Tuesday, December 12, 2017

Second Circuit panel reverses as unreasonable way-above-guideline sentence for immigration offense

A helpful reader made sure I did not miss a fascinating Second Circuit panel decision today reversing an above-guideline sentence as unreasonable in United States v. Singh, No. 16‐1111 (2d Cir. Dec. 12, 2017) (available here). Here is how the opinion gets started:

In this case, defendant‐appellant Latchman Singh pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony.  His Guidelines range was 15 to 21 monthsʹ imprisonment, and both the government and the Probation Office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months ‐‐ nearly three times the top of the Guidelines range.   

Singh appeals, contending that the sentence was both procedurally and substantively unreasonable.  For the reasons set forth below, we vacate the sentence and remand for further proceedings.  Singhʹs request that we order reassignment of the case to a different judge is denied. 

The opinion goes on to thoughtfully explain its substantive and procedural concerns with the sentence imposed; the discussion defies easy summary and lots of passages could merit highlighting. Here is one from the end of the opinion that seemed especially notable:

ʺSentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.ʺ  Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007).  While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of ʺthe diverse frailties of humankind.ʺ  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).  In deciding what sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ʺgenerosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.ʺ  Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (ʺBe kind.  If we judges could possess but one attribute, it should be a kind and understanding heart.  The bench is no place for cruel or callous people regardless of their other qualities and abilities.  There is no burden more onerous than imposing sentence in criminal cases.ʺ).

To the extent the district court increased Singhʹs punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.

December 12, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

Sunday, December 10, 2017

Is due process satisfied by a "minimal indicia of reliability" standard for key sentencing evidence and determinations?

The question in the title of this post is prompted by an opinion issued earlier this year by the Supreme Court of Delaware in Smack v. Delaware, No. 601 (Del. Oct. 11, 2017) (available here). The first paragraph of the Smack opinion provides the basic facts and procedural issue:

Adrin Smack pleaded guilty to four counts of drug dealing, one count of possession of a firearm by a person prohibited, and one count of conspiracy second degree.  At sentencing, the State claimed that Smack acted as a “kingpin” in a drug operation and should be sentenced to the fifteen years recommended by the State instead of the eight years recommended by the defendant.  Smack requested an evidentiary hearing as part of sentencing, and argued that the State must prove his status as a drug “kingpin” by a preponderance of the evidence.  The Superior Court denied Smack’s request for an evidentiary hearing and ruled it could consider evidence offered by the State at sentencing if it met a “minimal indicia of reliability” standard. The court sentenced Smack to an aggregate of fourteen years at Level V followed by probation. Smack appeals and argues the Superior Court violated his due process rights by denying him an evidentiary hearing and applying the wrong burden of proof at sentencing.  According to Smack, the State was required to prove by a preponderance of the evidence that Smack was a drug kingpin.  Because this Court has previously upheld the use of a minimal indicia of reliability standard to consider evidence offered at a sentencing hearing, and due process does not require an evidentiary hearing, we affirm the Superior Court’s decision.

Here is the heart of the Delaware Supreme Court's analysis of the issue and rejection of the defense's contentions (with footnotes removed):

First, this Court settled the evidentiary standard in Mayes v. State, holding that “in reviewing a sentence within statutory limits, this Court will not find error of law or abuse of discretion unless it is clear from the record below that a sentence has been imposed on the basis of demonstrably false information or information lacking a minimal indicium of reliability.”  Smack argues Mayes does not apply because the standard was not contested.  But the fact the standard was not at issue is irrelevant — the Court explicitly stated the sentencing judge “comported with due process by relying on information meeting the ‘minimal indicium of reliability beyond mere allegation’ standard.”  Subsequent cases rely on Mayes in applying this standard.

Smack relies on a series of federal cases where the court applied a preponderance of the evidence standard to establish facts warranting a sentence enhancement under the federal sentencing guidelines.  According to Smack, the same burden of proof should apply to the State when it argued for a harsher sentence based on Smack’s status as a drug kingpin.  The federal cases, however, are inapposite.  Under the federal sentencing guidelines, the judge must find facts at sentencing using evidentiary burdens because those factual determinations can cause an increase in the sentencing ranges under the guidelines.  Here, Smack’s guilty plea resulted in a sentencing range of two to seventy-six years. To fix the sentence within that statutory range, the judge was entitled to consider all facts that had a minimal indicia of reliability — including the intercepted text messages and phone conversations that led to the seventy-seven charges of drug dealing brought against Smack.  The court could and did find from these facts that Smack was more than a street-level drug dealer.

As hard-core sentencing fans know, the Supreme Court three decades ago in McMillan v. Pennsylvania, rejected a challenge to a Pennsylvania statute's use of a preponderance-of-the-evidence standard in the application of a mandatory minimum sentencing statute.  Chief Justice Rehnquist in that opinion explained why the Court had "little difficulty concluding that ... the preponderance standard satisfies due process."  Of course, aspects of McMillan were overturned in Alleyne v. US with respect to any fact-finding that formally alters any legal limit of a judge's sentencing discretion, but that decision itself stressed it was not contradicting "the broad discretion of judges to select a sentence within the range authorized by law."  

Through communications with the attorney representing in the defendant in this case, I have learned that a cert petition is in the works.  Given the remarkable reality that we have gone nearly 230 years into our constitutional history without having come close to settling just what due process means at sentencing, I think it would be great (and long overdue) for SCOTUS to take up a case like this.

December 10, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, December 08, 2017

SCOTUS grants cert on two(!) federal sentence reduction issues

The Supreme Court this afternoon issued his new order list which adds seven new cases to its merits docket. Two of the new cases involve (narrow) related federal sentencing issues concerning the application of 18 USC § 3582(c)(2).  Here are the case pages and issues via SCOTUSblog:

Hughes v. United States

Issue: Whether, under Freeman v. United States, a petitioner is eligible for a sentence reduction pursuant to 18 U.S.C. 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines, when the petitioner was sentenced after entering into a binding Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement that required a specific sentence not expressly tied to the guidelines.

Koons v. United States

Issues: Whether a defendant who is subject to a statutory mandatory minimum sentence, but who substantially assisted the government and received a sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e), is eligible for a further sentence reduction under 18 U.S.C. § 3582(c)(2), when the Sentencing Commission retroactively lowers the advisory sentencing guidelines range that would have applied in the absence of the statutory mandatory minimum.

As long-time readers should know, I am not a big fan of undue finality concerns in the sentencing context (see paper here), so my first instinct is to root for SCOTUS to take an expansive view of the reach and application of 18 U.S.C. § 3582(c)(2). But I will need to dig into the particulars of these cases before being ready to make any predictions about where the Justices may want to go with them.  But, as long-time readers should also know, a cert grant on TWO sentencing cases makes me a happy camper no matter what may follow.

December 8, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, December 05, 2017

Lots of juicy SCOTUS relists for sentencing fans

Over at SCOTUSblog, John Elwood does regular yeoman's work via his "Relist Watch" postings that highlight cases that the Supreme Court considered but did not resolve during its recent certiorari review conferences.  Often (though not always), the relisting of a case is a precursor to a grant of certiorari or at least some notable ruling or commentary by some Justices.  And this week's installment of "Relist Watch" has all these exciting tales for sentencing fans:

The best-known of this week’s relists is Hidalgo v. Arizona, 17-251, which presents two questions involving capital punishment.  The first involves so-called “aggravator creep.” To “minimize the risk of wholly arbitrary and capricious” executions, the Supreme Court in Gregg v. Georgia wrote that the discretion of sentencing juries “must be suitably directed and limited” through legislatively prescribed aggravating circumstances -- such as committing murders for hire or committing multiple murders. Since the Gregg era, the Arizona legislature has more than doubled its aggravating factors to 14 -- and still doesn’t include driving slowly in the left lane. Hidalgo argues that as a result of Arizona’s long list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution, which does not do enough to perform the narrowing function that Gregg contemplated.  The case also presents a far broader all-the-marbles issue: “whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.” In other words, the case seeks to answer Justice Stephen Breyer’s call to bring an end to capital punishment....

There’s plenty for nerds to love about the remaining eight cases....  Lindsey v. Virginia, 17-132, involves the burden of production for a crime and whether it violates the due process clause to instruct a jury that a criminal defendant’s actions are “evidence of [the requisite] intent … unless there is believable evidence to the contrary.”...

That brings us to the last four cases, which present a single question (along with some extra issues you’ll have to read the actual petitions to catch up on) – Kasowski v. United States, 16-9649, Richter v. United States, 16-9695, C.D., E.F., and G.H. v. United States, 16-9672, and Koons v. United States, 17-5716. These cases all involve 18 U.S.C. § 3582(c)(2), which permits a district court to reduce a previously imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  All four cases involve defendants whose sentences were based on a statutory mandatory-minimum sentence, or who were sentenced below the statutory mandatory minimum because they provided the government substantial assistance, as permitted by 18 U.S.C. § 3553(e).  The government now maintains that such defendants’ sentences were based on statutes rather than the sentencing guidelines and that those defendants therefore are ineligible for sentence reductions because they were not “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  Several courts of appeals have adopted that view.  These four petitions seek to challenge that conclusion.

Though the Hidalgo cert petition has already gotten lots of attention for lots of reasons, I consider the § 3582(c)(2) federal sentencing issue to be the one of this bunch most like to result in a actual grant of certiorari.   I certainly expect Justice Breyer and maybe other Justices will have something to say about the Hidalgo case if (when?) cert is denied, and gosh knows a grant in that case would add a lot of extra capital intrigue to this SCOTUS Term (which many think will be Justice Kennedy's last).

December 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

New lawsuit claims Nebraska's death penalty repeal, before voter capital punishment preservation by initiative, precludes execution of already condemned

As reported in this local article, headlined "ACLU of Nebraska sues to block executions, says Ricketts overstepped in referendum process," a notable advocacy group has filed a notable new lawsuit on behalf of a notable prisoner group. Here are the details:

The 11 men on Nebraska death row do not have valid death sentences, a leading anti-capital punishment group argued in a lawsuit filed [Monday]. The ACLU of Nebraska charged that the death penalty repeal, enacted by the State Legislature over a veto by Gov. Pete Ricketts, was in effect long enough to convert the death sentences for the 11 men to life in prison.

Last year’s vote by Nebraskans to restore capital punishment did so only for future heinous murders, according to the 29-page lawsuit filed shortly after midnight. The suit also alleges that Ricketts violated the separation of powers clause of the State Constitution when he “proposed, initiated, funded, organized, operated and controlled” the signature-gathering campaign that allowed voters to overturn the Legislature’s repeal of the death penalty.

The ACLU claims that the governor “exhausted” his executive powers when he vetoed the repeal law passed by lawmakers and that his subsequent steps to back a referendum that restored the death penalty were unlawful “legislative” activities that are reserved, via the separation of powers clause, for the State Legislature.

The referendum process, the civil rights group argued, is for citizens, but Ricketts had encouraged formation of the signature drive, played a leading role in financing it and had lent key employees to the effort, which was officially led by people with strong ties to the governor. “This is way beyond what the governor can do in his personal capacity,” Danielle Conrad, executive director of the ACLU of Nebraska, said Sunday. “This is about blurring the lines and overstepping the bounds.”

A spokesman for Ricketts said Monday that the “frivolous” ACLU lawsuit was another attempt by the “liberal advocacy group” to overturn the “clear voice” of the people. Taylor Gage, the spokesperson, rejected any wrongdoing by the governor. “The Governor’s Office holds itself to a high standard and follows state law regarding the use of taxpayer resources,” Gage said in a prepared statement. “The administration remains committed to protecting public safety and creating a safe environment for our corrections officers.”

The Ricketts administration recently gave notice that it may soon seek an execution date for one of those 11 death row inmates, Jose Sandoval, who was sentenced to die for his leading role in the slaying of five people inside a Norfolk bank in 2002. A month ago, state prison officials notified Sandoval that four lethal injection drugs had been purchased for use in an execution. The notice is required before an execution date can be requested....

Monday’s lawsuit names the 11 men on Nebraska’s death row as plaintiffs, and follows other legal action launched by the civil rights group against the state in recent months. In August, the ACLU asked a federal judge to intervene to reduce the chronic overcrowding in state prisons and address the shortage of medical and mental health care for inmates. In addition, the ACLU went to court on Friday to force the state to reveal the supplier of four lethal-injection drugs, citing state public records laws and the state’s botched past attempts to obtain such drugs.

Conrad said the legal actions reflect the ACLU’s commitment to defend the U.S. and Nebraska Constitutions, and is in step with the organization’s long-running opposition to the death penalty. Conrad, a former state senator and a Democrat, was among the leaders of Nebraskans for Public Safety, the group that campaigned unsuccessfully to persuade voters to retain the repeal of the death penalty. She said that today’s lawsuit is about policy, not politics.

The complaint in this action is available for download at this link.

December 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, December 04, 2017

Two Justices make statement about Alabama capital case in which cert is denied

There was not too much of note in today's order list from the Supreme Court, though sentencing fans might be intrigued by Justice Sotomayor's short statement, joined by Justice Breyer, regarding the denial of certiorari in Floyd v. Alabama. Here is how the statement starts and ends:

Petitioner Christopher Floyd was sentenced to death by an Alabama jury that was selected in a manner that raises serious concerns under our precedent in Batson v. Kentucky, 476 U.S. 79 (1986), J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), and Foster v. Chatman, 578 U.S. ___ (2016).  Although the unique context of Floyd’s case counsels against review by this Court, I find the underlying facts sufficiently troubling to note that in the ordinary course, facts like these likely would warrant a court’s intervention....

That we have not granted certiorari should not be construed as complacence or an affirmance of all of the reasoning of the courts below.  The unusual posture in which Floyd raised his Batson and J.E.B. claims warrants caution in the exercise of the Court’s review here.  Yet, courts reviewing claims in circumstances like these must be steadfast in identifying, investigating, and correcting for improper bias in the jury selection process.  Such discrimination “‘casts doubt on the integrity of the judicial process,’ and places the fairness of a criminal proceeding in doubt.” Powers v. Ohio, 499 U. S. 400, 411 (1991) (citation omitted).

December 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, December 02, 2017

Thanks to SCOTUS McDonnell ruling, record-long sentence for Congress member reduced to (significant) time served

A little more than eight years ago, as detailed in this post, federal prosecutors were seeking a (within-guideline) sentence of 27 years or more years for former US Representative William Jefferson following his bribery convictions.  Jefferson’s attorneys urged a sentence of less than 10 years, noting that no member of Congress had ever previously been sentenced to more than 100 months in prison.  As reported in this post, US District Judge T.S. Ellis ultimately imposed a record-setting prison sentence of 13 years.

