Tuesday, May 23, 2017

Colorado Supreme Court rules Graham and Miller do not limit aggregate term-of-years sentence

Yesterday I noted in this post a Minnesota Supreme Court ruling from last week that resisted extending the Supreme Court's recent limits on LWOP sentences for juvenile offenders to aggregate lengthy sentences for multiple crimes.  Perhaps exactly as I was writing that post, the Colorado Supreme Court handed down a similar ruling in Lucero v. Colorado, No. 13SC624 (Colo. May 22, 2017) (available here). Here is a key passage from the start of the majority opinion in Lucero:

[W]e hold that neither Graham nor Miller applies to an aggregate term-of-years sentence, which is the sentence Lucero challenges. In Graham, the U.S. Supreme Court held unconstitutional a life without parole sentence imposed on a juvenile for a single nonhomicide offense. 560 U.S. at 57, 82. In Miller, the Court held that a sentence of “mandatory life without parole for those under the age of 18 at the time of their crimes” violates the Eighth Amendment. 132 S. Ct. at 2460. Life without parole is a specific sentence, distinct from sentences to terms of years. Lucero was not sentenced to life without parole.  Rather, he received multiple term-of-years sentences for multiple convictions.  Therefore, Graham and Miller are inapplicable to, and thus do not invalidate, Lucero’s aggregate sentence.

The concurring opinion in Lucero notes that a significant number of state supreme courts and other courts have held that the Eighth Amendment rule articulated in Graham "extends to cases in which a juvenile offender receives the functional equivalent of an LWOP sentence." At some point (though I have no idea when), the U.S Supreme Court will have to clarify whether and how Graham nor Miller limit the imposition of sentences other than LWOP.

May 23, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (4)

Tales of marijuana reform as sentencing reform from California after Prop 64

This recent AP article, headlined "California’s legal pot law helps reduce, erase convictions," serves as a reminder and reinforcement of my tendency to look at marijuana reform as often a kind of sentencing reform. The AP article reports on some interesting case-processing realities in the wake of new provisions in California law created by the state's 2016 marijuana legalization initiative, Prop 64. Here are some details:

Jay Schlauch’s conviction for peddling pot haunted him for nearly a quarter century. The felony prevented him from landing jobs, gave his wife doubts about tying the knot and cast a shadow over his typically sunny outlook on life.

So when an opportunity arose to reduce his record to a misdemeanor under the voter-approved law that legalized recreational marijuana last year, Schlauch wasted little time getting to court. “Why should I be lumped in with, you know, murderers and rapists and people who really deserve to get a felony?” he asked.

This lesser-known provision of Proposition 64 allows some convicts to wipe their rap sheets clean and offers hope for people with past convictions who are seeking work or loans. Past crimes can also pose a deportation threat for some convicts.

It’s hard to say how many people have benefited, but more than 2,500 requests were filed to reduce convictions or sentences, according to partial state figures reported through March. The figures do not yet include data from more than half of counties from the first quarter of the year. While the state does not tally the outcomes of those requests, prosecutors said they have not fought most petitions.

Marijuana legalization advocates, such as the Drug Policy Alliance, have held free legal clinics to help convicts get their records changed. Lawyers who specialize in pot defense have noted a steady flow of interest from new and former clients.

Attorney Bruce Margolin said he got two to three cases a week, many of them decades old.... Since the passage of Proposition 64, he’s gotten convicts out of prison, spared others time behind bars and successfully knocked felonies down to misdemeanors.

But he’s also encountered a lot of confusion about the law that went into effect immediately in November. “They were totally unprepared,” he said of judges and prosecutors in courts he’s appeared in throughout the state. “It’s amazing. You would have thought they should have had seminars to get them up to speed so we don’t have to go through the process of arguing things that are obvious, but we’re still getting that.”

That has not been the case in San Diego, where prosecutors watched polls trending in favor of marijuana legalization and moved proactively to prevent chaos, said Rachel Solov, chief of the collaborative courts division of the district attorney’s office. They learned lessons from the 2014 passage of Proposition 47, which reduced several nonviolent felonies to misdemeanors.

Prosecutors in the county researched which convicts serving time or probation were eligible for sentence reductions and notified the public defender’s office so they could quickly get into court. Many were freed immediately, Solov said. “Whether we agree with the law or not, our job is to enforce it,” Solov said. “It’s the right thing to do. If someone’s in custody and they shouldn’t be in custody anymore, we have an obligation to address that.”

San Diego County led the state with the most number of petitions reported in the first two months after the law was passed. It has reduced sentences or convictions in nearly 400 cases, Solov said.

In Mendocino County, where pot farming is big business and violent crimes are often tied to the crop, District Attorney C. David Eyster said he fights any case not eligible for a reduction, such as applicants with a major felony in their past, a sex offense or two previous convictions for the same crime.

May 23, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 22, 2017

Minnesota Supreme Court upholds consecutive sentences adding up to 90 years before parole eligibility for juve killer of three

Via this new commentary criticizing the opinion, I just learned of this notable ruling handed down last week by the Minnesota Supreme Court concerning the application of the Supreme Court's Eighth Amendment rulings in Miller and Montgomery. The commentary provides a helpful summary of the ruling and the concerns it might engender for those eager for Miller to have a broad reach:

In 2010, at the age of 16, Mahdi Hassan Ali committed a terrible crime in Minneapolis.  During the course of a store robbery, Ali shot and killed three people.  He was tried as an adult, and a jury found him guilty of two counts of felony murder and one count of first-degree murder.  On the felony murder convictions, the Hennepin County District Court sentenced Ali to two consecutive life sentences with the possibility of release on each after 30 years; on the first-degree murder conviction, Ali was sentenced to mandatory life imprisonment without the possibility of release....

In light of Miller [decided in 2012], the Minnesota Supreme Court overturned Ali’s sentence of mandatory life imprisonment and remanded the case back to the Hennepin County District Court for a new sentence.  On Jan. 6, 2016, Ali was sentenced to three consecutive sentences of life imprisonment with the possibility of release on each after 30 years. The sentences render Ali ineligible for release until he is 106 years old.

Shortly after the district court’s decision, the U.S. Supreme Court issued a new opinion in Montgomery vs. Louisiana, which offered fresh insight into the Miller ruling. Montgomery explained that the court intended Miller to bar all sentences of life without parole, not just mandatory ones, for any but the rarest of juvenile offenders who were permanently incorrigible and unable ever to be reformed....

Notwithstanding these decisions, the Minnesota Supreme Court filed an opinion last week upholding Ali’s sentences of three consecutive life terms.  In an opinion authored by the newly elected Justice Natalie Hudson, the Minnesota court decided that Miller and Montgomery apply only to single sentences of life without parole, refusing to extend the principles articulated in Miller and Montgomery to consecutive sentences that have the same effect.

Rather than requiring a special hearing to determine Ali’s prospects for reform, as Montgomery requires for sentences of life imprisonment without parole, the court decided that consecutive life sentences require no such hearing, even when they will likely result in a juvenile offender’s being imprisoned until death.

Last week’s opinion from the Minnesota Supreme Court will offer state prosecutors a new tool when seeking to imprison children for the duration of their natural lives.  For juvenile offenders convicted of serious offenses, prosecutors will seek lengthy consecutive sentences rather than seeking sentences of life imprisonment without parole.  Under the opinion, this tack will obviate the need for a hearing to determine whether the juvenile is amenable to reform, regardless of the length of the child’s sentence.

Like the author of this commentary, I am troubled whenever it seems courts are embracing formal rather than functional considerations to limit the reach of the Eighth Amendment juvenile sentencing proportionality rules set forth in Graham and Miller and Montgomery.  Still, for reasons the majority opinion in this Ali case stresses, I can understand why many courts have in various settings given constitutional significance in Eighth Amendment analysis to the fact that a defendant has been sentenced to an extreme term for multiple serious crimes rather than just one. Notably, the US Supreme Court has never formally addressed just how multiple-offense, consecutive sentencing should be analyzed under the Eighth Amendment, and this Minnesota case serves to highlight how this is one of a number of Graham and Miller and Montgomery application issues challenging lower courts nationwide.

May 22, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (20)

California struggles over whether all sex offenders can be excluded from Prop 57 parole reforms aimed at non-violent offenders

This new Los Angeles Times article, headlined "Debate over sex offenders moves to court as California undertakes prison parole overhaul," provides an updated on the legal and policy issues surrounding sex offenders in the wake of a California ballot initiative intended to help non-violent offenders get an earlier chance for parole. Here are excerpts:

Los Angeles-based nonprofit is claiming California prison officials have undermined last fall’s ballot measure to overhaul the state’s parole process by excluding sex offenders from consideration for early release. The Alliance for Constitutional Sex Offense Laws, which advocates for the rights of those convicted of sex crimes and their families, says the exemption — written into newly released guidelines to implement Proposition 57 — “impermissibly restricts and impairs the scope” of the initiative.

Those regulations were released in March and won initial approval from state regulators a month later. But the original ballot measure did not exclude inmates convicted of sex crimes from the chance of getting an earlier hearing before the state parole board.

The group filed the lawsuit in late April against the state Department of Corrections and Rehabilitation and its director, Scott Kernan. It argues the new rules are unconstitutional and it asks a judge to order corrections officials to withdraw and repeal them, according to the complaint filed in Sacramento County.

“We want the benefits of Proposition 57 to be provided to people who have been convicted of ‘non-violent’ sex offenses,” said attorney Janice Bellucci, who is representing the alliance and an inmate who brought the case forward. “It is a basic rule of law that regulations cannot be broader than the law that they are implementing.”...

Debate over the treatment of sex offenders under Proposition 57 has simmered since last fall’s campaign season. But at that point, the outcry came from law enforcement officials and prosecutors who argued they did not want to see the ballot measure’s benefits extended to rapists and child molesters.

The sweeping initiative, approved by 65% of voters, gave new power to the State Board of Parole Hearings to grant early release to prisoners whose primary sentences are for crimes not designated as “violent” under California law. It also provided new ways for all inmates to earn time credits toward their sentences for good behavior and for enrolling in certain career, rehabilitation and education programs.

Opponents of Proposition 57 warned that the list of crimes under the violent felony penal code was short and porous, inspiring efforts in the Legislature this session to expand the definition of what constitutes a violent crime under state law. In his January budget proposal, Gov. Jerry Brown attempted to address those concerns, directing the state corrections department to exclude all sex offenders from early parole consideration. The department’s new parole guidelines are expected to receive final approval in the fall after a public comment period. Changes to how inmates can earn credits, which can help reduce their sentences, are already underway, while the new parole eligibility requirements won’t take effect until July.

But the advocacy group that filed the lawsuit wants the state agency to revise its rules. It contends that there was plenty of public debate over sex offenders during the Proposition 57 campaign — and that even then, voters passed the measure.... The lawsuit alleges the new exclusion applies to a whole class of nonviolent offenders, including people charged with crimes where there was no sexual contact with a victim.

As of Dec. 31, the number of inmates in California prisons who would have to register as sex offenders upon release stood at 22,455, less than 20% of the population housed at state prisons. Nearly 18,000 were designated as “violent” offenders, while more than 4,521 were considered “nonviolent,” according to state corrections officials.

Bellucci said those cases could include a diverse group of offenders. In theory, she said, the new regulations could unfairly penalize an 18-year-old convicted of public indecency for streaking in high school, or a 16-year-old sentenced for child pornography after distributing nude photos of herself. “Anybody who has been convicted of a violent offense, like rape, Prop. 57 doesn’t apply to them,” Bellucci said. “We are talking about nonviolent offenses, which includes these non-contact offenses.”

