Monday, October 27, 2014

Two condemned New Mexico murderers left behind after death penalty repeal seek relief from NM Supreme Court

As reported in this local article, headlined "Convicted murderers ask to be taken off death row," in New Mexico the "last two inmates on death row are asking the state’s highest court to get them off the list."  Here is more:

New Mexico’s only inmates facing possible execution want the state supreme court to declare their death sentences unconstitutional because capital punishment was abolished after their convictions.

Attorneys for the two convicted killers say their sentences are unconstitutional, while the state is still backing their death penalty. The hearing lasted around an hour and half Monday morning, but no official decision will be made for at least a few months.

Attorneys for Timothy Allen and Robert Fry argued this morning that carrying out their death sentence would be cruel and unusual punishment and would violate “equal protection” rights for the two as New Mexico residents.

New Mexico repelled the death penalty in 2009 and the two are arguing that because of that, their sentences should be changed, even though they were both convicted when the death penalty was still law.  Allen killed 17-year old Sandra Phillips in 1994 after kidnapping her and trying to rape her.  Robert Fry was convicted of killing a mother of five in 2000.  He also murdered three other people in the ’90s.

Attorneys for the two men argued that the death penalty is cruel and unusual based on a report from the state’s Death Penalty Task Force which cited cost and liabilities with a death sentence. They also argued that it violates equal protection to effectively set a date when people can and can’t face the death penalty.

Meanwhile, the state argued that justices would be “overstepping” their reach if justices chose to allow Allen and Fry to live. The state says that would be like the justices re-interpreting what the legislature wished to do....

New Mexico has only executed one person in the last 54 years. It was Terry Clark who was a convicted child rapist and killer.

October 27, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Prosecutors in South Africa indicate they plan to appeal Pistorius outcome

As reported in this article, headlined "South Africa prosecutors to appeal against Pistorius sentence," it appears that the Blade Runner is not done running from serious legal difficulties. Here are the bascis:

South Africa’s state prosecutor plans to appeal against Oscar Pistorius’s culpable homicide conviction and five-year prison sentence for shooting his girlfriend Reeva Steenkamp, it said on Monday.

Nathi Mncube, spokesman for the National Prosecuting Authority, said the NPA expected to file papers in the next few days. Until the papers were filed, it would not announce the grounds for appeal, it said.

But Pistorius’s conviction for culpable homicide has drawn criticism from some legal commentators. After the athlete, a double-amputee who starred at the 2012 London Olympics and Paralympics, was sentenced last week, there was more controversy when lawyers said he could serve as little as 10 months, or a sixth of the five-year term.

In South Africa, an appeal can only be made on a matter of law, “where we think . . . the judge made an error in interpretation and in the manner in which she applied the law to the facts”, Mr Mncube said.

Pistorius had been charged with premeditated murder after shooting Steenkamp, a 29-year-old model and law graduate, four times through the locked toilet door in a bathroom at his home in the early hours of Valentine’s Day last year.   But Judge Thokozile Masipa ruled that the prosecution failed to show Pistorius had intent to kill, while saying there was “no basis on which this court could make inferences of why the accused would want to kill the deceased”. Instead, she appeared to believe Pistorius’s version of events, despite describing the 27-year-old as a “poor” and “evasive” witness.

October 27, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, October 25, 2014

"Jury Says Castrated Sex Offender Should Be Freed"

The title of this post is the headline of this notable AP story out of California.  Here are the intriguing details:

A Southern California jury on Friday found that a castrated sex offender who preyed on young girls should no longer be considered a sexually violent predator and is eligible for release. Jurors in Orange County determined that Kevin Reilly, 53, does not need to remain locked up at a state mental hospital. He could be released as early as Friday, his lawyer said, but online jail records show he remained in custody as of mid-afternoon.

"There was simply no evidence he was likely to reoffend," said Holly Galloway, deputy public defender. "What the jury did was amazing because they followed the law and that's a hard thing to do with someone with his history, but it's the right thing to do."

Reilly served time in prison for sex offenses committed in the 1980s and 1990s and has been locked up in a state mental hospital since 2000 under a California law that enables authorities to forcibly commit sex offenders they believe will reoffend. He paid to be surgically castrated in 2003 to help control his pedophilia and completed a treatment program for sex offenders in 2010. State-appointed evaluators found he was not likely to reoffend, Galloway said, adding that Reilly also completed a bachelor's degree and master's degree.

Prosecutors argued that Reilly is still dangerous and that the effects of his castration, which aimed eliminate his sex drive, can be mitigated through testosterone injections. Michael Carroll, deputy district attorney, said Reilly did not confess to molesting one of his victims until three years ago and there were conflicting reports about what he told his evaluators and the court.