Fast forward to this press story from yesterday, and we learn the details of the notable final chapter in this particular federal white-collar sentencing saga:

Ex-New Orleans Congressman Bill Jefferson walked out of a suburban Washington courthouse Friday owing no further obligations to the United States government, aside from monthly check-ins with a federal parole officer.  The five years and five months Jefferson spent in prison, as well as the $189,215.42 the feds seized from his bank accounts, served as enough punishment for Jefferson’s corruption convictions, U.S. District Judge T.S. Ellis III ruled.

The judge signed off on an agreement between Jefferson’s attorneys and federal prosecutors letting the disgraced former lawmaker walk away from the public corruption case against him after serving less than half of his original prison sentence.  “So, Mr. Jefferson, this ends a long saga,” Ellis said as Jefferson, his balding head shaved smooth and shoulders stooped slightly, stood before him. “You have paid your debt."

The former nine-term Democratic congressman was toppled from power a decade ago amid high-profile FBI raids on his home and congressional offices. Agents had secretly recorded meetings between Jefferson and a wealthy Virginia businesswoman acting as an FBI informant, eventually capturing Jefferson on video accepting a suitcase with $100,000 in cash in a suburban hotel room.  Agents later found $90,000 of the money in Jefferson’s freezer, wrapped in tinfoil and stuffed inside frozen food boxes.  The raid garnered national headlines and left Jefferson’s reputation in tatters....

Ellis, who presided over Jefferson’s trial and originally sentenced him to 13 years in federal prison, threw out seven of the ten counts against Jefferson in October in light of a 2016 U.S. Supreme Court decision requiring federal prosecutors to do more to prove public officials had abused their positions in corruption cases. The decision, which vacated the corruption conviction of former Virginia Gov. Robert McDonnell, triggered a wave of appeals from other former public officials. The judge also ordered Jefferson to be released early from federal prison.

Jefferson, however, had faced the prospect of returning to prison. Ellis left three counts of the conviction standing, each of which carried a potential prison term well beyond the five years Jefferson spent locked up. At Friday’s hearing, Jefferson said little, instead letting his attorneys — both of whom represented him during his eight-week trial — do the talking....

Jefferson offered his gratitude to friends, relatives and supporters who’d stood by him over the years while speaking to reporters outside the courtroom.  The former politician said he plans to stay retired from public life but hopes to become involved in the community and his local church....  “I don’t have time to be angry with anything,” Jefferson said when asked if he harbored bitterness about his time in prison.  Jefferson maintained his innocence in the case even after his conviction but declined Friday morning to say whether he did anything wrong.

As part of the deal with prosecutors, Jefferson accepted his conviction on two federal conspiracy counts and agreed not to file any further appeals in the case.  Ellis, in signing off on the agreement, noted that federal sentencing guidelines recommend 8 to 10 years in prison on those two charges.  The judge called it a fair resolution for everyone involved.  Yet Ellis still castigated the ex-lawmaker’s actions as “venal” in handing down the lesser sentence.

Prior related posts from 2009:

December 2, 2017 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, November 30, 2017

"Finality and the Capital/Non-Capital Punishment Divide"

The title of this post is the title of this new paper authored by Carissa Byrne Hessick now available via SSRN. Here is its abstract:

This book chapter examines the role that concerns about finality have played in both capital cases and juvenile life-without-parole sentencing cases.  It will describe how finality has shaped the Supreme Court’s death penalty cases, as well as the role it has played in recent juvenile life-without-parole cases.  It will then offer some tentative thoughts on whether the non-capital finality concerns — specifically, the perceived need for post-sentencing assessments — should be extended to capital defendants and how post-sentencing assessments might inform the ongoing debate over the death penalty abolition in the United States.

November 30, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Sunday, November 26, 2017

Interesting Eighth Amendment attack waged against extreme application of Tennessee's "Drug Free School Zone" law

This recent post from the Supreme Court of Tennessee Blog reports on an interesting constitutional challenge to the severe mandatory sentence that goes with the application of Tennessee’s "Drug Free School Zone" law.  Here is an excerpt from the post by Daniel Horwitz (who happens to represent the defendant).  Links are from the original post:

groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.”  The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t....

The government’s informant had thirty-nine (39) separate convictions on his record in Davidson County alone at the time of the drug sales at issue—many of them violent felonies.  Even so, the informant was paid more than $1,000 in taxpayer money and avoided jailtime in exchange for helping secure Mr. Bryant’s conviction.  Mr. Bryant’s first trial ended in a hung jury after several jurors concluded that Mr. Bryant had been entrapped.  After his second trial, however, Mr. Bryant was convicted of selling drugs.

Even though it was a first-time, non-violent offense — Mr. Bryant had no other criminal history of any kind — because Mr. Bryant’s residence was located within 1,000 feet of a school, Mr. Bryant received a mandatory minimum sentence of seventeen (17) years in prison.  As a result, Mr. Bryant received a considerably longer sentence for committing a first-time, non-violent drug offense than he would have received if he had committed a severe, violent crime such as Rape, Second Degree Murder, Aggravated Robbery, Aggravated Vehicular Homicide, or Attempted First Degree Murder.  Mr. Bryant has been incarcerated for the past decade.  He has at least six years in prison left to serve.

Given the extraordinary circumstances of his prosecution, Mr. Bryant has filed a novel constitutional challenge to the application of Tennessee’s intensely punitive Drug Free School Zone law to his case.  Notably, even the District Attorney who prosecuted Mr. Bryant has submitted an affidavit supporting his early release, stating that: “I fail to see how an additional six years of incarceration will improve Mr. Bryant’s amenability to correction or would be required to maintain public safety.  I additionally fail to see how his release at a time earlier than 2023 — and after over nine years of incarceration — will deprecate the seriousness of the offenses for which he was convicted or significantly imperil public safety.”

Tennessee’s intensely punitive Drug Free School Zone law was designed to keep drugs away from children.  Nobody disputes that this is a laudable goal.  However, many people, including several elected officials and judges in Tennessee, have disputed whether the law was ever intended to apply to drug sales between adults inside an adult’s residence and outside of school hours — especially when a government informant has set up a drug transaction inside a school zone on purpose....

Mr. Bryant’s petition paints a heartbreaking picture of a law that was never intended for cases like his but which applied to him anyway.  In Davidson County, he notes, so-called “drug free” zones “cover[] almost every habitable portion of Nashville and [nearly] all of its urban core.”  As a result, based solely on a prosecutor’s discretion, the law can be applied “to virtually every drug sale that takes place in Nashville.”  Even so, in the approximately two decades since the law was enacted, only 62 defendants have ever been punished with the school zone sentencing enhancement in Davidson County, which upgrades a defendant’s conviction by a full felony class and renders defendants ineligible for parole for decades.  Although, as a general matter, the law has been used sparingly to punish dangerous or repeat offenders, Mr. Bryant’s petition notes that he has “the dubious distinction of being the only defendant in the history of this jurisdiction to receive Tenn. Code Ann. § 39-17-432’s sentencing enhancement for a first-time offense.”...

Mr. Bryant notes that in the time since his conviction, Tenn. Code Ann. § 39-17-432 has been reformed both judicially and operationally to avoid precisely the type of strict liability penalty that applied in his case.  Consequently, if Mr. Bryant had committed the exact same offense today, then he would likely have been subject to a maximum sentence of between two and eight years in prison, rather than seventeen years.  Further, given his status as a first-time, non-violent offender, Mr. Bryant may well have avoided prison time at all.

Mr. Bryant has asked Davidson County Criminal Court Judge Steve Dozier to declare his sentence unconstitutional as applied to the unique circumstances of Mr. Bryant’s case, arguing that these circumstances render his sentence excessive under both the Eighth Amendment and Article 1, Section 16 of the Tennessee Constitution.  Mr. Bryant has also petitioned Judge Dozier for release while he submits an application for a pardon or commutation.  More than a dozen supporters — including Mr. Bryant’s own prosecutor, local politicians, business owners, friends, family members, and civil rights activists — have also filed affidavits in support of Mr. Bryant’s early release.  A hearing on Mr. Bryant’s petition is set for December 15, 2017 in Davidson County Criminal Court, Division 1.

November 26, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Friday, November 24, 2017

South African court more than doubles prison sentence of Oscar Pistorius

As reported here via CNN under the headlined "Pistorius' sentence more than doubled; slain girlfriend's family calls it 'justice'," a notable defendant got a notable new sentence via appeal in South Africa this week.  Here are the details:

"Reeva Steenkamp "can now rest in peace," her family said Friday, after a South African high court more than doubled Oscar Pistorius' sentence for her killing. The Supreme Court of Appeal increased his sentence to 13 years and five months for the murder of his girlfriend, Steenkamp. It issued the ruling after the prosecution appealed his previous sentence of six years as too lenient.

The former Olympic and Paralympic sprinter killed Steenkamp at his home in an upscale Pretoria neighborhood on Valentine's Day 2013 -- an act he says was an accident after he mistook her for an intruder. The prosecution called it a deliberate act after the two had an argument. The court's decision is "justice for Reeva," her family's spokeswoman said, adding that they hope "this is the end of the road and that everyone can move forward."

Prosecutor Gerrie Nel argued that Pistorius' sentence was "shockingly lenient," while the defense sought to dismiss the appeal.

Supreme Court Justice Willie Seriti said Pistorius failed to explain in court hearings why he fired the fatal shots and "does not appreciate the gravity of his actions."... Seriti said the facts of the case demanded a higher sentence. "The sentence of six years' imprisonment is shockingly lenient to a point where it has the effect of trivializing this serious offense," he added.

Pistorius can appeal the new sentence, according to Kelly Phelps, an adviser to his defense team, but no decision has been made.

Prior related posts:

November 24, 2017 in Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (2)

Wednesday, November 22, 2017

Louisiana justice gets a bit too candid expressing his views about capital punishment

This local story, headlined "Louisiana Supreme Court justice recuses self from 'Angola 5' death penalty appeal over radio interviews," reports on some notable comments concerning the death penalty made by a notable public official in the Pelican State. Here are the details:

Louisiana Supreme Court Justice Scott Crichton recused himself on Tuesday from the pending appeal of death row inmate David Brown in the "Angola 5" prison-guard murder case, a day after Brown's attorneys cried foul over comments the judge made about capital punishment on Shreveport talk radio.  Crichton's one-sentence "notice of self-recusal" came without explanation.  It leaves the remaining six state high court justices to weigh Brown's direct appeal over his conviction and death sentence in the 1999 group beating and stabbing death of Angola State Penitentiary guard Capt. David Knapps.  The court could also appoint an ad hoc judge to fill Crighton's seat in the case.

Brown's attorneys filed a motion late Monday claiming Crichton's commentary in recent radio interviews raised at least the appearance of bias in the high-profile capital case. Crichton, 63, mentioned the Angola 5 case on the KEEL morning show on Oct. 23 to illustrate his view that the death penalty can be a valuable deterrent.  A former Caddo Parish prosecutor and district judge who rose to the high court bench three years ago, he agreed with a show host that "if you're in for life, you have nothing to lose" without it.

Brown was serving a life sentence for a different murder when Knapps was killed inside a bathroom at the state penitentiary. Brown's attorneys argued that Crichton's mention of the Angola 5 case alone warranted his recusal.  Crichton went further on the airwaves, however, and Brown's attorneys argued that his other on-air remarks also revealed potential bias in Brown's case, and perhaps in any capital case that reaches the court.

On the Oct. 23 show, Crichton first acknowledged that he "can talk about anything other than a pending case before the Louisiana Supreme Court," then mentioned the Angola 5 case.  He went on to lament the lengthy appeals process in death-penalty cases and argued for well-publicized executions. "If it's carried out and the public knows about it, I believe it's truly a deterrent," he said.  "What really boggles my mind is the inmate who has committed capital murder who is on death row who is begging for his life.  Think about the fact that the victim gets no due process."

Crichton also suggested a workaround to problems many states have had in acquiring one of three drugs in a commonly used "cocktail" for state killings — a shortage he blamed on drug companies being "harassed and stalked" by death-penalty opponents.  Crichton said he favors giving condemned inmates a choice in their death: the cocktail; a new method using a single drug, nitrogen hypoxia; or another, time-tested execution method.  "Firing squad is one," he said.

November 22, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, November 21, 2017

"Justice at Last for the Youngest Inmates?"

13046135_1510955771706The question in the title of this post is the headline of this New York Times editorial about juve LWOP sentencing that starts with another question and answer: "How many times does the Supreme Court have to repeat itself before its message gets through?  In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time." Here is more:

On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments.  It should be an easy call.  For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.

In 2005, the court banned the death penalty for people who committed their crimes before turning 18.  In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide.  In 2012, it barred mandatory sentences of life without parole for juveniles in all cases.  And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced....

[S]ince the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances.  Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.

But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.”  In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year.  The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.

Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole.  It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.

As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it.  For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.

I suspect that Justice Kennedy is still not yet ready to embrace a categorical ban on juve LWOP sentences in all circumstances, and this means there are likely not the SCOTUS five votes needed to move Eighth Amendment jurisprudence where the New York Times is urging.

Meanwhile, the Detroit Free Press has this recent lengthy article under the headline "Michigan remains a battleground in a juvenile justice war keeping hundreds in prison," which further details the ugly record of the state up north in this arena. Here is a snippet:

A year and a half after the Supreme Court ruled that all juvenile lifers across the nation should have the opportunity to be re-sentenced and come home, fewer than 10% of those in Michigan — a total of 34 — have been discharged.

The number, while low, could be chalked up to byzantine bureaucracy and the many moving parts of the criminal justice system. Civil rights activists, however, contend that while an array of procedures have slowed down the re-sentencing process nationally, Michigan is unique in its simple reluctance to recommend shorter sentences.

According to data from court records and the Michigan Department of Corrections, prosecutors in 18 Michigan counties have recommended continued life without parole sentences for all of the juvenile lifers under their purview. Statewide, 66% of Michigan's juvenile lifers have been recommended for the continued life sentence — a sentence which the Supreme Court declared unconstitutional but for the rarest of cases.

"First, Michigan took the strongest position in the country against children having a second chance, and now Michigan prosecutors are defying the Supreme Court’s holding that all children are entitled to a meaningful and realistic opportunity for release," said civil rights attorney Deborah LaBelle, who is one of several leading the charge to upturn the current status quo. "They are resisting the explicit ruling of the Supreme Court that this sentence can only be imposed on the rarest of children who commit a homicide and is irreparably corrupted," she continued.

And while the recommendations are a moving target, with some county prosecutors re-evaluating their filings — Saginaw County, for example, originally recommended 20 out of 22 defendants for continued life, but now contends that over half their recommendations have either changed or are now "undetermined" — the uncertainty means hundreds remain in the dark. They recognize the prospect of maybe, possibly, one day coming home, but have no clear roadmap of how this can come to be.