I would be shocked to learn that California has any teenage streakers or sexters imprisoned for lengthy periods now hoping to get early parole. I suspect the more realistic example of the sex offender who might claim to be non-violent and seek early parole are California variations on offenders like Jared Fogle or Anthony Weiner, i.e., older men involved with child pornography or perhaps other kinds of sexual activity with underage persons.  It will be interesting to see if the California courts allow of prohibit these kinds of offenders from being excluded from the reforms of Prop 57.

May 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, May 18, 2017

Ninth Circuit dodges federal marijuana offender's claim his imprisonment contravenes appropriations rider

As everyone involved in or following marijuana reform knows, Congress in recent years has included in its omnibus appropriations bills a rider that prevents the US Department of Justice (DOJ) from using any funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."  Yesterday, a Ninth Circuit panel considered in Davies v. Benov, No. 15-17256 (9th Cir. May 17, 2017) (available here), a notable contention concerning this rider from a federal prisoner.  Here are the basics from the opinion:

Davies owned and operated medical marijuana dispensaries in Stockton and Sacramento, California, which he contends complied with state and local medical marijuana laws. Davies, however, was charged with violating federal drug laws ... [and] entered into a plea agreement, agreeing to a five-year prison term and pleading guilty to the ten counts filed against him....

Davies filed a habeas corpus petition under 28 U.S.C. § 2241 in the Eastern District of California, contending that the BOP’s use of federal funds to incarcerate individuals, such as himself, who engaged in conduct permitted by state medical marijuana laws violates the appropriations rider.

I recall talking to some lawyers back when Congress first enacted the medical marijuana appropriations rider that, if the text were interpreted very broadly, it could arguably preclude the federal Bureau of Prisons (which is part of DOJ) from spending any of its budget on those incarcerated for state-compliant medical marijuana activities. So I am not shocked that this argument made it to the Ninth Circuit. But, as this concluding passage from Davies highlights, this argument still has not yet been addressed on the merits:

The collateral-attack waiver provision in Davies’s plea agreement bars him from this particular challenge to the BOP’s use of federal funds to incarcerate him for conduct he contends complied with California’s medical marijuana laws. Because of this waiver, we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider. Cf. McIntosh, 833 F.3d at 1177–78 (holding that the appropriations rider prohibits the Department of Justice from using appropriated funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws). “We will enforce a valid waiver even if the claims that could have been made [through a collateral attack] absent that waiver appear meritorious, because the whole point of a waiver is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462–63 (9th Cir. 2015) (internal quotation marks, alterations, and emphasis omitted).

I would be shocked to see the Ninth Circuit or any other court ultimately interpret the DOJ appropriations rider to require the release of any federal prisoners, but the argument has enough technical textual legitimacy to surely justify its pursuit by persons federally imprisoned for state-legal medical marijuana activity. And, for various updates on state activities, I continue to try to keep up with major legal developments and other notable stories at Marijuana Law, Policy and Reform as evidenced by some of these recent posts:

May 18, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, May 16, 2017

In last-minute appeal, condemned Georgia inmate urges extension of bar on juve capital punishment to those under 21

As reported here, "a Georgia inmate scheduled to be executed Tuesday has filed an appeal with the U.S. Supreme Court arguing that it is wrong to sentence an offender less than 21 years old to death."  Here is more on the effort to halt an execution scheduled to take place a quarter century after the crime:

J.W. "Boy" Ledford Jr., now 45, was 20 years old when he was sentenced to death after being convicted of killing a doctor who had given him a ride in Georgia in 1992. Ledford is scheduled to be the first Georgia inmate executed in that state this year. The Georgia Supreme Court earlier Tuesday declined to halt the execution.

"Intelligence testing shows Ledford to have, at best, borderline intellectual functioning," attorneys for Ledfrod wrote in their petition to the U.S. Supreme Court. It argues that the execution violates would violate Eight Amendment protections against cruel and unusual punishment and 14th Amendment guarantees of due process.

The petition argues that other rulings barring the death penalty for juvenile offenders apply to those who commit crimes from the ages of 18 to 21 — "a period in life during which, new scientific investigation forcefully shows, individuals suffer from the same impairments in judgment and self-control that prompted this Court to ban the application of capital punishment to juvenile offenders."

Ledford killed Dr. Harry Johnston after the physician gave him a ride, leaving the victim nearly decapitated. He then went to the doctor's home and tied up and robbed his wife. She has since died.

Lawyers for the state said the argument that Ledford was too young to be sentenced to death had not been raised before. The state said arguments of "evolving standards of decency" about the age of sentenced offenders are vague, and laws about juveniles don't apply to Ledford's case.

Ledford had previously argued that a firing squad would be a more humane way to die than the lethal injection planned by the state. A federal appeals court on Monday denied a request for a stay of execution.

UPDATE: As reported here, "Georgia carried out its first execution of the year early on Wednesday, putting to death a man convicted of killing a 73-year-old neighbor in 1992. J.W. Ledford Jr., 45, was pronounced dead at 1:17 a.m. at the state prison in Jackson, more than six hours after his initial execution time. The delay was waiting for a ruling from the U.S. Supreme Court, which denied his request for a stay."

May 16, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (10)

Sunday, May 14, 2017

"Dismissals as Justice"

The title of this post is the title of this notable new paper authored by Anna Roberts available via SSRN. Here is the abstract:

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice.  Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making.  In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice.  These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, and the state’s role in and response to it.  There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.

May 14, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Saturday, May 13, 2017

"Courting Abolition"

The title of this post is the title of this new book review authored by Deborah Denno and now available via SSRN. Here is the abstract:

Forty-five years ago capital punishment was nearly eliminated in Furman v. Georgia, where the Supreme Court held that the imposition of the death penalty in the cases before it violated the Eighth and Fourteenth Amendments.  The Furman Court’s abrogation was short-lived, however.  The 1976 decision of Gregg v. Georgia ended the 1967–1976 moratorium that had existed on executions by ruling that the death penalty was not a per se violation of the Eighth Amendment and by upholding newly passed, guided-discretion statutes.  As Professors Carol Steiker and Jordan Steiker contend in their book, Courting Death: The Supreme Court and Capital Punishment, the Supreme Court’s subsequent efforts to entrench capital punishment have involved the Court’s “top-down” regulation of states’ application of the death penalty by enforcing federal constitutional law, thereby attempting to establish a middle ground between completely abolishing capital punishment and allowing it to run amok.  According to the Steikers, this “experiment” with the death penalty has failed due to the Court’s cumbersome and complex regulatory mechanisms.

Courting Death, which builds on the authors’ prior work from their 1995 article, Sober Second Thoughts, as well as their report to the American Law Institute, is a markedly compelling book that captures the complicated story of the death penalty and explores the factors that would both shape and stymie capital punishment’s future.  The book includes a detailed history of the death penalty in the United States, its deep connection with southern racial oppression and the factors that prompted national judicial regulation, as well as the shortcomings and issues created by that regulation.

This Review of Courting Death offers a different take on two of the Steikers’ major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty.  The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge.  In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers’ prediction — that, when abolition seems right, it will come by way of a “Furman II” Supreme Court decision — to readily comport with the death penalty’s trajectory over the last fifty years.

May 13, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, May 11, 2017

"A Contextual Approach to Harmless Error Review"

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

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice.

The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future.

I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.

May 11, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Eleventh Circuit rejects effort to attack Alabama's lethal injection by suggesting hanging or firing squad as alternative execution methods

As reported in this local article, "condemned inmate Anthony Boyd asked the state of Alabama to carry out his execution by either hanging him or putting him in front of a firing squad. But the federal appeals court in Atlanta on Tuesday rejected Boyd’s request and cleared the way for his execution by lethal injection."  The Eleventh Circuit's lengthy ruling in Boyd v. Warden, No. 15-14971 (11th Cir. May 9, 2017) (available here), gets started this way:

It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution.  Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court’s dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama’s lethal injection protocol.  Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama’s new lethal injection protocol, which substituted midazolam hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment.  Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional.  Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad.

The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd’s proposed alternative methods of execution -- firing squad and hanging -- are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state.  It further held that Boyd’s remaining claims challenging Alabama’s execution protocol, the execution facilities, and the state’s decision to keep certain information about the protocol secret were time-barred by the statute of limitations.  Finally, the district court ruled that amending these claims would be futile and dismissed Boyd’s complaint.

We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain.  The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution.  But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain.  Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.  We also agree that Boyd’s remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama.  Accordingly, we affirm.

May 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, May 08, 2017

A lethal Ohio procedural question: are there any formal rules on when new circuit judges are to be involved in pending en banc matters?

The question in the title of this post came to mind this morning in the wake of the news that, as discussed here, two of President Trump's latest judicial nominees are slated to fill open slots on the Sixth Circuit: Justice Joan L. Larsen and John K. Bush.   As noted here a few months ago, Prez Trump's very first circuit court nomination was also to the Sixth Circuit via the naming of Judge Amul Thapar.  Assuming relatively swift and successful confirmations, the Sixth Circuit could have three new judges within the next few months.

Meanwhile, as regular readers may recall from this post, also scheduled to take place in the next few months in the Sixth Circuit is the rehearing en banc the State of Ohio's appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  The Sixth Circuit has scheduled oral argument on these matters for June 14, and the full court will probably try to issue a ruling in the matter not too long thereafter given that Ohio has a long-postponed execution now scheduled for July 26.

I am inclined to guess that Judge Thapar — who has already coasted through his confirmation hearing — will be a member of the Sixth Circuit by the time of the en banc oral argument in June.  Given that Justice Gorsuch at SCOTUS has apparently been fully participating in cases in which oral argument took place after the time he joined the Court, I would further guess that everyone will think Judge Thapar can and should fully participate in the Sixth Circuit's en banc consideration of Ohio's lethal injection protocol if he is there in time for oral argument.

But what should happen if Justice Larsen and/or Mr. Bush are both confirmed in, say, late June.  Could they and should they be involved in the consideration of these lethal Ohio matters?   Adding to the potential intrigue and head-counting is the fact that I believe Judge David McKeague is technically now still an active judge, but will be only until his successor if confirmed. Arguably, Judge KcKeague should not be part of the en banc decision-making once and whenever Justice Larsen gets confirmed to the Sixth Circuit.

Perhaps the Sixth Circuit has some clear rules on these kinds of en banc transition issues, and I would welcome any and all input from knowing en banc mavens.  In addition, it is quite possible that there are sufficient votes currently on the Sixth Circuit one way or the other to make these transition issues relatively inconsequential to the outcome in this important en banc case.  Still, when it comes to review of lethal injection protocols or just about anything else dealing with the death penalty, it does not seem that anything ever really becomes inconsequential.  

(In addition, and surely not to be overlooked as the buzz over another SCOTUS retirement grows, if and when Judge Thapar and Justice Larsen join the Sixth Circuit, this court will have three of the remaining 20 persons from Prez Trump's SCOTUS short lists.  This fact alone makes anything the Sixth Circuit does in the coming months even that much more interesting.)

Prior recent related posts:

May 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, May 04, 2017

South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring

Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional."  The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."

Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring.  But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)

In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court.  As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:

The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders.  The requirement, therefore, is not unconstitutional.  If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts.  The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED

May 4, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14)

Wednesday, May 03, 2017

PBS Frontline covers the impact of Miller via "Second Chance Kids"

Pbs-frontline-merged-logoAs detailed via this posting, the PBS series Frontline premiered a new documentary last night titled Second Chance Kids. Here is a kind of preview from the posting:

What happens when prisoners convicted of murder as teenagers are given the chance to re-enter society? In the wake of Miller v. Alabama — the 2012 Supreme Court ruling that found mandatory life sentences without the chance of parole for juveniles unconstitutional — some 2,000 offenders across the country are hoping to find out.

With unique access, the new FRONTLINE documentary, Second Chance Kids, follows the cases of two of the first juvenile lifers in the country to seek parole following the landmark ruling — including Anthony Rolon of Massachusetts.