"I don't think he was honest during his treatment," Carroll said. "I think he continued to lie and attempted to manipulate because his ultimate purpose, I think, is to get out of the hospital, not necessarily to prevent creating any future victims." Reilly served time for committing lewd acts on four young girls over more than a decade, and later conceded he had abused at least three others, Carroll said. Most of the girls were between 4 and 8 years old.

He is required to register as a sex offender once he is released, and is planning to move to Utah, where he will participate in an outpatient treatment program for sex offenders and look for an accounting job, Carroll said.

Stories like this one provide support for my general view that juries, serving often as the conscience of a community, can and should be more often trusted to make difficult sentencing-type determinations and should not be relegated only to serving as a limited (and infrequently used) fact-finder in the operation of modern criminal justice systems.

October 25, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider

As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case.  Here are the details:

The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.

In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.

The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....

The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept.  Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.

Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....

But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....

“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....

The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013.  The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence.  But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated.  Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.

The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.

October 25, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, October 24, 2014

ACLU flies suit against Florida county's latest sex offender residency restrictions

As reported in this local article, headlined "ACLU sues over rule on where sex offenders can live in Miami-Dade," a notable new lawsuit has been brought against a community that has a long sad history of difficulties with sex offender residency realities.  Here are the details:

For five years, Miami-Dade County’s sex offender law has sparked national headlines, as homeless parolees have been forced to move from street corners to parking lots because of a law that prohibits them from squatting near public spaces where children gather. Now, the dozens of homeless sex offenders — shuffled from under the Julia Tuttle Causeway to a Shorecrest street corner and finally to a parking lot near train tracks and warehouses just outside Hialeah — have a voice arguing on their behalf.

On Thursday, the national chapter of the American Civil Liberties Union filed a lawsuit in federal court reasoning that Miami-Dade County and the state Department of Corrections have violated the offenders’ basic rights to personal safety, and to maintain a home. The suit doesn’t name the ACLU’s clients, referring to them as John Doe 1, 2 and 3.

“It undermines public safety. It’s harder to find a job and maintain treatment. Housing stability is just as critical to these folks as to anyone else,” said Brandon Buskey, staff attorney for the Criminal Law Reform Project at the ACLU in New York City.

But the man behind the controversial county ordinance said no one has the right to demand where they live. Ron Book, the powerhouse state lobbyist and chair of the Miami-Dade Homeless Trust, said the courts have upheld the residency restrictions, and the ACLU is simply regurgitating an issue that’s been dealt with. “The U.S. Supreme Court has said they’re entitled to live places that don’t endanger the health, safety and welfare of law-abiding citizens of the U.S. But they’re entitled to take their $350 to the courthouse,” Book said of the ACLU. “I don’t support those with sexual deviant behavior living in close proximity to where kids are.”

The 22-page lawsuit, filed in the U.S. Court’s Southern District, calls the county ordinance vague, says it doesn’t allow sex offenders their due process, and adds that it leaves them in a vulnerable position and unsafe. “These individuals, who frequently subsist on meager incomes after being released from prison, are unable to locate stable, affordable housing in Miami-Dade County. This transience is primarily because the ordinance arbitrarily renders off-limits broad swaths of housing,” according to the complaint....

At the center of the battle between the ACLU and Miami-Dade is a law approved in 2010 called the Lauren Book Safety Ordinance. Lauren Book, Ron Book’s daughter, was sexually molested by a trusted nanny for six years, starting when she was 11. Lauren Book-Lim, now married and 29, is an advocate for the sexually abused. The 2010 ordinance was created after nearly 100 offenders were sent scrambling from squalid living conditions under the Julia Tuttle Causeway. The new law doesn’t allow offenders on parole within 2,500 feet of schools, parks, bus stops, or any other place children might congregate. Before the law, Miami-Dade followed a less restrictive state-created 1,000-foot law.

But the county ordinance had unintended consequences: It left sex offenders with few living options and almost immediately became a hot-button issue around the nation, even the world. There’s even a Wikipedia page about it.

Miami-Dade’s sexual offender homelessness issue first came to light in late 2009, when images of 92 homeless sex offenders living in plywood and cardboard sleeping quarters tucked under the Julia Tuttle Causeway at the height of the recession were splashed across TV. At the time, the county was still following the 1,000-foot state law.

Though the homeless offenders had been living there for about three years, embarrassed officials put up “No Trespassing” signs under one of the main causeways linking Miami and Miami Beach, and tore down the rickety structures. A promise to spend $1 million to find housing for the offenders didn’t solve the problem. The new, tougher, 2,500-foot ordinance was created mainly because of the Julia Tuttle fiasco....

Howard Simon, executive director of the Florida chapter of the ACLU said no entity should be allowed to strip anyone of their basic rights and force them into “dangerous and squalid conditions.”

“This is the second chapter of the same sad story,” he said. “The county provoked international outrage when it forced people to live under the Julia Tuttle bridge. Now it’s forcing people to live alongside railroad tracks.”