As the legal players dispute the intentions of the high court, men and women just like Hines, persist in a criminal justice limbo, while family members of victims are asked to grapple with unresolved emotions surrounding some of the most traumatic experiences in their lives. The disconnect has meant Michigan — already a touchstone in the juvenile lifer debate, with one of the largest populations in the nation — remains a battleground in a war many assumed to be over.

November 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, November 20, 2017

Noting Justice Department's latest ACCA/AEDPA litigation switch in time hoping to avoid nine Justices

Adam Liptak's latest New York Times Sidebar column, headlined "Serving Extra Years in Prison, and the Courthouse Doors Are Closed," does an effective (though necessarily incomplete) job of reviewing the notable recent change in litigation position coming from the Justice Department.  Here are extended highlights from an article highlighting a complicated and important matter of federal habeas procedure:

It is one thing for a new administration to switch sides in a legal dispute.  That is merely unusual.  It is another to urge the Supreme Court to deny review in a case that would test whether the government’s new position is correct.

In a Supreme Court brief filed last month, the Justice Department tried to have it both ways.  It told the justices that it no longer believed that some federal prisoners serving longer prison terms than the law allowed were entitled to challenge their sentences in court.  For the last 16 years, the Justice Department had taken the opposite view.  It said so in at least 11 Supreme Court briefs.  You might think the Supreme Court should settle things.

But the department urged the justices to refuse to hear an appeal from Dan C. McCarthan, a Florida man who said he was sentenced to seven more years than the law allowed.  It did so even as it acknowledged that the legal question was significant and that the department’s new position could lead to harsh results, condemning inmates to serve out unlawful sentences.

The administration’s request that the Supreme Court deny review in Mr. McCarthan’s case was “incredibly unseemly” and “not a good look for the Department of Justice,” said Leah Litman, a law professor at the University of California, Irvine, and an authority on the complicated web of statutes that govern post-conviction challenges from federal prisoners....

The Justice Department’s litigation two-step also drew a sharp response from Mr. McCarthan’s lawyers, who include Kannon K. Shanmugam, a partner at Williams & Connolly. “There is nothing inherently wrong with a new administration’s changing position on a question before this court — although it is rare on a question involving the administration of the criminal justice system,” Mr. Shanmugam wrote in a brief filed last week.  “But when the government changes position on a concededly important question that has divided the circuits, it should at least have the courage of its convictions and be willing to defend its new position on the merits in this court.”

Nine federal appeals courts allow the challenges, while two do not.  The new case, McCarthan v. Collins, No. 17-85, started in 2003, when Mr. McCarthan pleaded guilty to a federal gun charge.  That conviction would ordinarily have subjected him to a maximum sentence of 10 years.  But the judge sentenced him to more than 17 years under a federal law that requires longer terms for career criminals.

A career criminal, the law says, is one who has been convicted of at least three serious drug offenses or violent felonies.  One of the convictions that justified Mr. McCarthan’s extra seven years was for escape....  When Mr. McCarthan was sentenced, courts treated all escapes as violent.... [But] “a ‘walkaway’ escape is not a ‘violent felony,’” the [Supreme] court ruled in 2009, six years after Mr. McCarthan was sentenced to extra time based on just such an escape.  He then asked the courts to take another look at his sentence.

In March, the 11th Circuit rejected Mr. McCarthan’s challenge.  The vote was 7 to 4, with the majority saying that Mr. McCarthan had filed his challenge too late under a federal law that places strict limits on habeas corpus petitions.  But the law has an exception, enacted in 1948, for cases in which the ordinary procedure “is inadequate or ineffective to test the legality” of a prisoner’s detention.

The Justice Department had long agreed that the exception applied in cases like Mr. McCarthan’s. It said so in Mr. McCarthan’s own case before the 11th Circuit.  Since the government and Mr. McCarthan agreed that he should at least be allowed the present his challenge, the 11th Circuit appointed a lawyer to argue the opposite position. Then it accepted the appointed lawyer’s argument, which was based on a technical analysis of various statutory provisions.

Only one other federal appeals court has interpreted the 1948 law to bar challenges like Mr. McCarthan’s.  In 2011, the United States Court of Appeals for the 10th Circuit, in Denver, ruled that a prisoner who had pleaded guilty to money laundering in 1999 could not challenge his conviction after the Supreme Court, in a decision issued nearly a decade later, undermined the prosecution’s theory.  The 10th Circuit’s majority opinion was written by Judge Neil M. Gorsuch, who joined the Supreme Court this year.  His 2011 opinion, Professor Litman wrote in January, before his nomination, “makes one wonder what a Justice Gorsuch would mean for criminal justice at the Supreme Court.”

In 2011, the Justice Department criticized Judge Gorsuch’s opinion.  Last month, it endorsed it.  Mr. McCarthan, the department’s brief said, should have argued from the start that his escape was not a violent felony, even though the law at the time was squarely against him.  He should have asked “to have the adverse precedent overturned,” the brief said. It was now too late to raise the question, the brief said.

November 20, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Wednesday, November 15, 2017

West Virginia Supreme Court finds life sentence under recidivist statute violates state constitution's proportionality principle

During a recent class discussion on the future of Eighth Amendment jurisprudence as a limit on extreme prison terms, I mentioned the important reality that some state constitutions have punishment provisions with text providing defendants with more protections than the federal constitution.  For example, Article III, Section 5, of the West Virginia Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.  Penalties shall be proportioned to the character and degree of the offence."

Marc A. Kilmer is surely very grateful for the last sentence quoted above, because yesterday that provision led to the West Virginia Supreme Court, by a 4-1 vote, declaring his life sentence unconstitutional in West Virginia v. Kilmer, No. 15-0859 (W. Va. Nov 14,2017) (majority opinion available here).  Here are the essential from the start of the majority opinion:

Marc A. Kilmer was sentenced to life in prison under the recidivist statute based upon a predicate felony conviction for unlawful assault and two prior felony convictions for driving while license revoked for driving under the influence (DUI).  Mr. Kilmer argues on appeal that his life sentence violates the proportionality clause of Article III, Section 5 of the West Virginia Constitution because the two prior felony offenses do not involve actual or threatened violence.  The State asserts that the violence of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and that Mr. Kilmer’s two prior felony convictions are factually similar to those in other cases in which we have upheld recidivist life sentences.  We conclude that the felony offense of driving on a license revoked for DUI does not involve actual or threatened violence and reverse the circuit court’s imposition of Mr. Kilmer’s recidivist life sentence.

The Chief Justice was the sole dissent to this opinion, and his dissenting opinion starts this way:

I dissent to the majority’s decision to reverse the petitioner’s recidivist sentence.  This sentence — life in prison with the possibility of parole — is mandated by the Legislature through West Virginia Code § 61-11-18(c) (2014): “When it is determined . . . that such person shall have been twice before convicted” of a felony, “the person shall be sentenced to be confined in the state correctional facility for life.” Id. (emphasis added).  Contrary to the majority’s conclusion, there is nothing constitutionally disproportionate about imposing a sentence of life with the possibility of parole upon a criminal who brutally beats and then sexually assaults an injured woman, when these violent offenses represent an escalation in the culprit’s existing felonious criminal record.

November 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, November 13, 2017

Voting intrigue in SCOTUS capital case dissent on latest order list

The Supreme Court wrapped up its formal pre-Thanksgiving public activities toady with the release of this order list.  The list will surely generate news based on the granting of cert in three First Amendment cases, one dealing with abortion issues, one dealing with polling places, and one with some criminal procedure elements.  But sentencing fans, particularly those eager to predict the future of the Supreme Court's capital jurisprudence, will want to give some attention to this lengthy cert denial dissent by Justice Sotomayor in Reeves v. Alabama.  This dissent was joined (only) by Justices Ginsburg and Kagan, and it starts this way:

Petitioner Matthew Reeves was convicted by an Alabama jury of capital murder and sentenced to death. He sought postconviction relief in state court based on, as relevant here, several claims of ineffective assistance of trial and appellate counsel.  Among those claims, Reeves argued that his trial counsel was ineffective for failing to hire an expert to evaluate him for intellectual disability, despite having sought and obtained funding and an appointment order from the state trial court to hire a specific neuropsychologist.  His postconviction counsel subsequently hired that same neuropsychologist, who concluded that Reeves was, in fact, intellectually disabled.  Reeves contended that this and other evidence could have been used during the penalty phase of his trial to establish mitigation.

The Alabama Circuit Court held an evidentiary hearing on Reeves’ postconviction petition, at which Reeves presented substantial evidence regarding his intellectual disability and his counsel’s performance.  He did not, however, call his trial or appellate counsel to testify.  The court denied the petition, and the Alabama Court of Criminal Appeals affirmed. In doing so, the Court of Criminal Appeals explained that a petitioner seeking postconviction relief on the basis of ineffective assistance of counsel must question his counsel about his reasoning and actions.  Without considering the extensive record evidence before it regarding Reeves’ counsel’s performance or giving any explanation as to why that evidence did not prove that his counsel’s actions were unreasonable, the Court of Criminal Appeals held that Reeves’ failure to call his attorneys to testify was fatal to his claims of ineffective assistance of counsel.  The Alabama Supreme Court denied review.

There can be no dispute that the imposition of a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffectiveassistance-of-counsel claim contravenes our decisions requiring an objective inquiry into the adequacy and reasonableness of counsel’s performance based on the full record before the court. Even Alabama does not defend such a rule.  Instead, the dispute here is whether the Alabama Court of Criminal Appeals in fact imposed such a rule in this case.  I believe it plainly did so.  For that reason, I respectfully dissent from the denial of certiorari.

After this start, Justice Sotomayor goes on for 10+ pages to provide great detail on the proceedings below and the errors she sees therein.  Her dissent concludes with a call for a summary reversal and remand "so that the Court of Criminal Appeals could explain why, given the full factual record, Reeves’ counsel’s choices constituted reasonable performance."  This concluding recommendation, along with length of the dissent, leads me to wonder if it was drafted with the hope that there would be five or more votes to send this case back to the Alabama courts given that, as Justice Sotomayor explains, Alabama itself "does not attempt to defend the Court of Criminal Appeals’ rule on its merits."

Of course, the issuance of this dissent shows that Justice Sotomayor could not get five or more votes to send this case back to the Alabama courts.  But, as SCOTUS fans know, only four votes are needed to grant certiorari, and Justice Breyer would seem to be an obvious candidate to provide a fourth vote for taking this capital case up on its merits.  I am inclined to guess that Justice Breyer decided to issue a so-called "defensive denial" vote: as explained here, Justice Breyer's vote in Reeves may involve the "strategy by which a justice will vote to deny review because the justice fears that, if review is granted, the Court will reach the wrong result and make bad law."

Because I am not a SCOTUS procedure guru, I am not going to spend too much time speculating about what the voting dynamics might reveal in Reeves.  But in the wake of his Glossip opinion and other subsequent comments and votes, some have been coming to believe that Justice Breyer would now vote in favor of a capital defendant in any and every close or tough case.  His vote to deny cert in Reeves suggests that, in deciding how to resolve capital cert petitions, he is still concerned with matters other than just how he thinks he should resolve each and every particular capital case that comes before him.

November 13, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Sunday, November 12, 2017

Former state Arizona AG, only now, says his state's death penalty is "unconstitutional" and "bad policy"

Terry Goddard, who served as the Arizona's attorney general from 2003 to 2011, apparently just now got around to figuring out that how his state administers the death penalty makes it unconstitutional and bad policy.  He explains his new thinking in this commentary headlined "Arizona's 40-year experiment with the death penalty has failed."  Here are excerpts (with some emphasis added for my follow-up commentary):

As the attorney general, I was responsible for overseeing dozens of appeals from sentences of death.  Six people were executed during my tenure.  It was critical for me that we imposed the ultimate sanction only on those most deserving.

Tragically, our state has failed in this undertaking in fundamental ways.  The breadth of our statute, capturing nearly every first-degree murder, makes it unconstitutional.  But more than that, Arizona’s use of the death penalty is bad policy.

Arizona does not have a good track record for getting it right.  At least nine times our death penalty has swept up the innocent in its net.  Nationwide, 160 people have been exonerated from death row.  Getting it wrong once is one time too many.  Death, in its finality, means correcting a wrongful sentence is not an option.  Sentencing the innocent to die undermines the public’s confidence in the entire criminal justice system, and is reason alone to abandon the death penalty.

Moreover, Arizona’s death penalty scheme has unsettling racial disparities in its application.  People in Arizona who are accused of murdering white victims are more likely to receive the death penalty.  Hispanic men who are accused of murdering whites are more than four times as likely to be sentenced to death as white defendants accused of murdering a Hispanic victim.  Any other state policy with that sort of disparity would be quickly repudiated.  The Legislature should end this horrible death penalty malfunction.

The spiraling costs of seeking and imposing a death sentence are further reason to abandon the policy.  These costs have caused the location of the crime to take precedence over its heinousness.  Several counties simply cannot afford to pursue the death penalty, creating imbalances having nothing to do with the crime....

The costs associated with defending Arizona’s statute (never mind the cases themselves) have been substantial. Dozens of convictions have been set aside because Arizona, unlike almost every other state, did not provide for jury sentencing in capital cases.  Arizona was one of two states to extend the death penalty to felony murders, leading to a rebuke by the Supreme Court and further reversals.  The Arizona Supreme Court narrowly interpreted our state’s prohibition on executing the intellectually disabled until they were recently forced to reconsider.  And case after case has been reversed because of flaws in the instructions given in capital sentencing proceedings....

We’ve been here before. In 1972, the court struck down every state’s death-penalty statute because they operated to execute a “capriciously selected random handful,” rather than the worst offenders.  Similar to other states’ efforts, then-state Sen. Sandra Day O’Connor and Rudy Gerber (who later became an Arizona judge) rewrote Arizona’s statute to comply with the court’s narrowing requirements by obligating the prosecutor to prove one or more aggravating factors before the death penalty could be imposed.

More than four decades have passed and we are back to square one.  Despite the efforts of O’Connor and Gerber, Arizona has failed to narrow the application of the death penalty and has been unable or unwilling to provide the guidance necessary to ensure that the death penalty is only imposed on the worst offenders.

Though I am not an expert on the statutory and practical ins-and-outs of the death penalty in Arizona, I am pretty sure that the vast majority of the problems cited here by former state AG Goddard were plenty evident circa 2003 when he started serving his eight years at the top lawyer and law enforcement official in the state.  For example, this DPIC list of death row exonerations indicates that eight of the nine exonerations in Arizona occurred by 2003.  If "getting it wrong once" is, as Goddard says now, "one time too many" and "reason alone to abandon the death penalty," why didn't Goddard while serving as AG become a vocal opponent of capital punishment?

Similarly, I believe the breadth of the Arizona statute allowing capital punishment for nearly all first-degree murders is not a new reality.  If that reality makes the statute unconstitutional in the view of Goddard, why did he work vigorously to uphold death sentences under that statute for eight years?  In his role as AG, Goddard swore an oath to uphold the US Constitution, and he should have felt duty-bound not to seek to preserve capital convictions secured via an unconstitutional statute.  But, it would seem, Goddard was very slow to achieve this critical constitutional wisdom.

Likewise, I would guess that "unsettling racial disparities" in the  application of Arizona's death penalty did not only recently become evident.  (Linked here, for example, is a 1997 article with data on this kind of disparity and discrimination in Arizona.)   Did Goddard even care about the data on disparities when serving in the AG role for eight years?   If he really believes "any other state policy with that sort of disparity would be quickly repudiated," I would like to ask him why he did not quickly repudiate the death penalty over the eighth years he was in an ideal official position to do something about this state policy. 

I make these points not only to suggest that there is a notable johnny-come-lately quality to Goddard's capital criticisms, but also to wonder if Goddard might someday write another commentary that explains why a person in the role of Attorney General cannot or will not face up to problems in a state's criminal laws until long after completing service.  I have always wondered whether it is just political and institutional pressures that prompt government officials to defend questionable criminal laws and practices, or whether other sets of personal and professional factors are the heart of this story.  Some first-person accounting of just how and why Goddard has now come to a different view of these issues a number of years after his extended tenure as state AG could actually make his commentary much more valuable than the standard abolitionist review of reasons to oppose the death penalty.

November 12, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Interesting case comments on notable SCOTUS OT '16 cases in new Harvard Law Review

The first issue of each new volume of the Harvard Law Review is traditionally its November offering filled with articles, commentary and case comments looking back at the past US Supreme Court term. This year's version of that traditional HLR issue is now available at this link, and a good number of the cases that get the full case-comment treatment are criminal law cases. Based on a too-quick review, I think sentencing fans might find these case comments particularly interesting:

BONUS TRIVIA: As I was doing this post, it dawned on me that it was exactly a quarter century ago that I had the honor of having my SCOTUS case comment published in Volume 106 of the Harvard Law Review.  Perhaps foreshadowing my professional future, I wrote on a case (Hudson v. McMillian, 503 U.S. 1 (1992)), that would certainly have been fodder for this blog had it existed during the 1991 Supreme Court Term.

November 12, 2017 in Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20)

Monday, November 06, 2017

Two notable summary reversals from SCOTUS after circuits failed, yet again, to properly follow AEDPA

The US Supreme Court this morning released this order list which does not grant cert in any new cases but does concludes with two notable summary reversals both of which result from circuit courts failing to follow properly the commands of the Antiterrorism and Effective Death Penalty Act (AEDPA).

The longer per curiam ruling (without dissent) comes in Kernan v. Cuero, No. 16-1468 (S. Ct. Nov 6, 2017) (available here), which gets started this way:

The Antiterrorism and Effective Death Penalty Act of1996 provides that a federal court may grant habeas relief to a state prisoner based on a claim adjudicated by a state court on the merits if the resulting decision is “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). In this case, a California court permitted the State to amend a criminal complaint to which the respondent, MichaelCuero, had pleaded guilty. That guilty plea would have led to a maximum sentence of 14 years and 4 months. The court acknowledged that permitting the amendment would lead to a higher sentence, and it consequently permitted Cuero to withdraw his guilty plea. Cuero then pleaded guilty to the amended complaint and was sentenced to a term with a minimum of 25 years.

A panel of the Court of Appeals for the Ninth Circuit subsequently held that the California court had made a mistake of federal law. In its view, the law entitled Cuero to specific performance of the lower 14-year, 4-month sentence that he would have received had the complaint not been amended.

The question here is whether the state-court decision “involved an unreasonable application o[f] clearly established Federal law, as determined by the Supreme Court of the United States.” Ibid. Did our prior decisions (1) clearly require the state court to impose the lower sentence that the parties originally expected; or (2) instead permit the State’s sentence-raising amendment where the defendant was allowed to withdraw his guilty plea? Because no decision from this Court clearly establishes that a state court must choose the first alternative, we reverse the Ninth Circuit’s decision.

The other per curiam ruling comes in Dunn v. Madison, No. 17-193 (S. Ct. Nov 6, 2017) (available here), includes these passages:

Neither Panetti nor Ford “clearly established” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case. The state court did not unreasonably apply Panetti and Ford when it determined that Madison is competent to be executed because — notwithstanding his memory loss — he recognizes that he will be put to death as punishment for the murder he was found to have committed.

Nor was the state court’s decision founded on an unreasonable assessment of the evidence before it. Testimony from each of the psychologists who examined Madison supported the court’s finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime.

In short, the state court’s determinations of law and fact were not “so lacking in justification” as to give rise to error“beyond any possibility for fairminded disagreement.” Richter, supra, at 103.  Under that deferential standard, Madison’s claim to federal habeas relief must fail. We express no view on the merits of the underlying question outside of the AEDPA context.

Notably, Justice Ginsburg penned this brief concurrence in Dunn that was joined by Justices Breyer and Sotomayor:

The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court. Appropriately presented, the issue would warrant full airing. But in this case, the restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996, I agree, preclude consideration of the question. With that understanding, I join the Court’s per curiam disposition of this case.

And Justice Breyer also added a concurrence in Dunn to note that the "case illustrates one of the basic problems with the administration of the death penalty itself. That problem concerns the unconscionably long periods of time that prisoners often spend on death row awaiting execution." Notably, no other Justice joined this concurrence by Justice Breyer.

November 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Friday, November 03, 2017

Prof Tribe makes standard policy arguments to advocate that Supreme Court "hold the death penalty unconstitutional nationwide"

Because Harvard Law Prof Laurence Tribe has long been among the nation's most highly regarded constitutional thinkers, I got excited when I saw he penned this new Washington Post opinion piece headlined "The Supreme Court should strike down the death penalty."  I was hoping that Prof Tribe might be presenting  some novel arguments for declaring capital punishment per se unconstitutional. But, as detailed below, his piece just makes familiar policy arguments against the punishment based on how it gets applied:

After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.”  It also remains prone to terrible errors and unacceptable arbitrariness.

Arizona’s death-penalty scheme is a prime example of how capital punishment in the United States unavoidably violates the Eighth Amendment’s requirement that the death penalty not be applied arbitrarily.  The Supreme Court will soon consider accepting a case challenging Arizona’s statute and the death penalty nationwide, in Hidalgo v. Arizona....

As a result of Arizona’s ever-expanding list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution.  This wholly fails to meet the constitutional duty to narrow the punishment to those murderers who are “most deserving” of the punishment.

It has also opened the door to disturbing racial trends.  Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty.  There are also geographic disparities: Some counties do not pursue the death penalty, while Maricopa County, where the defendant in the Hidalgo case was tried, imposed the death penalty at a rate 2.3 times higher than the rest of the state over a five-year period....

Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.

In doing so, the court would be recognizing our country’s movement away from capital punishment: Eleven states that have the death penalty on their books have not had an execution in the past 10 years — four states have suspended the death penalty, and 19 have abolished it entirely.  Each year, the death penalty continues to shrink as its use becomes not less but more arbitrary: Death sentences have declined by more than half in just the past five years.  Executions went from a modern-era high of 98 in 1999 to 20 in 2016. A handful of counties — just 2 percent — are driving the death penalty while the rest of the nation has moved on.

One reason jurors are increasingly uncomfortable in choosing death is the growing awareness that too many condemned people are, in fact, innocent.  In the modern era of the death penalty, 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted.  A painstaking study from the National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the United States are innocent.  When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system.

The court should acknowledge that capital punishment — in Arizona and everywhere else — violates human dignity and constitutes cruel and unusual punishment. At the very least, it should enforce the requirement that the death penalty be available only in the rarest of circumstances.

Though supporters of the death penalty can readily dicker with some particulars in Prof Tribe's complaints about arbitrariness, "racial trends," geographic disparities and wrongful convictions in the capital context, I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty.  Arbitrariness, "racial trends," geographic disparities and wrongful convictions plague just about every facet of our justice systems and implicate punishments in arenas ranging from life without parole to federal mandatory minimum drug sentences to plea practices to juvenile court adjudications.  If the policy concerns expressed by Prof Tribe here justifies the Supreme Court declaring one punishment per se unconstitutional, it arguably justifies declaring many other punishments per se unconstitutional.

Of course, the Supreme Court has long developed a unique jurisprudence for capital cases that dramatically shapes and limits its application, and many abolitionists like Prof Tribe would surely like to see the Court finally convert policy arguments against the death penalty into a categorical constitutional prohibition.  But, especially with so few members of the Court now showing any eagerness to take up Justice Breyer's suggestion in Glossip to reconsider the facial constitutionality of the death penalty, there seems little reason to expect that a majority of Justices will want to do what Prof Tribe is urging anytime soon.

November 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, November 02, 2017

With notable advocates, former Gov Blagojevich bringing notable sentencing issue to SCOTUS

As reported in this local press article, headlined "Imprisoned Blagojevich again asks U.S. Supreme Court to hear his case," a high-profile defendant is bringing an interesting sentencing issue to the Supreme Court. Here are the basics:

Ex-Gov. Rod Blagojevich has again appealed his case to the U.S. Supreme Court, his lawyer confirmed Thursday. The former governor’s bid to the high court is among the very few options the imprisoned Democrat has left.

Blagojevich has tried to take his case to the Supreme Court once before. It refused to hear from him early last year, and his new petition is also considered a long-shot. Blagojevich is not due out of prison until May 2024.

The new 133-page filing presents the Supreme Court with two questions: Whether prosecutors in a case like Blagojevich’s must prove a public official made an “explicit promise or undertaking” in exchange for a campaign contribution, and whether more consideration should have been given to sentences handed down in similar cases.

This big cert petition is available at this link, where one can see that Thomas Goldstein and Kevin Russell of SCOTUSblog fame are listed as counsel of record.  And here is how these two astute SCOTUS litigators frame the sentencing issue they are bringing to the Justices in this case:

May a district court decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the Seventh and Tenth Circuits hold, in conflict with the law of the majority of circuits?

Long-time readers know that I see a whole host of post-Booker 18 U.S.C. § 3553(a) sentencing issues as cert-worthy, but the Justices themselves have not taken up many such cases over the last decade. It is great to see experienced SCOTUS litigators making the case for cert on these kinds of grounds in a high-profile setting, though I think the "long-shot" adjective remains fitting.

November 2, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, November 01, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Sunday, October 29, 2017

SCOTUS back in action with two intricate habeas cases

After a late October break (which included for some Justices a notable trip to my alma mater), the Supreme Court is back in action on Monday.  And right out of the gate, SCOTUS hears oral argument in two habaes procedure cases: Ayestas v. Davis and Wilson v. Sellers.  Steve Vladeck has thoughtful previews of both cases at SCOTUSblog, and here are links and the start of each preview:

Ayestas v. Davis Argument preview: A subtle but significant dispute over funding federal habeas petitions in capital cases:

As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.”  When the Supreme Court returns to the bench next Monday morning to hear argument in Ayestas v. Davis, it will consider a recurring question in federal habeas cases, especially those raising claims that the prisoner’s trial lawyers provided ineffective assistance of counsel: What, exactly, must habeas counsel demonstrate to show that such services are “reasonably necessary for the representation of the [petitioner]”?

The U.S. Court of Appeals for the 5th Circuit has imposed a high bar in such cases, holding that such funding is “reasonably necessary” only when the petitioner can demonstrate a “substantial need” for the services contemplated by the statute — i.e., “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The question at the heart of this case is whether that standard puts too high a burden on capital habeas petitioners — requiring them to all-but describe the merits of their ineffective-assistance claims in order to obtain funding to prove those claims.  Assuming the Supreme Court has jurisdiction to answer that question (an issue raised by the state of Texas), the answer could have enormous consequences for the ability of indigent death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial lawyers.

Wilson v. Sellers Argument preview: To which state-court adjudications must federal habeas courts defer?

In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996.  But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”  Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition.  Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”

The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter.  Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion.  And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.

October 29, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, October 24, 2017

Can a defendant be given two maxed-out consecutive manslaughter sentences for killing one person?

The puzzling question in the title of this post would appear to be the remarkable issue that is now going to be considered by the top court in the Old Dominion State according to this local story headlined "Virginia Supreme Court will rule on Gregg sentencing."  Here is the press report that I am still trying to wrap my mind around:

Almost two years after a Fauquier jury found a Marshall man guilty of manslaughter, the legal debate over his prison sentence will go to the state’s highest court. The Virginia Supreme Court announced Friday that it will hear the prosecution’s appeal of a decision that would void one of two homicide convictions of Carroll E. “Tootie” Gregg Jr. in December 2015.

The circuit court jury recommended a 10-year sentence on each.  Judge Herman A. Whisenant Jr. exercised a state code provision that allowed him to add three years on each conviction, which he suspended. Mr. Gregg got a 26-year prison sentence, with six years suspended.

He shot and killed Junior Jordan Montero Sanchez, 23, just after midnight June 6, 2014. Mr. Sanchez and a towing company coworker had gone to Mr. Gregg’s Conde Road apartment to repossess a pickup truck for delinquent loan payments.

But, Warrenton defense attorneys Blair Howard and T. Brooke Howard II immediately objected to the pair of manslaughter sentences, contending that the U.S and Virginia constitutions protect individuals from being punished twice for the same crime.

A Virginia Court of Appeals panel last December ruled that the dual convictions — on two involuntary manslaughter charges, one of them for “unlawfully shooting at an occupied vehicle wherein death resulted” — constituted double jeopardy. The panel sent the case back to Fauquier County Circuit Court, where the prosecution would choose which conviction to apply.

But, the state attorney general’s office appealed that decision to the Supreme Court, which last week agreed to take the case.... “It will indeed be interesting to see the outcome in the Virginia Supreme Court,” Fauquier County Commonwealth’s Attorney James P. Fisher said.

The attorney general’s office handles most appeals of criminal cases that start with local prosecutors. Mr. Fisher has argued that the vehicle shooting conviction has different elements, even though state code labels it “involuntary manslaughter.”

The Virginia Court of Appeals ruling in this case is available at this link and it strikes me as eminently sensible.  Moreover, it has never really dawned on me to imagine that prosecutors could try to ramp up the punishment for a single killing by seeking multiple convictions and multiple consecutive sentences for every different type of possible homicide that the single killing might constitute. (For example, here in Ohio, we have nine different types of homicide and a drunk driver who kills one person might readily be found guilty of six different types of homicide.  I could never imagine a prosecutor looking to convict such a drunk driver of six different counts and asking for six max sentences to run consecutively on each count for a single killing.)

Perhaps I am missing something when I suggest it seems crazy for a defendant to be sentenced to two maxed-out consecutive manslaughter sentences for killing one person.  The local prosecutor and the sentencing judge obviously did not think this kind of doubling up was crazy.  Moreover, it would seem that Virginia Attorney General's office believes there is a legally defensible basis for pursuing a state Supreme Court appeal in order to preserve the double-max sentence imposed by the sentencing court. 

I would be grateful to hear in the comments if and how anyone can make the principled case for a double-max manslaughter sentence in a case involving only a single killing.

October 24, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (26)

"Resolving Judicial Dilemmas"

The title of this post is the title of this new paper authored by Alex Sarch and Daniel Wodak recently posted to SSRN.  Here is its abstract:

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing.  Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well.”

When faced with such a judicial dilemma — a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses — sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”) — are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both.  Judges should, in other words, look for and employ what we dub Satisficing Options.  These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible — even if the acts in question would not strictly count as optimal by the lights of the law or morality.

This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import.  Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences.  While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas.  This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system.

October 24, 2017 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, October 22, 2017

Lengthy look into latest significant(?) execution in Alabama

This lengthy local article, headlined "'I hate you': Inside the execution chamber as Alabama cop-killer put to death," provides an extended account of the lethal injection process to complete the sentence given to Torrey McNabb for murdering a police officer back in 1997. The folks at the Death Penalty Information Center suggest in this posting that the execution is significant because of how long the lethal injection process took.  In contrast, as evidenced by posts here and here, Kent Scheidegger at Crime & Consequences instead found significant the willingness of the Supreme Court to vacate lower court stays concerning executions protocols to ensure this execution went forward.

I have put a question mark in the title of this post because I am not sure any individual executions or individual stay ruling are really all that significant in the long-running litigious lethal injection wars.  Some lower court judges still seem inclined to find problems in nearly every possible state lethal injection plan, while a majority of the Supreme Court Justices seem now content that the latest standard approaches states have been adopting are sufficient for constitutional purposes. This leads me to predict continued lower-court legal wrangling that gums up the works of the machinery of death, but still allows a few states to complete an execution or two every so often.

Notably, this DPIC review of yearly executions indicates that this latest Alabama execution was the 21st of 2017, meaning this year already represents an uptick in execution compared to 2016.  But it also means that we are still on pace this year to have the second or maybe third fewest years executions in a quarter century. 

UPDATE: This new USA Today article, headlined "Executions rise in 2017, but downward trend continues," provides a broader context for recent developments. It starts this way:

The nation's rapidly declining rate of executions has leveled off, but opponents of capital punishment say the death penalty remains on borrowed time. The execution Thursday of Alabama cop killer Torrey McNabb was the 21st this year, marking the first time that number has risen since 2009. The 2017 total could approach 30 before the year is out, depending on last-minute legal battles.

That ends a relatively steady drop in executions since 2009, when there were 52. Only three times has the annual number increased since executions peaked at 98 in 1999.

Several factors have contributed to this year's hiatus in the broader trend. Eight states carried out executions, a spike from recent years. Among them were Arkansas, which executed four prisoners over eight days in April before its supply of lethal injection drugs expired, and Florida, which had halted executions for 18 months after the Supreme Court found its sentencing procedure unconstitutional.

Other executions this year have illustrated the problems opponents highlight in their quest to end capital punishment. Claims of innocence and requests for additional forensic testing went unheeded. Faced with complaints from pharmaceutical companies, some states used secretive methods to obtain drugs for lethal injections. And amid charges of racial disparities, nearly all the murder victims were white.

Yet another issue will be on display during oral arguments at the Supreme Court next week: whether indigent defendants in capital cases must prove they need more experienced lawyers and resources before they will be provided.

Despite all those factors, death penalty opponents say they're not worried about the slight uptick in executions. They note that three-, five- and 10-year trends remain down.

October 22, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Friday, October 20, 2017

Relying on Packingham, Federal judge strikes down Kentucky limit on sex offender internet access

As reported in this local piece, "Kentucky’s registered sex offenders have the constitutional right to use Facebook, Twitter and other online social media, a federal judge ruled Friday." Here is more on a ruling that seems like a pretty easy application of the Supreme Court's work in Packingham v. North Carolina earlier this year:

Ruling in a lawsuit brought by a Lexington child pornography defendant identified only as “John Doe,” U.S. District Judge Gregory Van Tatenhove struck down Kentucky’s sweeping restrictions on Internet access for registered sex offenders.

“This is a very important decision,” said Scott White, a Lexington attorney who represented Doe. “The laws effectively deprived anyone on the sex offender registry of access to the most effective forms of communication that we have today. It was a complete suppression of speech.”

One law prohibited sex offenders from using social networking websites or instant messaging or chat rooms that potentially could be “accessible” to children — which is to say, much of the Internet. The other law required sex offenders to keep their probation or parole officers updated on all of their email addresses and various online identities.

Van Tatenhove cited a unanimous decision by the U.S. Supreme Court in June that struck down a similar North Carolina ban on social media for sex offenders, in part because so many civic institutions — from elected officials to news media — are now tied into social media.

For example, the Herald-Leader’s Kentucky.com website would be off-limits to sex offenders under the state’s ban because it has a comments section open to the public, Van Tatenhove wrote.

Kentucky’s law “burdens substantially more speech than necessary to further the commonwealth’s legitimate interests in protecting children from sexual abuse solicited via the Internet,” Van Tatenhove wrote.

“Indeed, rather than prohibiting a certain type of conduct that is narrowly tailored to prevent child abuse, the statute prevents Mr. Doe and others similarly situated from accessing what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,” he wrote.

October 20, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

"State Criminal Appeals Revealed"

The title of this post is the title of this interesting new empirical paper available via SSRN and authored by Michael Heise, Nancy King and Nicole Heise. Here is the abstract

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”).  The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments.

We focus on two subpools of state criminal appeals: a defendant’s first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review.  Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant’s only chance at review.  By contrast, courts of last resort with discretionary jurisdiction emphasize law development, selecting cases to clarify or alter legal rules, resolve conflicts, and remedy the most egregious mistakes.

Our findings imply that defense appellate success rates may have declined in recent decades.  In appeals of right, defendants who challenge a sentence enjoy a greater likelihood of success, as do those who have legal representation, file a reply brief or secure oral argument, and appellants from Florida. In high courts of last resort, appeals from sex offenses, raising certain trial issues, and appellants represented by publicly funded attorneys appear to fare better than others.  Also notable is the absence of a relationship between defense success and factors including most crime types and claims raised, the court’s workload, and, for all but one model, whether the appellate judges were selected by election. 

October 20, 2017 in Detailed sentencing data, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, October 18, 2017

Special issue of Federal Probation looks at "30 Years with Federal Sentencing Guidelines"

The latest issue of the journal Federal Probation, which is published by the Administrative Office of the U.S. Courts, features a special section looking at "30 Years with Federal Sentencing Guidelines."  As revealed by the contents reprinted below, I had the honor of contributing a short article to this issue and that authorship puts me in some notable company:

Federal Sentencing Policy: Role of the Judicial Conference of the United States and the Administrative Office of the U.S. Courts by Hon. Ricardo S. Martinez

The Integral Role of Federal Probation Officers in the Guidelines System by Hon. William H. Pryor Jr.

Reflecting on Parole’s Abolition in the Federal Sentencing System by Douglas A. Berman

Five Questions for the Next Thirty Years of Federal Sentencing by Steven L. Chanenson

State Sentencing Guidelines: A Garden Full of Variety by Kelly Lyn Mitchell

Brief summaries of these pieces are available at this link, but I urge everyone to download the full issue here.

October 18, 2017 in Federal Sentencing Guidelines, Recommended reading, Sentences Reconsidered | Permalink | Comments (1)

Monday, October 16, 2017

SCOTUS grants cert on three criminal procedure issues

Before taking a break for the next two weeks, the US Supreme Court this morning issued this new order list with grants of certiorari in four new cases.  There of these cases involve criminal procedure matters, and here are brief accounts via SCOTUSblog (with links thereto):

Currier v. Virginia:  Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

United States v. Microsoft Corp.:  Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.

Dahda v. United States:  Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge's territorial jurisdiction.

None of these cases get my sentencing blood racing, and the most interesting aspect of the order list for hard-core sentencing fans might be a short opinion by Justice Sotomayor (joined by Justices Ginsburg and Breyer) dissenting from the denial of certiorari in a couple of Florida capital cases in which defendants argued "that the jury instructions in their cases impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory."  

October 16, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Colorado judge finds state's statutory response to Miller unconstitutionally favors certain juve defendants at resentencing

This local article reports on an interesting (and quirky?) ruling from a Colorado state judge last week finding constitutional problems with how the state responded to the Supreme Court's Eighth Amendment ruling in Miller precluding any mandatory LWOP sentencing for juvenile murderers.  The full headline of the article provides the basics: "Colorado law giving a break to some serving life for crimes committed as juveniles is unconstitutional, judge rules: Judge Carlos Samour Jr. ruled state can’t set preferential sentence for offenders convicted of felony murder." Here are more particulars: 

Part of a 2016 Colorado law that offers special sentencing considerations for some of the 50 people serving life without parole for crimes they committed as juveniles has been ruled unconstitutional by an Arapahoe County judge. Chief District Court Judge Carlos Samour Jr. this week entered his ruling in a case filed by Curtis Brooks, who was sentenced in 1997 to life in prison without parole after his conviction for felony murder.

The law, Samour ruled, gives preferential treatment to Brooks and 15 other offenders convicted of felony murder, offering them reduced sentences of 30 to 50 years in prison, while 34 other convicts serving life without parole could get new sentences of life in prison with the possibility of parole.  “Under the circumstances present, the court finds that the challenged provisions grant the 16 defendants a special or exclusive privilege,” his ruling says.

Brooks had applied to have his sentence reduced under the law, which the legislature passed last year. Felony murder holds defendants liable for first-degree murder if they commit or attempt certain felonies, such as burglary or robbery, and someone dies “in the course of or in furtherance of the crime.” In Brooks’ case, the owner of a car was killed by someone else as they tried to steal the vehicle. Brooks was 15.

Although Samour’s ruling is very well-reasoned, it is not binding precedent, said Ann Tomsic, chief deputy attorney for the 18th Judicial District.  Other judges probably will read Samour’s ruling and base their sentencing decisions on what he wrote, she said.... Brooks’ attorneys, including Dru Nielsen, said they could not comment on the facts of the case. Nor would they say whether they would appeal Samour’s decision....

Samour concluded that because the portion of the 2016 law applying only to those convicted of felony murder is unconstitutional, he must sentence Brooks to life in prison with the possibility of parole.

The Colorado legislature said juveniles convicted of felony murder cannot be sentenced to life without parole. Had lawmakers passed a bill that applied equally to all people convicted as an adult for crimes committed as a juvenile, it would have been constitutional, Samour said.  “What the legislature could not do, however, is what it, in fact, did: arbitrarily single out the 16 defendants and bestow preferential treatment upon them,” Samour ruled. Emphasizing his point, he wrote that the legislature cannot act as a sentencing court or a parole board.

I was unable to find on-line the formal opinion in this case, but in doing a bit of research I found this other local Colorado article from August reporting on a similar decision by another state judge which explains that Colorado prosecutors are apparently the ones objecting to the new Colorado statutory rule providing for a lower resentencing range for juveniles previously convicted of only felony murder. Here is how this other article explains the legal dynamics seemingly in play:

In his ruling, Epstein found that the state Legislature exceeded its authority when it provided the possibility of a 30- to 50-year sentence for felony murder convicts. He granted a motion by the El Paso County District Attorney's Office that attacked the law on procedural grounds, arguing that the sentencing range is unconstitutional because the reduced sentence wouldn't be available to anyone convicted of felony murder before or after the 16-year period. One of Medina's attorneys, Nicole Mooney, said prosecutors in at least three other jurisdictions have filed similar motions, and suggested that prosecutors' success in El Paso County could encourage more challenges — and embolden judges to grant them.

Prosecutor Jennifer Viehman, who mounted the successful challenge, said the 2016 law violated the state Constitution's provisions for special legislation by creating a "closed class" of beneficiaries. "You can't just single out a little special class of people, and make laws just for them," she said. "That's what the judge agreed with." Without the chance for parole after 30 years, then only one sentence is available — life in prison with the chance for parole after 40 years.

I surmise from this second article that judges are finding the distinct resentencing provisions for those convicted of felony murder to be a kind of problematic "special" legislation under Colorado constitutional law. Without expertise in state constitutional law, I cannot quite be sure if that is a sound or suspect conclusion.

UPDATE A helpful reader sent me a copy of the 48-page opinion in the Brooks case, which can be downloaded below and has the following section in its introductory paragraphs:

For the reasons articulated in this Order, the Court finds that the defendant must be resentenced, but concludes that the statutory provisions authorizing a determinate prison sentence of thirty to fifty years with ten years of mandatory parole are invalid because they constitute prohibited special legislation under the Colorado Constitution. The Court, therefore, grants the People’s motion to declare the relevant statutory provisions unconstitutional and denies the defendant’s request for a thirty-year prison sentence with ten years of mandatory parole.  In light of these rulings, and based on the legislature’s intent, the Court determines that the defendant must be resentenced to a term of life in prison with the possibility of parole after forty years.

Download Brooks - Post-Conviction Order

October 16, 2017 in Assessing Miller and its aftermath, New USSC crack guidelines and report, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, October 15, 2017

"Why kids don’t belong on sex offender registry"

The title of this post is the headline of this recent op-ed authored by Nicole Pittman. Here is how it starts:

California took an important step toward ending the abusive practice of putting kids on sex offender registries when Gov. Jerry Brown signed Senate Bill 384, which allows juveniles to petition for their removal after five or 10 years.

When California became the first state to register children as sex offenders in 1986, there was little known about children who commit sexual offenses. At that time, treating them the same as adults seemed sensible. Today, we have research that tells us that putting them on registries does not prevent future child sexual abuse and can diminish public safety.

Roughly 200,000 people on sex offender registries — including more than 3,500 in California — went on as kids, some for serious crimes but many others for playing doctor, streaking or teenage romances.

Sex offender registration laws stigmatize and isolate the very children they were meant to protect, ensuring their youthful indiscretions follow them into adulthood. Names, photos, and addresses are often made public, leading to vigilante violence, stigmatization, and severe psychological harm. One in five attempt suicide; too many succeed. There’s also now a strong body of evidence demonstrating that very few youth commit more sexual crimes.

October 15, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

Friday, October 13, 2017

"The Federal Rules of Inmate Appeals"

The title of this post is the title of this new paper by Catherine Struve now available via SSRN. Here is its abstract:

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically.  This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. 

In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals.  And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals.

In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities -- and underscores the salience of local court practices and institutional partnerships.

October 13, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, October 12, 2017

Big new report provides state-by-state guide to expungement and rights restoration

Report-coverAs detailed in this new post over at the Collateral Consequences Resource Center, the folks at CCRC have just published this big new report on state expungement and rights restoration practices under the title "Forgiving and Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights." This CCRC post provides this account of the new report's coverage and goals:

This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative nondiscrimination statutes. Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief. Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country. We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy. It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

The title of the report provides a framework for analyzing different types of relief provisions. For most of our history, executive pardon constituted the principal way that persons convicted of a felony could “pay their debt to society” and regain their rights as citizens. This traditional symbol of official forgiveness was considered ineffective by mid-20th century reformers, who sought to shift responsibility for restoration to the courts. The reforms they proposed took two quite different approaches: One authorized judges to limit public access to an individual’s record through expungement or sealing, and the other assigned judges something akin to the executive’s pardoning role, through deferred dispositions and certificates of relief. These two approaches to restoration have existed side by side for more than half a century and have never been fully reconciled.

Today, with a new focus on reentry and rehabilitation, policy-makers are again debating whether it is more effective to forgive a person’s past crimes (through pardon or judicial dispensation) or to forget them (through record-sealing or expungement). Despite technological advances and now-pervasive background-checking practices, many states have continued to endorse the forgetting approach, at least for less serious offenses and records not resulting in conviction. At the same time, national law reform organizations have proposed more transparent judicial forgiving or dispensing mechanisms. While the analytical model of “forgiving v. forgetting” is necessarily imperfect given the wide variety of relief provisions operating in the states, it seems to capture the basic distinction between an approach that would mitigate or avoid the adverse consequences of past crimes, and an approach that would limit access to information about those crimes.

The report organizes relief provisions into six categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing laws, and restoration of voting rights. The judgments made about the availability of each form of relief, reflected in color-coded maps, are in many cases necessarily subjective, and we have done our best to explain our approach in each case.

More detailed information about different forms of relief is available from the state-by-state summaries that are the heart of the report. Citations to relevant laws and comparisons of the laws of each state are included in the 50-state charts in Appendices A & B. Up-to-date summaries and charts are available from the Restoration of Rights Project, which additionally includes in-depth discussions of the law and policy in its state-by-state “profiles.” This information is updated by the authors on a real-time basis, and we expect to republish this report from time to time when warranted by changes in the law.

October 12, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, October 11, 2017

Judge Kozinski, in dissent, laments the "cruel and expensive hoax" of the death penalty in California

A divided Ninth Circuit panel issued an extended opinion yesterday in Kirkpatrick v. Chappell, No. 14-99001 (9th Cir. Oct. 10, 2017) (available here), that keeps alive a habeas claim that of a California murderer trying to stay alive decades after being sentenced to death for a double murder committed in 1983. The bulk of the ruling, with a majority ruling by Judge Reinhardt and a dissent by Judge Kozinski, concerns the intricacies of appellate and habeas procedure. But the last four pages of Judge Kozinski's dissent are what make the opinion blog-worthy, and here is a taste from its start and end (without the copious cites):

But none of this matters because California doesn’t have a death penalty.  Sure, there’s a death row in California — the biggest in the Western Hemisphere. But there have been only thirteen executions since 1976, the most recent over ten years ago.  Death row inmates in California are far more likely to die from natural causes or suicide than execution....

Meanwhile, the people of California labor under the delusion that they live in a death penalty state.  They may want capital punishment to save innocent lives by deterring murders.  But executions must actually be carried out if they’re to have any deterrent effect.  Maybe death penalty supporters believe in just retribution; that goal, too, is frustrated if there’s no active execution chamber.  Or perhaps the point is closure for victims’ families, but these are surely false hopes.  Kirkpatrick murdered Rose Falconio’s sixteen-year-old son more than thirty years ago, and her finality is nowhere near.  If the death penalty is to serve whatever purpose its proponents envision, it must actually be carried out. A phantom death penalty is a cruel and expensive hoax.

Which is why it doesn’t matter what we hold today.  One way or the other, Kirkpatrick will go on to live a long life “driv[ing] everybody else crazy,” while copious tax dollars are spent litigating his claims.  And my colleagues and I will continue to waste countless hours disputing obscure points of law that have no relevance to the heinous crimes for which Kirkpatrick and his 746 housemates continue to evade their lawful punishment.  It’s as if we’re all performers in a Gilbert and Sullivan operetta.  We make exaggerated gestures and generate much fanfare. But in the end it amounts to nothing.

October 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25)

Could poor health help save the live of Ohio's "poster child for the death penalty”?

The question in the title of this post is prompted by this Columbus Dispatch article headlined "Ohio killer says he’s too ill to be put to death."  Here are excerpts:

Death-row inmate Alva Campbell, once dubbed “the poster child for the death penalty” for a deadly carjacking outside the Franklin County Courthouse 20 years ago, is now too sick to be put to death, his attorneys and advocates say.

The convicted killer is slated for execution Nov. 15, but Campbell has so much fluid in his lungs that he can’t lie flat on the execution table for a lethal injection, one of his attorneys, David Stebbins, said Tuesday. “He’ll start gasping and choking,” Stebbins said. Stebbins said that for Campbell to sleep in prison, “he has to prop himself up on his side. It’s not very good.”

Stebbins said he has communicated his concerns to the Ohio Department of Rehabilitation and Correction, which didn’t immediately respond to questions about how to deal with Campbell’s condition.

Campbell, 69, has twice been convicted of murder, most recently in the 1997 execution-style slaying of 18-year-old Charles Dials behind a K-Mart store on South High Street.

Long before that, Campbell had cardiopulmonary issues that in the past few years have become debilitating, his attorneys say. Most of his right lung has been removed, and he has emphysema, chronic obstructive pulmonary disease and possibly cancer in much of his remaining lung tissue, Campbell’s application for executive clemency says. In addition, his prostate gland has been removed, as has a gangrenous colon. A broken hip last year has confined him to a walker. “The severity of these combined illnesses have left Alva debilitated and fragile,” Campbell’s clemency application says. “Alva’s deteriorating physical condition further militates in favor of clemency.”

The health claims are only one reason why Campbell and his attorneys are asking that his sentence be commuted to life in prison without parole. They also cite the “nightmare” childhood that Campbell suffered at the hands of an alcoholic father who was both physically and sexually abusive.

If Gov. John Kasich doesn’t want to commute Campbell’s sentence, delaying his sentence would have the same effect because the inmate will die soon, advocates said. “He’s probably in the poorest health of any living death-row inmate in the country,” said Kevin Werner of Ohioans to Stop Executions....

Campbell is scheduled for a clemency hearing Thursday. A spokesman for Ohio Attorney General Mike DeWine said that, in advance of the hearing, his office will file a response rebutting the claims made in Campbell’s application.

Campbell argues that poor health is one reason he shouldn’t be put to death, but he used an earlier, false health claim to commit the crime that put him on death row. Campbell feigned paralysis from a glancing bullet wound suffered during a robbery arrest. As Campbell was being taken to the Franklin County Courthouse for a hearing on April 2, 1997, he sprang from his wheelchair, overpowered a deputy sheriff, took her gun and fled. He then carjacked Dials, who was at the courthouse to pay a traffic ticket. After driving Dials around for hours, Campbell ordered him onto the floor of his truck and shot him twice.

Franklin County Prosecutor Ron O’Brien, who at the time of Campbell’s trial called him “the poster child for the death penalty,” couldn’t be reached Tuesday for comment.

October 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, October 08, 2017

New California law limits reach of registry for lower-level sex offenders

As reported in this local article, headlined "California will soon end lifetime registration of some sex offenders under bill signed by Gov. Jerry Brown," some significant changes are now in the works for the sex offender registry in the Golden State.  Here are the details:

Thousands of Californians will be allowed to take their names off the state’s registry of sex offenders as a result of action Friday by Gov. Jerry Brown.  Brown signed legislation that, when it takes effect Jan. 1, will end lifetime listings for lower-level offenders judged to be at little risk of committing new crimes.

The measure was introduced at the request of Los Angeles County Dist. Atty. Jackie Lacey and other law enforcement officials who said the registry, which has grown to more than 105,000 names, is less useful to detectives investigating new sex crimes because it is so bulky.

“California's sex offender registry is broken, which undermines public safety,” said Sen. Scott Wiener (D-San Francisco), who introduced the bill.  “SB 384 refocuses the sex offender registry on high-risk offenders and treats low-level offenders more fairly.”

The registry currently requires law enforcement officials to spend hours on paperwork for annual evaluations of every offender, including those who are low risk and have not committed a crime for decades, Wiener said.

Brown declined to comment Friday, but his office referred to a statement put out last month. “SB 384 proposes thoughtful and balanced reforms that allow prosecutors and law enforcement to focus their resources on tracking sex offenders who pose a real risk to public safety, rather than burying officers in paperwork that has little public benefit,” said Ali Bay, a spokeswoman for the governor, last month.

The measure was opposed by many Republican lawmakers and Erin Runnion, who in 2002 founded the Joyful Child Foundation, an Orange County advocacy group for victims, after the abduction, molestation and murder of her 5-year-old daughter, Samantha.  Runnion said parents should be able to check a comprehensive registry to see if a potential teacher, youth league coach or babysitter for their children has ever been convicted of a sex crime.

California is one of only four states that require lifetime registration of sex offenders. The others are Alabama, South Carolina and Florida.

The new law signed by the governor creates a tiered registry, with high-risk offenders on the registry for life and others able to petition to be removed after either 10 or 20 years without re-offending, depending on the offense.  Offenses for which registrants can be removed from the list after 20 years include include rape by deception and lewd and lascivious behavior with a child under 14.

Offenders who petition for removal after 10 or 20 years will be assessed by a judge — with input from the local district attorney — who can grant or deny the petition.

October 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9)

Friday, October 06, 2017

Nearly 35 years after his double murder, Florida executes Michael Lambrix despite non-unanimous jury death recommendations

As reported in this local article, "Florida executed an inmate Thursday who was convicted of killing two people after a night of drinking decades ago."  Here is part of the extended backstory:

Michael Lambrix, 57, died by lethal injection at 10:10 p.m. at Florida State Prison in Bradford County. For his final words, Lambrix said, “I wish to say the Lord's Prayer.” He recited the words, ending on the line “deliver us from evil,” his voice breaking slightly at times.

When he finished and the drug cocktail began flowing through his veins, Lambrix's chest heaved and his lips fluttered. This continued for about five minutes, until his lips and eyelids turned silver-blue and he lay motionless. A doctor checked his chest with a stethoscope and shined a light in both of his eyes before pronouncing him dead.

Lambrix was the second inmate put to death by the state since it restarted executions in August. Before then, the state had stopped all executions for months after a Supreme Court ruling that found Florida's method of sentencing people to death was unconstitutional. In response, the state Legislature passed a new law requiring death sentences to have a unanimous jury vote.

Lambrix's attorney, William Hennis, argued in an appeal to the nation's high court that because his client's jury recommendations for death were not unanimous — the juries in his two trials voted 8-4 and 10-2 for death — they should be thrown out.  The Florida Supreme Court has ruled that Lambrix's case is too old to qualify for relief from the new sentencing system. The U.S. Supreme Court on Thursday night denied Lambrix's last-ditch appeal.

Lambrix was convicted of killing Clarence Moore and Aleisha Bryant in 1983 after a long night of partying in a small central Florida town, Labelle, about 30 miles (50 kilometers) northeast of Fort Meyers. Lambrix said he was innocent.

He and his roommate, Frances Smith, had met the victims at a bar, and returned to their trailer to eat spaghetti and continue the party, prosecutors said.  At some point after returning to the trailer, Lambrix asked Moore to go outside. He returned about 20 minutes later and asked Bryant to come out as well, according to Smith's testimony. Smith testified at trial that Lambrix returned to the trailer alone after the killings, his clothes covered in blood.  The two finished the spaghetti, buried the two bodies and then washed up, according to Smith's testimony cited in court documents.

Prosecutors said Lambrix choked Bryant, and used a tire iron to kill Moore. Investigators found the bodies, the tire iron and the bloody shirt.

Lambrix has claimed in previous appeals that it was Moore who killed Bryant, and that he killed Moore only in self-defense. “It won't be an execution,” he told reporters in an interview at the prison Tuesday, according to the Tampa Bay Times. “It's going to be an act of cold-blooded murder.”

Lambrix's first trial ended in a hung jury. The jury in the second trial found him guilty of both murders, and a majority of jurors recommended death.

He was originally scheduled to be executed in 2016, but that was postponed after the U.S. Supreme Court's ruling in a case called Hurst v. Florida, which found Florida's system for sentencing people to death was unconstitutional because it gave too much power to judges, instead of juries. Florida's Supreme Court has ruled that the new death sentencing system only applies to cases back to 2002.

October 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

Thursday, October 05, 2017

"Gorsuch Joins Court’s Liberals Over Protections for Criminal Defendants"

The title of this post is the headline of this notable new Wall Street Journal article which is primarily focused on the Supreme Court oral argument yesterday in Class v. US.  Because Class is a quirky case dealing with appeal rights and because no formal opinions have been issued this Term for Justice Gorsuch to join (and because Justice Gorsuch also voted on Wednesday to vacate an injunction protecting from execution a death row defendant in Alabama), I think this WSJ headline is a bit overblown and perhaps even misleading.  But I still consider the headline revealing, as is its account of SCOTUS argument which prompted it.  Here are excerpts:

Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.

Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.

Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.

According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.” Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.

A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.

A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.

Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked. “No, your honor,” Mr. Feigin said.

Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.

Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment — but not that those actions necessarily are illegal. “You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.

Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

A few prior related posts:

October 5, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Wednesday, October 04, 2017

SCOTUS vacates by 6-3 vote lower federal court injunction which would have blocked planned Alabama execution

As reported in this local article, the "U.S. Supreme Court today cleared the way for Alabama's planned execution Thursday of inmate Jeffery Lynn Borden for the Christmas Eve 1993 shooting deaths of his estranged wife and her father in Gardendale." Here is more:

The U.S. Supreme Court issued an order granting the request of the Alabama Attorney General's Office to vacate the injunction blocking the execution that had been issued by the U.S. 11th Circuit Court of Appeals last week.  The Attorney General's Office had appealed the 11th Circuit's order to the U.S. Supreme Court on Monday.  In today's order from the U.S. Supreme Court three justices — Ruth Bader Ginsburg, Stephen Breyer, and Sonja Sotomayor — said they would have denied the Attorney General's request and kept the injunction blocking the execution in place.

The execution is scheduled for 6 p.m. Thursday at the Holman Correctional Facility in Atmore.

Over at Crime & Consequences, Kent Scheidegger has this post noting that the issue that led to the injunction concerned efforts by the condemned to contest lethal injection methods based on Alabama use of midazolam in its execution protocol.   Over at SCOTUSblog, Amy Howe has this post with a few additional particulars.

October 4, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

After recent SCOTUS win, Duane Buck gets plea deal to avoid any possible return to death row

As reported in this local article, headlined "Condemned inmate Duane Buck escapes death penalty," a Texas murderer consolidated a recent Supreme Court victory assailing his death sentence with a plea deal that ensure he will not return to death row. Here are the details from the start of the article:

Duane Buck — wearing handcuffs, leg irons and the yellow jail uniform of a high-profile inmate — doubled over in his courtroom chair and sobbed. "I'm sorry," he said.

It was the last act of a decades-long battle to execute the 54-year-old convicted killer for a double murder, ending not with lethal injection but a plea deal in a Harris County court.

Buck's courthouse deal was the third Harris County death penalty case stemming from a successful appeal resolved with a plea bargain instead of a retrial under District Attorney Kim Ogg. Buck, whose case went to the U.S. Supreme Court and was sent back to Houston for a retrial because of concerns about racist testimony in his 1997 trial, escaped death row by admitting guilt in the shooting rampage that killed two and injured two others.

The family of Buck's victims, however, were having none of his contrition. "The boy is a cold-blooded murderer," Accie Smith told reporters after the brief hearing. "He is not a victim of racism. He's a cold-blood, calculating murderer."

Smith is one of the older sisters of Debra Gardner, Buck's girlfriend, whom he killed along with her friend Kenneth Butler. After a night of drugs, alcohol and arguing with Gardner in July 1995, Buck broke into her home and shot four people. The victims included his sister, Phyliss Taylor, and his friend Harold Ebenezer, who both survived.

After Tuesday's plea, the slain woman's daughter recounted how she hung from Buck's back as a 13-year-old and tried to keep him from attacking her mother. "You took my mom," said Shenell Gardner. "We both get to live with this. I know what I feel; you feel as well."

The battle to execute Buck began when he was sentenced to die for the slaying of his girlfriend and Butler. After 20 years on death row and several appeals, the U.S. Supreme Court earlier this year granted Buck a new sentencing hearing because of testimony from an expert who told jurors that Buck was more likely to be dangerous in the future because he is black.

Gardner's family members, who are black, said they felt betrayed by the NAACP and black ministers who took up Buck's cause. "They threw us under the bus. What happened today is a travesty and it's a disgrace," Smith, the victim's sister, said. "I will never understand why his life is more important than her life."

On Tuesday, Ogg said she did not believe prosecutors could secure the death penalty again. The defense team would have shown that for 22 years, Buck has been a model prisoner, so he is unlikely to be a future danger. Also, his sister, whom he shot, has argued for leniency in his case.

Instead of going to trial, Ogg offered Buck the opportunity to admit guilt to two additional counts of attempted murder, hoping to stack the deck when the parole board reviews Buck's case in 2035. "A Harris County jury would likely not return a death penalty conviction today in a case that's forever been tainted by the specter of race," she said. The top prosecutor said she hopes the resolution of Buck's case will mark the end of race being used against defendants in capital cases. "Race is never evidence," Ogg said.

The dilemma with Buck getting a life sentence, by either a jury trial or a plea deal, is that he is sentenced according to the law at the time of the crime. Ogg said it was important to keep Buck behind bars for the rest of his life. A sentence of "life without parole" is not an option, even if both sides agreed to it, because that punishment did not exist in 1995.

Prior related posts on SCOTUS ruling:

October 4, 2017 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, October 03, 2017

Interesting comments from the new Justice during reargument of vagueness issues in Sessions v. Dimaya

The first week of oral argument in front of the Supreme Court in the 2017 Term includes reargument in two immigration cases, Sessions v. Dimaya and Jennings v. Rodriguez, that raise constitutional question that could have a range of implications for a range of criminal justice issue.  Dimaya is a follow-up on the (new?) doctrines the Supreme Court started developing in Johnson v. US finding a portion of the Armed Career Criminal Act void for vagueness, and Rodriguez involves broad issues of detention length and due process.

Dimaya was argued yesterday, and I have not yet had a chance to read this full argument transcript closely.  But a quick scan of the transcript with a focus on what the new Justice, Neil Gorsuch, had to say revealed that he is already showing a commitment to textualism and seems quite engaged with interesting issues at the intersection of civil and criminal sanctions.  For example, consider this passage at the start of a question a series of questions for the government's lawyer:

First, getting back to the standard of review and the distinction between criminal and civil, this Court seems to have drawn that line based on the severity of the consequences that follow to the individual, but that seems to me a tough line here to draw because I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn't trade places in the world for someone who is deported -- deported from this country pursuant to a civil order or perhaps the subject of a civil forfeiture requirement and loses his home.

So how sound is that line that we've drawn in the past, especially when the civil/criminal divide itself is now a seven-part balancing test, not exclusive, so there may be more than seven factors as I understand it.  And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property.  It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right to self-incrimination, for example. So help me out with that.

Time will tell how this line of inquiry might find expression in opinions of Justice Gorsuch or other justices in the months ahead. Notably, elsewhere in the transcript, it appears the advocates and other Justices follow-up on points made by Justice Gorsuch in ways that provide further proof that the addition of a single new Justice does serve in some ways to change the entire Court.

UPDATE:  Not very long after this post went up, Kevin Johnson posted at SCOTUSblog this analysis of the Dimaya oral argument under the title "Faithful to Scalia, Gorsuch may be deciding vote for immigrant." Here is his final paragraph:

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court.  Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia’s opinion in Johnson to Dimaya’s case -- maybe even more faithfully than Scalia himself would have done.  And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute’s residual clause.

October 3, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (5)

Monday, October 02, 2017

First big SCOTUS order list has lots of big "cert denied" decisions in big sentencing cases

In prior posts here and here and here, I flagged a couple of commentaries that had flagged Supreme Court cert petitions to watch with the start of a new SCOTUS Term.  A lot of folks have been paying particular attention to two sex offender cases, Karsjens v. Piper (concerning the constitutionality of Minnesota Sex Offender Program), and Snyder v. Does (concerning retroactive application of Michigan's sex offender registry). 

This morning, the Supreme Court released this 75-page order list in which it denied cert on both of these closely-watched cases.  The order list also reveals SCOTUS also denied cert in a number of other cases of likely interest to sentencing fans, such as various cases concerning the application of the Eighth Amendment limit on LWOP juve sentences set out in Graham and Miller.  As detailed in this post last week, the Supreme Court already added a few criminal cases to its docket as it got back to work for the Term.  But none of the new cases it has taken up are likely blockbusters or possibly as consequential as the cases it now has officially decided not to review. 

For a variety of reasons, I am not too surprised by these denials of cert.  Despite my own wishful thinking that the addition of Justice Gorsuch might juice the parts of the docket I find most exciting, I am largely expecting a relatively quiet Term on the sentencing front.  That all said, hope springs eternal, and hope for some exciting grants might be renewed when the fine folks at SCOTUSblog figure out which cases are missing from this new order list and become hot prospects as "relisted" petitions.

October 2, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, September 28, 2017

Yale Law School clinic report looks at "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration"

A helpful reader alerted me to this new report released by The Criminal Justice Clinic at Yale Law School.  This press release from the school's website provides some background and a kind of summary of the report, which carries the title "Parole Revocation in Connecticut: Opportunities to Reduce Incarceration":

A new report highlights opportunities for the State of Connecticut to reduce the high rate of incarceration attributable to its parole revocation process. The report was written by the Samuel Jacobs Criminal Justice Clinic (“CJC”) at Yale Law School.

The report details the findings of a research project that began in the fall of 2015 after Governor Dannel Malloy announced the Second Chance Society initiative.  To support that initiative, CJC agreed to undertake a study of parole revocation in Connecticut to explore ways to reduce incarceration and to facilitate the reintegration of parolees into society....

As part of the CJC study, students and faculty personally observed 49 parole revocation hearings in Connecticut in November 2015.  Shortly after these observations, they reported the following findings to state officials:

  • The Board of Pardons and Paroles (BOPP) revoked parole in 100% of the observed cases.
  • BOPP imposed a prison sanction in 100% of observed cases.
  • Nearly all parolees in the observed cases waived their due process rights in the parole revocation process.
  • No parolee appeared with appointed counsel, even though several parolees seemed clearly to qualify for state-provided counsel under the constitutional standard.
  • The typical procedures at parole revocation hearings made it difficult for parolees to contest disputed facts or to present mitigating evidence. Without counsel, incarcerated parolees did not have a meaningful opportunity to develop evidence in support of their claims.

In 2016, CJC administered a follow-up survey to parolees whose hearings it had observed.  The survey revealed that most parolees did not understand the rights that they had waived during the parole revocation process.  The survey also revealed that 79% of the parolees interviewed had lost jobs as a consequence of parole revocation....

Over the last two years, BOPP has begun to implement reforms to its parole revocation practices in response to the CJC study. In 2017, BOPP asked that CJC present additional recommendations in writing, which led to the release of this report.

September 28, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

SCOTUS grants cert on a bunch of criminal cases, including at least one possibly exciting sentencing case

Over the weekend in this post, I flagged a bunch of interesting criminal cases flagged in this lengthy In Justice Today accounting of cert petitions to watch as the Supreme Court got back in action with its end-of-the-summer "long conference."  Today, via this short order list, the Supreme Court reported out some of the results of its work at the long conference.  Specifically, the court granted certiorari in 11 cases (three of which about military courts are consolidated).  Interestingly, though I did not see any of the cases I have been watching on the "certiorari granted" order list, it seems at least five of the case that do appear on the latest order list involve criminal issues:

16-1027 COLLINS, RYAN A. V. VIRGINIA

16-1371 BYRD, TERRENCE V. UNITED STATES

16-1466 HAYS, KS V. VOGT, MATTHEW JACK D. (N.B.: "Justice Gorsuch took no part in the consideration or decision of this petition.")

16-8255 McCOY, ROBERT L. V. LOUISIANA (N.B.: the "a writ of certiorari [is] limited to Question 1 presented by the petition")

16-9493 ROSALES-MIRELES, FLORENCIO V. UNITED STATES

Based on a too-quick bit of Google searching, it appears that the first two cases above deal with Fourth Amendment car searches, the Vogt case deals with Fifth Amendment procedure, McCoy is a state capital case seemingly dealing with right to counsel issues, and Rosales-Mireles is a federal sentencing appeal!  I am hopeful that SCOTUSblog will soon have their usual terrific coverage of all of today's grants with links to the filings.  I suspect that hard-core sentencing fans will be most interested in the final two cases listed above, but I will need to see the filings before I will know just how excited to get about these new cases on the SCOTUS docket.

Meanwhile, for all the cases in the cert pool being watched by others, we will need to wait until at least Monday morning to know more about their fate.  For those rooting for cert grants, not being on today's order list is not a good sign.  But a lot of cases get relisted after the long conference, and thus there is still a decent chance at least a handful more criminal cases of note will be added to the docket in the coming weeks.

UPDATE Not minutes after I finished this post, I see Amy Howe has this long post reviewing all of today's cert grants, and here is part of her accounting of the criminal cases:

The Fifth Amendment’s “self-incrimination clause” provides that no one “shall be compelled in any criminal case to be a witness against himself.” In City of Hays, Kansas v. Vogt, the justices will consider the scope of that clause – specifically, whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.... 

In Collins v. Virginia, the justices have agreed to clarify the scope of the “automobile exception” to the warrant requirement – specifically, whether it applies to a car parked on private property, close to a home....

Byrd v. United States: Expectations of privacy in rental car for someone who is not an authorized driver;

Rosales-Mireles v. United States: Standard for the court of appeals to correct a plain error;

McCoy v. Louisiana: Whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.

Today’s grants are likely to be argued in either January or February.

September 28, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Wednesday, September 27, 2017

"Will SCOTUS Let Fear of Sex Offenders Trump Justice?"

The title of this post is the headline of this new Reason commentary by Jacob Sullum spotlighting two cases I have tracked on this blog as they have made their way up to the Justices. Here is how the piece starts and ends:

According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives.  Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions.

Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms.  Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom....

Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws.  The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter."....

The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump traditional concerns about due process and just punishment.  By hearing these cases, it can begin to repair the damage it has done to those principles.

September 27, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20)

Tuesday, September 26, 2017

US Supreme Court, voting 6-3, issues last-minute stay of execution in Georgia

As revealed in this new order and explained in this local article, the "U.S. Supreme Court granted a stay of execution tonight to condemned killer Keith Tharpe, three and a half hours after he was scheduled to be put to death by lethal injection." Here are the basics:

In a 6-3 decision, the court’s justices were apparently concerned about claims that one of Tharpe’s jurors was racist and sentenced Tharpe to death because he was African-American. Three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — dissented.

The high court will now decide whether to hear Tharpe’s appeal, and, if it doesn’t, the court said the stay of execution shall terminate automatically. But that will not happen tonight.

Tharpe’s lawyers were overjoyed with the decision. “We’re gratified the court understands this case merits thoughtful consideration outside the press of an execution warrant,” said Brian Kammer, one of Tharpe’s attorneys. “We are extremely thankful that the court has seen fit to consider Mr. Tharpe's claim of juror racial bias in regular order."

Prior related post:

September 26, 2017 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

DOJ seeking DC Circuit en banc review of panel ruling finding 30-year mandatory minimums unconstitutionally excessive for Blackwater contractors who killed Iraqis

In this post last month, I noted the remarkable split DC Circuit panel opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here).  I am now not surprised to learn from this news report that the "Justice Department asked a full federal appeals court Monday to review a decision to throw out the first-degree murder conviction of one former Blackwater Worldwide security guard and the sentences of three others in shootings that killed 14 unarmed Iraqi civilians in Baghdad in 2007."  Here are the details:

Acting Solicitor General Jeffrey B. Wall approved the decision, which was expected and filed by appeals lawyers for the department’s criminal division, to seek a full court review by the U.S. Court of Appeals for the D.C. Circuit, after a three-judge panel ruled Aug. 4.

The panel said a trial court “abused its discretion” in not allowing Nicholas A. Slatten, 33, of Sparta, Tenn., to be tried separately from his three co-defendants in 2014 even though one of them said he, not Slatten, fired the first shots in the massacre.  Slatten was convicted of murder.

By a separate, 2-to-1 vote, the panel also found that the 30-year terms of the others convicted of manslaughter and attempted manslaughter — Paul A. Slough, 37, of Keller, Tex.; Evan S. Liberty, 35, of Rochester, N.H.; and Dustin L. Heard, 36, of Maryville, Tenn. — violated the constitutional prohibition against “cruel and unusual punishment.”  They received the enhanced penalty because they were also convicted of using military firearms while committing a felony, a charge that primarily has been aimed at gang members and never before been used against security contractors given military weapons by the U.S. government.

The Justice Department filing called the panel’s sentencing finding “as wrong as it is unprecedented,” saying the U.S. Supreme Court has upheld longer sentences for lesser crimes. “By its plain terms, the statute applies to defendants, who used their most fearsome weapons to open fire on defenseless men, women, and children,” the department said. “Far from being unconstitutional, these sentences befit the ‘enormity’ of defendants’ crimes.”

The government also cited “legal and factual errors” in the ruling granting Slatten a retrial, noting the “great international consequence” of his prosecution for “a humanitarian and diplomatic disaster.” A retrial in “a prosecution of this magnitude (including reassembling the many Iraqi witnesses) poses considerable and uncommon challenges,” the department wrote, urging the full court to reconsider “in a case of such exceptional importance.”

In their own filing Monday, attorneys for the four men asked the full court to toss out the case on jurisdictional grounds and so reverse the panel’s finding that civilian contractors supporting the Pentagon could be prosecuted under the Military Extraterritorial Jurisdiction Act....

A group representing family members and friends of the four tweeted a statement from Slatten last month that said, “Public outrage may be our only chance at true justice for all four of us. While it may be too early to seek pardons for my brothers from President Trump, he especially needs to hear from you.”

I have been meaning to write more about the extraordinary Eighth Amendment analysis in the Slatten decision, but I have been holding back in part due to my sense that en banc or even certiorari review may be forthcoming. The jurisprudential and political elements of this case are truly fascinating, and I really have no idea if the full DC Circuit and/or SCOTUS may want to take up this hot potato of a case. And in the wake of the Arpaio pardon, perhaps Prez Trump will be inclined to jump into the case at some point, too.

Prior related post:

September 26, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, September 24, 2017

Terrific review of SCOTUS petitions to watch from folks at In Justice Today

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I have previously flagged In Justice Today, a publication of Harvard Law School’s Fair Punishment Project, for its copious coverage of a range of criminal justice issues.  Today, I am flagging this extraordinary lengthy In Justice Today accounting of cert petitions to watch as the Supreme Court gets back in action with this "long conference" this week.  Here is the start and just a small part of this very helpful (and link-filled) review of criminal cases that could make their way to the SCOTUS merits docket:

Starting on Monday, the Court has dozens of criminal justice related certiorari petitions to consider. Here are the ten petitions we’re following closely, which cover issues including civil commitment, sex offender registries, non-unanimous jury verdicts, death in prison sentences for juveniles, the death penalty, prosecutorial misconduct, Double Jeopardy protections, and solitary confinement...

Karsjens v. Piper.  On September 25, the U.S. Supreme Court will consider a class challenge to Minnesota's controversial civil commitment regime, the Minnesota Sex Offender Program....

Snyder v. Doe. Over the past decade, Michigan has created one of the most punitive registry schemes in America....  The State of Michigan filed a petition seeking review of the Sixth Circuit’s legal determination that the retroactive application of the sex offender registration laws constituted ex post facto punishment.

Lambert v. Louisiana. In 48 states, juries in criminal cases must return unanimous verdicts. Louisiana and Oregon are the only exceptions; both states permit convictions when only 10 of 12 jurors find the defendant guilty....  Even though the non-unanimity approach only prevails in two jurisdictions, the case arrives at the Court with significant momentum....

Johnson v. Idaho. This term, the Court will have the opportunity to address the question left open in Miller: whether “the Eighth Amendment requires a categorical bar on life without parole for juveniles.” 567 U.S. at 469. In Johnson v. Idaho, the petitioner, Sarah Johnson, challenges the constitutionality of juvenile life-without-parole (JLWOP)....

Ohio v. Moore. In Ohio v. Moore, the State of Ohio is challenging the Ohio Supreme Court’s conclusion that Graham’s prohibition on life-without-parole sentences for juveniles who commit non-homicide offenses also forecloses a term-of-years prison sentence, imposed for multiple non-homicide crimes, that exceeds the juvenile’s life expectancy....

Three other pending petitions — Willbanks v. Missouri Department of Corrections, Garza v. Nebraska, and Castaneda v. Nebraska — present essentially the same question, albeit from the opposite posture. In each, the petitioner challenged the constitutionality of his lengthy aggregate term-of-years sentence, imposed consecutively for several different felony offenses....

Hidalgo v. Arizona. Abel Daniel Hidalgo has asked the Court to consider the constitutionality of Arizona’s death penalty scheme, both in light of its failure to meaningfully narrow the class of murders that are death-eligible and because evolving standards of decency show that, as a categorical matter, the death penalty is unconstitutional....

Farnan v. Walker asks the Court to resolve questions about qualified immunity in the context of prison officials making determinations that a prisoner should be placed in solitary confinement....

September 24, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Thursday, September 21, 2017

Ohio intermediate appeals court, finding functional LWOP sentence excessive for multiple burglaries, cuts 50 years off term

A helpful former student alerted me to an interesting state appeals court ruling in my own backyard handed down last week. Even though the ruling in State v. Gwynne, 2017-Ohio-7570 (5th Dist. Sept. 11, 2017) (available here), is pretty brief, the issues raised by both the case facts and the state appeals ruling could occupy an entire modern sentencing course. Here are some snippets that should prompt sentencing fans to check out the full opinion:

Defendant-Appellant [stole] from at least 12 different nursing homes and assisted living facilities in both Delaware and Franklin counties over the course of eight years. Detectives were unable to connect all of the property to its rightful owners. During part of appellant’s spree, she was employed as a nurse’s aide.  After she was fired for suspicion of theft, however, she continued to dress as a nurse’s aide, in order to enter nursing homes and steal from residents while appearing to be a legitimate employee....

At the change of plea hearing, appellant admitted that she had been stealing from nursing home residents since 2004, four years earlier than the earliest charge in the indictment.  Some residents she knew and worked with, others she did not.  She claimed a cocaine habit was to blame, and that she took cash as well as other items to sell to support her habit.

At the sentencing hearing held on November 7, 2016, the trial court indicated it had reviewed the PSI, sentencing memoranda from the state and appellant, as well as the victim impact statements.  The state recommended 42 years incarceration.  Counsel for appellant advocated for intensive supervision community control, and a period of time in a community based correctional facility.

After considering all of the applicable sentencing statutes, and making all of the required findings, the trial court imposed a sentence of three years for each of the 15 second degree felony burglaries, 12 months for each of the third degree felony thefts, 12 months for each of the fourth degree felony thefts, and 180 days for each first degree misdemeanor receiving stolen property.  The court ordered appellant to serve the felony sentences consecutively, and the misdemeanor sentences concurrently for an aggregate of 65 years incarceration....

Appellant was 55 years old at the time of her sentencing....

We do not minimize the seriousness of appellant's conduct. On this record, however, we find the stated prison term of 65 years does not comply with the purposes and principals of felony sentencing....  A sentence of 65 is plainly excessive.  It can be affirmatively stated that a 65 year sentence is a life sentence for appellant.  Even a sentence of 20 years, considering the purposes and principles of sentencing and weighed against the factual circumstances of this case, would seem excessive.

The sentence is an emotional response to very serious and reprehensible conduct.  However, the understandably strong feelings must be tempered by a sanction clearly and convincingly based upon the record to effectuate the purposes of sentencing.  The sentence imposed here does not do so.  It is disproportionate to the conduct and the impact on any and all of the victims either individually or collectively.  It runs the risk of lessening public respect for the judicial system.  The imposition of a 65 year sentence for a series of non-violent theft offenses for a first-time felon shocks the consciousness.  We therefore find by clear and convincing evidence that the record does not support the sentence.....

We agree, however, with the trial court’s findings relating to the necessity of a prison sentence, and that consecutive sentences are warranted.  We therefore modify appellant’s sentence pursuant to R.C. 2953.08(G)(2) ... [to reach] an aggregate term of 15 years of incarceration.  Given the facts of this case, we find 15 years incarceration consistent with the principles and purposes of sentencing.

Though much can be said about this case, the scope of imprisonment considered at every level of this case startles me and yet I fear startles few others. Prosecutors, even after getting a plea, claimed that this woman at age 55 needed to be subject to 42 years incarceration, at the end of which she would be 97 years old.  The judge apparently decided that was not harsh enough, and thus imposed a sentence that would run until this woman was 130!  Thanks to an unusual appeals court ruling, this defendant now has to be grateful she will only be imprisoned until age 70.  Wowsa.

September 21, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Monday, September 18, 2017

"Why Did a Federal Judge Sentence a Terminally Ill Mother to 75 Years for Health Care Fraud?"

The question in the title of this post is the headline of this recent law.com article about a notable (and notably harsh) federal sentencing.  Here are some of the details, with some commentary to follow:

A federal judge in Texas sentenced a terminally ill woman to 75 years in prison last month for bilking Medicare — an apparent record sentence for the U.S. Department of Justice for health care fraud.

Marie Neba, 53, of Sugar Land, Texas, was sentenced by U.S. District Judge Melinda Harmon of the Southern District of Texas on eight counts stemming from her role in a $13 million Medicare fraud scheme.  Neba, the owner and director of nursing at a Houston home health agency, was convicted after a two-week jury trial last November.  At the sentencing on Aug. 11, the government recommended a 35-year imprisonment, said Michael Khouri, who started representing Neba as her private attorney shortly after the trial... 

The unusually lengthy sentence for what health care fraud legal experts call a relatively routine case has them scratching their heads, even in this recent era of the federal government’s crackdown on health care fraud.  Neba, the mother of 7-year-old twin sons, was diagnosed in May with stage IV metastatic breast cancer that has spread to her lungs and bones, according to Khouri, who has filed an appeal of the conviction and the sentence.  She currently is receiving chemotherapy treatments and is in custody in a federal detention center.  “Marie Neba is a mother, a wife and a human being who is dying. If there is any defendant that stands before the court that deserves a below-guideline sentence … it’s this woman that stands before you,” Khouri argued before Harmon at the sentencing hearing, according to a transcript recently obtained by ALM....

Patrick Cotter, a former federal prosecutor who heads the government interaction and white-collar practice group at Greensfelder, Hemker & Gale in Chicago, said given the circumstances, he would have expected Neba to receive a sentence of several years in prison.  “Nothing is surprising in that she went to jail and not for six months,” he said. “But how you get anything close to 75 years is beyond me and makes no sense at all.  In 35 years, I have never heard of the government’s [prison term] recommendation being doubled by the judge, particularly when the government is asking for a tough sentence anyway.”

Gejaa Gobena, a litigation partner at Hogan Lovells and former chief of the DOJ Criminal Division’s Health Care Fraud Unit, concurred. “We prosecuted hundreds of cases and never had a sentence approaching anywhere near this,” Gobena said.

Legally, the answer to how the long sentence came about is not that difficult: Harmon, applying several enhancements under the federal sentencing guidelines, imposed the statutory maximum prison term on each charge, and then ran them consecutively.  “I am not a heartless person. I think I am not. I hope I am not,” Harmon told Neba before announcing the sentence. “It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”

Even so, historically, the case is highly unusual, breaking the previous record by 25 years.  Since a pair of U.S. Supreme Court decisions in December 2007 that reaffirmed that the federal sentencing guidelines are merely advisory, federal trial judges have much greater latitude to impose what they think are appropriate sentences, even if the guidelines call for higher or lower sentences.  The longest health care fraud sentence prior to Neba’s came in 2011, when Lawrence Duran, the owner of a Miami-area mental health care company, was sentenced to 50 years for orchestrating a $205 million Medicare scheme that defrauded vulnerable patients with dementia and substance abuse. The next longest? Forty-five years in 2015 for a Detroit doctor who gave chemotherapy to healthy patients, whom federal prosecutors then called the “most egregious fraudster in the history of this country.”

According to court documents, Neba, from 2006 to 2015, conspired with others to defraud Medicare by submitting more than $10 million in false claims for home health services provided through Fiango Home Healthcare Inc., owned by Neba and her husband and co-defendant, Ebong Tilong. Using that money, Neba paid illegal kickbacks to patient recruiters for referrals and to Medicare beneficiaries who allowed Fiango to use their Medicare information to bill for home health services that were not medically necessary nor provided, and, all told, received $13 million in ill-gotten Medicare payments, the documents said.

Neba was convicted of one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, one count of payment and receipt of health care kickbacks, one count of conspiracy to launder monetary instruments and one count of making health care false statements.

Four co-defendants, including Tilong, have pleaded guilty in the case. He is scheduled to be sentenced on Oct. 13....

Harmon, through her case manager, declined to comment on the case. The transcript, however, reveals several factors that influenced her decision to impose the lengthy prison term, including: “Most importantly,” Neba’s sentencing guideline range of life imprisonment (though Harmon was proscribed by statutory maximums from imposing a life sentence);..... Neba’s attempt to obstruct justice by telling a co-defendant, before arraignment in the federal courthouse, “to keep to her story,” specifically “not to tell anybody that she, [the co-defendant], was paying the patients.”

Neba’s decision to go to trial on the charges, rather than plead guilty and provide some sort of government assistance, also played a role in her sentence. Had she pleaded guilty to one or more of the charges “at the very beginning without obstruction of justice,” and received the highest credit for cooperation for doing so, Neba’s sentencing guideline range would have been 14.5 years, federal prosecutor William Chang told Harmon during the hearing. “Had the same thing happened and she received no [credit] whatsoever, it would be 21.8 years,” he added. “If she had gone to trial and been convicted, but no obstruction of justice, the sentence would have been 30 years on the calculation of the guidelines. So, we want the court to understand the United States’ principal position for what it seeks.”

Khouri, Neba’s attorney, said he plans to challenge on appeal the manner in which the sentencing guideline range was calculated and argue, among other matters, that the sentence is excessive.

I have quoted so much of this press report because the more details it provides, the more perverse the entire federal sentencing system seems along with the perversity of this particularly extreme sentence. For starters, though we supposedly have a federal sentencing system designed to sentence a defendant based principally on the seriousness of her offense, this defendant's guideline range ballooned from less than 15 years imprisonment to life imprisonment essentially because she put the government to its burden of proof at a trial and said the wrong thing to a co-defendant.

Trial penalty guideline calculations notwithstanding, now that the guidelines are advisory, a prosecutor and a judge would need to be able to justify such an extreme functional LWOP sentence based on all the 3553(a) statutory factors. No matter how seriously one regards health care fraud, I cannot fully understand how any of these factors (save the guideline range) can support this extreme sentence in this not-so-extreme case of fraud.  If reasonableness review has any substance whatsoever, and if the facts in this article are accurate, it seems to me that this sentence ought to be found substantive unreasonable.

September 18, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)