At age 17, Rolon stabbed 20-year-old Bobby Botelho to death. He was given life without parole during the country’s crackdown on so-called juvenile “superpredators” — teenagers who were labeled violent, dangerous and incapable of change. The theory, which was popularized by academics and embraced by Democrats and Republicans alike, resulted in disproportionately extreme sentencing of black and Latino youths.

As the documentary explores, the “superpredator” theory has now largely been discredited and disavowed. And a series of Supreme Court rulings, relying heavily on developmental science, has said that the personal circumstances of teenage offenders must be taken into account when they’re sentenced. The court has also ruled that many of them should have the chance to prove they’ve changed.

In the above excerpt from Second Chance Kids, go inside the parole hearing that will decide Rolon’s fate. Watch as Rolon and his legal team plead for his release after 18 years, and as Botelho’s family argues against it.

As juvenile offenders across the country await their potential re-sentencing, the documentary asks tough questions about crime and punishment in America, and what happens when some offenders are given a second chance.

The PSB website allows one to watch the documentary in full, and it also has these two companion articles:

"They Were Sentenced as “Superpredators.” Who Were They Really?"

"How Brain Science Is Changing How Long Teens Spend in Prison"

May 3, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

"The Eighth Amendment's Milieu: Penal Reform in the Late Eighteenth Century"

The title of this post is the title of this paper by Erin Braatz recently posted to SSRN. Here is the abstract:

Conflicting interpretations of the history of the “cruel and unusual punishments” clause of the Eighth Amendment play a significant role in seemingly never-ending debates within the Supreme Court over the scope of that Amendment’s application.  These competing histories have at their cores some conception of the specific punishments deemed acceptable at the time of the Amendment’s adoption.  These narrow accounts fail, however, to seriously engage with the broader history of penal practice and reform in the eighteenth century.  This is a critical deficiency as the century leading up to the adoption of the Eighth Amendment was a period in which penal practices underwent numerous changes and reforms.

This Article closely examines the experiments in penal reform that occurred in the American colonies immediately following the Revolution to elucidate what the Founding Generation thought about penal form, how and why it might change, and its relationship to the creation of the American republic.  It argues that these penal reform movements, which have been ignored in discussions of the Eighth Amendment, were well known during the founding era. Furthermore, the salience of these reform movements at the time demonstrates a persistent concern among the Founders with adopting a more enlightened or civilized penal code in order to distinguish the American republic from monarchical practices in England and Europe.  Foregrounding the content of both the experiments themselves and the debates over penal practice, they reflect yields important and previously unrecognized insights for our understanding of the Eighth Amendment’s meaning and its import at the time it was drafted.

This Article helps illuminate current debates over the interpretation and application of the Eighth Amendment, including the use of international comparisons, the idea of evolution or progress, and the concept of proportionality. It also exposes significant gaps and limitations in the historical accounts relied upon by the Court to date.

May 3, 2017 in Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 01, 2017

Justice Gorsuch refusing to jump into the cert pool

A decade or so ago after the Blakely and Booker rulings created extraordinary churn in lower courts, I used to think a lot about how the US Supreme Court set its docket. (More specifically, as posts here and here highlight, I used to complain a lot about SCOTUS taking up so many capital sentencing cases and so relatively few non-capital sentencing cases.)  In the context of thinking about these SCOTUS docket issues, and in writing up a little recent article on the topic, I came to the tentative conclusion that the modern development of the "cert pool," which has come to be used by nearly all the Justices to consider which cases to review on the merits, was not such a healthy development.

I provide all this background as a set up this interesting SCOTUS news from inside the Beltway via the New York Times: "Gorsuch, in Sign of Independence, Is Out of Supreme Court’s Clerical Pool." Here is how the article gets started:

In an early sign of Justice Neil M. Gorsuch’s independence and work ethic, he has decided not to join a labor pool at the Supreme Court in which justices share their law clerks in an effort to streamline decisions about which cases to hear.

Justice Gorsuch joined the court last month. His decision not to participate in the pool was confirmed by Kathleen L. Arberg, the court’s public information officer. The only other member of the court who is not part of the arrangement is Justice Samuel A. Alito Jr.

Justices in the pool receive a common “pool memo” on each petition seeking Supreme Court review — more formally, “petition for certiorari” — from a single law clerk. The memo analyzes the petition and makes a recommendation about whether it should be granted.

As a law clerk to Justices Byron R. White and Anthony M. Kennedy in 1993 and 1994, a young Mr. Gorsuch wrote quite a few such memos.

Justices who do not participate, by contrast, have their law clerks review all of the roughly 7,000 petitions filed each year, looking for the 75 or so worthy of the court’s attention.

The pool has been criticized for giving too much power to law clerks and for contributing to the court’s shrinking docket. For almost two decades until 2008, only Justice John Paul Stevens, who retired in 2010, stayed out of the pool. He said it had caused “the lessening of the docket.”

“You stick your neck out as a clerk when you recommend to grant a case,” he told USA Today. “The risk-averse thing to do is to recommend not to take a case.”

Some scholars have traced the decline of the Supreme Court docket to the pool. In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many.

A few posts from nearly a decade ago on SCOTUS docket issues:

May 1, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Ohio Gov Kasich officially pushed back nine executions as lethal injection litigation comes before en banc Sixth Circuit

As noted in this post, last week the en banc Sixth Circuit took up the current stay in Ohio blocking executions, but set oral argument for a month after Ohio's scheduled execution.  Thus, unsurprisingly and as reported in this local piece, "execution dates for nine death row inmates have been delayed while the state continues its appeal of a court decision blocking use of its lethal injection protocol."  Here is more:

Nine executions were pushed back in a revised schedule released Monday by Gov. John Kasich. The next execution, of Akron child killer Ronald Phillips, was rescheduled for July 26.

On Jan. 26, a federal magistrate judge found the state's three-drug injection cocktail to be unconstitutional and stayed the next three executions. A three-judge panel for the U.S. 6th Circuit Court of Appeals agreed with the lower court and kept the stay in place. The full Cincinnati appeals court last week agreed to rehear the state's appeal. A hearing has been set for June 14.

The state had planed to execute Phillips and Gary Otte, who killed two people to death in back-to-back robberies in Parma, before that date. Otte's execution was moved to Sept. 13. The state has scheduled 33 executions through March 2021.

I think it reasonable for Gov. Kasich to expect the full Sixth Circuit to rule on the state's execution protocol within roughly a month after hearing oral argument.

Prior recent related posts:

May 1, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, April 27, 2017

Does acceptance of a commutation moot a prisoner's collateral legal challenge to a prison sentence he is still serving?

The complicated question in the title of this post is the issue addressed in a complicated set of opinions issued by various members of the en banc Fourth Circuit as the full court dismissed as moot the long-running case of Raymond Surratt in US v. Surratt, No. 14-6851 (4th Cir. April 21, 2017) (available here).  As the latest opinion in Surratt reveals, I was involved in this case as an amicus, but I had largely forgotten that fact given that the Surratt panel opinion, as noted here, was decided nearly two years ago and oral argument before the en banc Fourth Circuit took place more than a year ago. 

I surmise that the en banc Fourth Circuit was deeply divided on the procedural and substantive issues that the complicated Surratt case presented and that a mootness ruling served as a convenient way to dispose of a hard case thanks to the deus ex machina of Prez Obama's grant of clemency to Raymond Surratt.  I am surely biased in this view because I served as an amicus in the case, but also because I think these passages from Judge Wynn's dissent make a pretty solid case against mootness:

Here, there is no dispute that if we vacate Petitioner’s commuted sentence and remand for resentencing, Petitioner will likely face a sentence shorter than that imposed by the commutation. In particular, whereas the President commuted Petitioner’s life sentence to 200 months’ imprisonment, Petitioner’s applicable Guidelines range is 120 to 137 months, less than his time-served.  Accordingly, Petitioner has a continuing “concrete interest” — namely, his liberty — in having us vacate his current sentence and remand for resentencing under the applicable Guidelines.  We and other courts have found arguably substantially less significant interests adequate to preclude mootness. See, e.g., Townes v. Jarvis, 577 F.3d 543, 547 (4th Cir. 2009) (holding that the petitioner’s release from prison did not moot his collateral challenge to his sentence because a favorable appellate decision could “affect the length of his parole”); Richards v. United States, 212 F.2d 453, 454 (D.C. Cir. 1954) (holding that defendant’s collateral challenge to the lower end of his sentencing range was not moot, even though defendant had already served more than that lower end, because “there is some possibility” that having a longer minimum sentence “may in some indirect way affect him adversely in the future”).

I am not alone in my view that an injustice continues by declaring this matter now moot. Indeed, the Seventh Circuit, the only circuit that appears to have squarely addressed the issue, refused to find mootness in analogous circumstances, holding that a petitioner may collaterally challenge his original sentence, notwithstanding that the challenged sentence was commuted during the course of litigating that collateral challenge, when the commuted sentence exceeds the mandatory minimum the petitioner would face if he prevailed on his collateral challenge.  See Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir. 2006); Madej v. Briley, 371 F.3d 898, 899 (7th Cir. 2004).  In Simpson, for example, after the petitioner filed a habeas petition challenging his death sentence, the Governor of Illinois commuted the petitioner’s sentence from death to life imprisonment without parole. 458 F.3d at 595.  Like the government does here, the State argued that the commutation rendered the petitioner’s collateral challenge to his sentence nonjusticiable, and therefore moot, because of the petitioner’s decreased sentence and “the executive nature of his confinement.” Id.  The Seventh Circuit rejected both arguments, explaining that because the petitioner would face a mandatory minimum of 20 years’ imprisonment if he prevailed on his collateral attack, as opposed to the life sentence imposed by the Governor, “it [wa]s possible for [the petitioner] to obtain relief, and his sentencing claims [we]re not moot.” Id. Put differently, “[a] full remedy for the constitutional shortcoming at the original sentencing hearing entails allowing [the petitioner] to seek that lower sentence now.” Id. (second alteration in original) (quoting Madej, 371 F.3d at 899).

I presume Raymond Surratt could opt to seek Supreme Court review of the Fourth Circuit's decision that his collateral challenge to his old/new sentence is moot. But, ironically, the Fourth Circuit's mootness claim may arguably get stronger in the very process of cert review, at least functionally if not legally, because Surratt likely will have finished serving his 200 months in federal prison by the time the Supreme Court could get around to taking up and hearing Surratt's challenge to the Fourth Circuit's mootness conclusion.

April 27, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

Wednesday, April 26, 2017

Sixth Circuit to review en banc Ohio's execution protocol ... on a pace likely to preclude executions for at least a few more months

As indicated in this short order, yesterday the Sixth Circuit announced that it would be rehearing en banc the State of Ohio's appeal of the lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  A few weeks ago, a divided three-judge panel upheld the trial court's stay, but now the full Sixth Circuit (apparently absent one recused judge) will hear oral argument on these matters on June 14.

One key issue in the Ohio lethal injection litigation concerns that state's plan to use midazolam as the first drug in the execution process.  The apparent recent success that Arkansas has had with a similar protocol using midazolam now seems likely to be part of the discussion and debate before the full Sixth Circuit.

Because the lower court stay remains in place as the full Sixth Circuit take up this issue, Ohio's Gov Kasich is certainly going to have to reschedule at least two slated executions.  As detailed on this Execution Schedule page from the Ohio Department of Rehabilitation & Correction, Ronald Phillips is currently scheduled for execution on May 10, and another inmate has a June 13 execution date.  Though it seems likely the en banc Sixth Circuit will seek to rule not long after it hears oral argument (and it usually makes sense to assume that a vote for en banc review will lead to a different outcome than the prior panel decision), I am not sure it would be wise for Ohio to assume it will have an execution green light by its July 26 execution date.

As the Ohio DRC execution page details, Ohio has already scheduled executions for 33 Ohio inmates(!) running all the way through 2021(!).  So if the Sixth Circuit (and ultimately the Supreme Court) eventually upholds the state's latest execution protocol, Ohio could be on a path to having more executions in the next few years than perhaps any and every other state in the nation.

Prior recent related posts:

April 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Tuesday, April 25, 2017

Oklahoma commission recommends continued moratorium on executions due to "volume and seriousness of the flaws" in state's capital punishment system

Report-of-the-OK-DP-Review-Commn_April-2015-1As reported in this local article, "two years after the state of Oklahoma last carried out an execution, a commission spearheaded by former Gov. Brad Henry has recommended extending a current moratorium on the death penalty in Oklahoma."  Here is more:

"Due to the volume and seriousness of the flaws in Oklahoma's capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished," Henry said in a news release.

Executions in Oklahoma have been on hold since Oct. 1, 2015, the day after Richard Glossip received his third stay of execution because the Oklahoma Department of Corrections did not have the right drugs as specified in the DOC’s lethal injection protocol. A multicounty grand jury issued a highly critical report nearly a year ago related to multiple agencies’ handling of Glossip’s case and the January 2015 execution of Charles Warner, and it doesn’t appear as though anyone involved is any closer to being able to resume the use of capital punishment.

The Oklahoma Death Penalty Review Commission had 10 full-day meetings, held numerous conference calls, commissioned independent studies and conducted interviews with people from all sides of the issue, including with family members of people who were wrongfully convicted. "Many of the findings of the Commission's investigation were disturbing and led members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death," Henry said in the release.

The commission is making 40 recommendations to address systemic problems in forensics, innocence protection, the execution process, and the roles of the prosecution, defense, jury and judiciary, according to the news release.

The full report from the Oklahoma Death Penalty Review Commission runs nearly 300 pages and is available at this link.  Here is a passages from the report's executive summary:

In light of the extensive information gathered from this year-long, in-depth study, the Commission members unanimously recommend that the current moratorium on the death penalty be extended.

The Commission did not come to this decision lightly. While some Commission members had disagreements with some of the recommendations contained in this report, there was consensus on each of the recommendations.  Due to the volume and seriousness of the flaws in Oklahoma’s capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished.

Many of the findings of the Commission’s year-long investigation were disturbing and led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death. Commission members agreed that, at a minimum, those who are sentenced to death should receive this sentence only after a fair and impartial process that ensures they deserve the ultimate penalty of death.  To be sure, the United States Supreme Court has emphasized that the death penalty should be applied only to “the worst of the worst.”  Unfortunately, a review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions.  These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.

April 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"An Indigent Criminal Defendant is Entitled to 'An Expert of His Own'"

The title of this post is the title of this short and timely new piece authored by Fredrick Vars now available via SSRN. Here is the abstract:

The Supreme Court yesterday (April 24, 2017) heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.

For more on the issue presented and SCOTUS oral argument in McWilliams v. Dunn, folks can check out this recent SCOTUSblog posting by Amy Howe titled "Argument analysis: Nine justices, with five votes for death row inmate?" and/or this new Slate commentary by Dahlia Lithwick titled "Back at the Supreme Court, After Garland: It’s strange being back in this place, and stranger still to hear them debate lunacy."

April 25, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, April 24, 2017

Capital procedure day at SCOTUS .... perhaps from early morning until late at night thanks to Arkansas

The Supreme Court this morning is hearing oral argument in two capital cases.  Here are the basics and previews via SCOTUSblog:

McWilliams v. Dunn

Issue: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

Argument preview: What kind of help does the Constitution require for defendants in capital cases?

Davila v. Davis:

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

Argument preview: Another Texas capital case raising a nested ineffective assistance of counsel issue 

Meanwhile, as detailed in this AP report, two condemned inmates scheduled to be executed tonight in Arkansas have been pressing unsuccessfully a variety of claims in an effort to halt their executions.  Here are the basics on two cases now all but certain to be before the Justices of the Supreme Court in some posture before the night is over:

Two Arkansas inmates scheduled to be put to death Monday in what could be the nation's first double execution in more than 16 years asked an appeals court on Sunday to halt their lethal injections because of poor health that could cause complications. Lawyers for Jack Jones and Marcel Williams asked the 8th Circuit Court of Appeals on Sunday to grant them stays of execution.

Jones' lawyers say he suffers from diabetes and is on insulin, has high blood pressure, neuropathy and had one leg amputated below the knee. He is on heavy doses of methadone and gabapentin. They say he may be resistant to the lethal injection drug midazolam because of the drugs he is taking for his maladies and could suffer a "tortuous death." Lawyers for Williams say he weighs 400 pounds and it will be difficult to find a vein for lethal injunction, so the drugs are unlikely to work as intended.

The state said the appeals are just delaying tactics and should be denied. It was not clear when the appeals court will rule....

Also on Sunday, two lower court federal judges ruled against inmates in separate cases. Judge Kristine Baker denied a request from several inmates, including Jones and Williams, that the rules for witnesses to view the executions be changed. Judge J. Leon Holmes denied a stay of execution for Williams saying that the matter should be dealt with by the 8th Circuit Court of Appeals, because the inmate had already been appealed to the higher court.

Jones and Marcel Williams are scheduled to die on Monday and another inmate, Kenneth Williams, is set for execution Thursday. Both Jones and Williams have admitted they are guilty. Williams was sent to death row in 1994 for the rape and murder of Stacy Errickson. Jones was given the death penalty for the 1995 rape and murder of Mary Phillips.

April 24, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Interesting final phrase in Justice Breyer's latest pitch for SCOTUS to consider whether whether capital punishment is now unconstitutional

Via a dissent in Glossip v. Gross back in 2015, Justice Breyer explained at great length why he thought "it is now time to reopen the question" of "whether the death penalty violates the Constitution."  Since that time, Justice Breyer has made a fairly regular habit of dissenting or commenting on the denial of certiorari in capital cases with administrative problems along the lines he stressed in his Glossip dissent.  Today's SCOTUS order list includes another such statement by Justice Breyer in Smith v. Ryan, a case that involves a prisoner who has been on death row in Arizona for more than 40 years.  Here is a paragraph from the heart of Justice Breyer's statement that captures the essence of many of his capital statements since Glossip:

What legitimate purpose does it serve to hold any human being in solitary confinement for 40 years awaiting execution?  What does this case tell us about a capital punishment system that, in my view, works in random, virtually arbitrary ways?  I have previously explored these matters more systematically, coming to the conclusion that this Court should hear argument as to whether capital punishment as currently practiced is consistent with the Constitution’s prohibition of “cruel and unusual punishment.”  Amdt. 8. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting).  The facts and circumstances of Smith’s case reinforce that conclusion.

Because statements by Justice Breyer like this one have become fairly common, I would not have blogged about this latest effort save for one little phrase in Justice Breyer's final sentence that struck me as new and unusual.  Here is the final sentence with my emphasis added on the phrase that caught my attention:

Smith’s confinement reinforces the need for this Court, or other courts, to consider in an appropriate case the underlying constitutional question.

I took a quick look at some other capital case statements from this Term by Justice Breyer and did not see this "other courts" phrase anywhere in his prior calls for the Supreme Court to take up the constitutionality of capital punishment.  I suspect that Justice Breyer has now come fully to realize, perhaps due in part to the new addition of Justice Gorsuch, that he is not going to be able to cajole his colleagues into taking up the constitutionality of capital punishment on their own and now the issue will likely get before SCOTUS only if a lower court takes up the issue in a bold, high-profile way.

I suspect I am reading way too much into three words in a little single Justice statement concerning the denial of cert.  Still, especially with talk of a new SCOTUS vacancy this summer, I do not think I am wrong to view the next few months and years as a potential turning point in the history of capital punishment in the US.  Justice Breyer has demonstrated his interest in playing a central role in defining the future of the death penalty, and this latest little statement perhaps reflects a realization that his window of opportunity to do so may be closing.

April 24, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, April 20, 2017

Virginia Gov commutes death sentence of defendant who has claimed innocence in murder-for-hire crime

As reported in this new Washington Post piece, "Virginia Gov. Terry McAuliffe (D) has commuted the death sentence of Ivan Teleguz, a 38-year-old man who was set to be executed Tuesday in the murder-for-hire of his former girlfriend." Here is more:

Teleguz has maintained his innocence in the 2001 slaying of 20-year-old Stephanie Yvonne Sipe in Harrisonburg.  His lawyers have argued that two key witnesses have recanted their testimony, calling his guilt into question.  Multiple courts have deemed those recantations unreliable, and the man who killed Sipe has never wavered in saying that Teleguz paid him to commit the murder.

McAuliffe said Thursday that while he believes Teleguz is guilty, the sentencing phase of his trial was “terribly flawed and unfair.”  Teleguz will now serve life in prison without a chance of parole.

In their clemency petition, attorneys for Teleguz stressed that jurors were falsely told that Teleguz also was involved in a Pennsylvania murder — but that purported killing never occurred. Prosecutors pointed to testimony of that supposed crime as evidence that Teleguz “solves problems” with murder.  “The jury acted on false information,” McAuliffe said.

In making his decision, McAuliffe said he reviewed over 6,000 pages of documents, including letters from Sipe’s family.  He called her relatives before his news conference Thursday afternoon.  “My heart aches for the family of Stephanie Sipe,” he said, “but the Virginia Constitution and our sacred values of due process under law require me to act.”

McAuliffe personally opposes the death penalty, citing his Catholic faith. But this marks the first time he has commuted a death sentence.  As governor, he has presided over three executions, and at the behest of correctional officials he has pushed for more secrecy in the lethal injection process....

Teleguz’s plea for a commutation attracted high-profile support, including from billionaire Richard Branson and former Maryland governor Robert L. Ehrlich, Jr.

Investigators and Sipe’s family, however, are confident of Teleguz’s guilt.  “There's no doubt in my mind that he hired these people to kill my sister,” Sipe's sister, Jennifer Tilley, told the Harrisonburg television station WHSV last week.  “And it blows my mind, it really does, that he is still trying to fight and plead for his life.”...

The last time a Virginia governor commuted a death sentence was in 2008, when then-Gov. Timothy M. Kaine (D) stopped the execution of triple murderer Percy L. Walton. Kaine commuted Walton’s sentence to life in prison without parole, saying that Walton was mentally incompetent and that putting him to death would be unconstitutional.

Prior related post:

April 20, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Wednesday, April 19, 2017

After Monday stays, Arkansas officials seemingly on path to complete next pair of scheduled executions... OR NOT, as updated below....

As reported in this new AP piece, "two Arkansas inmates set to die this week in a double execution filed more legal challenges Wednesday, but so far the pair is hitting roadblocks as a judge weighs a new attempt to prevent the state from using one of its lethal injection drugs in what would be the state's first executions in nearly a dozen years."  Here is more about the continuing litigation as the next set of execution dates approach:

Unless a court steps in, Ledell Lee and Stacey Johnson are set for execution Thursday night, and state prison officials have already moved them from death row to the nearby prison that houses the death chamber. It's the second time this week that Arkansas has moved forward with what originally had been a plan to execute eight men before April 30, when its supply of the drug midazolam expires.

On Monday, the Arkansas Supreme Court blocked the executions of two men set to die that night. A third man has received a stay from a federal judge over issues with his clemency schedule. Five inmates still face execution over the next two weeks, and they've filed a series of court challenges in hopes of stopping that.

The latest request, filed Wednesday, asks the U.S. Supreme Court to take the inmates' case that challenges the use of midazolam, a sedative used in flawed executions in other states. It's one of three drugs Arkansas plans to use in its executions. In 2015, justices upheld Oklahoma's execution protocol that used the same drug. "As pharmaceutical companies become increasingly resistant to allowing their products to be used in executions, states are likely to continue experimenting with new drugs and drug combinations, and death-row prisoners may challenge these new protocols as violating their constitutional rights," the filing before the U.S. Supreme Court said.

The Arkansas attorney general's office countered in a court filing Wednesday that the inmates' request was a last-minute effort to "manipulate the judicial process."...

Another case that could trip up Arkansas' plan was filed Tuesday by the medical supplier McKesson Corp., which says it sold the drug vecuronium bromide to the Arkansas Department of Correction for inmate medical care, not executions. The company sued to stop Arkansas from using the drug in the planned lethal injections, and a hearing over that issue was underway in Little Rock on Wednesday afternoon.

A state prison official testified that he deliberately ordered the drug last year in a way that there wouldn't be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction Deputy Director Rory Griffin said he didn't keep records of the texts, but McKesson salesman Tim Jenkins did. In text messages from Jenkins' phone, which came up at Wednesday's court hearing, there is no mention that the drug would be used in executions.

Lee and Johnson both faced setbacks Tuesday in their quest to get more DNA tests on evidence in hopes of proving their innocence. Lee claims tests of blood and hair evidence that could prove he didn't beat 26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. Johnson claims that advanced DNA techniques could show that he didn't kill Carol Heath, a 25-year-old mother of two, in 1993 at her southwest Arkansas apartment....

"It is understandable that the inmates are taking every step possible to avoid the sentence of the jury; however, it is the court's responsibility to administer justice and bring conclusion to litigation," Gov. Asa Hutchinson said Tuesday in an emailed statement. "It is that process that we are seeing played out day by day, and we expect it to continue."

UPDATE: This new Washington Post article, headlined "Arkansas courts stay execution, block state from using lethal injection drug," reports on why I reported too soon on the latest execution plans in Arkansas. Here are the latest details:

Arkansas courts on Wednesday dealt another pair of blows to the state’s plans to resume executions Thursday night, the latest in a series of legal rulings imperiling the scheduled flurry of lethal injections.

In one case, a state court halted an execution scheduled for Thursday night, while a state judge separately barred the use of a lethal injection drug, potentially blocking all of the planned executions.

The rulings come as Arkansas, seeking to carry out its first executions since 2005, has become the epicenter of capital punishment in the United States because of its frantic schedule. Gov. Asa Hutchinson (R) originally scheduled eight executions in 11 days, an unprecedented pace, which drew national scrutiny and criticism....

After the first planned executions were halted, Arkansas officials pointed to legal victories they won the same day and vowed to press on with them, beginning with two scheduled for Thursday night. “There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners,” Arkansas Attorney General Leslie Rutledge (R) said in a statement after the U.S. Supreme Court denied her request to allow one execution to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”

Challenges to the executions are not only being brought by the inmates. McKesson, the country’s largest drug distributor, said a court on Wednesday granted its request for a temporary restraining order keeping Arkansas from using a drug the company says was obtained under false pretenses. The judge issued a verbal order from the bench, according to the Arkansas Democrat-Gazette; no injunction was filed in court records by early Wednesday night. A spokesman for Rutledge did not immediately have a comment on this order, but it is expected that she would appeal to the state Supreme Court....

The Arkansas Supreme Court also stopped one specific execution set for Thursday, saying just over 24 hours before it was scheduled to occur that it was staying it without explanation. In its order, the state Supreme Court narrowly blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994. The court said Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home.

Three justices dissented from the decision, with all three joining in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”...

Johnson is one of two inmates facing execution Thursday night. The other, Ledell Lee, has appealed his execution, arguing that he has an intellectual disability and seeking to prove his innocence. Both men are also among a group of death-row inmates who have petitioned the U.S. Supreme Court to stay the executions, one of several legal battles being waged between the state and the inmates.

April 19, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

SCOTUS rules against federal defendant on appeal procedures in Manrique

The Supreme Court this morning handed down an opinion on federal appellate procedure this morning in Manrique v. US, No. 15-7250 (S. Ct. April 19, 2017) (available here).  Here is how the opinion for the Court by Justice Thomas gets started:

Sentencing courts are required to impose restitution as part of the sentence for specified crimes.  But the amount to be imposed is not always known at the time of sentencing.  When that is the case, the court may enter an initial judgment imposing certain aspects of a defendant’s sentence, such as a term of imprisonment, while deferring a determination of the amount of restitution until entry of a later, amended judgment.

We must decide whether a single notice of appeal, filed between the initial judgment and the amended judgment, is sufficient to invoke appellate review of the later determined restitution amount.  We hold that it is not, at least where, as here, the Government objects to the defendant’s failure to file a notice of appeal following the amended judgment.

Justice Ginsburg, joined by Justice Sotomayor, dissents in a brief opinion that is focused on the case facts and asserts that "even assuming, arguendo, that separate appeal notices are ordinarily required, I would hold that Manrique is not barred from appealing the restitution order in the circumstances of this case."

April 19, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

SCOTUS rules 7-1 that due process precludes requiring defendant to prove innocence by clear and convincing evidence to recover assessments after invalidated conviction

The Supreme Court this morning handed down a notable due process decision in Nelson v. Colorado, No. 15–1256 (S. Ct. April 19, 2017) (available here). Here is how Justice Ginsburg's opinion for the Court gets started and concludes:

When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction?  Our answer is yes.  Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence.  This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process....

Colorado’s scheme fails due process measurement because defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.

Justice Alito concurs separately, because in his view "Medina’s historical inquiry, not Mathews [the modern due process balancing test applied by the majority], provides the proper framework for use in these cases." Justice Alito's extended opinion provides a distinct account of the problem with Colorado's procedures.

Justice Thomas dissents in an opinion that is founded on the view that "petitioners have not demonstrated that defendants whose convictions have been reversed possess a substantive entitlement, under either state law or the Constitution, to recover money they paid to the State pursuant to their convictions. "

April 19, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, April 18, 2017

US District Court finds multiple constitutional problems with local banishment of sex offenders

As reported in this local article from Wisconsin, a "federal judge Monday found unconstitutional Pleasant Prairie’s initial ordinance that largely banned registered child sex offenders from residing in the village."  Here is more about the context and the US District Court's ruling:

The village amended its ordinance three months after the offenders filed suit in June 2016, but U.S. District Judge J.P. Stadtmueller ruled that did not make moot the issues the offenders raised with the first ordinance.

In granting summary judgment to the nine plaintiffs, Stadtmueller found the village imposed restrictions on where the offenders could live without considering any studies or data regarding the safety risk that posed to other residents. “The village has admitted that the ordinance was based on its own conjecture about the dangers posed by sex offenders,” Stadtmueller wrote in the 19-page order.

Village Administrator Michael Pollocoff testified in a deposition that the ordinance’s goal was to reduce the number of child sex offenders living in the village. The ordinance may be counterproductive to citizen safety, as Pollocoff admitted that turning child sex offenders into outcasts had “more deleterious (or harmful) impacts.”...

Stadtmueller rejected the village’s claim that the new ordinance made a suit challenging the old one moot, stating the plaintiffs’ claims that they suffered stress as a result of the threat posed by the initial ordinance, the fear of homelessness and the difficulties in attempting to find a new residence. The plaintiffs can pursue damages on those claims at trial, which Stadtmueller set for May 15.

Mark Weinberg, a Chicago attorney who filed the suit, called the decision uncommon and important. “There are a lot of other communities in Kenosha County with similar ordinances. I hope this decision will encourage them to re-evaluate theirs,” he said.

Weinberg has a similar suit against the city of Kenosha ordinance pending in federal court, which he said “is more restrictive” than Pleasant Prairie’s initial ordinance. That suit is still in the discovery stage, he said....

Pollocoff acknowledged that the village amended its initial ordinance in response to the suit Weinberg brought and that no sex offenders had been cited under the ordinance.

The amended ordinance lowered the 3,000-foot prohibited zone to 1,500 feet, which still makes 60 percent of the village and 75 percent of the residences off limits to offenders.

The full ruling in this case can be downloaded here:  Download Stadtmueller SJ decison Pleasant Prairie

April 18, 2017 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4)

"Courts Are Using AI to Sentence Criminals. That Must Stop Now."

The title of this post is the headline of this new WIRED commentary authored by Jason Tashea. Here are excerpts:

Currently, courts and corrections departments around the US use algorithms to determine a defendant’s “risk”, which ranges from the probability that an individual will commit another crime to the likelihood a defendant will appear for his or her court date.  These algorithmic outputs inform decisions about bail, sentencing, and parole.  Each tool aspires to improve on the accuracy of human decision-making that allows for a better allocation of finite resources.

Typically, government agencies do not write their own algorithms; they buy them from private businesses.  This often means the algorithm is proprietary or “black boxed”, meaning only the owners, and to a limited degree the purchaser, can see how the software makes decisions.  Currently, there is no federal law that sets standards or requires the inspection of these tools, the way the FDA does with new drugs.

This lack of transparency has real consequences. In the case of Wisconsin v. Loomis, defendant Eric Loomis was found guilty for his role in a drive-by shooting.  During intake, Loomis answered a series of questions that were then entered into Compas, a risk-assessment tool developed by a privately held company and used by the Wisconsin Department of Corrections.  The trial judge gave Loomis a long sentence partially because of the “high risk” score the defendant received from this black box risk-assessment tool.  Loomis challenged his sentence, because he was not allowed to assess the algorithm.  Last summer, the state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency.

By keeping the algorithm hidden, Loomis leaves these tools unchecked.  This is a worrisome precedent as risk assessments evolve from algorithms that are possible to assess, like Compas, to opaque neural networks. Neural networks, a deep learning algorithm meant to act like the human brain, cannot be transparent because of their very nature. Rather than being explicitly programmed, a neural network creates connections on its own. This process is hidden and always changing, which runs the risk of limiting a judge’s ability to render a fully informed decision and defense counsel’s ability to zealously defend their clients....

[H]ow does a judge weigh the validity of a risk-assessment tool if she cannot understand its decision-making process? How could an appeals court know if the tool decided that socioeconomic factors, a constitutionally dubious input, determined a defendant’s risk to society?  Following the reasoning in Loomis, the court would have no choice but to abdicate a part of its responsibility to a hidden decision-making process.

Already, basic machine-learning techniques are being used in the justice system.  The not-far-off role of AI in our courts creates two potential paths for the criminal justice and legal communities: Either blindly allow the march of technology to go forward, or create a moratorium on the use of opaque AI in criminal justice risk assessment until there are processes and procedures in place that allow for a meaningful examination of these tools.  The legal community has never fully discussed the implications of algorithmic risk assessments.  Now, attorneys and judges are grappling with the lack of oversight and impact of these tools after their proliferation.

To hit pause and create a preventative moratorium would allow courts time to create rules governing how AI risk assessments should be examined during trial.  It will give policy makers the window to create standards and a mechanism for oversight.  Finally, it will allow educational and advocacy organizations time to teach attorneys how to handle these novel tools in court.  These steps can reinforce the rule of law and protect individual rights.

As noted in this prior post, the Loomis case is right now pending before the US Supreme Court with a pending SCOTUS request for a brief from the Acting Solicitor General concerning a possible cert grant. And here are some prior related posts on Loomis case:

April 18, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, April 17, 2017

Split Second Circuit panel declares within-guideline child porn possession sentence of 225 months "substantively unreasonable"

A dozen years after Booker, the reversal of any federal sentence as substantively unreasonable is still quite rare and notable. Today, a Second Circuit panel has issued such a rare and notable decision in US v. Jenkinss, No. 14-4295 (2d Cir. April 17, 2017) (available here). Here are excerpts from the start and heart of the majority opinion:

A jury found Joseph Vincent Jenkins guilty of one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1), based on the government’s proof at trial that Jenkins owned a collection of child pornography and brought it across the U.S.-Canada border on the way to a family vacation for his personal viewing.

The United States District Court for the Northern District of New York (Glenn T. Suddaby, Chief Judge) imposed concurrent sentences of 120 months for the possession count, the statutory maximum, and 225 months for the transportation count, just below the statutory maximum of 240 months. The court also imposed a term of 25 years of supervised release. Jenkins challenges his conviction and the procedural and substantive reasonableness of his sentence....

Here, § 2G2.2 yielded a sentence that derived substantially from “outdated” enhancements related to Jenkins’s collecting behavior.  Meanwhile, the government has not alleged that he was involved in the production or distribution of child pornography or that he was involved in any child pornography community.  In particular, the government did not claim he used peer-to-peer sharing software, distributed images, or participated in chat rooms devoted to child pornography.  Nor does the government allege that he contacted or attempted to contact a child or that he engaged in any “sexually dangerous behavior” separate from his crimes of conviction.  Thus, here, as in Dorvee, § 2G2.2 cannot “bear the weight assigned it” because the cumulation of repetitive, all-but-inherent, enhancements yielded, and the district court applied, a Guideline range that failed to distinguish between Jenkins’s conduct and other offenders whose conduct was far worse.  Cavera, 550 F.3d at 191. It was substantively unreasonable for the district court to have applied the § 2G2.2 enhancements in a way that placed Jenkins at the top of the range with the very worst offenders where he did not belong.

The full majority opinion in Jenkins has lots of substantive sentencing review discussion that defies easy summary and that merits review by anyone deeply engaged in post-Booker sentencing and appeals.  In addition, Judge Kearse has a small dissenting opinion which highlights the defendant's aggressive disagreement with his prosecution and concludes this way:

Given this record in which Jenkins, inter alia, disputed any justification or authority for prosecuting him, and argued that instead the children who were victims of the child pornography should have been prosecuted, the district court's concern for the likelihood that, without a lengthy prison term, Jenkins would re-offend was not unreasonable, and I cannot conclude that the imposition of the prison term that was no higher than midway between the top and bottom of the Guidelines range "cannot be located within the range of permissible decisions."

April 17, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

Thursday, April 13, 2017

"Three Reasons Why Virginia May Execute an Innocent Man"

The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan.  Here are excerpts:

In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.

How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.

1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...

Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.

2. The Myth of the Right to Counsel ...

Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.

3. Not So Appealing Appeals Process ...

Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."

That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States.  In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.

In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process.  But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.

This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.

UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.

April 13, 2017 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Saturday, April 08, 2017

"Cruel Techniques, Unusual Secrets"

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

In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol.  An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.

Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with parole, (2) the method of punishment — the tool by which the state administers the punishment, and (3) the technique of punishment — the manner in which the state administers the punishment.  Because, as Justice Alito insists, a constitutional method and technique must exist for a constitutionally approved punishment, there is a constitutional relationship between these categories.

As such, this Article articulates a holistic model for applying the Eighth Amendment on three levels — the punishment type, method, and technique.  This Article develops this taxonomy, making explicit the concepts implicit in a number of Eighth Amendment cases.  To be sure, the Court has assessed types of punishments, punishment methods, and punishment techniques individually, but it has never offered a holistic framework by which to understand these related constitutional inquiries.  This Article develops such an approach.

In light of the applicable framework, the Article then explores the Court’s application of the Eighth Amendment with respect to the three categories, demonstrating how the Court deviates from its doctrine when considering punishment techniques.  It next describes use of secrecy in the context of lethal injection, uncovering the manner in which this secrecy frustrates the application of the Eighth Amendment framework.  Further, the Article argues that the state-instigated secrecy does more than create a doctrinal smokescreen — it raises serious constitutional and legitimacy questions concerning lethal injection protocols.  Finally, the Article concludes by exploring what transparency in execution methods might mean both in terms of restoring dignity to death row prisoners and for the future of capital punishment in America.

April 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, April 07, 2017

"Who are the Punishers?"

The title of this post is the title of this intriguing new paper authored by Raff Donelson now available via SSRN. Here is the abstract:

The Eighth Amendment is a list of deeds not to be done, but it does not say who is not to do them.  This Article specifically examines whom the Eighth Amendment bars from inflicting cruel and unusual punishments.  The Supreme Court has thus far applied the Eighth Amendment to a narrow class of parties, consisting of just legislatures, criminal courts, and those who execute punishment such as prison officials.  Under the framework presented in this Article, the class of potential punishers should be much wider.  Those who work in jails and other detention centers, public and private school officials, and even parents of juveniles should be considered potential punishers for Eighth Amendment purposes.

April 7, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, April 06, 2017

Federal district judge declares unconstitutional Arizona law requiring defendant to prove lack of sexual intent for contact with child

A helpful reader alerted me to this new Slate article, headlined "Federal Judge Rules Arizona’s Diaper Changing Child Molestation Law Is Unconstitutional," reporting on a notable new federal district court ruling concerning a remarkable Arizona criminal law. The start of the Slate article provides the background and links to relevant rulings:

Last September, the Arizona Supreme Court issued a stunning decision interpreting the state’s child molestation law to criminalize any contact between an adult and a child’s genitals. In a 3–2 decision, the court found that the law encompassed entirely innocent conduct, such as changing or bathing a baby.  Arizona, the court held, could convict an adult for touching an infant’s genitals — which carries a prison sentence of five years — without proving sexual intent.  Instead, under the law, the accused had the burden of proving that he had no sexual intent to a jury and by a preponderance of the evidence.  As the dissenters noted, the ruling turned “parents and other caregivers” in the state into “child molesters or sex abusers under Arizona law.”

Reason, however, has now prevailed. Last week, a federal judge ruled that the Arizona statute, as interpreted by the state Supreme Court, is unconstitutional. In a lengthy decision, U.S. District Judge Neil V. Wake cogently explained why the law violates the Due Process Clause of the 14th Amendment, vindicating the two justices who dissented on those grounds in September.  He also reminded Arizona that parents have a constitutional right to care for their children — a right the state may not interfere with by criminalizing hygienic care.

The basic flaw in the Arizona law is pretty conspicuous. According to the statute, an individual is guilty of child molestation if he “intentionally or knowingly … touch[es] … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”  Notice something strange there?  Despite calling itself a child molestation statute, the law does not require the “touching” to be sexual. Thus, a caregiver who “intentionally or knowingly” touches an infant’s genitals while changing his diaper is clearly guilty of violating the law. No other state save Hawaii does not require sexual intent for a child molestation offense.

Arizona defended its statute by noting that the defendant could still assert “lack of sexual motivation” as an “affirmative defense” at trial — requiring him to prove his benign intent “by a preponderance of the evidence.”  The Arizona Supreme Court was satisfied with this loophole, holding that it rendered the law constitutional.  Wake was not so easily fooled. Under the Due Process Clause, Wake noted, the government carries the burden of proving each element of a crime beyond a reasonable doubt.  Yet the Arizona law shifts the burden onto the defendant, forcing him to disprove “the very thing that makes child molestation child molestation.”

That requirement, Wake explained, “violates the Fourteenth Amendment’s guarantees of due process and of proof of guilt beyond a reasonable doubt.”  Due process does not permit Arizona “to remove the essential wrongfulness in child molestation and place the burden of disproving it upon people engaged in a wide range of acts, the vast majority of which no one could believe the state meant to punish.”  Indeed, Arizona cannot lawfully punish “the vast majority” of conduct swept up by the statute.  The U.S. Supreme Court has found that the Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”  Therefore, Wake concluded, Arizona may not criminalize “constitutionally protected … innocent conduct” such as “diapering and bathing infants.”

April 6, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13)

Split Sixth Circuit panel uphold injunction blocking Ohio lethal injection protocol

A split Sixth Circuit panel today In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. April 6, 2017) (available here), upheld a preliminary injunction blocking Ohio from moving forward with a number of scheduled executions. Here is how the majority opinion authored by Judge Moore gets started:

Ohio’s current execution protocol allows for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart.  R. 667-1 (Ohio DRC Execution Protocol, 01- COM-11 at 2) (Page ID #19813).  The purpose of the first drug is to ensure that the person being executed is insensate to the pain that the second two drugs cause. It is undisputed that if the first drug does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality op.).  The ultimate question in this case is whether use of midazolam as the first drug in this three-drug protocol “entails a substantial risk of severe pain” as compared to “a known and available alternative.”  Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). The question before us at this preliminary stage, however, is much narrower.  We ask only whether the district court abused its discretion by granting a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes Ronald Phillips, Raymond Tibbetts, and Gary Otte.  For the reasons discussed below, we AFFIRM the judgment of the district court granting the preliminary injunction.

Here is how the dissenting opinion by Judge Kethledge gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed.  See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995). Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two nights later, Otte pushed his way into a woman’s home and did the same things to her.  After each murder Otte went out partying.  See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby.  See State v. Tibbetts, 749 N.E.2d 226, 237–39 (Ohio 2001).

Phillips, Tibbetts, and Otte now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted).  The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court refused to invalidate in Glossip.  Yet the district court thought we should likely invalidate that procedure, and today the majority agrees.  I respectfully disagree and would reverse the district court’s grant of a preliminary injunction.

A lengthy faculty meeting and a coming class mean I will not have a chance to read this extended opinion until late tonight, but I can already confidently predict that the State of Ohio will seek en banc review of this ruling and perhaps even Supreme Court review, if necessary.

April 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Arkansas Parole Board recommends clemency for one of eight condemned scheduled for execution later this month

As reported in this AP piece, the "Arkansas Parole Board on Wednesday recommended that Gov. Asa Hutchinson alter the state's unprecedented execution schedule and grant mercy to a death row inmate who directed the torture and murder of a teenager more than two decades ago." Here is more:

Jason McGehee, 40, is one of eight inmates scheduled to die in four double executions this month. Hutchinson, who is not bound by the board's finding that McGehee should have his sentence cut to life without parole, can intervene at any time before the execution begins on April 27. The Republican governor not said when he will make a decision.

Until Wednesday, the state Parole Board had rejected every death row clemency request presented to it since 1990.

With a key lethal injection drug expiring at the end of the month, the Arkansas Department of Correction hopes to execute eight men in a 10-day period beginning April 17. Only Texas has executed that many inmates in a month, doing it twice in 1997. Seven executions in a month would still be a record for Arkansas.

Prosecutors say McGehee, who had just turned 20, directed the fatal assault of Johnny Melbourne Jr., a 15-year-old who had told police about a northern Arkansas theft ring. In voting 6-1 in favor of McGehee's clemency request, the Parole Board considered letters and testimony from the judge from McGehee's trial, a former Correction Department chief, members of McGehee's family and the victim's father.

"The death of John Melbourne, Jr. was the tragic result of a group-dynamic gone wrong," retired Circuit Judge Robert McCorkindale wrote, according to documents released by the state Parole Board. McGehee was one of several people who participated in the attack, but was the only defendant sentenced to death, and the retired judge called it "an excessive punishment."

Former Department of Correction Director Ray Hobbs told the panel at a 40-minute hearing Friday that McGehee had become a model prisoner. "He still has value that can be given to others if his life is spared," Hobbs said.

Linda Christensen, the inmate's aunt, said in an affidavit filed with the board that McGehee suffered psychological abuse as a teenager, such as when his stepfather killed the boy's dog after the dog fought with another dog for food. The stepfather "got up and kicked Dusty in the side with his cowboy boots as hard as he could," Christensen wrote. "He lay and suffered and the kids had to watch him die slowly. ... Jason was never the same after that."

Melbourne's father had asked the board to reject McGehee's clemency request. "John didn't have this. Even though he was begging for his life and was hurting. He didn't have this and he begged for his life too. He didn't have y'all," the elder Melbourne said.

Board Chairman John Felts voted against clemency. He said McGehee's death sentence wasn't excessive considering the inmate had orchestrated the Aug. 19, 1996, attack. The boy was beaten and tortured at a house in Harrison, then bound and driven to an abandoned farmhouse outside Omaha, a town in northern Arkansas. He was later strangled while his hands were tied with an electrical cord.

April 6, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Tuesday, April 04, 2017

How many prior sentenced federal prisoners might now have "Dean claims" (assuming Dean is retroactive)?

As reported in this post from yesterday, and as explained a bit more via this write-up I provided to the fine folks at SCOTUSblog, the Supreme Court yesterday in Dean v. United States, No. 15-9260 (April 3, 2017) (available here) ruled that the Eighth Circuit had been wrong to hold that, "in calculating the sentence for [a] predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)."  According to the government's briefing in Dean, most of the circuits had also ruled like the Eighth Circuit (incorrectly) on this statutory sentencing issue — though I suspect that, in practice, a number of district courts did not consistently ignore 924(c) mandates when sentencing predicate offenses.

Given this background, I was surprised I did not think of the question in the title of this post until former AUSA Steven Sanders sent me an email with this query: "Any thoughts on whether Dean applies retroactively on 2255, on the (Montgomery) theory that the decision opens up the range of punishment and thus is substantive for Teague purposes?"   Regular readers familiar with my views about finality rules and sentencing errors (basics here, law review article here) should expect me to have plenty of thoughts about Dean retroactivity, most of which center around the view that Dean qualifies as retroactive.  Put simply, Dean seems to me to be a substantive ruling that applies retroactively.

Assuming Dean is retroactive, this recent "Quick Facts" publication from the US Sentencing Commission suggests there could be thousands (perhaps even tens of thousands) of federal prisoners with plausible Dean claims.  Specifically, that publication indicates that, in Fiscal Year 2015, over 1100 federal defendants were convicted under both section 924(c) and another predicate offense not carrying a mandatory minimum, and that the average sentence for this group was over 11 years in prison. Assuming 2015 was a fairly representative year — and the USSC publication actually suggests a larger number of defendants getting longer sentences in prior years — it is possible that well over 10,000 defendants (and maybe many more) could be in federal prison serving sentences that were imposed based on an understanding of applicable sentencing principles that Dean has now disrupted.

For various procedural and practical reasons, I doubt we will see thousands of "Dean resentencings" in the federal courts in the coming months even if thousands of prisoners got sentenced based on the wrong understanding of the applicable laws here.  But I do expect that there will be many more than just a handful or "Dean resentencing" efforts.

April 4, 2017 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Could Proposition 66 turn the California Supreme Court into a specialty death penalty appeals court?

The question in the title of this post is prompted by this recent lengthy Los Angeles Times article headlined "Trying to speed up executions could deal 'mortal blow' to California Supreme Court." Here are excerpts:

If a November ballot measure to speed up executions goes into effect, the California Supreme Court will have to decide hundreds of death penalty appeals in rapid succession. That mandate would turn the state’s highest court into what analysts say would be “a death penalty court,” forced for years to devote about 90% of its time to capital appeals.

Proposition 66, sponsored by prosecutors and passed by 51% of voters, gave judicial leaders 1½ years to make new legal rules and then five years to decide a crushing backlog of appeals. “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder,” said Jon Eisenberg, president of the California Academy of Appellate Lawyers.

Legal analysts and four bar associations say the measure would inundate all the courts with extra work but hit the top court’s seven justices hardest.  In a friend-of-the-court brief, 11 law professors and a nonprofit legal center contended Proposition 66 would “grind the wheels of justice to a halt” in California.

Death penalty advocates acknowledge the measure would mean extra work for the courts, but say that it is necessary to fix a system that has produced the largest death row in the country and no executions in more than a decade.  They contend the workload will be tolerable, and that the courts will have some flexibility in meeting the deadlines.

The California Supreme Court is considering whether the measure can go into effect. Two opponents of the measure sued in November, contending it illegally usurped the powers of the judicial branch and violated a constitutional rule that says ballot measures must deal with one subject only. The California Supreme Court put the measure on hold until the justices resolve the case, probably within the next few months.

The appellate lawyers’ academy takes no position on the death penalty but opposed the initiative on the grounds that it would disrupt the courts and prevent litigants in civil matters from having their cases decided in a timely manner. It joined the bar associations of Los Angeles, Beverly Hills and San Francisco in a January letter written to the state Supreme Court saying that Proposition 66 “threatens to deal a mortal blow” to California’s courts....

Given a backlog of more than 300 death penalty appeals already at the court, the justices would have to decide at least 66 of them each year for the next several years just to catch up, Eisenberg said. Calculations based on the court’s typical annual production indicate the justices would be spending 90% of their time on capital cases, Eisenberg said. Civil case rulings would decline from about 50 a year to just a handful, he said. “That leaves virtually no time for anything other than death penalty cases,” Eisenberg said....

UC Berkeley's David A. Carrillo, director of a center that studies the California Constitution, described the initiative as a new unfunded mandate. "There is no way the courts can get through the existing backlog in five years with their current resources," Carrillo said.

Law enforcement groups have filed several friend-of-the-court briefs in favor of the initiative, arguing that voters have made their will clear. “California voters have elected to retain the death penalty every time the issue has been placed before them,” the leaders of several county prosecutor groups reminded the court in one brief.... “Despite the abiding and long-standing will of the voters, death penalty opponents have used the legal process as a mechanism to frustrate imposition of the death penalty,” the prosecutors argued in their brief.

Kent Scheidegger, who helped write Proposition 66, said the portrait of court chaos predicted by the bar associations and some analysts was overblown. Although the measure would require the California Supreme Court to move quickly to dispatch the backlog of capital appeals, the initiative would also shift initial responsibility for habeas challenges from the high court to trial judges, he noted. That provision, Scheidegger argued, would save the court time.

Rulings by Superior Court judges on those cases would likely be appealed to intermediate appellate courts and up to the state Supreme Court, but Scheidegger said the trial judges would do the heavy lifting. “I know that all judges hate time limits, but I do think that moving the habeas cases is a reform that most of the justices probably would agree with,” said Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for the death penalty.

Even if the Supreme Court were to strike down the measure’s deadlines, other requirements of the initiative would still speed up executions, he said. He cited a provision that would limit public review of the state’s lethal injection method. Legal challenges involving the method have kept the execution chamber empty since 2006. Eighteen inmates who have exhausted their appeals could be executed immediately once that part of the initiative took effect, he said.

Former El Dorado County Supervisor Ron Briggs and the late former Atty. Gen. John Van de Kamp, who filed the lawsuit, argued that the entire measure should be tossed because it violated the rule limiting initiatives to a single subject. In addition to setting new deadlines and easing approval of an execution protocol, Proposition 66 would require death-row inmates to work to pay compensation to victims’ families and bar medical associations from disciplining doctors who participate in executions. It also would place a state agency assigned to represent death row inmates under California Supreme Court control and permit the corrections department to distribute condemned inmates among the general prison population.

I find so many interesting elements to this story, ranging from the telling reality that it has already taken five months to move along litigation about the status of an initiative designed to move along litigation to the interesting conflict created by state Supreme Court judges having to decide a case that will determine whether and how they have to decide a lot more cases a lot more quickly.  In the end, though, this story confirms my long-standing belief that unless and until a lot of elected officials in California start having a very strong interest in moving forward with a large number of executions, the death penalty will exist in the state more as a sentence on paper than as a sentence that actually gets carried out for any significant number of condemned murderers.

April 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, April 03, 2017

Latest SCOTUS order list includes one complicated capital case grant

The Supreme Court via this order list granted cert in two cases, including a capital case out of Texas, Ayestas v. Davis. SCOTUSblog has this case page for Ayestas, where one can find this cert petition, where one can find the complicated question on which cert was granted:

2. Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an IAC claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.

April 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, April 02, 2017

"Briefing the Supreme Court: Promoting Science or Myth?"

The title of this post is the title of this new timely essay authored by Melissa Hamilton now available via SSRN. Here is the abstract:

The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders.  An issue that has arisen in the case is the state’s justification for the ban.  North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes.  The collective states contend that these three claims are supported by scientific evidence and common sense.  This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.

April 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Science, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, March 30, 2017

Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection

As reported in this local article, headlined "Suit over Arkansas execution drug gets dismissal; Griffen: Justices stole men’s rights," a trial judge in Arkansas is none-too-pleased he felt compelled to dismiss a challenge to lethal injection brought by state prisoners in the wake of a state Supreme Court ruling on the matter. Here are the basics of a notable ruling in a state seemingly poised now to conduct eight executions in the coming weeks:

The Arkansas Supreme Court's decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state's execution procedures, and it forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.

"It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial," the judge wrote.

The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state's execution protocols. Griffen's dismissal of the inmates' Circuit Court lawsuit comes as eight of those inmates face lethal injection next month in four two-per-day execution sessions.

The prisoners have filed two federal lawsuits this week attempting to halt the process. On Tuesday, they sued to stop the ongoing clemency hearings, arguing that the state is moving forward with their executions so quickly that their clemency petitions are not getting the consideration required by law. A federal lawsuit that they filed Monday disputes that the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections that bar the infliction of cruel and unusual punishment.

The inmates had disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen. But they were not allowed to present their evidence in court because the Supreme Court ignored "decades" of case law to dismiss their entire lawsuit even before all of the issues the inmates had raised had been decided, Griffen wrote in Tuesday's order and memorandum.

"To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent," Griffen wrote.

State lawyers asked Griffen on March 16 to dismiss the killers' lawsuit based on the Supreme Court's June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus. Arkansas has not carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature has made to the state's execution procedures over the past several years.

On March 17, the inmates' attorneys asked Griffen to rule in their favor on issues in the lawsuit that they stated the Supreme Court holding did not address. But the judge wrote that the Supreme Court decision required him to dismiss the lawsuit.

His 10-page ruling also states that the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests that the justices violated the oath all attorneys take to uphold the law to reach their conclusions. "It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.

March 30, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, March 28, 2017

Ruling 5-3, SCOTUS rejects Texas effort to limit definition of intellectual disability for death penalty application

The Supreme Court this morning handed down an opinion in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), in favor of a capital defendant.  Because I am on the road, I will not be able to provide context for this ruling until later today.  Short story seems to be that the more liberal Justices were not impressed by the more conservative standard Texas courts have used to apply the Atkins and Hall precedents concerning Eighth Amendment limits on executing the intellectually disabled.

UPDATE:  Now with a few minutes at a desktop, I can quote Justice Ginsburg's opinion for the Court:

Bobby James Moore fatally shot a store clerk during a botched robbery.  He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution.  A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.”  The habeas court therefore recommended that Moore be granted relief.

The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S.W.3d 1 (2004).  See Ex parte Moore, 470 S.W.3d 481, 486–487 (2015).  The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S.W.3d at 526.

We vacate the CCA’s judgment.  As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U.S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7).  That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus.  Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source.  Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” 572 U.S., at ___ (slip op., at 1).  Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.

March 28, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, March 24, 2017

Thanks to voter approval of Prop 57, "California prisons to free 9,500 inmates in 4 years" based on new early-release credit rules

The middle title of this post quotes the title of this new AP article and provides a bit of context.  For more explanation, here is more from the AP article:

Corrections officials adopted new criminal sentencing rules on Friday that aim to trim California’s prison population by 9,500 inmates after four years.

They include steps like reducing inmates’ sentences up to six months for earning a college degree and by up to a month each year for participating in self-help programs such as alcohol and substance abuse support groups and counseling, anger management, life skills, victim awareness, restorative justice, and parenting classes. Virtually any inmate except those on death row or those serving life-without-parole sentences is eligible to earn the credits and lower the sentence.

It’s the latest step in a years-long drive to dramatically lower the state’s prison population in response to federal court orders stemming from lawsuits by prison advocates and pressure to turn away from mass incarceration.

The changes follow voters’ approval of Proposition 57 in November. The initiative lets certain felons seek parole more quickly and gave corrections officials broad discretion to grant early release credits. “I think that it’s a monumental change for the organization and I think across the state, across the nation, I don’t think that anybody has altered how they are incarcerating offenders as much as what Prop 57 does,” Corrections Secretary Scott Kernan told The Associated Press.  The goal, he said, is to encourage inmates to start “doing something with their incarceration and not just sitting on their bunks.”

The changes in parole eligibility will take effect April 12 if they win initial approval from state regulators, with final approval by October after a public comment period. The earlier release credits and earlier parole consideration will be phased in starting May 1 while the public review is underway.

Police and particularly prosecutors fought the ballot initiative, arguing that it will release dangerous offenders sometimes years earlier than called for in their sentences. It also will put convicts more quickly into county probation systems that already are stretched. Kernan said he took some of their objections into account, for instance by barring sex offenders and third-strike career criminals from seeking earlier parole.

The changes are projected to eventually lower California’s prison population by about 7 percent and keep the state below the federal court-ordered population of about 116,000 inmates in the 34 adult prisons. The changes also will let the state phase out a long-running program that currently keeps nearly 4,300 inmates in private prisons in other states.

[T]he bulk of the reductions would come from steps like doubling the credits inmates receive for completing education and training programs, to a maximum of three months in any 12-month period, and expanding them to include violent offenders. Inmates would also start getting expanded credits for not violating prison rules starting May 1. That would typically reduce a violent offender’s sentence by 19 days each year, Kernan said, calling the reduction “relatively modest.”

March 24, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Wednesday, March 22, 2017

Unanimous New Jersey Supreme Court rejects "categorical Internet blackout" for sex offender

As reported in this local article, headlined "N.J. Supreme Court tosses 'total' internet ban for sex offender," the top court in the Garden State issued a significant ruling yesterday concerning on-line restrictions on sex offenders. Here are the very basics from the press report:

New Jersey's highest court on Tuesday threw out a state-sanctioned ban on internet use for a convicted sex offender, finding it was an arbitrary infringement on the man's rights.

In a unanimous decision, the state Supreme Court found the state Parole Board had improperly issued a "near-total" internet ban for the man, identified only by the initials J.I., who was subject to lifetime supervision after pleading guilty to charges he sexually abused his three daughters.

Calling internet access a "basic need" of modern life, the justices ruled that state authorities could only revoke it after holding a formal hearing to determine if there was a legitimate public safety reason to do so.

The lengthy ruling in J.I. v. New Jersey State Parole Board, No. A-29-15 (N.J. March 21, 2017) (available here), gets started this way:

Today, the Internet plays an essential role in the daily lives of most people -- in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender.  In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose.  The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.

After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes.  The District Parole Supervisor justified the ban based not on J.I.’s conduct while on community supervision for life, but rather on his conduct years earlier -- the accessing of pornography sites and the possession of pornography -- that led to a violation of his parole.  A Parole Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device.  The Parole Board upheld that determination and denied J.I. a hearing.  The Appellate Division affirmed.

We now reverse and remand to the Parole Board. Conditions imposed on CSL offenders -- like those imposed on regular parolees -- are intended to promote public safety, reduce recidivism, and foster the offender’s reintegration into society.  Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders.  We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban, after J.I.’s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.’s computer.  After the imposition of the total ban for J.I.’s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout.  The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion.  The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.

March 22, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Tenth Circuit clarifies and emphasizes import and reach of Graham's limit on extreme juve sentences

Yesterday in Budder v. Addison, No. 16-6088 (10th Cir. March 21, 2017) (available here), a Tenth Circuit panel granted habeas relief to a juvenile non-homicide offender sentenced in Oklahoma to serve over 131 years in prison before being eligible for parole. The Budden opinion discusses the Supreme Court's Graham ruling at great length in the course of rejecting Oklahoma's effort to defend a sentence that was not technically "life without parole."  Here are some excerpts from the opinion:  

Despite Oklahoma’s arguments to the contrary, we cannot read the Court’s categorical rule as excluding juvenile offenders who will be imprisoned for life with no hope of release for nonhomicide crimes merely because the state does not label this punishment as “life without parole.”  The Constitution’s protections do not depend upon a legislature’s semantic classifications.  Limiting the Court’s holding by this linguistic distinction would allow states to subvert the requirements of the Constitution by merely sentencing their offenders to terms of 100 years instead of “life.” The Constitution’s protections are not so malleable.

More importantly, the Court did not just hold that it violated the Eighth Amendment to sentence a juvenile nonhomicide offender to life without parole; it held that, when a state imposes a sentence of life on a juvenile nonhomicide offender, it must provide that offender with a “meaningful opportunity to obtain release.”  Id. at 75; see also id. (“[The Eighth Amendment] does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.”).  Further, the Court explained that its categorical holding was necessary because it would “give[] all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Graham, 560 U.S. at 79 (emphasis added).  If the rule announced in Graham is to provide all juvenile offenders such an opportunity, it must be read to apply to all sentences that are of such length that they would remove any possibility of eventual release.  Thus, we conclude, the sentencing practice that was the Court’s focus in Graham was any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label “life without parole.” ...

Again, we must emphasize that states may not circumvent the strictures of the Constitution merely by altering the way they structure their charges or sentences.  Just as they may not sentence juvenile nonhomicide offenders to 100 years instead of “life,” they may not take a single offense and slice it into multiple sub offenses in order to avoid Graham’s rule that juvenile offenders who do not commit homicide may not be sentenced to life without the possibility of parole.  When the Court compared the severity of the crime with the severity of the punishment, in light of the characteristics of the offender, it did not look to the state’s definitions or the exact charges brought.  It looked to whether the offender was a juvenile, whether the offender killed or intended to kill the victim, and whether the sentence would deny the offender any realistic opportunity to obtain release.  The Court specifically concluded that, not only was a categorical rule appropriate, it was “necessary,” id. at 75, because a case specific approach “would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes,” id. at 77.  The Court found this approach to pose too great a risk that some juveniles would receive life without parole sentences “despite insufficient culpability.” Id. at 78 (quoting Roper, 543 U.S. at 572–73).  The Court was not convinced “that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. at 77.  Not only did the Court draw the line at homicide, it structured a categorical rule specifically to prevent the possibility that a sentencing judge would ever impose a sentence of life without the possibility of parole on a juvenile who did not commit homicide.  The Eight Amendment prohibits such a sentence, regardless of the severity of nonhomicide crimes a juvenile has committed.

March 22, 2017 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Sunday, March 19, 2017

What crime and punishment questions might you like to see asked of SCOTUS nominee Neil Gorsuch?

I am not really expecting any tough sentencing questions to be directed toward Judge Neil Gorsuch at his coming Supreme Court confirmation hearings, but that will not stop me from imagining what such questions might sound like or from encouraging readers to share their ideas on such questions.  And though I might readily spin out a long list of such questions here, I will be content for now to rattle off just two that come to mind on a Sunday afternoon during a brief break from bracket obsession:

A few prior related posts on Judge Gorsuch:

March 19, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"

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

In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication.  Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.

Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact.  It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.

In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution.  This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution.  Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.

March 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19)

Remarkable accounting of hundreds of Arizona offenders believing they were getting life with parole after parole abolished in state

The Arizona Republic has fascinating reporting here and here on the significant number of offenders in the Grand Canyon State who were seemingly given life with parole sentences after such sentences had been legislatively abolished. This lengthy main article is headlined "Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist." Here are excerpts: 

Murder is ugly, and murderers are not sympathetic characters. But justice is justice, and a deal is a deal.

We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly. Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years....

Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.

The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.

Valdez should have been sentenced to “life with chance of release after 25 years.” “Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician.  But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. Parole hasn't existed in Arizona since 1994.  Even if a judge's sentence includes parole, it still won't happen.  Yet since then, hundreds of defendants have been sentenced to life with chance of parole.

No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing.  He found out when he received a letter last December from The Republic.  He didn’t want to believe it. "Why would they sentence me with parole if it was abolished?" he asked in a return letter. “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”...

Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years.  The sentence has not existed since the law was changed in 1993.  But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.

Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it.  He took the issue to the Arizona Supreme Court, which oversees all state courts.

Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman. “I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”

Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences. Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides.  “People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said. But he also worried about whether it could be grounds for reversing a sentence.  “We don’t want to go back to the public and say we paved the way to letting go a murderer.”...

Several prisoners contacted by The Republic were unaware they were not really eligible for parole.  “When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic.  Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole. “The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”...

Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place. The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.

Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death.  Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.

The two sentences sound very similar.  And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result.  But they are substantially different.  Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner.  It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison.  And if denied, the prisoner could re-apply after six months to a year.

But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those.   In essence, the process ceased to be a rehabilitation matter and became a political decision. The earliest “life with chance of release” cases will reach the 25-year mark in 2019.  But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.

March 19, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

A Canadian perspective on constitutional proportionality review

Given the US Supreme Court's various struggles with proportionality review of sentences under the Eighth Amendment, I was intrigue to see this article recently posted on SSRN discussing how the Supreme Court of Canada has approached this same issue. The article authored by Lauren Witten is titled "Proportionality As a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties," and here is its abstract:

This article reconceives proportionality in sentencing as a constructive reasoning process rather than as an instrumental means of achieving a fair quantum of punishment.  It argues that the Supreme Court of Canada has wrongly adopted the latter view by determining the constitutionality of mandatory minimum sentences according to hypothetical outcomes. R v. Nur is a paradigmatic example of how this error presumes a false objectivity in proportionality assessments that leaves the Court vulnerable to critiques of judicial activism.

This paper claims that a process-based conception of proportionality offers a stronger defence of judicial discretion in sentencing than the current framework offers; it better respects institutional roles and provides a more principled basis for declaring the current structure of mandatory minimum penalties unconstitutional. The proportionality as a process theory contends that judges alone are capable of reconciling the values of three constituencies in sentencing — the offender, the judge, and the public — and that this tripartite justification is integral to moral punishment.  This paper shows how the process view of proportionality in sentencing is an implicit, but under-theorized, current in the law that should be explicitly developed as part of Canadian constitutional theory.

March 19, 2017 in Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (4)

Friday, March 17, 2017

Eleventh Circuit panel declares Alabama murderer incompetent to be executed

A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed.  The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:  

Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent.  Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986).  The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007).  This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive.  See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013).  The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.

This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago.  In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline.  His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti.  Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing.  At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution.  To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him.  The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.”  Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed.  Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.

In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti.  See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)).  But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys.  Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.  One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection.  The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision.  We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.

A dissent authored by Judge Jordan gets started this way:

After reviewing the record, I believe that Vernon Madison is currently incompetent.  I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

March 17, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Tuesday, March 14, 2017

Split en banc Eleventh Circuit writes at length restricting habeas authority in ACCA case

The Eleventh Circuit has a massive new en banc opinion about federal habeas law in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., No. 12-14989 (11th Cir. March 14, 2017) (available here). The start of the majority opinion in McCarthan, which was authored by Judge Willaim Pryor, should provide enough context for interested readers to figure out why this McCarthan decision engendered a bunch of concurring and dissenting opinions. Here is the start of a whole set of opinions that together runs nearly 200 pages:

This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence.  Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).  When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e).  He did not appeal that sentence.  When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus.  McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.

For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice.  See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013).  Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them.  We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner’s sentence “inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e).  We affirm the dismissal of McCarthan’s petition for a writ of habeas corpus.

March 14, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)