More details about the lawsuit and links to the filings are available at this ACLU page.

October 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion

As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:

In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.

Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”

The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.

Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.

A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”

The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....

Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....

Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”

Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.

The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.

October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, October 22, 2014

Seventh Circuit affirms stat-max 90-year sentence for child molester despite ugly childhood

An interesting Seventh Circuit sentencing opinion yesterday in US v. Horton, No. 14-1559 (7th Cir. 2014) (available here), highlights that a horrible criminal offense can (and often likely) will lead to an extremely long prison sentence even when a defendant can presenting evidence of an unusual (and seemingly mitigating) personal history.  Here are the basics of the defendant's crime and his personal history as discussed in the Horton opinion:    

During a 9-month period while Horton was employed at Three Tigers Karate in Belleville, Illinois, Horton created 37 videos depicting himself engaging in sexually explicit conduct with three of his male students (ages 6,7,and 10),and another video showing himself trying to convince another student (age 7) to display his genitals. Horton created the videos in various places: his home, the karate studio, a public park, and the San Antonio home of one the victims....

During his formative years, Horton recounted to [psychologist] Dr. Cueno, his mother worked as a stripper and escort and would leave pornographic magazines, sex toys, and drug paraphernalia strewn around the house. His father was as an alcoholic and drug abuser. Horton watched a XX-rated movie when he was seven and acted out what he saw in the movie by having oral sex with other children. In first grade he was forced to perform oral sex on a classmate, and he began having consensual intercourse when he was 12. According to Dr. Cueno, the “roots for [Horton’s] difficulties can be traced back to a childhood where he was sexualized at an early age, had little stability, and was raised by a drug abusing, stripper/escort mother who provided him with little, if any stability.”

And here is how the Horton court explains its conclusion that a statutory maximum sentence of 90 years in prison was not substantively unreasonable in light of these facts and factors:

Horton has not demonstrated that his de facto life sentence is unreasonable. Although a sentence that is effectively for life “is not to be ordered lightly,” we have upheld such sentences where the sentencing judge recognized “the likelihood of a defendant’s death in prison, but concluded that other factors warranted the particular sentence.” United States v. Vallar, 635 F.3d271,280 (7th Cir. 2011)....  Here,the district court appropriately weighed Horton’s age and difficult upbringing,see 18 U.S.C. § 3553(a)(1), against the “extremely serious nature of this crime” and the vulnerability of the victims, see id. § 3553(a)(1), (a)(2)(A); New York v. Ferber, 458 U.S. 747, 758–60 & n.9–10 (1982), the need to protect the public from a dangerous child molester, see 18 U.S.C. § 3553(a)(2)(A),(C), and the availability of sex-offender treatment in prison, see id. § 3553(a)(2)(D). And though Horton would have preferred the district court to have given more weight to his dysfunctional childhood, the court had the discretion to assign it less weight than the other § 3553(a) factors.

October 22, 2014 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Monday, October 20, 2014

New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders

Download (2)I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court.  Here is how the Globe article starts:

The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.  

Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000.  “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.

Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing.  His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system.  “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.

Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.”  That means considering mental health or substance abuse treatment as well as time in prison.  Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.

Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse.  Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.”  She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”

Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said.  “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”

The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users.  “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said.  “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”

Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:

Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.  In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence.  For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.

I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years.  But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.  And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.

October 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Why Did the Supreme Court Sidestep Sentencing Dispute?"

The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro.  Here are excerpts:

The U.S. Supreme Court's ­refusal to add a Washington drug case to its docket would not ordinarily get much notice.  But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-­running dispute over judicial discretion in ­sentencing.

The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted.  In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.

"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."

Cato Institute senior fellow Ilya Shapiro said, "It's not just high-­profile culture-war issues like same-sex ­marriage and the right to bear arms that the Supreme Court is avoiding like the plague."  Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked.  "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along.  As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable ­practice" of basing sentences on uncharged or unproven offenses.

An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review.  "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."

In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....

Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....

The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."

Previous related posts on the Jones case:

October 20, 2014 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Sunday, October 19, 2014

"Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release"

The title of this post is the title of this notable new paper by Michael M. O'Hear.  Here is the abstract:

Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior.  Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners.  Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and rehabilitative progress.

This article explains why and how Wisconsin should reinstitute GCT, drawing on social scientific research on the effects of GCT, public opinion surveys in Wisconsin and across the United States regarding sentencing policy, and an analysis of the GCT laws in place in other jurisdictions.  Although the article focuses particularly on Wisconsin’s circumstances, the basic argument for GCT is more generally applicable, and much of the analysis should be of interest to policymakers in other states, too.

