pm EDT, the US Sentencing the Commission will hold a public meeting at which "the Commissioners will vote on whether or not to retroactively apply, in whole or in part, [its recent guideline] amendment reducing the drug quantity table by two levels." At the risk of overstating the importance of this vote, I am inclined to assert that it may be the most practically consequential USSC decision in nearly a decade. The (slightly misleading) headlines of these two media discussions of the coming vote helps to highlight why:

It is likely hard for anyone who has not followed federal sentencing very closely for decades to fully appreciate all the dynamic challenges that this vote presents for the US Sentencing Commission (as well as for the US Department of Justice and for all those who work day-to-day the federal sentencing system).  Helpfully, this extended BuzzFeed article by Evan McMorris-Santoro provide a primer on some of the issues swirling around this important USSC vote.  The article's headline highlights its themes: "Despite Rhetoric, Obama Administration Pushes To Keep Thousands Of Felons In Jail Under Old Rules: The Justice Department announced major changes to the way federal drug crimes are punished this year. But the rules for existing convicts might be different — and many White House allies are angry."

Some recent related posts on reduced drug guideline retroactivity:

July 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Lots of notable discussion of yesterday's notable decision striking down California's death penalty

As reported in this prior post, yesterday in a significant ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), U.S. District Judge Cormac Carney declared all of California's death penalty system unconstitutional.  Not surprisingly, this important ruling has already generated considerable traditional media attention, and How Appealing collects some of the major stories here and here.

The heart of the remarkable ruling in Jones v. Chappell turns on (1) the (not disputable) fact that "California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," and (2) the (very disputable) conclusion that allowing any one murderer to "executed in such a system, where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death."  I have lots of thoughts about both fact (1) and conclusion (2) that I hope to find time to share in future posts (or future amicus briefs), but for now I figured I would link to some of the early analysis of the opinion I have so far seen elsewhere in the blogosphere:

July 17, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Divided en banc Third Circuit announces new approach to preserving procedural sentencing error claims

Yesterday the Third Circuit issued a relatively short en banc ruling in US v. Flores-Mejia, No. 12-3149 (3d Cir. July 16, 2014) (available here), which reverses its previously-articulated approach to how objections to claimed procedural sentencing error must be preserved.  Here is how the majority opinion, per Judge Roth, gets started:

Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of the offense of reentry after deportation. His appeal raises the issue of what a defendant must do in order to preserve a challenge to the procedural reasonableness of a sentence.  At the sentencing hearing,  Flores-Mejia made a mitigation argument, based on his cooperation with the government.  Flores-Mejia contends that his initial presentation of this argument is sufficient, without more, to preserve his claim that the District Court committed procedural error by failing, when it pronounced sentence, to give meaningful consideration to this argument.  The government counters that Flores-Mejia’s failure to object, at a time when the District Court could have promptly addressed it, did not preserve the issue for appeal and leaves his claim subject to plain error review.

We have decided that, to assist the district courts in sentencing, we will develop a new rule which is applicable in those situations in which a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record.  We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing — such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed — that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal. Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), differs from our holding today and is superseded. 

A group of five Third Circuit judges signed on to a spirited dissent authored by Judge Greenaway, and here is how it gets started:

In our system of jurisprudence, we examine our principle, consider the facts and the law and make decisions.  The venerable principle of stare decisis requires reexamination not when we come up with a better mouse trap but when there is a principled basis for change.  See Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (“The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. . . . At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.”). Indeed, “the very point of stare decisis is to forbid us from revisiting a debate every time there are reasonable arguments to be made on both sides.”  Morrow v. Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J., concurring).  

Our Court, in a unanimous precedential opinion, adopted a procedure for district courts to follow at sentencing a scant six years ago.  See United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008).  Now, without intervening Supreme Court precedent and without a majority of our sister courts, we not only reexamine but indeed create a new procedure that flies in the face of Federal Rule of Criminal Procedure 51, with no compulsion or mandate to do so.

In its attempt to promote judicial economy, the majority ignores the plain language of Rule 51, misreads the state of the law of our sister circuits, and invokes a fundamental change to our sentencing procedures that is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.  For this reason, I respectfully dissent.

July 17, 2014 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, July 16, 2014

Federal district judge declares California's death penalty unconstitutional under Eighth Amendment

An notable new opinion by a (Republican-appointed) federal district judge in California is sure to be the talk of the death penalty community for the forseeable future and is also sure to be the basis for a intriguing coming appeal to the Ninth Circuit (and perhaps the Supreme Court). The opinion in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available for download below), is authored by a GWB-appointee Cormac Carney, and it is described by the judge as an "ORDER DECLARING CALIFORNIA’S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER’S DEATH SENTENCE." Here is how the 29-page opinion start and ends:

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California.  Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment....

When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.

But for too long now, the promise has been an empty one. Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional. Accordingly, the Court hereby VACATES Mr. Jones’s death sentence.

Full opinion:  Download Jones Cal DP opinion

July 16, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

"Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures"

The title of this post is the title of this notable paper I just came across via SSRN authored by Meredith Martin Rountree.  Here is the abstract:

About 11% of those executed in the United States are death-sentenced prisoners who sought their own execution.  These prisoners are commonly called “volunteers,” and they succeed in hastening execution by waiving their right to appeal their conviction and sentence. Certain interpretations dominate.  Those who oppose a condemned prisoner’s request for execution often cite the prisoner’s history of mental instability and frame the prisoner’s decision as a product of suicidal depression.  Related to this narrative is one that links death row conditions to the prisoner’s decision to hasten death.  Conditions, in this account, contribute to the decision to abandon appeals by wearing the prisoner down to the point that he loses the will to live, or by contributing to “death row syndrome,” an evolving (and controversial) psychiatric diagnosis describing a mental condition that some prisoners develop as a result of living under a death sentence in highly socially isolating and stark conditions of confinement.  Other narratives focus on ideas of rational choice and personal autonomy.  This account emphasizes prisoners’ desire to control their own destiny and the civic virtue of respecting autonomy and choice, even for the least among us.

The empirical support for these explanations is sparse, and this article emerges from a larger effort to test the hypothesis that prisoners who seek execution resemble those who take their own lives in prison.  The prison suicide literature has identified certain characteristics — such as race, sex, age, mental illness, and prison conditions — as increasing the risk of suicide behind bars.  My research on Texas volunteers generally suggests many, but not all, of those traits characterize that volunteer population as well. This article focuses on findings that point to areas for future research not only on volunteers but also on larger questions of processes of hopelessness and culpability among criminal offenders, and how the criminal justice system may influence life-ending decisions. 

July 16, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, July 14, 2014

Fourth Circuit to reconsider en banc its Whiteside ruling concerning reconsideration of guideline errors in 2255

As noted in this prior post, titled "Fourth Circuit deepens (via dramatic split opinion) circuit split over fixing sentencing problems via 2255 motions," a split panel of the Fourth Circuit back in April allowed a federal inmate to use a 28 U.S.C. § 2255 motion to challenge a sentence that was based on the career offender enhancement under the United States Sentencing Guidelines when subsequent case law revealed the enhancement was inapplicable to him.  The ruling in Whiteside v. US, No. 13-7152 (4th Cir. Apr. 8, 2014) (available here), included both a spirited marority and dissenting opinion.   

Now, thanks to a helpful reader and this unpublished order, I have learned that the full Fourth Circuit has decided to rehear this matter en banc.  I am not to surprised by this news, though I am perhaps a bit disappointed that it does not seem as though the Fourth Circuit has invited amicus invovement at this stage.  As regular readers know, I think sentencing finality concerns raise distinct issues and I have written at length on this subject recently.  Perhaps I should be grateful that the Fourth Circuit has not solicited amicus briefs in Whiteside, as it is much easier and much more efficient for me to share some of my perspective at this stage just to linking to my series of recent prior posts about sentence finality here:

July 14, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 12, 2014

"An NTSB for Capital Punishment"

The title of this post is the title of this notable new essay by Adam Gershowitz now available via SSRN. Here is the abstract:

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When a fatal airplane crash occurs however, we turn instead to the National Transportation Safety Board.  The reason is that air crashes are complicated and the NTSB has vast expertise.  Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes.

It is easy to point to a similar series of mistakes by local prosecutors and defense attorneys in many death-penalty cases around the country.  If we are to continue utilizing capital punishment in the United States, the death-penalty system should follow air crash model, not the car crash model.  Capital cases should be handled by an elite nationwide unit of prosecutors and investigators who travel to capital murder sites the way the NTSB travels to airplane and other catastrophic crashes.  As the number of death sentences dwindles each year, states have incentive to enter into an NTSB model that allows them to continue using capital punishment without having to handle the complicated cases themselves.  This symposium essay argues that capital punishment as currently conducted at the local level is failure, but that the death penalty can be justified if carried out by an elite, national team of lawyers and investigators. 

July 12, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, July 11, 2014

Second Circuit finds unreasonable probation sentence based on "cost of incarceration"

A helpful reader made sure I did not miss while on the road an interesting Second Circuit opinion in US v. Park, No. 13‐4142 (2d Cir. July 9, 2014) (available here), concerning reasonableness review and a sentenced reduced based on the cost of imprisonment.  Here is the heart of one part of the per curiam panel decision:

After a review of the record, we conclude that the District Court committed procedural error in imposing a term of probation in lieu of imprisonment for two reasons.  First, the only sentencing factor the District Court deemed relevant was the cost of incarceration to the government and the economic problems allegedly caused by the government shut‐down.  As the Court clearly announced, “I am not going to put him in jail only because of the economic plight that we are facing today.” After emphasizing that its sentencing decision was based solely upon this consideration, the Court then rebuffed defense counsel’s suggestion to “supplement the record,” asserting, “[i]f we have to resentence him, we will later.”  The Court also stated that if the Court of Appeals were to reverse, it would “consider all of these factors” at resentencing, clearly indicating that it did not consider the relevant factors in the first instance.  The Court therefore committed procedural error by refusing to consider the § 3553(a) factors in deciding what is an appropriate sentence.

Second, and equally problematic, is that the cost of incarceration to the government—the Court’s sole justification for imposing a term of probation rather than incarceration — is not a relevant sentencing factor under the applicable statutes.  We agree with the Eighth Circuit that, based on the plain language of § 3553(a), no sentencing factor can reasonably be read to encompass the cost of incarceration.  Nor does the statute permit the sentencing court to balance the cost of incarceration against the sentencing goals enumerated in § 3553(a).

Park is a must-read for post-Booker sentencing fans because it includes lots of important phrases about both procedural and substantive reasonableness review.  The Park opinion also talks up the importance of deterrence in one white-collar sentencing, noting "general  deterrence  occupies  an  especially  important role in criminal tax offenses, as criminal tax prosecutions  are relatively rare."

July 11, 2014 in Booker in district courts, Booker in the Circuits, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

Thursday, July 10, 2014

Georgia Board of Pardons and Paroles grants execution eve clemency to witness killer

As reported in this Atlanta Journal-Constitution article, "hours before he was to be executed for a murder 23 years ago, Tommy Lee Waldrip was granted clemency." Here are the details:

The state Board of Pardons and Paroles made the rare decision to commute a condemned man’s sentence to life without parole Wednesday even as state and federal courts had turned down his appeals. Waldrip’s execution was set for 7 p.m. Thursday for the murder of Keith Evans, a college student who was about to testify against Waldrip’s son in a re-trial of an armed robbery case.

The board’s decision came several hours after members heard pleas for mercy from relatives, friends and Waldrip’s lawyers, and then from prosecutors and members of the Evans family who wanted the execution carried out.

The board does not give a reason for its decision. Members vote individually and only the chairman, who collects the ballots, knows how each one decided. The decision required a simple majority, three out of five members.

But one issue raised before the board was that the sentences for Waldrip, his son and Waldrip’s brother, all convicted of murdering Evans on April 13,1991, were not proportional. Prosecutors did not seek the death penalty against Howard Livingston, Waldrip’s brother, but they did in the cases against Tommy Lee Waldrip and his son John Mark Waldrip. The three men were tried separately. Only Tommy Lee Waldrip was sentenced to die. John Mark Waldrip and Livingston are serving life sentences....

This was the fifth time since 2002 that the board has commuted the sentence of a death row inmate. The most recent one was on April 12, 2012, when the board commuted the death sentence of Daniel Greene.

Notably, one of the recent cases in which the Georgia Board of Pardons and Paroles refused to grant clemency was the high-profile Troy Davis case. Notably, for those focused on racial dynamics in this context, it is perhaps notable that Tommy Lee Waldrip is white and that Daniel Greene is black. Ergo, since Troy Davis was denied clemency, the Georgia Board of Pardons and Paroles has granted clemency to one black and one white convicted murderer.

July 10, 2014 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Split Michigan Supreme Court rejects retroactivity of Miller for hundreds of juve lifers

MichThough I am on the road and behind on a number of blogging fronts, a number of helpful readers made sure I did not miss an important state Miller application from Michigan.  This local article, headlined "Michigan Supreme Court denies parole hearings to juvenile lifers," provides these basics:

The Michigan Supreme Court ruled 4-3 Tuesday that juveniles given automatic life-without-parole sentences aren’t eligible for parole — even though the U.S. Supreme Court decided in 2012 that such sentences were unconstitutional. The ruling involved three of what some estimates say are at least 350 Michigan “juvenile lifers” — the highest number in any state — who are seeking parole hearings....

A four-justice majority, in a decision written by Justice Stephen Markman, said the 2012 U.S. Supreme Court ruling does not apply retroactively to these Michigan inmates, under either federal or state court precedents.

Attorney General Bill Schuette, who has argued that parole for any of the juvenile lifers would be disrespectful to murder victims and heart-wrenching to their families, hailed the decision. “Today the Michigan Supreme Court upheld the rights of crime victims and their families,” he said....

Kary Moss, executive director of the American Civil Liberties Union of Michigan, called the decision “heartbreaking.”

“Here we have a practice that the U.S. Supreme Court has said violates the Eighth Amendment as cruel and unusual punishment ... yet the Michigan Supreme Court is unwilling ever to give the 350 juvenile lifers currently in Michigan’s prisons a parole hearing in their lifetime,” Moss said. She said the ACLU is reviewing its options for a further federal legal challenge. “We are not letting this issue drop,” Moss said....

Neither the Eighth Amendment nor the state Constitution “categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender,” the court’s majority said.

Justices Mary Beth Kelly, Bridget Mary McCormack and Michael Cavanagh dissented and said the court should have ruled in favor of parole hearings. They noted that state lawmakers this year passed a juvenile sentencing law that “significantly altered Michigan’s sentencing scheme for juvenile offenders convicted of crimes that had previously carried a sentence of life without parole.”

Under the new law, judges can impose 40- to 60-year sentences in cases where prosecutors don’t ask for life-without-parole for murder and other heinous crimes....

The Michigan Catholic Conference said the decision is disappointing. “We call upon the Legislature to pass a measure that will allow for juveniles sentenced to a life term before the (2012 U.S. Supreme Court) decision to have the opportunity for a parole hearing at some point during their sentence,” said a statement issued by spokesman David Maluchnik....

State Rep. Joe Haveman called the Michigan Supreme Court’s ruling disappointing and said individuals incarcerated as juveniles “deserve a hearing to re-evaluate their case.”

“It is baffling how this can be considered equal treatment under the law,”said the Holland Republican. “I said before, and I still believe, that the Supreme Court of the United States needs to revisit this issue and clarify whether the intent was for their original ruling to apply retroactively. .... If a juvenile sentence without the opportunity for parole is cruel and unusual punishment going forward, it is also cruel and unusual punishment for those who entered prison as children, who don’t have even the faintest glimmer of hope that even if they completely change who they are, they will ever walk free. It is further cruel and unusual punishment for the judge who didn’t want to hand down a mandatory life sentence, and wanted to consider mitigating factors, but wasn’t allowed to, and now must live with the guilt of sending a child to prison for their entire adult life.”

The fully lengthy Michigan Supreme Court ruling in this matter runs 120+ pages and covers more ground than just Miller retroactivity.  The full ruling is available at this link, and I hope to have a chance to blog about the substance of both the lengthy majority and dissenting opinions in the days and weeks ahead.  

For now, I will simply assert that the Supreme Court no long has any good reason or justification for continuing to refuse to take up the issue of Miller retroactivity that has split state courts nationwide.  Now that just about every state with a large number of mandatory juve LWOPers has ruled on this issue, this matter has plainly "percolated" more than sufficiently and the resulting jurisprudential split has profound consequences for many hundreds of juve lifers in many states.    

A few (of many) prior posts on Miller retroactivity:

 

July 10, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack