Wednesday, February 22, 2017

Buck's notable dis of state finality interests in "flawed" capital sentence

Though there are a number of interesting procedural and substantive elements to the Supreme Court's ruling today in Buck v. Davis reversing a Texas death sentence (basics here), I am especially intrigued by the short shrift given by the Chief Justice's majority opinion to the state's claimed interest in finality.  (Regular readers know I can get fixated on finality and have written at length about why I think convictions and sentences ought to be treated differently for finality purposes.)  Here is all that Chief Justice Roberts writing for the Court had to say about finality (with my emphasis added):

In opposition, the State reminds us of the importance of preserving the finality of judgments.  Brief for Respondent 34.  But the “whole purpose” of Rule 60(b) “is to make an exception to finality.” Gonzalez, 545 U.S., at 529.  And in this case, the State’s interest in finality deserves little weight.  When Texas recognized that the infusion of race into proceedings similar to Saldano’s warranted confession of error, it effectively acknowledged that the people of Texas lack an interest in enforcing a capital sentence obtained on so flawed a basis.  In concluding that the value of finality does not demand that we leave the District Court’s judgment in place, we do no more than acknowledge what Texas itself recognized 17 years ago.

In his dissent, Justice Thomas says the majority opinion "belittles Texas’ claimed interest in finality," and I think that is a fair characterization of the passage above.  I am also inclined to turn this belittling into a broader and enduring "Buck finality principle": a state has little or no valid interest in preserving the finality of a (capital) sentence that is obviously "flawed" in some significant way.  Though I do not expect this Buck dis of state finality interests to significantly impact finality jurisprudence, I do expect to cite this Buck the next time I need to respond to any claims that flawed sentences must be preserved in the name of finality.

February 22, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence

The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:

A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.

Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....

Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....

Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....

[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.

Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:

Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it.  But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here.  The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.

February 22, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Tuesday, February 21, 2017

Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge

This morning, the US Supreme Court got back to work through the issuance of this lengthy order list.  The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here).  But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari  authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols.  Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):

Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).

Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad.  The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip.  Because this decision permits States to immunize their methods of execution — no matter how cruel or how unusual — from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse.  I dissent from my colleagues’ decision not to do so....

The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method.  This cannot be right....

The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates.  The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).  Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time.  Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering.  A new method of execution is devised, and the dialogue continues.  The Eighth Amendment requires this conversation.  States should not be permitted to silence it by statute....

Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same).  In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4).  We should not be proud of this history.  Nor should we rely on it to excuse our current inaction.

February 21, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Sunday, February 19, 2017

Front-line advocate's response to interview with former White House Counsel Neil Eggleston about Prez Obama clemency efforts

Regular readers know I am always eager to provide a forum for responses and respectful criticisms of sentencing-related activities and comments by public officials.  In that vein, I am pleased to provide here the sharp commentary sent my way by Beth Curtis, a prisoner advocate who runs the website Life for Pot.  Beth sent an extended commentary my way under the heading "Responding to: The Man Who Ran Obama’s Clemency Machine"; she was inspired to write by the recent Marshall Project interview with former White House Counsel Neil Eggleston about Prez Obama's clemency efforts (noted here).   

Beth's full commentary is available for download below, and here is a snippet to highlight why the full piece is worthy of time and attention:

For the first five years of Obama’s presidency the federal prison population grew by 13,000 incarcerated people. In 2013, the population was 214,149, the highest incarceration rate in history.

Criminal justice organizations, prisoner advocacy groups, criminal defense attorneys, law school clinics, prisoner’s families and various other lobbying groups started the drum beat for sentencing reform and an initiative of Presidential Clemency. Finally in 2013 Eric Holder announced that there would be a clemency initiative that could mean 10,000 or more acts of mercy for incarcerated people who would not be a threat if they were released.

Those of us with incarcerated loved ones who had sentences that would assure that they would die behind bars now had a reason for hope. We felt an overwhelming sense of gratitude to the President and all who were involved in the decision and the process that would lead to our loved ones freedom. We could hope to have our family member in our daily lives again. The hope was an ache, but we knew this President had compassion. It was not to be.

The lack of commitment became apparent almost immediately. I have the web site Life for Pot and the nonviolent marijuana offenders that I advocate for waited patiently for their evaluation by cp-14. Surprisingly some were rejected, and others accepted to the project and were told they would be assigned an attorney. Those fortunate inmates who were assigned an attorney would sometimes just receive a notification that they were represented and hear nothing more. We urged them to submit their own and wait.

This is not just a passing interest for me. I have a 69 year old brother, John Knock, who has two life sentences for a nonviolent marijuana conspiracy. He has been incarcerated for 20 years and never had an infraction. His prison resume is impeccable. He is a first time offender. On January 18, his clemency petition was denied by President Obama.

These are the numbers that tell you about the mercy and compassion of the Clemency Initiative. The promise was 10,000 or more. 1,715 Commutations granted – we could only find 39 for nonviolent marijuana only offenders. The rest were denied or left pending.

Over 18,000 petitions for commutation were denied. Over 4,000 petitions for commutation we closed without action. Over 8,000 petitions for commutation were left pending in the Pardon Attorney’s office for the next administration.

I must reject Mr. Eggleston’s assertion that he had better information and insight than the attorneys, advocates, or families about who was a good candidate for release. He asserts that he and President Obama looked over all the applicants and rejected all but 1,715.

Apparently Mr. Eggleston and President Obama based their denials on secret information. That implies that all the nonviolent marijuana offenders that I know who were denied should remain in prison till they die because Mr. Eggleston and President Obama have special information unknown to anyone else? What are the secrets that gave them confidence to make this Sophie’s Choice? They missed the point of Clemency. It is not a legal process but a Constitutional Power given to the President to be compassionate and merciful. In this endeavor they failed miserably.

These assertions made by Mr. Eggleston have tainted the character and behavior of all they left behind. I can only believe this was done in order to in order to burnish the administrations legacy of compassion at the expense of those they left behind without hope.

There is one secret that most of us know that the White House and the Pardon Attorney did not address. That secret is that most nonviolent offenders who receive sentences of life without parole were charged with conspiracy and went to trial. A conspiracy charge does not require definitive evidence, but only the testimony of those testifying for a plea or for part of the forfeiture. If you exercise your sixth amendment right to trial you receive the trial penalty. This charge allows the Prosecutor to tell the story.

In the spring of 2016 at a White House Briefing, it was obvious to many of us that the promise of clemency was waning and The Administration was pivoting to reentry as the major emphasis for time and money.

The White House would not pay attention to any effort to expedite the clemency project by granting clemency to categories of inmates. Many individuals and groups implored them to take this approach so that they would not fail the thousands who placed their trust in their concept of mercy. The White House and Justice Department did not seem to even understand the concept as it had been used in the past. Heals were dug in, and fates were sealed.

Download FEBRUARY 2017 CLEMENCY FAILURE

UPDATE:  For those unable to get download to work (which may be my fault, as I am working from the road), here is a link to Beth's site with her full commentary.

Prior related post:

February 19, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, February 15, 2017

Interesting Q&A about Prez Obama's clemency efforts with former White House counsel Neil Eggleston

DownloadThe Marshall Project has this notable new piece that reviews Prez Obama's clemency work via an interview with former White House counsel Neil Eggleston. The piece is headlined "The Man Who Ran Obama's Clemency Machine: 'He felt strongly that this was a gift, and the gift had to be earned.'" Here are excerpts:

From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to more than 1,700 federal prisoners.... But his final tally was also far below earlier expectations, given that former Attorney General Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners. Obama also received more petitions for clemency than any recent president.

Blame has been passed around, much of it centering on the bureaucracy that emerged to handle the deluge of potential cases, as well as the role federal prosecutors played in the process. In the end, attorneys who felt they had submitted strong cases to the president often wondered why they lost. “In granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it,” one of those attorneys, Sean Nuttall, wrote recently at The Marshall Project.

One key figure in the process was Neil Eggleston, who served as White House counsel from April 2014 through the end of Obama’s term. We asked him to discuss the process from the inside....

How closely did President Obama look at each of the applications for clemency he received? And what did you learn about him based on how he handled them?

I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”

Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”

He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out. He felt strongly that this was a gift, and the gift had to be earned.

One common criticism of the process was that there were arbitrary outcomes, that two people with similar cases could be granted and denied clemency.

I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew. All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, “How can this be?” So is there some arbitrariness? Humans making decisions will not always be perfect. But I reject the notion that there was arbitrariness....

Were you afraid that a single heinous crime by one of these released men or women would derail the whole program?

We never mentioned the words “Willie Horton.” But the answer is yes — very much so. The president wanted to make sure these were people who would take advantage of their second chances, but part of that was making sure they wouldn’t go back to jail. In the letter the president sent to released prisoners, he wrote to them that their choices “will also influence...the possibility that others in your circumstances get their own second chance in the future.” He was saying: “If you mess up, I may not be able to give clemency to other people.” It’s pretty explicit....

One criticism was that it was strange to have prosecutors — from the same department who got these sentences in the first place — weigh in on clemency decisions. Did you think about this?

I think that criticism was completely misguided and based on some sort of theoretical, potential problem. The fact is that Deputy Attorney General Sally Yates, a 27-year Department of Justice prosecutor out of Atlanta, was a very strong supporter of this initiative. Loretta Lynch, too. The people who criticized their involvement did so on a theoretical conflict — not an actual conflict. It’s just not true.

That suggests the Department of Justice under incoming Attorney General Jeff Sessions could rapidly go in another direction and oppose the use of clemency.

I know Sessions publicly opposed our initiative. I hope that I’m wrong, but I worry that given his comments, this will not be pursued by the new administration. It’s going to require them to decide this is something they want to continue. I hope they do.

February 15, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Saturday, February 11, 2017

Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation

As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:

The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.

The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.

"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."

Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.

Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.

The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.

Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.

February 11, 2017 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, February 07, 2017

"The Death Penalty & the Dignity Clauses"

The title of this post is the title of this notable new article by Kevin Barry, and here is its abstract:

“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide.  Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.

Now, 40 years after Gregg, the question is being asked once more.  But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes.  The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional.  No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.

Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in United States v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments — which have long shared a commitment to dignity — and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.

This Article suggests that dignity embodies three primary concerns — liberty, equality, and life.  The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law.  Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty.  If dignity means anything, it must mean this.

In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence.  It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.

February 7, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Friday, February 03, 2017

Lamenting that Henry Montgomery (and many other juve LWOPers) may not much or any benefit from Montgomery

Jody Kent Lavy, who is executive director of the Campaign for the Fair Sentencing of Children, has this notable new commentary headlined "Supreme Court's will on juvenile offenders thwarted." Here are excerpts:

A little more than a year ago, the U.S. Supreme Court ruled 6-3 in Montgomery vs. Louisiana that Henry Montgomery — and anyone else who received mandatory life without parole for a crime committed when they were younger than 18 — was serving an unconstitutional sentence and deserved relief.

The sweeping opinion augmented three earlier decisions that had scaled back the ability to impose harsh adult penalties on youth, recognizing children’s unique characteristics made such penalties cruel and unusual. The Montgomery case made clear that the Eighth Amendment bars the imposition of life without parole on youth in virtually every instance.

But, in violation of the decision, prosecutors are seeking to re-impose life without parole in hundreds of cases, and judges are imposing the sentence anew. Hundreds of people serving these unconstitutional sentences — primarily in Louisiana, Pennsylvania and Michigan — are still awaiting their opportunities for resentencing. Henry Montgomery is among them.

I recently met Montgomery, now 70, at the Louisiana State Penitentiary in Angola, notorious as a place where most of its thousands of prisoners are destined to die. Montgomery, who is African-American, was convicted of killing a white police officer as a teenager. At the time, John F. Kennedy was president. Though his resentencing has yet to be scheduled, prosecutors say they plan to again seek life without parole.

Given last year’s ruling from the nation’s highest court, it might seem surprising that Montgomery, remorseful for the crime he committed more than five decades ago, is still languishing in prison. This is indeed outrageous, and it highlights the failings of our justice system, especially as it pertains to juveniles....

Henry Montgomery is living on borrowed time. He is a frail, soft-spoken, generous man. When it was lunchtime at the prison, I noticed that he wasn’t eating. When I asked why, he said he wasn’t sure there was enough food to go around. On the anniversary of the ruling that was supposed to bring him a chance of release, we owe it to Montgomery, as well as the thousands of others sentenced as youth to die in prison, to seek mercy on his behalf. We cannot give up until the day comes when children are never sentenced to life — and death — in prison.

February 3, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, February 01, 2017

"Constitutional Liberty and the Progression of Punishment"

The title of this post is the title of this notable new article authored by Robert J. Smith and Zoe Robinson. Here is the abstract:

The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants.  This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.

This Article challenges these assumptions.  It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause.  The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.

Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment.  Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence.  Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty.  Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences, and the prolonged use of solitary confinement.

February 1, 2017 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, January 31, 2017

"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"

The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:

Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences.  This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.

Most people serving life sentences were convicted of serious crimes.  Their incarceration was intended to protect society and to provide appropriate punishment.  But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.

Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety.  Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems.  Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.

Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population.  Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%.  By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences.  Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO

January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, January 24, 2017

"Judge Gorsuch & Johnson Resentencing"

The title of this post is the title of this timely new commentary now on SSRN authored by Leah Litman about the latest "hot name" to replace Justice Scalia on the Supreme Court.  Here is the first paragraph:

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence.  The case concerns an issue on which the court of appeals disagree, and so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably susceptible to different resolution, as many of the Supreme Court’s cases are.  Prost illustrates how Judge Gorsuch will balance competing considerations of fairness and administrability in criminal law.  While there is much to like about Prost — it is well written, clearly reasoned, and adopts an administrable rule — the opinion also raises some concerns. The opinion overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts.

January 24, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, January 23, 2017

SCOTUS denies cert on handful of Alabama cases raising Hurst and other issues

This most recent Relist Watch posting by John Elwood at SCOTUSblog noted that the Supreme Court had relisted a few times a few cases from Alabama raising various challenges to how that state rolls its tide toward death sentences.  But this new Supreme Court order list, released this morning, has all of the relisted Alabama capital cases now on a certiorari denied list.

Interestingly, it appears that a few method-of-execution cases that were previously relisted are not on the latest cert denied list.  My guess would be that this is because someone is working on a dissent from denial of cert, but you never know just what SCOTUS is up to.

January 23, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 19, 2017

Prez Obama wraps up his clemency work with 330 more commutations on his final full day in office

As reported here via USA Today, "President Obama commuted the sentences of 330 more federal inmates Thursday, capping an unprecedented clemency effort that has now released 1,715 prisoners — more than any other president in history."  Here is more:

The clemency grants announced on Obama's last full day in office set a one-day record. "Proud to make this one of my final actions as President.  America is a nation of second chances, and 1,715 people deserved that shot," Obama tweeted Thursday.

The clemency initiative, which began in 2014, was targeted at drug dealers who received mandatory-minimum sentences during the War on Drugs from the 1980s to the 2000s. But the effort ultimately fell far short of the 10,000 clemency grants former attorney general Eric Holder predicted when the initiative began. And while Obama set a record for granting commutations, he also set a record for denials.  As of the end of 2016, he had denied 14,485 petitions and closed another 4,242 without action — an overall grant rate of 5.9%, a couple of percentage points higher than many of his predecessors.

"The president set out to reinvigorate clemency, and he has done just that," White House counsel Neil Eggleston said in a statement.

It's unclear how big of a backlog in clemency cases President-elect Donald Trump will inherit.  But Justice Department officials had promised to give an up-or-down determination on every clemency initiative case it received by August.  “I’m proud to say we kept that promise," Deputy Attorney General Sally Q. Yates said in a statement. "This undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception."

Obama's final list of clemency grants included no more full pardons, meaning his final pardon tally will stand at 212 — fewer than any modern president except Presidents George H.W. Bush and George W. Bush. (It was the younger Bush who gave Obama this advice in the limo ride to the Capitol on his Inauguration Day eight years ago. "Announce a pardon policy early on, and stick to it.")

The grants on Thursday also did not include any of the more high-profile political cases, like former Illinois governor Rod Blagojevich, former Detroit mayor Kwame Kilpatrick, and former congressman Chaka Fattah, all serving time on corruption charges.

With Thursday's action, the Clemency Project 2014 also closes its doors.  The coalition of defense attorneys who had agreed to help inmates with their cases says it completed work on all the applications it received. "Of course we'd be delighted to continue, but we have to wait to see whether the next president says whether he will or will not pursue this," he said.

This NBC News coverage of the final grants and the recent history of Obama's clemency initiative closes with a useful account of its ups and downs:

Obama's clemency grants came in large batches, hundreds at a time, accompanied by statements that framed his effort as a bid to become the most merciful president of all time. But his denials were even more voluminous. The effect on applicants and their lawyers was like an emotional roller coaster.

On Wednesday, sandwiched between Obama's two ballyhooed clemency announcements, the Justice Department quietly released the names of more than 2,000 applicants who'd been denied.

James Felman, a Florida defense lawyer who represents dozens of inmates who applied for clemency, celebrated Tuesday when he learned that four had received commutations. On Wednesday, he learned that a dozen others had been denied, and he mourned. On Thursday, Felman was elated again, this time for four more clients who were on Obama's list. A dozen of Felman's clients still have heard nothing. Three are serving life sentences.

And then there's the matter of reform. Advocates point out that clemency does nothing to change policies that led to mass incarceration. Efforts to ease those laws beyond the 2010 changes have stalled in Congress.

Felman, who won commutation for 44 total clients, called Obama's initiative "the single most gratifying professional experience I've ever undertaken." He added: "I have so much gratitude for the president for having the courage and fortitude for doing this. But we know this is not a substitute for reforming the laws that got us here, and we still haven't accomplished that."

January 19, 2017 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Noting that two death row inmates were among the latest batch of commutations by Prez Obama

I am intrigued and a bit surprised that there has not been more media attention surrounding the fact that two of the persons granted clemency by Prez Obama earlier this week were murderers on federal death row.   This posting at the Death Penalty Information Center reports on the basics, with also interesting links to some clemency materials:

On January 17, 2017, President Barack Obama commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th.

Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty.

In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment."

Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die.

Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

This new Marshall Project piece, headlined "How Obama Disappointed on the Death Penalty: Two commutations this week was less than many had hoped for," discusses these two clemencies while also suggesting that they provide only a little succor to the capital abolitionist community.

January 19, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, January 18, 2017

Top Massachusetts court adopts "new protocol for case-by-case adjudication" of over 20,000 drug convictions tainted by misconduct of lab chemist

The Massachusetts Supreme Judicial Court today issues a huge new ruling to try to resolve a huge old problem caused by drug lab misconduct. The start of the opinion in Bridgeman v. District Attorney for the Suffolk District, No. SJC 12157 (Mass. Jan. 18, 2017)(available here), provides the back-story and the essential:

We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab). In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan's misconduct because the time and expense of case-by-case adjudication had become "untenable."  We declined at that time to adopt their proposed "global remedy."  However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan's misconduct but who have not yet sought relief from their drug convictions.  As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial.

After such reconsideration, we decline to adopt the district attorneys' argument that we should stay the course we had previously set and take no further action to protect the rights of the "relevant Dookhan defendants."  We also decline to adopt the petitioners' request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period.

We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment.  In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.  In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.  In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.  If the number seeking counsel is so large that counsel cannot be assigned despite CPCS's best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

We recognize that the implementation of this protocol will substantially burden the district attorneys, CPCS, and the courts.  But we also recognize that Dookhan's misconduct at the Hinton lab has substantially burdened the due process rights of many thousands of defendants whose convictions rested on her tainted drug analysis and who, even if they have served their sentences, continue to suffer the collateral consequences arising from those convictions.  And we recognize as well that, more than four years after Dookhan's misconduct was revealed, more than 20,000 defendants who are entitled to a conclusive presumption that egregious government misconduct occurred in their case have yet to receive adequate notice that they may have been victimized by Dookhan's misconduct, that they may file a motion to vacate their drug conviction, and that they have a right to counsel to assist them in the preparation of such a motion.  The remedy we order, challenging as it is to implement, preserves the ability of these defendants to vindicate their rights through case-by-case adjudication, respects the exercise of prosecutorial discretion, and maintains the fairness and integrity of our criminal justice system in the wake of a laboratory scandal of unprecedented magnitude.

January 18, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Some attacks and some defenses of Prez Obama's decision to commute sentence of Chelsea Manning

Because I have not spent a lot of time reviewing the many distinctive and seemingly unique facts relating to Chelsea Manning's offenses and personal history, I really do not have strong opinions about Prez Obama's notable decision to commute her sentence from 35 years down to roughly 7.  But it does seem that a lot of other folks have strong views, and here is a mini-round up of criticisms and defenses:

January 18, 2017 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, January 17, 2017

Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant

I just notices a lengthy and blog-worthy opinion issued by the First Circuit late last week in US v. Rivera-Ruperto, No. 12-2364 (1st Cir. Jan 13, 2017) (available here).  The start and final substantive paragraphs of the majority opinion provides the factual background for the Eighth Amendment claim and its formal fate:

This case arises out of a now-familiar, large-scale FBI investigation known as "Operation Guard Shack," in which the FBI, in an effort to root out police corruption throughout Puerto Rico, orchestrated a series of staged drug deals over the course of several years.  For his participation in six of these Operation Guard Shack drug deals, Defendant- Appellant Wendell Rivera-Ruperto stood two trials and was found guilty of various federal drug and firearms-related crimes. The convictions resulted in Rivera-Ruperto receiving a combined sentence of 161-years and 10-months' imprisonment.....

At oral argument, counsel for Rivera-Ruperto argued that we should be swayed by the fact that, in this case, the crime involved fake drug deals.  A near two life-term punishment where no real drugs and no real drug dealers were involved, he contended, is a punishment that is grossly disproportionate on its face. But in coming to this sentence, the judge below was guided by and correctly employed a sentencing scheme that is written into statute -- a statute that makes no distinction between cases involving real versus sham cocaine.  At each of the six stings, in fact, Rivera-Ruperto repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers.  The crime of possessing a firearm in furtherance of such a drug trafficking offense is a grave one, and Congress has made a legislative determination that it requires harsh punishment.  Given the weight of the case law, we see no Eighth Amendment route for second-guessing that legislative judgment.

We thus cannot conclude that Rivera-Ruperto has established that his sentence, which is largely due to his consecutive sentences under § 924(c), is grossly disproportionate to the crime, so as to trigger Eighth Amendment protections.

The start and end of Judge Torruella's 35+-page dissent provides a much fuller primer on the Eighth Amendment and one judge's concerns about its application in this case:

The majority today affirms a sentence of 160 years and one month without the possibility of parole for Rivera-Ruperto. The transgression for which Rivera-Ruperto was punished in such an extreme manner was his participation as a security guard in several fake transactions, while the FBI duped Rivera-Ruperto into believing that the composite was actually illegal drugs. The FBI ensured that more than five kilograms of composite moved from one agent's hands to another at each transaction; the FBI also made sure that the rigged script included Rivera-Ruperto's possession of a pistol at each transaction. This combination -- more than five kilograms of composite, a pistol, and separate transactions -- triggered the mandatory consecutive minimums of 18 U.S.C. § 924(c), which make up 130 years of Rivera-Ruperto's sentence.

In a real drug transaction, all participants would be guilty of a crime. And, in general, the greater their knowledge of the crime would be, the harsher the law would punish them. In the fictitious transaction we are faced with today, however, only the duped participants, who had no knowledge of what truly transpired, are punished. The other participants are not only excused, but indeed rewarded for a job well done.

If Rivera-Ruperto had instead knowingly committed several real rapes, second-degree murders, and/or kidnappings, he would have received a much lower sentence; even if Rivera-Ruperto had taken a much more active role in, and brought a gun to, two much larger real drug deals, he would still have received a much lower sentence. For these and many other crimes Rivera-Ruperto would have received sentences that would see him released from prison during the natural term of his life. For the fictitious transgressions concocted by the authorities, however, Rivera- Ruperto will spend his entire life behind bars -- a sentence given to first-degree murderers, 18 U.S.C. § 1111, or those who cause death by wrecking a train carrying high-level nuclear waste. 18 U.S.C. § 1992.

From the majority's approval of the draconian sentence imposed in this case, I respectfully dissent. Rivera-Ruperto's sentence is grossly disproportionate to his offense, and therefore violates the Eighth Amendment to the Constitution. While some seemingly excessively harsh sentences have withstood Eighth Amendment challenges, such harsh sentences have been sanctioned only in the context of recidivists or those who otherwise dedicated themselves to a life of crime -- a context that explained the severity of the sentences. But Rivera-Ruperto has no criminal record, nor has he dedicated himself to a life of crime.  Not even under the infamous § 924(c) has a first-time offender like Rivera-Ruperto ever been condemned to spend his entire life in jail....

Never before has a first-time offender who has not dedicated his life to crime been condemned to spend his entire life in prison for a transgression such as Rivera-Ruperto's, not even in cases in which the transgression was real -- and Rivera's-Ruperto's transgression is fictitious.

The Government has effectively asked this court to pronounce the Eighth Amendment dead for sentences for a term of years. I respectfully refuse to join in this pronouncement. "Unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete." Graham, 560 U.S. at 85 (Stevens, Ginsburg, Sotomayor, JJ., concurring).

January 17, 2017 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Prez Obama issues clemency to 273 more individuals (209 commutation and 64 pardons) and Chelsea Manning among those getting a commuted sentence

Moments after I blogged about the New York Times criticizing Prez Obama on his pardon efforts, this news emerges from the White House:

Today, 273 individuals learned that the President has given them a second chance.  With today’s 209 grants of commutation, the President has now commuted the sentences of 1,385 individuals — the most grants of commutation issued by any President in this nation’s history.  President Obama’s 1,385 commutation grants — which includes 504 life sentences — is also more than the total number of commutations issued by the past 12 presidents combined.  And with today’s 64 pardons, the President has now granted a total of 212 pardons.

Today, 209 commutation recipients — including 109 individuals who had believed they would live out their remaining days in prison — learned that they will be rejoining their families and loved ones, and 64 pardon recipients learned that their past convictions have been forgiven.  These 273 individuals learned that our nation is a forgiving nation, where hard work and a commitment to rehabilitation can lead to a second chance, and where wrongs from the past will not deprive an individual of the opportunity to move forward.  Today, 273 individuals — like President Obama’s 1,324 clemency recipients before them — learned that our President has found them deserving of a second chance.

There is at least one high-profile recipient of a commutation today, as this FoxNews headline reveals:

"Obama commutes Chelsea Manning's sentence for leaking Army documents":

The White House said that Manning is one of 209 inmates whose sentences Obama is shortening. Obama is also pardoning 64 people, including retired Gen. James Cartwright, who was charged with making false statements during a probe into disclosure of classified information. Most of the other people receiving commutations were serving sentences for nonviolent drug offenses.

Manning is more than six years into a 35-year sentence for leaking classified government and military documents to the anti-secrecy website WikiLeaks. Her sentence is now set to expire May 17.

January 17, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25)

Monday, January 16, 2017

SCOTUS to confront implication for immigration statute of Johnson vagueness ruling

On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States.  Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:

The U.S government targets noncitizens with criminal convictions for removal from the United States.  These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history.  On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal.  In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal.  Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.

A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal.  The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense.  That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.”  The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”

Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992.  Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States.  Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed.  The Board of Immigration Appeals agreed.  In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.

January 16, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Friday, January 13, 2017

Supreme Court grants cert on four new criminal cases and a dozen others

After a seemingly long quiet period of avoiding taking on too many new cases, the Supreme Court this afternoon issued this order list which grants cert on 16(!) new cases.  I believe these four cases from the list are the only criminal ones, with links to case pages and descriptions via SCOTUSblog:

WEAVER, KENTEL M. V. MASSACHUSETTS: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

MASLENJAK, DIVNA V. UNITED STATES: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

McWILLIAMS, JAMES E. V. DUNN, COMM'R, AL DOC, ET AL.:  Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Most of these cases look intricate, and maybe Maslenjak could even be viewed as a kind of sentencing case. But, on first look, I see no brewing blockbusters.

UPDATE: Over at Crime & Consequences here, Kent Scheidegger shares some initial reactions to this quartet of new SCOTUS criminal cases.

January 13, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Thursday, January 12, 2017

"Mistakes and Justice — Using the Pardon Power to Remedy a Mistake of Law"

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

American criminal law has never recognized a mistake-of-law defense. The principal rationale for rejecting it has been that the community knows what the criminal law prohibits.  That may have been a reasonable rule when there were only a handful of crimes, and each one also violated the contemporary moral code, but that rule makes no sense today, given the use of the criminal law to enforce thousands of sometimes technical, arcane administrative regulations.  Clemency, however, may be a perfect vehicle for the implementation of a mistake- or ignorance-of-the-law defense.

Throughout Anglo-American legal history, kings, presidents, and governors have used their pardon power as a vehicle to remedy injustices in the criminal justice system.  The conviction of a person for conduct that no reasonable person would have thought to be a crime certainly qualifies as a miscarriage of justice.  Presidents and governors should consider using their clemency authority to pardon legitimate cases of mistake or ignorance, which might particularly arise in connection with strict criminal liability or regulatory crimes.

January 12, 2017 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

New Jersey Supreme Court addresses Miller's application to all serious juve sentencings

As reported in this local article, the top court in the Garden State "ruled unanimously Wednesday to overhaul the way New Jersey judges sentence juveniles convicted in violent crimes that could keep them in prison until they are elderly or dead." Here is more from the press report on the opinion:

The state's highest court ruled 7-0 that judges must consider a number of factors -- including age, family environment, and peer pressure -- before issuing lengthy sentences to youths in serious cases. Peter Verniero, a former state Supreme Court justice and state attorney general, said this is "one of the most significant sentencing decisions" the court has made in "many years."

And in a rare move, the court also urged the New Jersey Legislature to revise the state's current law on juvenile sentencing to "avoid a potential constitutional challenge in the future," according to the decision, written by Chief Justice Stuart Rabner.

The decision is the result of appeals filed by a pair of men who were convicted separately of violent crimes years ago in Essex County when they were 17 and were sentenced to decades in prison. Ricky Zuber was convicted for his role in two gang rapes in 1981 and was sentenced to 110 years in prison. He would not have been eligible for parole for 55 years -- a time when he would be 72. James Comer was convicted of four armed robberies in 2000, including one where an accomplice shot and killed a victim. He would have become eligible for parole when he was 85 -- after having served 68 years.

Rabner wrote that judges in both cases did not take "age or related circumstances" into account when issuing the sentences. But, Rabner said, the U.S. Supreme Court has since "sent a clear message" that "children are different" from adults and that "youth and its attendant characteristics" must be considered when sentencing a juvenile to life in prison without parole.

"Because of their young age at the time of their crimes, both defendants can expect to spend more than a half century in jail before they may be released -- longer than the time served by some adults convicted of first-degree murder," Rabner wrote.

Rabner cited how in a 2012 decision called Miller v. Alabama, the U.S. Supreme Court ruled that judges presiding over cases involving juveniles facing life sentences without parole must consider a number of factors before sentencing. Those include immaturity; family and home environment; family and peer pressures; an"inability to deal with police officers or prosecutors" or their own attorney; and "the possibility of rehabilitation."

But New Jersey's Supreme Court went further, saying those standards must be applied not only to sentences of life without parole but also to youths who face lengthy sentences. The court also cited a the Eighth Amendment of the U.S. Constitution, which protects defendants from "cruel and unusual punishment."

"Youth matters under the constitution," Rabner wrote.

The full opinion is available at this link, and it covers a lot of important post-Graham and post-Miller ground concerning juvenile sentencing.

January 12, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, January 11, 2017

"Is Qualified Immunity Unlawful?"

The title of this post is the title of this provocative new article authored by William Baude and now available via SSRN. Here is the abstract:

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point.  This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983.  One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.

But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons.  There was no such defense; there was no such mistake; lenity ought not apply.  And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

The unlawfulness of qualified immunity is of particular importance now.  Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways.  In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference.  Rather than doubling down, the Court ought to be beating a retreat.

Though technically not a sentencing article, any conceptual and/or doctrinal strike against qualified immunity seems likely also to be a blow against the absolute immunity that right now protects from litigation scrutiny the sentencing decisions made by prosecutors and judges.

January 11, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, January 09, 2017

"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"

The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans.  Here is the abstract:

Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes.  This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States.  The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.

January 9, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

SCOTUS issues per curiam opinion strengthening claim of qualified immunity after police shootout

The Supreme Court's first big order list of 2017 had no cert grants, which I think provides still more evidence that the Justices are disinclined to take up much of note until they get a replacement for Justice Scalia.  But the court found one case they could resolve through a summary opinion, White v. Pauly, No. 16–67 (S. Ct. Jan. 9, 2017) (available here). In this case, the Supreme Court vacating a split Tenth Circuit ruling that had denied qualified immunity to a New Mexico police officer after deadly shooting during a confrontation with armed suspects. Here is how the opinion starts and a key passage:

This case addresses the situation of an officer who — having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers — shoots and kills an armed occupant of the house without first giving a warning....

This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White’s conduct — such as his failure to shout a warning — constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene.  814 F.3d, at 1077.  This alone should have been an important indication to the majority that White’s conduct did not violate a “clearly established” right.  Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed.  No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.

Th per curiam opinion closes with a lot of nuance as to what the Justices were not deciding, and a concurring opinion by Justice Ginsburg highlights that point.

January 9, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, January 08, 2017

SCOTUS back in action with booking fee process as first notable criminal case of 2017

The Supreme Court returns to action tomorrow morning, and the Court's January sitting only has a couple cases that should be of serious interest to criminal justice fans.  But the very first case slated for the very first 2017 oral argument is one of procedural note, Nelson v. Colorado.  The folks over at SCOTUSblog have provided this preview by Steve Vladeck, which starts and ends this way:

Every jurisdiction in the United States requires at least some criminal defendants to make certain payments to the government tied to their convictions.  And if a defendant’s conviction is subsequently vacated — whether on appeal or through collateral post-conviction proceedings — virtually every jurisdiction directly returns those funds to the acquitted individual.  Colorado does not.  Instead, according to the Colorado Supreme Court, criminal defendants seeking a return of funds paid in conjunction with a later-vacated conviction must bring a separate civil suit under a Colorado statute — the Exoneration Act — in which, among other burdens, plaintiffs apparently have to prove their actual innocence by clear and convincing evidence in order to recover.  The very first argument the justices will hear in 2017 — Nelson v. Colorado — raises the question whether this seemingly unique scheme violates the due process clause of the 14th Amendment....

Although it is often difficult to predict from an oral argument how the justices are likely to rule, the sharp distinctions in how the parties have framed the issue in this case may allow for more than the usual tea-leaf reading at next Monday’s argument.  The more the questioning focuses on distinctions between the different types of payments made by Nelson and Madden, and the state’s interest in collecting and preserving those funds, the more it may bode well for Colorado.  But the more the justices’ attention appears drawn to how poor a fit the Exoneration Act actually is for defendants like these, the more likely the court will be to reverse.  After all, as Nelson and Madden conclude in their reply brief, Colorado appears to be the first and only jurisdiction in the United States “to require successful appellants to prove their innocence by any standard to get their money back when their convictions are reversed.”  If that fact seems to trouble enough of the justices during their first argument of the new year, then a reversal may well be in the offing.

January 8, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, January 05, 2017

Marijuana reform and clemency conversations at the state and federal level

Two new lengthy pieces combining news and commentary on the clemency and marijuana fronts further reinforces my view that marijuana reform is a form of sentencing reform.  Here are the extended headlines and links to these two interesting reads:

January 5, 2017 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, January 04, 2017

Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases

This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:

A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.

And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.

But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.

According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”

The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.

Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....

In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.

Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.

Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....

“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”

January 4, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

GOP Senate Judiciary Chair Chuck Grassley says federal sentencing reform a priority after Trump nominations completed

This lengthy new Politico article, headlined in full "Senators plan to revive sentencing reform push: Senate Judiciary Chairman Chuck Grassley says he's not done yet pressing a cause with broad bipartisan support," brings some welcome new year good news for advocates of federal sentencing reform.  Here are the details, with a couple of lines emphasized for subsequent commentary:

Criminal justice reform — the great bipartisan hope of 2016 that ended in disappointment — may not be dead just yet. Senate Judiciary Committee Chuck Grassley (R-Iowa) plans to take up a bill to revamp U.S. sentencing laws and reform prisons soon after his panel clears the high-profile nominations from Donald Trump. A similar measure passed his committee overwhelmingly last year before stalling out in the face of opposition from law-and-order conservatives.

But Grassley told POLITICO he will soon try again. "The committee will begin the year working through the attorney general and Supreme Court nominees, but criminal justice reform will be one of the legislative bills I plan to bring up early on,” he said in a statement. “It cleared the committee with a broad bipartisan majority in the last Congress, and I don't expect that to change.”

The chief authors of the criminal justice overhaul, led by Grassley and Senate Minority Whip Dick Durbin (D-Ill.), will continue to try to drum up more support among senators, while “educating” the Trump administration about their bill’s merits, Grassley said.  The legislation isn’t expected to be substantially different than last year’s version.

Criminal justice reform could’ve been one of the bright, bipartisan spots in an otherwise contentious election year. But despite support from President Barack Obama, powerful congressional Republicans, and a sprawling network of groups from the left and right, the legislation never made it to the floor.  That was partly due to the determined efforts of law-and-order conservatives to steamroll it — and there's little to suggest that if the legislation heads to the Senate floor, that dynamic would change.

Nevertheless, Durbin approached Grassley after the election and pressed the chairman about whether the duo should make another run at it this year, Durbin recalled in a recent phone interview. Grassley was in. And once the chairman tees up the bill this year in his committee, its supporters expect a bipartisan vote similar to the 15-5 tally it received in October 2015.

Durbin and Grassley’s aides have been discussing a strategy to advance the bill in 2017. Aiding their cause is the fact that three opponents — GOP Sens. David Vitter of Louisiana, Jeff Sessions of Alabama and David Perdue of Georgia — are leaving the committee this year, stirring hope that the vote count in favor of the measure could be higher. Vitter no longer serves in the Senate, Sessions is expected to be confirmed as attorney general and Perdue is shifting committees. Replacing them on the influential panel are Sens. Ben Sasse of Nebraska, Mike Crapo of Idaho and John Kennedy of Louisiana. “I think the committee will be just as strong. It may be stronger,” Durbin said. “When you have people like Grassley and Durbin and [Senate Majority Whip John] Cornyn and [Sen. Patrick] Leahy for goodness sakes … it ought to be enough for us.”...

Senate Majority Leader Mitch McConnell (R-Ky.) is rarely eager to take up policy fights that divide his conference — and Democrats point a finger at him as a prime reason why criminal justice reform stalled last year. “The problem we ran into is Sen. McConnell, who didn’t want to call the bill to the floor. He was concerned about the impact on the election and also that the House wasn’t going to take it up,” Durbin said. The question remains going forward, he added, "whether McConnell will give us a chance.” McConnell aide Don Stewart responded that the majority leader spoke several times about the issue in 2016 and “doesn’t need Sen. Durbin to be his spokesman.”

The president-elect ran on a law-and-order platform, but Trump doesn't appear to have weighed in on the Senate measure during his campaign. Another wildcard factor is Sessions, Trump’s pick to become the attorney general.  As a senior member of the Senate Judiciary Committee, he was a fervent opponent of the sentencing overhaul and one of the five votes against it.

But Sen. Thom Tillis (R-N.C.), another supporter of the criminal justice reform effort, speculated that once Sessions becomes the attorney general, his chief objective will be on enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

Durbin said he intends to press Sessions on his views of criminal justice reform and how he’ll handle the issue at the Justice Department when the two meet privately to discuss about his bid to become attorney general on Wednesday.  Though Sessions had wanted to meet earlier, Durbin said Senate Democrats decided as a caucus to not meet with any Cabinet selections until the new year. “I want to know after all of the speeches he gave on the floor against criminal justice reform, what we can expect of him as attorney general,” Durbin said. “I don’t know what he’ll say.”

Still, others speculate that after Washington endures partisan wars over repealing Obamacare and confirming polarizing presidential nominees, Trump will be looking for a bipartisan win. Criminal justice reform could deliver one. “I know we have enough votes to send this to the president’s desk,” Tillis said. Stressing his desire to avoid legislative gridlock, Tillis added: “The election was not a Republican mandate. The election was a results mandate.”

This story is both encouraging and not all that surprising given the events of the last few years surrounding the proposal, debates and modifications of the Sentencing Reform and Corrections Act. The two lines I have emphasized reflect two coming developments that I think are crucial to this developing 2017 federal sentencing reform story:

1. I think it would be a policy mistake, despite the 2015 Judiciary Committee success of the SRCA, for that bill to serve the essential template for new Senate reform legislation. In my view, there are a host of ways a new and improved federal sentencing reform bill could and should be much more streamlined AND I think a new bill could and should garner even more bipartisan support if it also were to include some modest (or even aggressive) mens rea reforms.

2. I think Senators Sessions and Durbin are really critical players here, especially over the next few weeks, as Sessions develops and articulates his priorities as Attorney General and as Durbin seeks to explain why the horrific uptick in violent crime in his own Chicago (Which Prez-Elect Trump has been tweeting about) should not be a reason to tap the brakes on any further federal sentencing reforms.

January 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, January 03, 2017

Eighth Circuit panel reverses district court findings of substantive due process problems with Minnesota's sex offender commitment program

As reported in this local article, a "federal appeals court in St. Louis has reversed a lower-court ruling that Minnesota's sex-offender treatment program is unconstitutional — a major victory for the Minnesota Department of Human Services and a decision that could delay long-awaited reforms to the state's system of indefinite detention for sex offenders."  Here is more about the ruling and its context:

In a decision Tuesday, a three-judge panel of the Eighth Circuit Court of Appeals found that a class of sex offenders who sued the state failed to prove that the Minnesota Sex Offender Program (MSOP) violated their due process rights under the U.S. Constitution. "We conclude that the class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard," the court ruled.

In response, the lead attorney for a class of offenders who sued the state said he is considering an appeal to the U.S. Supreme Court, which must be filed within 90 days. "Justice was not done today," said Dan Gustafson, the attorney for the plaintiffs. "We're still considering what we are going to do but, as Governor Dayton said the other day, we are not going quietly into the night."

Minnesota confines more offenders per capita, and has the lowest release rate, among the 20 states that use civil commitment to confine sex offenders in treatment programs. Only 14 offenders have been conditionally discharged from the program in its more than 20-year history. Of those, seven are currently living in the community. Just one offender has been unconditionally discharged, and that did not occur until August.

In June 2015, federal Judge Donovan Frank in St. Paul, ruling in a lawsuit brought by a group of sex offenders, declared the program unconstitutional for confining offenders indefinitely, after they have already completed their prison terms, without a clear path toward release. The judge ordered state officials to conduct independent evaluations of the roughly 720 offenders confined at secure treatment centers in Moose Lake and St. Peter to determine if they still pose a public safety risk. He also ordered the state to develop less restrictive options for housing offenders in the community.

The unanimous Eighth Circuit panel ruling in this case is available at this link, and it gets started this way:

Class plaintiffs, civilly committed sex offenders, bring a facial and as applied challenge under 42 U.S.C. § 1983, claiming their substantive due process rights have been violated by Minnesota’s Civil Commitment and Treatment Act and by the actions and practices of the managers of the Minnesota Sex Offender Program (MSOP).  The Minnesota state defendants in this action are managers of MSOP — Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services; Kevin Moser, MSOP Facilities Director at Moose Lake; Peter Puffer, MSOP Clinical Director; Nancy Johnston, MSOP Executive Director; Jannine Herbert, MSOP Executive Clinical Director; and Ann Zimmerman, MSOP Security Director (collectively “state defendants”).  After several months of litigation, including a six-week bench trial, the district court found for plaintiffs and entered an expansive injunctive order.  The district court applied incorrect standards of scrutiny when considering plaintiffs’ claims, thus we reverse the finding of substantive due process violations and vacate the injunctive relief order.  We remand to the district court for further proceedings to address the remaining claims.

January 3, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, December 30, 2016

Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns

A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here).  Here is how the opinion starts:

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions.  The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct.  For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."

UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.

ANOTHER UPDATE on January 9, 2017:  I was again alerted by a helpful reader that, as evidenced here,  US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever.  Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.

December 30, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Thursday, December 29, 2016

"Clemency seeker to Obama: please don't forget us"

The title of this post is the headline of this new CNN commentary, authored by Alice Marie Johnson.  Here is how it gets started and concludes:

The week before Christmas, President Obama gave a second chance -- in the form of clemency -- to 231 people. I was not among them, but since many of them, like me, were incarcerated on drug-related charges, I feel I know their stories.  I am only one of thousands of first-time, non-violent offenders given a mandatory and lengthy prison terms after committing a crime under financial distress.

In 1996, I was given a death sentence without sitting on death row. I was convicted as a first-time nonviolent drug offender to life behind bars in federal prison.  Since I went to prison, the laws governing my wrong-doing have changed.  If I were convicted again today for the same crime, my life might look very different.

Last month, as I was preparing to put on a short play I wrote, entitled "The Strength To Be," a fellow inmate pulled me aside and gave me the news that the Obama Administration had just started announcing its next slate of clemencies.  My mind went racing. What if this could be my chance to be reunited with the outside world, to see my family or what is left of it?

For 20 years I have been incarcerated, and I won't lie, it's hard to keep the hope of freedom alive for that long.  But my faith in God has carried me this far.  Despite the impending announcement, I knew that the show had to go on. I channeled the uncertainty of my future into my play and danced a duet to Whitney Houston's song, "I Didn't Know My Own Strength."...

I want this part to be clear: I acknowledge that I have done wrong. I made the biggest mistake of my life to make ends meet and got involved with people selling drugs.  This was a road I never dreamed of venturing down.  I became what is called a telephone mule, passing messages between the distributors and sellers.  I participated in a drug conspiracy and I was wrong.

My trial took a toll on my family.  At the time of my conviction, I had two children in college and a senior in high school. Bryant, the senior, ended up dropping out of school because of the trial.  Tretessa had a good paying job with Motorola and was flying down to support me.  Members of the community were at my hearings encouraging me and hoping for the best.

But I was convicted on October 31, 1996 -- and sentenced to life in prison. The day after my oldest son Charles "celebrated" his 20th birthday.  It was his first birthday spent away from me. It's hard to imagine that I have now served 20 years of my life sentence for that one mistake.  The United States leads the world in incarceration rates, with five percent of the world's incarcerated population and one-quarter of the world's prisoners.  I am one of thousands of first-time, nonviolent offenders who were given mandatory lengthy prison terms.

During my two decades in here, I've become an ordained minister and a mentor to young women who are also in prison.  And if I get out -- I have a job secured, and plan to continue to help those in prison and work hard to change our justice system.  My daughter started a petition to President Obama asking him to grant me clemency, and more than 100,000 people have signed it.  It a source of strength and hope for me -- a chance to be free.

The President has made an incredible push at helping to right the wrongs of our criminal justice system.  I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes.  But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others -- so I also hope he moves quickly.  I hope his administration will process all the applications for clemency currently waiting for the President's review.

No matter what happens, I was not built to break. I will keep writing. I will continue to hold my head high and live a productive life either as a free woman or here behind bars.  God has shown me my strength.

December 29, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, December 28, 2016

Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case

Last month via this Wall Street Journal commentary, two former Justice Department officials Charles Renfrew and James Reynolds advocated for clemency for Sholom Rubashkin in a piece headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  This week via this Washington Post commentary, LawProf and former Deputy AG Philip Heymann is making the case for Rubashkin while calling out the Justice Department's failure to address these matters.  The piece is headlined "107 former Justice officials think this case was handled unjustly.  DOJ must act."  Here are excerpts:

“You don’t just try to hammer everybody for as long as you can, because you can,” Deputy Attorney General Sally Yates told the New York Times. That is the right attitude for someone tasked with the fair administration of justice.  Unfortunately, Yates and Attorney General Loretta E. Lynch have, for the past year, rebuffed efforts by me and many other former senior Justice Department officials to even discuss another prosecution in which justice fell far short: the case of Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud.

Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years.  Worse, his sentence was based on perjured testimony and prosecutorial misconduct.

If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons.  In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served.  The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.

Meanwhile, Kevin Techau, the U.S. attorney in Iowa (where Rubashkin was prosecuted), has suggested that Rubashkin used his financial resources to buy the support of so many prominent justice officials. Not only has Rubashkin lost everything he owned in this case, his wife and children now depend heavily on the support of their community for their needs.  Moreover, all 107 of us are working on this pro bono.  Among other things, former deputy attorneys general Larry Thompson, Charles Renfrew and I have traveled to distant meetings and volunteered considerable time to this matter, all on our own nickel.

The facts are clear: Rubashkin was vice president of Agriprocessors, a kosher meatpacking plant based in Postville, Iowa.  In May 2008, more than 500 federal immigration agents raided the plant and arrested hundreds of undocumented workers.  The raid resulted in the company declaring bankruptcy.  Rubashkin was arrested a short time later and charged with bank fraud.  And this is where things went terribly wrong.  The sentence for bank fraud depends on the amount of the loss to creditors. In this case, the prosecution deliberately increased the amount of the loss — and thus the length of Rubashkin’s sentence....

I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case.  Experienced former prosecutors and career Justice Department officials view this case as a stain on an institution created to uphold the law.  If the department’s leadership refuses to act, I hope President Obama pardons Rubashkin and ends this tragedy. The alternative is a display of either blind self-righteousness or frightened defensiveness that is inconsistent with the Justice Department we all have served and respected.

December 28, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, December 25, 2016

Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts

Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours."  I recommend the full piece and here are some excerpts:

President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”

The president certainly deserves credit for making clemency a priority before leaving office....  Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.”  Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse.  Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best.  As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....

[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary.  If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars.  As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met.  To give a list of names would exclude too many people.”...

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed.  The stories are all too familiar.  They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes.  They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime.  People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with.  What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act.  Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record.  The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited.  But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice.  And the state has not even begun to account for its own mistakes.

I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.

The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.

Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.

December 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, December 24, 2016

Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense

As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:

Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down.  He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills.  He left the computer.

As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day.  He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon.  Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.

But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice."  The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."

The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws.  The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."

The full majority ruling in Louisiana v. Johnson is available at this link.  Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision: 

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.  Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars.  He is now condemned to die in prison for that crime.

We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well.  Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract."  Solem, 463 U.S. at 296.  As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes.  And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature.  No person was harmed, nor any property damaged.  Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, December 22, 2016

Florida Supreme Court brings back to life some older death sentences

As reported in this local article, headlined "Florida Supreme Court: Death penalty cases finalized before 2002 will stand," it now appears that there is a little bit of life left in some old Florida death sentences.  Here are the basics: 

Some of the nearly 400 prisoners waiting on Florida's death row will not be allowed a re-sentencing under new death penalty laws, the state Supreme Court ruled Thursday.

The 6-1 ruling in a death sentence appeal by Mark James Asay says that death row inmates are not entitled to a re-sentencing unless their case was finalized after the 2002 ruling in Ring vs. Arizona, which required juries to find aggravating factors to impose the death penalty.

The court also lifted a stay on Asay's execution, previously scheduled for March of this year. It appears executions could commence soon.

Florida's death penalty has been under siege for the past year. In January, the U.S. Supreme Court ruled the state's death penalty scheme unconstitutional in Hurst vs. Florida, prompting the Legislature to re-write sentencing laws.  Then, in October, the Florida Supreme Court found that the Hurst ruling required a unanimous vote by the jury to sentence someone to death, rather than a majority or supermajority required under old and existing laws. It was not clear until Thursday's ruling whether these changes entitled people already on death row to a re-sentencing hearing.

The lengthy Florida Supreme Court in Asay v. Florida is available at this link. Here is the key concluding paragraph from the majority opinion:

After weighing all three of the above factors, we conclude that Hurst should not be applied retroactively to Asay’s case, in which the death sentence became final before the issuance of Ring. We limit our holding to this context because the balance of factors may change significantly for cases decided after the United States Supreme Court decided Ring. When considering the three factors of the Stovall/Linkletter test together, we conclude that they weigh against applying Hurst retroactively to all death case litigation in Florida. Accordingly, we deny Asay relief.

There can be little doubt that this ruling will be appealed to the US Supreme Court, though there can and should be much doubt about whether SCOTUS will take up the issue.

UPDATE: A helpful tweeter made sure I did not miss this additional ruling from the Florida Supreme Court that reaches this companion conclusion for cases in which a death sentence was imposed after 2002:

After weighing all of the considerations essential to a faithful Witt analysis, we conclude that Hurst should be applied retroactively to Mosley.  The purpose of the holdings in Hurst v. Florida and Hurst is to prevent a violation of the fundamental and critically important right to a trial by jury. See Hurst, 202 So. 3d at 50-51, 55.

December 22, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Split Ohio Supreme Court concludes Graham violated by term-of-years juve sentence that exceeds life expectancy

The holiday season is often a time that brings some interesting sentencing ruling, and this year the jurisprudential present under my tree comes from my own Ohio Supreme Court in Ohio v. Moore, No. 2016-Ohio-8288 (Ohio S. Ct. Dec. 22, 2016) (available here). Here is how the lengthy majority opinion in Moore gets started and concludes:

We decide in this case whether the United States Supreme Court’s holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibiting the imposition of sentences of life imprisonment without parole on juvenile nonhomicide offenders also prohibits the imposition of a term-of-years prison sentence that exceeds the offender’s life expectancy on a juvenile nonhomicide offender. We hold that pursuant to Graham, a term-of-years prison sentence that exceeds a defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.

We hold in this case that Graham’s categorical prohibition of sentences of life imprisonment without the possibility of parole for juveniles who commit nonhomicide crimes applies to juvenile nonhomicide offenders who are sentenced to term-of-years sentences that exceed their life expectancies. The court of appeals abused its discretion in failing to grant Moore’s application for reconsideration. The 112-year sentence the trial court imposed on Moore violates the Eighth Amendment’s prohibition against cruel and unusual punishments. We reverse the judgment of the court of appeals and vacate Moore’s sentence, and we remand the cause to the trial court for resentencing in conformity with Graham.

Interestingly, Chief Justice Maureen O'Connor appears to have been the key swing vote here on a court that split 4-3, and her lengthy concurring opinion concludes this way:

Graham is one of the most momentous decisions in American juvenile law. Given its significance, the stated intention of the sentencing judge in this case, the de facto life sentence he imposed, and the curtness with which the court of appeals denied Moore’s application to reconsider his sentence in light of Graham, I conclude that the appellate court abused its discretion in refusing to consider Moore’s claim. The court was not bound to accept his arguments, but it was bound to consider them more thoughtfully after allowing the application for delayed reconsideration.

I concur fully in the majority opinion, which addresses the significant constitutional question that is properly before us and which holds that the court of appeals abused its discretion in failing to recognize that extraordinary circumstances were presented by Moore’s application, i.e., the unconstitutional imposition of a lengthy term-of-years sentence on a juvenile offender.

December 22, 2016 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, December 19, 2016

Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner

This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:

A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.

The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.

“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously.  Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.

The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:

The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline.  First, the sentence was within the parameters set by law and was therefore within the judge’s discretion.  Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant.  Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias.  The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both.  Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification. 

Some (of many) prior related posts on the Brock Turner case:

December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Prez Obama grants another large bunch of commutations as well as a big batch of pardons

Big pre-holiday news on the federal clemency front is reported in this new White House blog posting: "President Obama Grants 153 Commutations and 78 Pardons to Individuals Deserving of a Second Chance." Here are the details as reported by White House Counsel Neil Eggleston:

Today, President Obama granted clemency to 231 deserving individuals — the most individual acts of clemency granted in a single day by any president in this nation’s history. With today’s 153 commutations, the President has now commuted the sentences of 1,176 individuals, including 395 life sentences. The President also granted pardons to 78 individuals, bringing his total number of pardons to 148. Today’s acts of clemency — and the mercy the President has shown his 1,324 clemency recipients — exemplify his belief that America is a nation of second chances.

The 231 individuals granted clemency today have all demonstrated that they are ready to make use — or have already made use — of a second chance. While each clemency recipient’s story is unique, the common thread of rehabilitation underlies all of them. For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way. For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved — by both individuals and society — in a nation of second chances.

Today’s grants signify the President’s continued commitment to exercising his clemency authority through the remainder of his time in office. In 2016 alone, the President has granted clemency to more than 1,000 deserving individuals. The President continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the President will issue more grants of both commutations and pardons before he leaves office. The mercy that the President has shown his 1,324 clemency recipients is remarkable, but we must remember that clemency is a tool of last resort and that only Congress can achieve the broader reforms needed to ensure over the long run that our criminal justice system operates more fairly and effectively in the service of public safety.

This news is sure to bring holiday cheer to all those advocating for Prez Obama to go big on this front before he heads home.  These grants now have me thinking Obama may end his time in office with more than 2000 clemency grants.

Some recent (post-Election Day) posts on Prez Obama and clemency:

December 19, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, December 18, 2016

Anyone eager to predict how many last-month clemencies Prez Obama will grant?

NA-CM807_CLEMEN_9U_20161217145706The question in the title of this post is prompted by this lengthy new Wall Street Journal article headlined "Barack Obama Weighs Final Requests for Clemency: President has cut short the sentences of 1,023 inmates, more than the previous 11 presidents combined." Here are excerpts:

Barack Obama, who has granted clemency more often than any president since Lyndon B. Johnson, is expected to perform more acts of mercy during his final weeks in office....

Mr. Obama’s critics, including the incoming attorney general, say his use of clemency for a large class of convicts has been a disturbing power grab. But supporters say a law that reduced drug penalties six years ago created severe injustices for those sentenced before it. They also note that Mr. Obama has granted clemency for a relatively small percentage of the large number of people who have sought it.

These trends are a centerpiece of Mr. Obama’s legacy on criminal justice reform. Legislation that would have further reduced sentences for less-serious drug offenders foundered in this fall’s highly charged political climate. But as with other parts of the president’s agenda that were snubbed by Congress—including immigration, gun control and climate policies — Mr. Obama has turned to his executive authority in the absence of more sweeping and durable legislative action. “He’s essentially rejuvenated clemency as a presidential power,” said White House Counsel Neil Eggleston. “But he has never seen it as a replacement for criminal justice reform.”...

Mr. Trump’s pick for attorney general, Alabama Sen. Jeff Sessions, a former chairman of the Senate Judiciary Committee, has described Mr. Obama’s clemency record as an “alarming abuse of the pardon power.” The former prosecutor views the rollback of tough drug sentences as a threat to public safety. Mr. Obama, a former constitutional law professor, sees long, mandatory sentences as damaging excesses from the war on drugs, particularly in the African-American community.

In 2016, Mr. Obama has cut short the sentences of 839 inmates, the most commutations ever granted in a single year, according to the Justice Department, with more possibly on the way. That brings his total to 1,023, or more than the previous 11 presidents combined. Adding Mr. Obama’s 70 pardons, which go further than commutations by wiping out convictions and restoring civil liberties, puts his clemency record just behind Mr. Johnson’s 1,187 grants.

Civil-rights advocates are demanding a more sweeping review that would dent the prison population much faster than the current case-by-case analysis. “We do not know whether the next president will support clemency efforts or criminal justice reform,’ says a late November appeal to President Obama from dozens of groups, including the NAACP Legal Defense and Educational Fund, the Sentencing Project, JustLeadershipUSA and the Brennan Center for Justice. “But we do know that until Jan. 20, you alone have the power to deliver both mercy and justice to those who deserve it.”...

Mr. Obama has received more requests for clemency than any other president, in part because of efforts to encourage inmates to petition for one if they were sentenced before a 2010 law that reduced the disparity between sentences for crack and cocaine offenses. Mr. Sessions spearheaded that legislation, which lightened penalties for crack users, but he opposes applying it to inmates retroactively. So does the nation’s largest police union, the Fraternal Order of Police, which endorsed Mr. Trump.

But in one indicator that Mr. Obama is more cautious than some critics suggest, he has granted 3% of nearly 35,000 requests; only George W. Bush granted a smaller percentage, according to an analysis by the Pew Research Center. Obama also has offered fewer pardons than any president in the past century, though more are expected before he leaves office.

I am tempted to predict that Prez Obama will grant at least a few hundred more prison commutations and also a few hundred pardons before leaving the Oval Office on January 20, 2017.  This is a nothing but a blind guess and I have absolutely no insider knowledge here.  What I do have is a deep disappointment that Prez Obama did not make any apparent effort to change the structure of the modern federal clemency process, which so many commentators (myself included) have rightly criticized as dysfunctional.

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Some recent (post-Election Day) posts on Prez Obama and clemency:

UPDATE:  In the comments to this post and also in an email to me, sentencing and clemency guru Mark Osler expressed justified frustration over the fact that the WSJ article and its chart fail to give respect to the large number of clemencies that Prez Gerald Ford granted in response to offenses related to evasion of the draft during the Vietnam war. (This Fusion article from May provides an effective review of this oft-forgotten clemency story and its continued relevance in a drug war era.)  Mark sent me this update comment of criticism, along with the additional chart here produced by Pardon Power papa P.S. Ruckman.

Complains Prof Osler: "No, Obama has NOT 'granted clemency more often than any president since Lyndon B. Johnson.'   And the chart the WSJ used (and you reprinted) is wrong.  Neither include the Ford clemency grants. That matters, too --- the streamlined Ford process outside of DOJ, which was successful, was the one Obama rejected in favor of the bureaucracy-laden CP14."

December 18, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Thursday, December 15, 2016

Post-Hurst hydra chews up all death sentences in Delaware via new retroactivity ruling

6a00d83451574769e201b8d1a7e505970c-320wiRegularly readers know I use the term "post-Hurst hydra" to describe the aftermath litigation in various courts in various states as judges sort ought what Supreme Court ruling in Hurst v. Florida must mean for past, present and future capital cases. Today the post-Hurst hydra took another big bite out the the death penalty in the First State as reported in this AP article:

A Delaware Supreme Court ruling earlier this year declaring the state's death penalty law unconstitutional is retroactive, meaning an inmate convicted of killing a police officer must be resentenced to life in prison, the justices said in a follow-up decision Thursday.

The ruling came in an appeal by Derrick Powell, who was convicted of killing Georgetown police Officer Chad Spicer in 2009, but it likely means that 11 other former death-row inmates also will be spared from execution.

In August, a majority of the justices said Delaware's death penalty law was unconstitutional because it allowed judges too much discretion in sentencing and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution.

That ruling came after the U.S. Supreme Court said Florida's death sentencing law, which also gave judges the final say, was unconstitutional. Alabama is the only other state that allows judges to override jury decisions on whether an offender should get life in prison or the death penalty.

In its 15-page decision Thursday, the Delaware court said its August ruling invalidating the state's death penalty law was a "watershed procedural ruling" that must be applied retroactively.

The full opinion in Powell v. Delaware is available at this link.

December 15, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, December 14, 2016

SCOTUS adds a few more criminal cases to its current merits docket

Via this post at SCOTUSblog, I see that the Supreme Court today added a handful of cases to its docket.  Here is the SCOTUSblog description of the criminal cases in the bunch:

Two of the cases that the justices agreed to review today, Turner v. United States and Overton v. United States, arise out of the brutal 1984 murder of Catherine Fuller, a District of Columbia mother.  The petitioners in the case are a group of D.C. men who were convicted of the crime, based in large part on testimony from alleged eyewitnesses. Decades later, a reporter learned that defense attorneys had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had failed to turn over other evidence that could have aided the defendants.  The men sought to vacate their convictions, but were unsuccessful in the lower courts.

Today the Supreme Court agreed to review both cases.  Overton had asked the court to weigh in on the standard that the lower court used to evaluate his claim that prosecutors had not complied with their obligations under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant.  Turner and his co-defendants had asked the court to consider whether, when determining the significance of suppressed evidence, courts can consider information that comes to light after trial.  But the court today announced that it would review a more straightforward question in both cases: whether the men’s convictions must be set aside under Brady....

In Lee v. United States, the justices return to a familiar topic: the case of a non-citizen who gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States.  The petitioner in the case, Jae Lee, is a Tennessee man who came to the U.S. from South Korea in 1982 and eventually became a successful restauranteur. In 2009, he was charged with possession of ecstasy with intent to distribute.  After seeing the evidence against Lee, Lee’s attorney recommended that Lee plead guilty, so that he would receive a shorter sentence.  But, and despite Lee’s attorney’s assurances to the contrary, a guilty plea would result in Lee’s permanent and mandatory deportation.

Lee then sought to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney.  The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had indeed provided deficient advice when he told Lee that a guilty plea would not expose him to deportation.  But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway.  That is the question that the court agreed to review today.

Today’s cases will likely be argued in late winter or early spring. The justices’ next regularly scheduled conference is January 6.

December 14, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, December 13, 2016

Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge

United States District Judge Geoffrey Crawford issued a lengthy opinion today in the long-running federal capital case of US v. Fell, No. 5:01-cr-12-01 (D. Vt. Dec. 13, 2016).  A helpful reader sent me the full 57-page opinion, which I have uploaded below and which gets started this way:

In 2015, the U.S. Supreme Court issued its decision in Glossip v. Gross, 135 S. Ct. 2726.  The case concerned challenges under the Eighth Amendment to execution by lethal injection of four defendants sentenced to die by state courts in Oklahoma.

Justice Breyer, joined by Justice Ginsburg, issued a dissent calling "for full briefing on a more basic question: whether the death penalty violates the Constitution."  Id. at 2755.  The dissent identified a series of systemic shortcomings in the administration of the death penalty in the United States, especially as it is applied by the states.  It divided these into four categories: "(1) serious unreliability, (2) arbitrariness in application, (3) unconscionably long delays that undermine the death penalty's penological purpose [and] (4) most places in the United States have abandoned its use." Id. at 2756.

In response, Justice Scalia and Justice Thomas wrote two strongly worded concurring opinions which defended the death penalty as the legitimate exercise of democratic authority.  Both justices pointed to the shocking cruelty of the crimes which led to the death sentences in these and other death penalty cases.  Both questioned the authority of the judiciary to interpose its own philosophical concerns about the death penalty.  And both identified utilitarian purposes such as deterrence which may justify executions.

The dissent and concurring opinions in Glossip offer a particularly vivid account of the long-running dispute over the constitutionality of the death penalty within the Supreme Court.   A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court.  The current state of the law is that the death penalty is a constitutional punishment for murder committed by adults not disqualified for reasons of intellectual disability who have received a trial which meets the standards set by Gregg v. Georgia, 428 U.S. 153 (1976) and Ring v. Arizona, 536 U.S. 584 (2002).  Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.

But a trial court has its own contribution to make to the debate.  The court can hold a hearing and permit witnesses to testify.  In Glossip, Justice Breyer raised a series of questions about whether the death penalty is imposed fairly or in an incurably arbitrary manner.  The questions he raised are troubling.  They are essentially empirical. They require consideration of what has actually happened in the United States since the restoration of the death penalty following the Gregg decision.

Over the course of two weeks last summer this court sought to develop a factual record based on live testimony and supporting exhibits sufficient to answer the question of whether the constitutional requirements for a death penalty statute set out in Gregg have been met in practice.  As the court's findings indicate, the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408 U.S. 238 (1972), and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the FDPA operates in an arbitrary manner in which chance and bias play leading roles.

The trial court's obligation does not end with a review of the facts.  The court is required to address the legal issues raised by the parties.  That resolution may be no more than an acknowledgment that the law has been settled on a particular question.  Alternatively, the new factual record may require a fresh look at the manner in which existing principles are applied to a factual record which continues to develop.  The court has sought to undertake this new look in a manner consistent with existing authority which comes principally from the Supreme Court.

To get right to the point, the court has sought to follow the method expressed in Atkins v. Virginia, 536 U.S. 304 (2002) in considering the proportionality of the death penalty.  The court has also considered the separate argument that application of the death penalty has become arbitrary.

The disproportionality challenge falls short because of the absence of proof of a national consensus to abolish the death penalty.  As the law stands now, proof of consensus is a prerequisite for finding the death penalty unconstitutional as applied to particular crimes or particular types of defendants.  By assessing public opinion, especially as it is expressed through legislation in the states, the Supreme Court finds a basis for determining evolving standards of decency for the nation as a whole.  If the requirement of consensus applies to the limited challenges brought in cases like Atkins, then it must also apply to the claim of disproportionality which the defense levels against the imposition of the death penalty in all cases.

The court has also considered the problem of arbitrary application of the death penalty to small numbers of defendants whose crimes are indistinguishable from the far greater number who receive life sentences.  The court has followed existing law in declining to rule that "arbitrariness" is an independent constitutional violation.

Download Fell order denying Motion to Strike 12-13-16

December 13, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, December 12, 2016

Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home

This new Business Insider article, headlined "Prisoners set free by President Obama are urging him to expand his clemency program before he leaves office," reports on the latest interesting pitch to Prez Obama concerning his clemency work.  Here are the basics:

The day Ramona Brant walked out of prison after serving 21 years of what was supposed to be a life sentence, she felt an overwhelming mixture of emotions — elation and gratitude for her freedom, and sadness for the inmates she was leaving behind. Many of them had stories like hers. They had in one way or another gotten involved in selling drugs, often through boyfriends or husbands who would eventually testify against them in conspiracy trials. L

ike Brant, many were there to serve decades, or even life sentences without the possibility of parole. “I was not comfortable being free knowing that there were so many people who weren’t free to experience the same opportunities that I was experiencing,” Brant told Business Insider. “I’m not saying I want to go back to prison — what I’m saying is my heart is still with my sisters that I left behind, and my brothers.”

Brant was granted a sentence commutation by President Obama last February, as part of an unprecedented clemency initiative that has now reduced more than 1,000 federal inmates’ sentences. She is one of more than 40 clemency recipients who signed an open letter sent to the president on Monday pleading for mercy for nonviolent drug offenders serving lengthy sentences who have demonstrated clear conduct in prison. “We ask for your immediate intervention for thousands more prisoners who will continue to suffer needlessly unless a broader clemency plan is implemented,” the letter said.

“We have remained largely silent in appreciation of your compassion to many suffering under draconian sentencing laws passed during the crack hysteria of the late 1980s and 1990s. But with only six weeks of your presidency left, we must speak out.”

The letter, also signed by dozens of clemency advocates and former inmates, recommends the president adopt a broad amnesty program in place of the current case-by-case review of inmates’ petitions. It suggests that all nonviolent drug offenders with clear conduct have their sentences reduced to five, 10, or 15 years for first-, second-, and third-time offenders, respectively. It also specifically asks that clemency be granted to female inmates, who the letter argues are more likely than men to be serving lengthy sentences because of drugs their partners or spouses sold, and who make up less than 10% of the inmates to whom Obama has granted clemency....

The Office of the Pardon Attorney, which reviews clemency applications and recommends them to the president, the White House, and the Department of Justice did not immediately respond to Business Insider’s requests for comment on the letter....

Although Deputy Attorney General Sally Yates has previously said “every single drug petition” received before Aug. 31 will be reviewed by the Obama administration, activists and clemency advocates have been urging the president for months to quicken the pace of approvals.

Last month’s presidential election, too, has only added to the pressure. President-elect Donald Trump, who has previously called the inmates released by Obama “bad dudes,” has not expressed interest in continuing his clemency initiative. Nor has Jeff Sessions, Trump’s nominee for Attorney General, who supports harsh drug laws and mandatory minimum sentencing.

It is estimated that at least 2,000 federal prisoners serving nonviolent drug offenses were eligible for sentence reductions under the requirements laid out under Obama’s program, which stipulate that inmates have served at least 10 years of their sentences. Even more could be eligible should the Obama administration consider inmates who have served less than a decade, as it has already done in some cases.

Some recent (post-Election Day) posts on Prez Obama and clemency:

December 12, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt

I am somewhat surprised to see Rommell Broom's case, recently discussed here and here, on the cert denied list on this morning's Supreme Court order list.  Interestingly, this denial of cert came with two dissenters: Justice Breyer and Justice Kagan. And Justice Breyer mentioned the Broom case and others is a broader three-page dissent from the denial of cert in another capital case at the end of the order list.  Here are excerpts from that dissent:

Henry Sireci, the petitioner, was tried, convicted ofmurder, and first sentenced to death in 1976. He has lived in prison under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born....

Forty years is more time than an average person could expect to live his entire life when America constitutionally forbade the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8; see 5 Dictionary of American History 104 (S. Kutler ed., 3d ed. 2003).  This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is “one of the most horrible feelings to which he can be subjected.” In re Medley, 134 U. S. 160, 172 (1890).  I should hope that this kind of delay would arise only on the rarest of occasions.  But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common....

<P> Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances.  On September 15, 2009, the State of Ohio attempted to execute Romell Broom by lethal injection.  State v. Broom, 146 Ohio St. 3d 60, 61–62, 2016-Ohio-1028, 51 N. E. 3d 620, 623.  Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needlesand striking bone in the process, all causing “a great deal of pain.” Id., at 62, 51 N. E. 2d, at 624.  The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a “cruel and unusual” punishment?  See In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve . . . a lingering death”). I would have heard Broom’s claim.

As I and other Justices have previously pointed out, individuals who are executed are not the “worst of the worst,” but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. See Glossip v. Gross, 576 U. S., ___, ___–___ (2015) (BREYER, J., joined by GINSBURG, J., dissenting) (slip op., at 9–17)...  Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence) (this Court, by an equally divided vote, denied a stay of execution).

I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty. Glossip, supra, at ___ (dissenting opinion); see also Knight v. Florida, 528 U. S. 990, 993 (1999) (opiniondissenting from denial of certiorari); Valle v. Florida, 564 U. S. 1067 (2011) (opinion dissenting from denial of stay); Boyer v. Davis, 578 U. S. ___, ___ (2016) (opinion dissenting from denial of certiorari); Conner v. Sellers, 579 U. S. ___ (2016) (opinion dissenting from denial of certiorari and denial of stay).  Cases such as the ones discussed here provide additional evidence that it is important for us to do so. See Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., memorandum respecting denial of certiorari). I would grant this petition for certiorari, as I would in Broom v. Ohio, No. 16–5580, and Smith, and include this question.

December 12, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, December 10, 2016

U.S. Supreme Court adds federal drug-offense forfeiture case to its docket

As reported here at SCOTUSblog, on Friday afternoon "the justices issued orders from [their] private conference, adding one new case to their merits docket for the term."  That new case concerns a criminal justice/sentencing issue, forfeiture, that has been a focal point of concerns for reform activists across the political spectrum.  Here are the details from SCOTUSblog about the forfeiture case now before the Justices on the merits:

They agreed to review the case of Terry Honeycutt, who worked as a salaried employee at a hardware store owned by his brother, Tony.  The two brothers were charged with federal drug crimes for the store’s sale of an iodine-based water disinfectant -- which can also be used to make methamphetamines.  Tony pleaded guilty and forfeited $200,000 to account for the proceeds of the illegal sales.  After Terry went to trial and was convicted, the government argued that he should have to forfeit the rest of the proceeds, approximately $70,000.

Terry countered that he should not have to forfeit the remaining proceeds because he did not own the store and therefore did not receive them.  The district court agreed, but the U.S. Court of Appeals for the 6th Circuit reversed. It ruled that Terry could be held independently liable for the store’s proceeds from the sales even if the funds never actually reached him.

The federal government acknowledged that the courts of appeals are divided on the question presented by Terry’s appeal. It nonetheless urged the justices to deny review, explaining that the split among the circuits is “lopsided and recent.”  And in any event, it contended, Terry’s case is not a good one in which to consider that question, because he would also be liable for the forfeiture under the conflicting rule adopted by the U.S. Court of Appeals for the District of Columbia Circuit.

Despite the government’s objections, the justices granted certiorari [and] Honeycutt v. United States will likely be argued in the spring, with a decision by the end of June.

December 10, 2016 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, December 09, 2016

After split tied SCOTUS stay vote, Alabama completes last scheduled execution of 2016

As reported in this AP piece, the final scheduled execution in the United States in 2016 had a number of noteworthy events and elements for those who support and those who oppose capital punishment.  The AP article is headlined "Alabama inmate coughs, heaves 13 minutes into execution," though I think the SCOTUS action that proceeded the actual execution should be of particular interest for law geeks.  Here are some of the details:

A man who killed an Alabama convenience store clerk more than two decades ago was put to death Thursday night, an execution that required two consciousness tests as the inmate heaved and coughed 13 minutes into the lethal injection. Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m., about 30 minutes after the procedure began at the state prison in southwest Alabama. Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of

life imprisonment, but a judge overrode that recommendation and sentenced Smith to death. Smith heaved and coughed repeatedly, clenching his fists and raising his head at the beginning of the execution. A prison guard performed two consciousness checks before the final two lethal drugs were administered.

In a consciousness test, a prison officer says the inmate's name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right arm again after the second consciousness test. The meaning of those movements will likely be debated. One of Smith's attorneys whispered to another attorney, "He's reacting," and pointed out the inmate's repeated movements. The state prison commissioner said he did not see any reaction to the consciousness tests....

Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination. Smith and other inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court has upheld the use of the drug....

Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record. In overriding the jury's recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death. "The trial court described Smith's acts as 'an execution style slaying.' Tonight, justice was finally served," Alabama Attorney General Luther Strange said in a statement after the execution.

U.S. Supreme Court justices twice paused the execution as Smith's attorneys argued for a delay, saying a judge shouldn't have been able to impose the death penalty when a jury recommended he receive life imprisonment. Four liberal justices said they would have halted the execution, but five were needed to do so.

Smith's attorneys had urged the nation's highest court to block the planned execution to review the judge's override. Smith's lawyers argued a January decision that struck down Florida's death penalty structure because it gave too much power to judges raises legal questions about Alabama's process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued. "Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury's verdict," attorneys for Smith wrote Wednesday.

Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision....

Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used. The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013. Judges stayed two other executions that had been scheduled this year.

December 9, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, December 07, 2016

At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push

As regular readers may recall, and as I cannot help but highlight these days, I was aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office.  This January 20, 2009 post was titled "Is it too early to start demanding President Obama use his clemency power?" and in 2010 I authored this article in the New England Journal on Criminal and Civil Confinement under the title "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."

I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency.  This New York Times editorial, headlined "President Obama’s Last Chance to Show Mercy," is today's example of the clemency chorus now growing. Here are excerpts:

The Constitution gives presidents nearly unlimited authority to grant pardons and commute sentences — decisions that no future administration can reverse. Unfortunately, for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.

In the last two years, however, Mr. Obama has changed course. In 2014 he directed the Justice Department to systematically review cases of people serving out sentences that would be far shorter had they been convicted under new, more lenient sentencing laws.

While that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016. Mr. Obama has now shortened or ended the sentences of more than 1,000 prisoners, and he will most likely be the first president since Lyndon Johnson to leave office with a smaller federal prison population than he inherited.

There are thousands more people deserving of release, but their prospects under the next administration don’t look good. President-elect Donald Trump ran on a “law and order” platform that sounded a lot like the punitive approach that led to exploding prison populations in the first place. His choice for attorney general, Senator Jeff Sessions of Alabama, has fiercely opposed criminal sentencing reform and called Mr. Obama’s grants of clemency an abuse of power. In other words, for many federal inmates, their last hope lies in Mr. Obama’s hands.

Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades....

The idea of blanket commutations is being pushed by a coalition of criminal-justice reform advocates, including former judges and prosecutors, who urged the president in a letter last week to use his clemency power aggressively while he still can.  The group called for the release of thousands more nonviolent offenders in low-risk categories, including elderly inmates, who are the least likely of all to commit new crimes, and those with convictions for drugs other than crack.  The coalition argues that it is possible to make these grants in the short time remaining, if the administration is committed to getting it done.

Mr. Trump may well dismantle a lot of Mr. Obama’s legacy, but he can’t touch grants of clemency.  Mr. Obama has taken important steps toward unwinding the decades-long imprisonment binge.  With much of that progress now at risk, he has only a few weeks left to ensure a measure of justice and mercy for thousands of people.

December 7, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Oklahoma's top criminal court gives significant effect to Miller's limits on juve LWOP sentences

As reported in this local article, headlined "Resentencings ordered in two high-profile Oklahoma murder cases," the top criminal court in Oklahoma issues two big ruling about juve LWOP sentencing late last week. Here are the basics:

Oklahoma's youngest murderers can no longer be sentenced to life in prison without the possibility of parole unless they are found to be "irreparably corrupt and permanently incorrigible."  A divided Oklahoma Court of Criminal Appeals established the new restrictions in rulings made Friday in two high-profile murder cases.

The first ruling involved a murderer who was 16 at the time.  The second involved a murderer who was 17 at the time. Both must be resentenced, the appeals court ruled.  In both cases, the appeals court concluded the punishment of life without parole "is constitutionally infirm" because jurors were not presented evidence involving "important youth-related considerations."...

The appeals court came up with a new instruction to be given to juries in future murder cases involving a defendant who was under age 18 at the time of the crime.  Jurors will be told "no person who committed a crime as a juvenile may be sentenced to life without the possibility of parole unless you find beyond a reasonable doubt the defendant is irreparably corrupt and permanently incorrigible."

A murderer sentenced to a life term, with a chance at parole, is eligible for consideration under current law after spending 38 years and three months in prison.

I received an email about these rulings from The Campaign for the Fair Sentencing of Youth, and here is part of that email (with links to the decisions):

On Friday, Oklahoma’s highest criminal court applied Miller v. Alabama and Montgomery v. Louisiana to discretionary juvenile life without parole, affording an opportunity for resentencing to more than 45 people in Oklahoma sentenced to die in prison for crimes committed as children.

In two decisions, the court affirmed United States Supreme Court limitations on sentencing children to life in prison. These decisions should dramatically limit, if not prevent, the imposition of life sentences for children in Oklahoma going forward....

Oklahoma has joined a growing number of states that apply Miller and Montgomery to sentences of juvenile life without parole where the judge had discretion whether or not to impose life without parole, including Connecticut, Georgia, and South Carolina.

The Oklahoma Court of Criminal Appeals also required a finding of “irreparable corruption and permanent incorrigibility” beyond a reasonable doubt before life without parole can be imposed on children, consistent with the U.S. Supreme Court’s holding in Montgomery that life without parole is unconstitutional when imposed on the vast majority of children.

December 7, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, December 05, 2016

Is Georgia really "rushing" to execute a defendant convicted of murder in 1990?

The question in the title of this post is prompted by this new New York Times commentary authored by Norman Fletcher, who "served on the Supreme Court of Georgia for over 15 years and was its chief justice from 2001 to 2005."  The NY Times gave this commentary the headline "Georgia’s Dangerous Rush to Execution," but the first sentence of the commentary states: "Tomorrow, the State of Georgia intends to execute William Sallie, who was convicted of killing a man in 1990." Though there could be many problems with Georgia's capital system, conducting an execution 26 years after a capital conviction does not seem to me like a "rush job." That lingo aside, here is what former Justice Fletcher goes on to explain in his commentary:

I served as a justice on the Supreme Court of Georgia for over 15 years. During that time I participated in dozens of death-penalty cases and affirmed many of them. That experience, though, exposed me to some of the significant flaws in the system — not just the injustice of the death penalty itself, but specific problems with the way capital cases are handled. Mr. Sallie’s case is a prime example.

Perhaps the biggest problem with Georgia’s system, and one of the reasons the state carries out so many executions, is that it often fails to provide people with lawyers. Mr. Sallie, for example, missed a filing deadline for a federal review of his case by eight days, in part because he didn’t have a lawyer at the time to help him. And this isn’t just a delay tactic; he has several strong claims about constitutional failings during his trial that, if proved, could require the reversal of his conviction. As things stand, he will be executed without review.

Fundamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier.

I saw this firsthand as the presiding justice on the State Supreme Court in 1999, in an appeal of a post-conviction hearing for a man named Exzavious Gibson, who was 17 at the time of his crime. It was a critical proceeding, where a lawyer should have raised important details about whether he received adequate representation during his trial — except that, ironically, no volunteer attorney was available. Mr. Gibson, who was poor and apparently, from the records, intellectually disabled and afflicted by acute mental health problems, was forced to represent himself.

That sham of a proceeding is one of the most deplorable vignettes in Georgia’s legal history. But a majority of my fellow justices were less moved, and the court decided, 4-3, that people with death-penalty convictions have no right to counsel at that critical post-conviction stage — a ruling still in force today.

As a result, a door that would have been open to Mr. Sallie in almost any other state was closed to him in Georgia. If it were open, he would be able to present the facts about his trial, which appear to show serious problems with juror bias.

Mr. Sallie’s lawyers amassed volumes of public records and witness statements showing that one of the jurors, despite having a known bias, apparently misled the trial judge and the parties in order to join the jury. (She omitted vital, likely disqualifying information, including striking similarities between her traumatic history of divorce and interstate child custody fights and the domestic strife at the center of Mr. Sallie’s case.) In 2012, after his conviction, she bragged to an investigator that she had persuaded the jury, which was evenly divided between life and death, to vote unanimously for death.

The problem is not just Georgia. The United States Supreme Court has not ruled that the Constitution guarantees a right to an attorney during the critical post-conviction review stage in state courts. Georgia continues to deny counsel — and denies a man like William Sallie the opportunity to defend his life.

December 5, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)