October 19, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, October 15, 2014

"Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"

The title of this post is the title of this notable new paper by Brandon Buskey and Daniel Korobkin now available via SSRN. Here is the abstract:

This Article proposes a framework establishing that the United States Supreme Court’s decision in Miller v. Alabama, which forbids states from automatically sentencing juveniles to life imprisonment without any meaningful opportunity for release, must apply retroactively to hundreds of juveniles whose convictions and life sentences were already final at the time of the decision.  Such a framework is timely and critical. Although the lower state and federal courts are almost evenly divided on the question, the Supreme Court has yet to settle the divide.

The Article reviews how, absent guidance from the Supreme Court, a host of states, led recently by Michigan, have invoked the Miller majority’s statement that it was merely requiring states to follow a "certain process" before sentencing a juvenile to life imprisonment without parole.  By this reasoning, Miller is not retroactive under the Supreme Court’s federal retroactivity doctrine established by Teague v. Lane.  The Court has always applied new substantive rules retroactively under Teague, while it has never done so for a new procedural rule.

The Article rejects this "process" language as a basis for resolving whether Miller is retroactivity.  It concludes that Miller in fact has little to do with process and is instead primarily concerned with sentencing outcomes for youth.  In striking down mandatory life without parole for juveniles, Miller adapted the individualized sentencing requirement from Woodson v. North Carolina, which invalidated the mandatory death penalty.  This individualized sentencing requirement obligates states to always offer juveniles a sentencing outcome carrying the possibility of release and to consider the essential, mitigating fact of youth before imposing an irrevocable life sentence.  These obligations are inherently substantive. By contrast, Miller’s alleged procedural component is undefined and collateral to its substantive altering of juvenile sentencing. Miller therefore announces a substantive rule that must apply retroactively.

October 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Tuesday, October 14, 2014

Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

I cannot resist the urge to use this space to reflect upon (and perhaps salve) my disappointment in the learning the certiorari petition in Jones v. US, No. 13-10026 — a case in which I wrote this SCOTUS amicus brief in support of cert — came up only one SCOTUS vote short of making it as the petition today was denied over a dissent authored by Justice Scalia and joined by Justices Thomas and Ginsburg.   As I briefly explained in this initial post on the cert denial, I find especially notable and troubling that neither Justices Sotomayor and Kagan provided the key single additional vote for cert given that both were in the majority in two recent cases which, I think, further set a foundation for finding constitutional limits on guideline punishment enhancements based on acquitted conduct.

As I have explained in prior posts and in my Jones amicus brief, in Peugh v. United States, 133 S. Ct. 2072 (2013) (authored by Justice Sotomayor), the Supreme Court clarified that Guideline ranges, even though now only advisory after Booker, still have consequential “force as the framework for sentencing” and thus are subject to at least some constitutional limitations on how they are calculated and applied. Id. at 2083-84.  And in Alleyne v. United States, 133 S. Ct. 2151 (2013) (with both Justices Sotomayor and Kagan as key votes to reverse a pre-Blakely/Booker precedent), the Supreme Court overturned a prior holding that had failed to recognize that the constitutional protections of the Fifth and Sixth Amendments apply fully not only to facts raising maximum sentences, but whenever the law creates a “linkage of facts with particular sentencing ranges." 133 S. Ct. at 2159-62.

I continue to believe (or at least want to believe) that the huge acquitted conduct guideline punishment enhancements at issue in Jones have to trouble greatly any Justice who truly accepts the Apprendi-Blakely Sixth Amendment jurisprudence, AND who truly believes the advisory federal sentencing guidelines still have constitutionally-significant legal force (as Peugh holds), AND who truly claims the Constitution is concerned with judicial findings of facts that raise punishment floors as well as ceilings (as Alleyne holds).  In other words, I continue to believe (or at least want to believe) that Justices Sotomayor and Kagan would be votes to reverse the sentences at issue in a case like Jones if and when cert is ever granted to review huge acquitted conduct guideline punishment enhancements.  

So why wasn't cert granted this time around, especially with Justices Scalia, Thomas and Ginsburg vocally in support of such a grant in Jones?  As the title of this post is meant to suggest, I think Justices Sotomayor and Kagan may have concluded it would be virtuous and valuable to be passive in this setting, at least for right now, because any extended SCOTUS consideration of extended acquitted guidelines punishment could give Sixth Amendment rights (and SCOTUS itself) an extended black eye (especially if one or both of them might ultimately be inclined to uphold extended acquitted guidelines punishments in Jones).  

I have long hoped for and sought a cert grant on acquitted conduct enhancements because I have long believed jurisprudes on both the left and the right will (and should) have a hard time defending, especially in light of the strong jury-rights rhetoric in cases like Apprendi and Blakely, a federal guideline sentencing system that still recommends huge punishment increases based essentially on judicial rejection of a not-guilty jury verdict.  (Notably, the only time SCOTUS directly addressed this issue, in the 1997 Watts case, the Court issued a summary reversal to permit acquitted conduct enhancements and thus prevented full briefing or oral argument on the matter.)   But yet again because of another cert denial, we will not learn if Justices Breyer and Kennedy (or even CJ Roberts), who in other settings express concerns about prosecutorial power and excessive sentencing, might be cajoled through full briefing and argument to see the constitutional vices of allowing prosecutors and judges to trump juries in the federal sentencing process. 

Finally, once one starts thinking about the possibility that Justices Breyer and Kennedy and even CJ Roberts might have been especially eager right now to dodge full consideration of acquitted conduct punishments, it becomes hard to avoid speculating about "long confernce" deals to deny cert and thereby dodge consideration now of other (higher profile) hard constitutionally issues.  As all Court-watchers know, the really big cert-denial news after the SCOTUS long conference involved denials in all the same-sex marriage cases from around the country.  Dare I show my ignorance about what really goes on behind SCOTUS doors when I wonder if, at least tacitly, a large block of Justices concluded during the long conference that it was in every Justices' interest to be "deeply in denial."  Just a (silly?) thought.

Previous related posts on the Jones case:

October 14, 2014 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, October 12, 2014

Documenting a notable California legal crusade against sex offender restrictions

This lengthy local article, headlined "Pair seeks repeal of sex-offender laws in California," provides a detailed review of a notable effort to take down via court challenges local sex offender restrictions. The piece merits a full read, and here are a few highlights:

A crusading civil rights attorney and a registered sex offender have partnered in a legal battle that has prompted dozens of California cities to repeal or revise what the pair believe are unconstitutional ordinances restricting the activities of sex offenders.

Since March, Santa Maria attorney Janice Bellucci and Frank Lindsay, a 62-year-old water-treatment specialist from Grover Beach and registered sex offender for 35 years, have filed 18 lawsuits in federal court challenging ordinances in cities from Stockton down to National City.

To date, Bellucci has settled 15 of the lawsuits, while 38 other cities have avoided litigation by agreeing to repeal their ordinances. Six other cities have voluntarily suspended enforcement of their ordinances, while ordinances in another 18 cities are still under review.

“The way I look at it is that I’m protecting the Constitution of the United States as well as the state of California,” said Bellucci, president of California Reform Sex Offender Laws, a nonprofit she launched three years ago as an affiliate to the national Reform Sex Offender Laws organization.

While Bellucci believes she’s fighting for the rights of oppressed sex offenders, others say she’s endangering the state’s youth. “As an elected official and as a mother, I’m concerned about the health and safety of our young people who don’t have a voice,” said Carson Councilwoman Lulu Davis-Holmes. Carson is one city sued by Bellucci that plans to fight the lawsuit. “Our kids did not make the choice to be molested,” Davis-Holmes said. “I personally think we need to do more to protect those who cannot protect themselves,”

Bellucci’s flurry of lawsuits was prompted by a 4th District Court of Appeal’s decision in January that found sex offender ordinances in Orange County and the city of Irvine cannot impose restrictions more stringent than state law, which only restricts sex offenders who are on parole and whose victims were under the age of 14 from visiting public parks without the express permission of their parole agent.

In addition to the suits she filed with Lindsay, Bellucci has filed two lawsuits on her own, challenging ordinances in Canyon Lake and Commerce. Those complaints do not name Lindsay as a plaintiff because ordinances in those cities do not apply to sex offenders whose convictions are as old as Lindsay’s.

In April, the state Supreme Court declined a petition by the Orange County District Attorney’s Office to review the appellate court ruling, leaving it intact. The appellate court ruling, coupled with the spate of litigation initiated by Bellucci, could have a major impact on the lives of California’s 107,913 registered sex offenders, roughly 14 percent of the nation’s 774,600, as cities and counties are forced to either repeal their ordinances or make them uniform with state law.

This companion article, headlined "Sex-crimes convict says registration has ruined his career, endangered his life?," provides a profile of the sex-offender who is the plaintiff in much of the discussed California sex offender litigation.

October 12, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, October 10, 2014

Wyoming Supreme Court joins group deciding SCOTUS Miller ruling is retroactive

As reported in this local article, headlined "Casper man convicted of murder as a teenager now has possibility of parole," the Wyoming Supreme Court had a big ruling yesterday on juve life sentences.  In Wyoming v. Mares, 2014 WY 126 (Wyo. Oct. 9, 2014) (available here), the Court held that Miller v. Alabama announced a substantive rule that is to be applied retroactively under Teague and also that a Wyoming statute enacted last year making juves parole eligible should be applied retroactively. Here is how the unanimous opinion in Mares gets started:

In 1995, Edwin Mares was convicted of felony murder as a juvenile and sentenced to life in prison, which sentence was by operation of law the equivalent of a sentence of life imprisonment without the possibility of parole.  In 2013, Mr. Mares filed a motion, pursuant to Rule 35 of the Wyoming Rules of Criminal Procedure, to correct an illegal sentence. Through that motion, Mr. Mares contended that his sentence of life without the possibility of parole was unconstitutional in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).  This Court accepted certification of two questions from the district court.  The first question concerns the test to be used in determining the retroactivity of new constitutional rules when a judgment is challenged on collateral review.  The second question is whether Miller applies retroactively under our chosen test.

We conclude that as a result of amendments to Wyoming’s parole statutes in 2013, Mr. Mares’ life sentence was changed from one of life imprisonment without the possibility of parole to one of life with the possibility of parole in twenty-five years.  This change occurred by operation of the amended law, and the sentence Mr. Mares challenged in his Rule 35 motion therefore no longer exists.  We are aware, however, that other collateral challenges to juvenile offender sentences are pending throughout our district courts, and we therefore, in the interests of judicial economy and to avoid conflicting rulings, choose to answer the certified questions.  In response to the first certified question, we hold that the proper rule for determining whether a new constitutional rule applies retroactively to cases on collateral review is the test announced by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).  In response to the second question, we conclude that under a Teague analysis, the rule announced in Miller applies retroactively to cases on collateral review.

October 10, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Oklahoma has impressive early success with revised earned credit program

This local article, headlined "Most Oklahoma inmates granted early release since March have stayed out of trouble," reports on another positive state criminal justice reform effort. Here are the details:

Santajuan M. Stepney was released from prison in March after serving less than half of a 10-year sentence for possession of marijuana.  By mid-July, he was back in prison, this time sentenced to two years for beating his wife in Canadian County.

Stepney, 31, was among about 1,500 inmates granted an early release by the Corrections Department after they had good-behavior credits restored through the once-obscure Earned Credits program.  The releases in question began in March, according to the agency.

A state lawmaker recently questioned the program, saying restoration of good-behavior credits and early release is in the name of saving money, while Corrections Department officials have defended its expanded use....

Jerry Massie, a spokesman for the Corrections Department, said Stepney and inmate Brian Harvey, who was granted early release in March, are the only members of the group who’ve returned to prison since being set free under the Earned Credits program....

Last week, Rep. Aaron Stiles told The Oklahoman he believes Robert Patton, who was hired as the Corrections Department’s executive director earlier this year, is directing staff to release inmates by restoring the good behavior credits that had been lost due to infractions while behind bars.  Stiles said Patton is doing so to save money as the cash-strapped prison system continues to struggle with tight budgets and overcrowded prisons.

The lawmaker said “several” Corrections Department employees have contacted him about the mass release of inmates with good behavior credits restored.  He said some of the employees, who feared speaking openly, “made recommendations that certain people not be released, but they get overruled by upper level DOC administration.”

“It is all about saving money,” Stiles said last week. “They had 1,800 inmates in county backup. So how do you make room for 1,800 prisoners? Release 1,800 convicts early.”

The Earned Credits program has been around about 20 years, officials say, but it’s never been as widely used as it is now.  Essentially, the program allows inmates to have good-behavior credits restored if they’ve been lost as a result of misconduct. The program does not apply to inmates who are required to serve a minimum amount of their sentence, such as 85 percent crimes like rape, murder, and many sex crimes.

Terri Watkins, a spokeswoman for the Corrections Department, said increased use of the program isn’t all about saving money. She said it’s part of a series of changes made by Patton, and that those changes will continue in the future.

This partial report about early success with a revised corrections program in one state does not, obviously, prove conclusively that significant early releases can be achieved without a huge public safety impact. Nevertheless, given the ugly reality that recidivism rates for released prisoners can often exceed 40%, the folks in Oklahoma must be doing something right if only less than 0.15% of prisoners released early this year have committed a crime requiring requiring being sent back to prison so far.

October 10, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Thursday, October 09, 2014

New survey shows significant and growing support for "eliminating mandatory minimum prison sentences for nonviolent offenders"

As reported via this FAMM news release, which is headlined "New Poll Finds 77% of Americans Support Eliminating Mandatory Minimums for Non-Violent Offenses," there is new polling data suggesting that large and growing percentages of Americans favor mandatory minimum sentencing reform. Here are the basic details:

A new Reason-Rupe Public Opinion Survey finds that 77 percent of Americans support eliminating mandatory minimum sentences for non-violent drug offenses.  That number is up from 71 percent in December 2013, the last time Reason-Rupe polled on the question.  You can find the full survey results here (PDF); mandatory minimums are question 17. 

“Almost three decades have passed since the United States instituted harsh mandatory minimums for non-violent drug offenses.  During that time, countless lives have been ruined and countless families destroyed.  The American people have noticed, and they want no more of it,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.

The poll question Reason-Rupe posed reads as follows: “Would you favor or oppose eliminating mandatory minimum prison sentences for nonviolent offenders so that judges have the ability to make sentencing decisions on a case-by-case basis?”

Seventy-seven percent of respondents said they favored eliminating mandatory minimums, while only 17 percent of respondents said they were opposed.  When Reason-Rupe asked the same question in December 2013, 71 percent of respondents were in favor of eliminating mandatory minimums, and 24 percent were opposed.

October 9, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, October 07, 2014

Rolling Stone laments enduring casualties of drug war's mandatory minimums

ImagesRolling Stone magazine has just published this extensive "special report" titled "The Nation's Shame: The Injustice of Mandatory Minimums." The piece details the stories of seven notable low-level drug defendants serving high-level prison sentences. The piece has this subheading: "For decades, lawyers, scholars, and judges have criticized mandatory drug sentencing as oppressive and ineffective. Yet tens of thousands of nonviolent offenders continue to languish behind bars."  And here is a portion of the lead into the seven cases profiled:

Widely enacted in the Eighties and Nineties amid rising crime and racially coded political fearmongering, mandatory penalties — like minimum sentences triggered by drug weight, automatic sentencing enhancements, and three-strikes laws — have flooded state and federal prisons with nonviolent offenders.  Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors.  Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while [Professor Mark] Osler says, prosecutors gained "a big hammer.  The easy way of doing things is to threaten people with a lot of time, and then plead them out," he says.  "But easy and justice don't go together very well."...

[T]he drug war is entrenched in decades of prison buildup. Between 1980 and 2010, state incarceration rates for drug crimes multiplied tenfold, while the federal drug prisoner population ballooned by a factor of 20.  Every year, taxpayers shell out $51 billion for drug war spending.  Meanwhile, 2.2 million people — or a quarter of the world's prisoners — crowd a system that exacts its harshest toll on the most vulnerable. Racism undermines the justice process from initial stop to sentence, and 60 percent of those incarcerated are people of color.  Rates of illiteracy, addiction, and mental illness are disproportionately high.

Amid utter congressional deadlock, sentencing reform is the only issue that has cut across partisan bickering to unite such normally irreconcilable voices as Rand Paul, Dick Durbin, Ted Cruz, Elizabeth Warren, Paul Ryan and John Conyers.  Yet the proposed Smarter Sentencing Act, which passed the Senate Judiciary Committee in January, has since run aground. The bill would halve key mandatory minimums, make relief under the Fair Sentencing Act available to 8,800 federal crack defendants locked up before 2010 and save $4 billion in the process.  More than 260,000 people have been imprisoned under federal drug mandatory minimums, and more will continue to cycle through the system — even as others are granted clemency — as long as reforms remain stalled.  At the state level, reforms without retroactive application strand drug defendants in prison even after the laws that put them there are reassessed as unjust.  The following seven cases epitomize the rigid regimes of the past, and the challenges involved in dismantling them.

October 7, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, October 06, 2014

Reviewing California's debate over lowering sentences through Prop 47

I have noted in a few prior posts some of the details of California's Proposition 47, which seeks to reduce penalties for certain offenders convicted of low-level property and drug crimes.  This new New York Times article, headlined "California Voters to Decide on Sending Fewer Criminals to Prison," discusses the current state of debate over Prop. 47.  Here are excerpts:

Twenty years ago, amid a national panic over crime, California voters adopted the country’s most stringent three-strikes law, sentencing repeat felons to 25 years to life, even if the third offense was a minor theft.  The law epitomized the tough-on-crime policies that produced overflowing prisons and soaring costs.

Now California voters appear poised to scale back the heavy reliance on incarceration they once embraced, with a measure that would transform several lower-level, nonviolent felonies into misdemeanors punishable by brief jail stays, if that, rather than time in a state penitentiary.  The referendum on Nov. 4 is part of a national reappraisal of mass incarceration.

To its advocates — not only liberals and moderates, but also an evangelical conservative businessman who has donated more than $1 million to the campaign, calling it “a moral and ethical issue” — the measure injects a dose of common sense into a justice system gone off the tracks. 

“Law enforcement has been on an incarceration binge for 30 years, and it hasn’t worked,” said George Gascón, the San Francisco district attorney and a former police chief who, bucking most of his counterparts around the state, is the main sponsor along with a former police chief of San Diego. For the large numbers of nonviolent offenders with mental health or substance abuse problems, Mr. Gascón said, “Incarceration doesn’t fix the problem.”

California has already been forced by federal courts to trim its prison population because of inhumane crowding, which it did mainly by sending more offenders to county jails.  Two years ago, in a previous referendum, voters took the worst sting off the three-strikes law, shortening the sentences of those whose third crime was a minor one.

The new initiative would have wider effects, altering penalties for low-level theft and drug-possession crimes that result in felony convictions, and sometimes prison terms, for thousands of nonviolent offenders each year.  Proposition 47, as it is called, would redefine thefts, forgery and other property crimes involving less than $950, and possession for personal use of drugs including heroin and cocaine, as misdemeanors — punishable by at most one year in a county jail, and often by probation and counseling. The changes would apply retroactively, lightening the penalties for thousands already in prison or jails....

The proposals here are modest compared with changes recently taken by other states to curb prison growth.  But Proposition 47 has drawn harsh attack from law enforcement officials, including most district attorneys and the association of police chiefs, which calls it “a dangerous and radical package” that will “endanger Californians.”...

In a poll in September conducted by the Public Policy Institute of California, 62 percent of voters said they supported the initiative, and only 25 percent said they opposed it. Proponents like Mr. Gascón and Darrell Steinberg, the Democratic president pro tem of the State Senate, say this shows that the public is far ahead of timid legislators, necessitating the unusual step of a ballot initiative....

But opinions could change, especially if the two sides mount television campaigns in coming weeks. One of the most outspoken opponents, Shelley Zimmerman, the chief of police in San Diego, has already gone on the offensive.  “Virtually all of law enforcement is opposed,” Chief Zimmerman said.  “It’s virtually a get-out-of-jail-free card” for 10,000 felons, many with violent histories.  She and other opponents have zeroed in on two details: Stealing a gun worth less than $950 and possessing date-rape drugs would no longer be automatic felonies....

So far, supporters of the proposal have a large financial advantage, raising more than $4 million as of last week, half of which had been used to get the measure on the ballot, compared to less than $300,000 for the opponents, with most of that donated by a law enforcement officers’ association.  Large donations in support have come from the Open Society Policy Center, a Washington-based group linked to George Soros; the Atlantic Advocacy Fund, based in New York; Reed Hastings, the chief executive of Netflix; and Sean Parker, the former president of Facebook. 

But the largest single donor is B. Wayne Hughes Jr., a conservative Christian businessman and philanthropist based in Malibu. In one of the most tangible signs yet of growing concern among conservatives about the cost and impact of incarceration, Mr. Hughes has donated $1.255 million....

Even if Proposition 47 passes, California will still lag behind many other states, including some that are politically conservative, in reforms that have achieved prison cuts with no increase in crime, said Adam Gelb, director of the Public Safety Performance Project of the Pew Charitable Trusts.  Just looking at the dollar threshold for theft or forgery felonies, he noted, Mississippi recently raised its cutoff to $1,000, and South Carolina to $2,000. “This reform may be modest,” Mr. Gascón acknowledged. “But California led the way early on in draconian sentencing, and now I’m hoping that these reforms, too, will have an impact on the state and the nation.”

Prior related posts:

October 6, 2014 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS summarily reverses Ninth Circuit habeas grant on AEDPA deference grounds

Thanks to this post by Kent Scheidegger over at Crime & Consequences, I just saw that the Supreme Court kicked off the first Monday of October with its first reversal of the Ninth Circuit in a criminal case. Here is how the per curiam opinion in Lopez v. Smith, No. 13-346 (S. Ct. Oct. 6, 2014) (available here), gets started:

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1).  We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is “clearly established.”  See, e.g., Marshall v. Rodgers, 569 U.S. __, __ (2013) (per curiam) (slip op. at 6).  Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.

After reporting on this SCOTUS development, Kent added this pointed commentary about the general failure of lower federal courts to show adequate AEDPA deference:

There is a broad spectrum of viewpoints on the Supreme Court today, but when there is not a single justice who thinks the court of appeals' decision is correct, when the error is so obvious that it doesn't even require full briefing and argument, and when the same pattern recurs "time and again," there is something gravely wrong with some of our courts of appeals (mostly those divisible by 3).

The continuing violation of this provision by some of the lower federal courts is the largest-scale defiance of federal law since the "massive resistance" campaign in the wake of Brown v. Board of Education (1954). Except this time federal courts are perpetrators of the violations instead of enforcers of the law.

October 6, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

SCOTUS keeps rejecting important follow-up Graham and Miller issues

The Supreme Court this morning issued this lengthy order list that has 60+ pages listing case after case for which the Justices have denied certiorari review.  Not suprisingly, folks are surprised to discover that all the same-sex marriage cases brought to the court over the summer are on the cert denied list (SCOTUSblog discussion here, AP discussion here).  

Sentencing fans will also be interested to learn about another group of notable state cases on the cert denied list this morning.  A helpful reader provided this account: "For what it’s worth, the US Supreme Court declined to hear at least three virtual LWOP cases (Goins v. Lazaroff, Barnette v. Ohio, and Bunch v. Ohio). They also declined to hear at least two cases on the retroactivity of Miller, including one that was an appeal by a state (Evans v. Ohio and Nebraska v. Mantich)."  

I have long believed it will only be a matter of time before the Justices take up at least a few important follow-up Graham and Miller Eighth Amendment issues. These cert denials suggest that the Justices are content to let the issues continue to be resolved only by lower courts for the foreseeable future.  

October 6, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack