Monday, August 21, 2017

NACDL and FAMM launch "State Clemency Project"

Site_logosThis new NACDL press release reports on an exciting new project that provides another example of new and important state-level criminal justice and sentencing work afoot these days.  Here are the details:

The National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM), with support from the Foundation for Criminal Justice (FCJ), announce today a major state-focused clemency initiative, the NACDL/FAMM State Clemency Project, a program designed to help to recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners to submit petitions to have their sentences commuted.  Outreach has already begun to several governors' offices across the nation.  And Governor Cuomo of New York has just announced a partnership with the NACDL/FAMM State Clemency Project to develop the necessary processes and procedures to enable volunteer lawyers through the project to help prisoners seeking clemency pursuant to the Governor's initiative. The Project will provide logistical support for the governor's initiative, among other ways, by recruiting and training volunteer lawyers to help prisoners apply for clemency.

"We are committed to provide training and resource support to volunteer lawyers to facilitate a process through which applicants can have access to counsel who can expeditiously submit a petition that makes the case for a second chance," said NACDL Executive Director Norman L. Reimer.  "We want the executive authority to see clearly that many offenders have learned from past mistakes and are ready to safely and productively return home."

"Those individuals who have worked hard to rehabilitate themselves and take responsibility for their mistakes deserve a chance to get out of the penalty box.  Their families, communities, and state will be better off with their release," said FAMM President Kevin Ring.  "We're excited to work with NACDL and Governor Cuomo on this important initiative and we look forward to partnering in other states."

"NACDL is proud to build on its experience as a Clemency Project 2014 founding partner in order to make this state-level clemency project a success," said NACDL President Rick Jones. "As a New York City defense attorney, I am especially pleased that Governor Cuomo is taking the lead in this effort.  Our goal is to provide many hundreds of applicants with qualified counsel who will submit first-rate petitions.  And our hope is that other Governors will launch their own programs, and we pledge to support them. It is long past time to recognize that people can change and that redemption is possible. This program recognizes that fundamental truth."

This project brings NACDL's and FAMM's collective experience as partners of the federal-level Clemency Project 2014 (CP 2014), to state-level clemency efforts. CP 2014, a partnership that also included the American Bar Association, American Civil Liberties Union and the Federal Public and Community Defenders, provided pro bono legal assistance to prisoners seeking to have their sentences commuted under specific criteria set by the White House.

Similarly the NACDL/FAMM State Clemency Project will focus on training lawyers to identify eligible prisoners based on criteria provided participating state executives.  Project staff will work with state agencies to devise the most efficient way to connect applicants to volunteers, provide essential applicant information, and submit well-crafted petitions.  The Project will have a state-based focus that will respond to the criteria for articulated by each governor or state clemency authority, and will rely heavily upon local attorneys, law firms and law clinics.

This link provides the press release from Gov. Cuomo's offices stating "Governor Andrew M. Cuomo today announced a first-in-the-nation partnership between a state and a coalition of legal organizations to expand New York's pro bono clemency program."  And more information about the NACDL/FAMM State Clemency Project with instructions on how to sign up to volunteer can be found here at the project website.  

Kudos to NACDL and FAMM and others involved in this project for building on the wisdom and successes achieved through the federal Clemency Project 2014.  Despite facing an array of challenges, CP14 ended up playing a huge role in helping secure clemency relief for many hundreds of federal prisons.  It would be amazing if this new project can achieve similar successes in a number of states in the months and years ahead.  (For those interested in a review of some recent federal clemency developments, the most recent issue of the Federal Sentencing Reporter has a group of articles curated by Professor Mark Osler looking broadly at Prez Obama's overall clemency initiative.) 

August 21, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, August 20, 2017

Eleventh Circuit upholds a 57-year sentence for federal juve offender for non-homicide crimes based in part of possibility of good-time credits

I just came across the interesting opinion handed down late last week by an Eleventh Circuit panel in US v. Mathurin, No. 14-12239 (11th Cir. Aug. 18, 2017) (available here), which rejects an Eighth Amendment challenge (and other challenges) to a 685-month sentence imposed for multiple armed robbery and carjacking crimes committed by the defendant just before he reached age 18.  The underlying facts and the sentencing dynamics in Mathurin are interesting, in part because an older defendant would have gotten a 300-year(!) prison sentence based on many applicable consecutive mandatory-minimum terms that went with the convictions in this case.  The defendant argued that his long prison term was still a functional LWOP term that violated the Supreme Court's Graham Eighth Amendment ruling, and the Eleventh Circuit had a lot of interesting things to say in response.  Here are snippets:

For purposes of this appeal, we will assume that Graham does apply to a non-parolable term-of-years sentence that extends beyond a defendant’s expected life span.  Applying Graham to a term-of-years sentence, however, then gives rise to another question: how does one measure the life expectancy of an individual....  [I]n resolving this case, we do not need to decide whether Defendant’s granular approach to calculating life expectancy should carry the day for purposes of a Graham analysis because even assuming the accuracy of his proffered lower life expectancy for black males in their mid-twenties, as opposed to the life expectancy of all males in their mid-twenties, we conclude that Defendant’s Graham challenge fails....

[A]lthough there is no parole for federal sentences, Defendant has it within his power to shorten his sentence by earning good-time credit. Pursuant to 18 U.S.C. § 3624, Defendant can earn up to 54 days of credit towards his sentence for each year he serves in prison, “subject to determination by the Bureau of Prisons that, during that year, [he] has displayed exemplary compliance with institutional disciplinary regulations.” 18 U.S.C. § 3624(b)(1). The Government has calculated that if Defendant earns the maximum good-time credit available, Defendant can reduce his total sentence by over 7 years and be released when he is 67 years old.  Defendant has never disputed this calculation. Earning this credit means that Defendant would serve a remaining sentence of about 43.4 years, which is more than five years shorter than his own proffered life span for black males and almost ten years shorter than the projected life span for all males his age.  Thus, Defendant’s sentence provides him with a realistic opportunity to obtain release before the end of his life, as required by Graham.

It is true that Defendant may not receive all of the above good-time credit if he misbehaves and thereby forfeits some of that credit.  But it is totally within Defendant’s own power to shorten the sentence imposed.  Graham does not require that a sentence “guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Graham, 560 U.S. at 75.  It just requires that the offender have a chance to show that he has earned the right to be given a second chance at liberty.

August 20, 2017 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (20)

"Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence"

The title of this post is the title of this paper recently posted to SSRN authored by Mirko Bagaric and Sandeep Gopalan. Here is the abstract:

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment, which the state can inflict on criminal offenders.  Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim,” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.”  The criticism of Justice Scalia’s approach to the Eighth Amendment, so far as it relates to the harshness of criminal sanctions, is wide-ranging and sometimes verging on the disparaging. The overwhelming weight of prevailing sentiment is that Justice Scalia was a foe of Criminal Law and Procedure to the extent that this is associated with a moderate or lenient approach to the punishment of offenders.  A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and rights (including prisoners’ rights) arguably put this characterization in a different light.  While Justice Scalia may have resisted a move to less harsh sentencing and expansive rights to prisoners, there is an underlying coherence to some of his key decisions that is underpinned by the provisions he was applying and, even more so, the logical and normative contents or vagueness of the concepts under consideration.

August 20, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, August 18, 2017

Huge portion of Louisiana prison population could benefit from state's recent reform of nonviolent sentences

As reported in this local article, headlined "Louisiana to review 16,000 prison sentences as criminal justice reform takes effect," recent sentencing reform in the Pelican state could have a huge impact on current prisoners. Here are the details:

Louisiana's Public Safety and Corrections officials are reviewing the sentences of 16,000 inmates who could have their prison time shortened as criminal law changes take effect Nov. 1. That's around 45 percent of the 35,500 people the state has locked up now.

Gov. John Bel Edwards and the state Legislature overhauled the criminal justice system this past spring, aiming to reduce Louisiana's highest-in-the-world incarceration rate. Some law changes have already taken place, but changes that mostly retroactively affect low-level offenders in prison go into place in November -- driving the review.

The 16,000 prison terms being reconsidered are for nonviolent offenses only and many will likely remain unchanged, said Jimmy LeBlanc, secretary of the Department of Public Safety and Corrections. For example, some inmates who are serving sentences for multiple offenses won't be affected. Also, the majority of people whose sentences are affected won't necessarily be getting out anytime soon, LeBlanc said.

Still, there will be an initial surge in releases from prison right after Nov. 1. About 3,000 to 4,000 of the 16,000 sentences being reviewed could be changed to make inmates eligible for release before the end of the year. In the end, LeBlanc estimates about 1,500 to 2,000 of that cohort will actually get out in the weeks following Nov. 1. Others will probably have to wait. Some inmates may not have completed all the rehabilitation work required to get out at an earlier date.

Prior to the criminal justice changes passing, the number of inmates in the state's corrections system was expected to reach 36,300 by November, according to the prisons system's own projections. If 2,000 additional people were released in November, that would amount to a five percent decrease compared to those projections. In a normal month, the prison system releases about 1,500 people. The 1,500 to 2,000 people who get out shortly after Nov. 1 would be in addition to those normally discharged....

The bulk of Louisiana's states inmates are actually not housed in state prisons at all. About 55 percent of them -- 19,500 inmates -- are kept in local parish jails by sheriffs that get paid by the prison system to house them.

It's not clear how many inmates who will get earlier releases -- including those who will leave in November -- will come from local jails or state prisons at this point. However, local jails tend to house lower-level offenders that are less of a public safety risk. Those in state prisons are more likely to be serving longer prison sentences for violent offenses, most of which weren't changed recently.

August 18, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Thursday, August 17, 2017

"Do Criminal Defendants Have Web Rights?"

The title of this post is the headline of this new piece at The Crime Report authored by James Trusty.  The piece provides a review of the Supreme Court's First Amendment work in Packingham v. North Carolina and its possible impact.  Here are excerpts:

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service. In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in — and specific to — sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts....

Lester Packingham ... [was] convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds. According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD — all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.  There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions.  Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior.  Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world. The intention of the judges seeking to restrict web access in these cases is understandable.  They want to remove potential tools of victimization from the hands of convicted criminals.  But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net — likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.  To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.  While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release....

Perhaps the safer bet here is on technology — that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights. 

August 17, 2017 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Technocorrections | Permalink | Comments (2)

Police groups supportive, but prosecutor objects, to new Oregon law shifting drug possession offenses down from felony to misdemeanor

This AP piece, headlined "Oregon makes drug possession a misdemeanor," reports on the notable criminal justice reform signed into law this week in the Beaver State. I found especially interesting the diverse views on the legal charge expressed by police groups and at least one prosecutor. Here are the particulars: 

A bill signed by Oregon Gov. Kate Brown on Tuesday makes personal-use possession of cocaine, heroin, methamphetamine and other drugs a misdemeanor, not a felony. Oregon joined just a handful of other U.S. states in defelonizing drugs under the new law, which was supported by law enforcement groups and takes effect immediately.

Jo Meza, owner of Amazing Treatment, a rehab center in Salem, applauded the move. She has seen the damage caused by drug addiction in her 30 years in the field. “There’s a huge crisis out there, and locking people up is not going to work,” Meza said....

Among the bill’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment.  But the two groups, in a letter to a state senator who backed the bill, said the new law “will only produce positive results if additional drug treatment resources accompany this change in policy.”

“Reducing penalties without aggressively addressing underlying addiction is unlikely to help those who need it most,” the groups warned.  Another measure appropriated $7 million that can be used to pay for drug treatment.

Linn County District Attorney Doug Marteeny had tried to convince lawmakers to dump the defelonization of dangerous drugs from the bill, which also targets police profiling.  “To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” he wrote.

Those who have a prior felony conviction won’t be afforded misdemeanor consideration, nor will people who have two or more prior drug convictions or possess more than user amounts.

August 17, 2017 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Wednesday, August 16, 2017

DC sniper Lee Malvo loses one bid for Miller resentencing in Maryland state courts

As reported in this Washington Post piece, "Lee Boyd Malvo’s six life sentences, for the six Montgomery County, Md., slayings he committed as a 17-year-old in 2002, were allowed to stand Wednesday after a Montgomery judge found that Malvo was not given mandatory life terms." Here is more about this latest ruling in a high-profile case:

Malvo, now 32, could still have the sentences overturned by a federal court in Maryland, which is also considering his appeal. In Virginia, life sentences for his jury conviction in one murder case and his guilty pleas to two other murders were overturned in May by a federal judge because of the Supreme Court’s ruling. Virginia is appealing the order that Malvo must be resentenced in those three cases.

Malvo and John Allen Muhammad began a cross-country shooting rampage in Washington state in February 2002 and concluded with a series of 13 shootings, 10 of them fatal, in the D.C. area in October of that year. Malvo was tried first for a fatal shooting in Falls Church, Va., and a jury in Chesapeake, Va., convicted him but chose a life sentence without parole rather than a death sentence. Muhammad was tried for a slaying in Manassas, Va., and a jury in Virginia Beach convicted him and sentenced him to death. Malvo then pleaded guilty to two more slayings near Fredericksburg, Va., and received two more life sentences.

Having already been convicted of three slayings in Virginia, Malvo in 2006 testified against Muhammad in his trial in Montgomery County and then pleaded guilty to six counts of first-degree murder. Montgomery Circuit Court Judge James L. Ryan then imposed six more consecutive life sentences on Malvo....

Judge Ryan has since retired. But Judge Robert A. Greenberg issued a 20-page ruling Tuesday, released publicly on Wednesday, that concluded that “Judge Ryan is presumed to have known the law,” and that Malvo was not facing mandatory life-without-parole sentences when he was sentenced. “Clearly, Maryland employs a discretionary sentencing scheme,” Greenberg wrote, noting that Ryan had a range of options from a suspended sentence to life without parole. “Judge Ryan would have been well aware that a juvenile (albeit one four months from majority) ought to be beyond rehabilitation before life-without-parole could be imposed … the court expressly considered Defendant’s youth in sentencing him. ”

But even if Malvo’s sentences were mandatory, Greenberg ruled, “Judge Ryan affirmatively considered all the relevant factors at play,” to include extensive biographical and psychological reports on Malvo, “and the plain import of his words at the time of sentencing was that Defendant is ‘irreparably corrupted.’ ”

Ryan’s ruling does not affect Malvo’s appeal of his sentences in the federal court in Maryland or his Virginia cases.

August 16, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, August 15, 2017

Spotlighting a prominent constitutional challenge to Arizona's and the nation's death penalty

Chris Geidner has this new Buzzfeed News report about a new cert petition under the headline "A Top Lawyer Asks Supreme Court To Hear A Major Death Penalty Case." Here are some of the details:

An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder. Earlier this year, Neal Katyal, best known these days for serving as the lead lawyer for Hawaii’s challenge to President Trump’s travel ban, agreed to serve as Hidalgo’s lawyer at the Supreme Court.

Katyal, the former acting solicitor general in the Obama administration, asked the justices in Monday’s filing to hear Hidalgo’s case and to strike down Arizona’s death penalty law.

The filing comes more than two years after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, called for a wholesale review of the constitutionality of the death penalty. Justice Sonia Sotomayor has also expressed great concerns about the courts’ handling of death penalty cases, as well as some states’ death penalty laws.

And Justice Anthony Kennedy has expressed concerns about the death penalty’s imposition, and has cast key votes excluding groups of people — like children or the intellectually disabled — from being eligible for the death penalty. He has not, however, given any specific indication that he is ready to join Breyer’s call to review the constitutionality of the death penalty overall — and has allowed several executions to proceed since Breyer's call.

Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as the Office of the Legal Advocate in Arizona and Arizona attorney Garrett Simpson, thinks the time is now — a move that could be tied to concerns by many liberal lawyers about whether and when Kennedy, at 81, might retire from the court. “I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them,” Katyal told BuzzFeed News on Monday evening. “We look forward to the Supreme Court's review of Mr. Hidalgo's petition.”...

The brief points out that the court in Gregg found the new state death penalty laws to be constitutional because they required the finding of “aggravating” circumstances — a move that the court’s controlling opinion concluded would “direct and limit” who was eligible for execution “so as to minimize the risk of wholly arbitrary and capricious action.”

Forty years later, Arizona’s death penalty law is such that there are so many aggravating circumstances that “every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor” making the person eligible for the death penalty. Hidalgo pleaded guilty in 2015 to two January 2001 murders in a murder-for-hire scheme in Maricopa County, Arizona. He was then sentenced to death by a jury. “Arizona’s scheme utterly fails,” Katyal wrote, to “genuinely narrow the class of persons eligible for the death penalty” as the court has required over the time since Gregg.

For this reason alone, Hidalgo’s legal team argues, the court should take the case and strike down Arizona’s death penalty law. But, beyond that, the filing goes on, “A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.” The brief argues that the court should take the case and rule that the death penalty, nationwide, is unconstitutional under the Eighth Amendment’s guarantee against cruel and unusual punishment. This is so, the brief argues, because “the number of death sentences imposed and carried out has plummeted.”

The brief also points to three further key arguments in support of this larger aim: First, states can’t give guidance that ensures that only “the worst offenders” are sentenced to death. Second, states can’t enforce the death penalty without “ensnaring and putting to death the innocent.” And, finally, “the present reality of capital punishment” — decades spent on death row with “the remote but very real possibility of execution” — is its own possible constitutional violation.

The cert petition, available at this link, sets out these "Questions Presented":

I.  Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment.

II.  Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

August 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Two notable new commentaries on how we define violent offenders and what to do with them

My twitter feed yesterday was filled with links to these two notable new commentaries about violent offenders that are both worth the time to read in full:

Here is how Balko's piece wraps up:

[P]aroling more people convicted of violent crimes will inevitably, at some point, somewhere down the line, produce a repeat offender.  The data overwhelmingly suggest that such incidents will be rare enough to be drastically overwhelmed by the benefits of a more generous and forgiving parole policy.  But those rare incidents will be easy to exploit. Advocates should be prepared for them.

In the end, this is a question of what sort of society we want to be. We can be a punitive society that believes in retribution, no matter the costs.  We can be a society that believes in redemption, regardless of cost.  Or we can be a society of people who strive for a rational, data-driven system that will never be perfect, but that will strive to protect us from truly dangerous people while also recognizing that, as the attorney and activist Bryan Stevenson puts it, “each of us is more than the worst thing we’ve ever done.”

August 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (9)

Saturday, August 12, 2017

Interesting and consequential Florida Supreme Court decision on retroactivity of Hurst

As this Death Penalty Information Center posting details, the Florida Supreme Court this past week reiterated that it would not apply retroactively its rulings requiring unanimous jury verdicts for death sentences to cases made final by June 2002 when SCOTUS decided Ring v. Arizona. The Florida court's per curiam opinion in Hitchcock v. Florida, No. SC17-445 (Fla. Aug. 10, 2017) (available here), mostly just restates a prior retroactivity ruling, but concurring and dissenting opinions make for interesting reads on retroactivity doctrines and policies.

As the DPIC posting notes, "Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases." I suspect most, if not all, of these prisoners will not be seeking certiorari to the US Supreme Court, but I would be surprised if SCOTUS takes up any of their cases.

August 12, 2017 in Apprendi / Blakely Retroactivity , Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, August 09, 2017

Should and will SCOTUS take up constitutional challenge to Minnesota's sex offender confinement program?

The question in the title of this post is prompted by this effective Minnesota Lawyer article headlined "SCOTUS to mull accepting sex offender lawsuit."  The article reviews a cert petition that has garnered a lot of amici interest, which always increases the odds of SCOTUS interest. Here are excerpts from the start and end of the piece:

A case began in December 2011 as a pro se proceeding by patients in the Minnesota Sex Offender Program disputing the conditions including room searches, restrictive telephone and mail policies and bad food, among other things — that’s how the defendant state of Minnesota characterized it, anyway.  When the petitioners got an attorney, it got re-characterized as a matter of substantive due process.

It’s now pending at the United States Supreme Court, where the justices will consider the patients’ petition for certiorari.  The briefs are all in now — one from the state, two from petitioners and four from amicus curiae supporting the petitioners.

The constitutional issue presented to the Supreme Court is the standard of review that should apply to substantive due process claims brought by the patients. Strict scrutiny, the highest standard, as employed by Judge Donovan Frank?  Or simply a reasonable relation standard, as used by the 8th U.S. Circuit Court of Appeals? And must one’s conscience be shocked by the actions of the respondents, and if so, at what stage of the review?

As the petitioners’ attorney, Dan Gustafson, sees it, the nub of the problem is that once a person is committed, he or she is labeled dangerous and loses the fundamental right to liberty effectively forever under the state system. The state has failed to enact a procedure to make sure that people are able to be released, Gustafson said. The state does have a statutory reduction in custody scheme in place, but it shifts the burden of proof to the patient and it has never resulted in a release until this lawsuit was filed. “We’ve demonstrated that it hasn’t worked for the last 25 years,” Gustafson said....

Four amicus curiae briefs from a spectrum of philosophical points of view have been submitted by friends of the court in Karsjens, et al. v. Emily Johnson Piper, et al. But they all want the Supreme Court to reverse the 8th Circuit, which didn’t have a problem with the program, which had been found unconstitutional by Judge Donovan Frank.

A group of 26 professors of law or related subjects has submitted a brief written by Mitchell Hamline Professor Eric Janus and Minneapolis attorney Richard D. Snyder. The fatal flaw in the MSOP program is that no one gets out, Janus said. “The core of the case is that the state set up what it said was going to be a civil commitment program. And the core definition of that is people get out, and that’s exactly what is missing in the Minnesota program.  It’s not just missing here or there, it’s systemically missing,” Janus wrote.

The Cato Institute, known as a libertarian think tank and an advocate for limited government, is another friend of the court.  Its brief argues, “Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole — threatening to swallow other rights and other’s rights — this Court should intervene.”

Also weighing in are criminology scholars and the Fair Punishment Project of Harvard Law School, as well as the Association for the Treatment of Sexual Abusers. The Fair Punishment Project writes that the commitment statute is a punitive scheme that has responded excessively to “moral panic.”  The Association for the Treatment of Sexual Abusers promotes sex offender research and treatment.  It argues that granting review is necessary to take account of important advances in the empirical study of rates of recidivism among sexual offenders; effective assessment treatment, and management of sexual offenders; and factors that influence the effectiveness of treatment interventions.

A few prior related posts:

August 9, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, August 08, 2017

"The Practical Case for Parole for Violent Offenders"

The title of this post is the headline of this notable new New York Times op-ed authored by Marc Morjé Howard.  Here are excerpts:

The American criminal justice system is exceptional, in the worst way possible: It combines exceptionally coercive plea bargaining, exceptionally long sentences, exceptionally brutal prison conditions and exceptionally difficult obstacles to societal re-entry. This punitiveness makes us stand out as uniquely inhumane in comparison with other industrialized countries.
To remedy this, along with other changes, we must consider opening the exit doors — and not just for the “easy” cases of nonviolent drug offenders.  Yes, I’m suggesting that we release some of the people who once committed serious, violent crimes....
[S]entencing reform — mainly consisting of reduced penalties for drug-related crimes — has received bipartisan support at both the federal and state levels. But this isn’t enough. We should also bring back discretionary parole — release before a sentence is completed — even for people convicted of violent crimes if they’ve demonstrated progress during their imprisonment.
Other democracies regularly allow such prisoners to be granted reduced sentences or conditional release. But in the United States the conversation about this common-sense policy became politicized decades ago. As a result, discretionary parole has largely disappeared in most states and was eliminated in the federal system. Prisoners whose sentences include a range of years — such as 15 to 25 years, or 25 years to life — can apply to their state’s parole board for discretionary parole, but they almost always face repeated denials and are sent back to wither away behind bars despite evidence of rehabilitation. (Inmates who have served their maximum sentence are released on what is called mandatory parole.)
Rejection is usually based on the “nature of the crime,” rather than an evaluation of a person’s transformation and accomplishments since they committed it. The deeper reason for the rejection of discretionary parole requests is simple: fear. Politicians and parole board members are terrified that a parolee will commit a new crime that attracts negative media attention.
But this fear-driven thinking is irrational, counterproductive and inhumane. It bears no connection to solid research on how criminals usually “age out” of crime, especially if they have had educational and vocational opportunities while incarcerated.  It permanently excludes people who would be eager to contribute to society as law-abiding citizens, while taxpayers spend over $30,000 a year to house each prisoner.  And it deprives hundreds of thousands of people of a meaningful chance to earn their freedom.
But are prisoners who have served long sentences for violent crimes genuinely capable of reforming and not reoffending?  The evidence says yes.  In fact, only about 1 percent of people convicted of homicide are arrested for homicide again after their release. Moreover, a recent “natural experiment” in Maryland is very telling.  In 2012, the state’s highest court decided that Maryland juries in the 1970s had been given faulty instructions. Some defendants were retried, but many others accepted plea bargains for time served and were released.  As a result, about 150 people who had been deemed the “worst of the worst” have been let out of prison — and none has committed a new crime or even violated parole....
Until recently the political situation was favorable to bipartisan criminal justice reform.  But the election of a self-described “law and order candidate,” the doubling of the stock prices of private-prison companies and the return of the discredited war on drugs gives an indication of the direction of the current administration.
But whenever a real discussion about reform does come, policy makers should look beyond the boundaries of the United States.  To be clear, I am not suggesting that all long-term prisoners should be released nor that the perspectives of crime victims should be ignored.  Serious crimes warrant long sentences.  But other democracies provide better models for running criminal justice and prison systems.  Perhaps we could learn from them and acquire a new mind-set — one that treats prisons as sites to temporarily separate people from society while creating opportunities for personal growth, renewal and eventual re-entry of those who are ready for it.

August 8, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Friday, August 04, 2017

Kentucky judge rules death penalty unconstitutional for all offenders under 21 years old

As reported in this local article, headlined "Fayette judge rules death penalty unconstitutional for man under 21," a Kentucky judge reached a significant constitutional conclusion this week. Here are the basic details:

The death penalty is unconstitutional for a defendant who was younger than 21 at the time of his offense, Fayette Circuit Judge Ernesto Scorsone ruled earlier this week. Scorsone issued an order declaring the death penalty unconstitutional in the case of 21-year-old Travis Bredhold. He was 18 years and five months old when he was charged in 2013 with murder and robbery in the fatal shooting of Marathon gas station attendant Mukeshbhai Patel.

Fayette County Commonwealth’s Attorney Lou Anna Red Corn said in a statement Friday that she will appeal Scorsone’s order “because it is contrary to the laws of Kentucky and the laws of the United States.” Red Corn said two other cases eligible for the death penalty and pending before Scorsone will be affected by his ruling.... Red Corn’s statement said the judge’s ruling “will result in delays” in all three cases.

In a 2005 decision, the U.S. Supreme Court ruled that the execution of people who were younger than 18 at the time of their crimes violated the federal constitutional guarantee against cruel and unusual punishments.

Bredhold’s defense team asked Scorsone to extend that exclusion to people 21 and younger. Prosecutors argued that the death penalty is constitutional and argued that there is no national consensus with respect to offenders under 21.

Scorsone disagreed. “Contrary to the commonwealth’s assertion, it appears there is a very clear national consensus trending toward restricting the death penalty, especially in cases where defendants are 18 to 21 years of age,” Scorsone wrote.

The judge also cited research showing that 18- to 21-year-olds are less culpable for the same reasons that the U.S. Supreme Court found teens under 18 to be. The age group lacks maturity to control their impulses and fully consider risks, making them unlikely to be deterred by knowledge of likelihood and severity of punishment, the judge wrote. In addition, they are susceptible to peer pressure and emotional influence. And their character is not yet well formed, “meaning that they have a much better chance at rehabilitation than do adults,” the judge wrote.

“Given the national trend toward restricting the use of the death penalty for young offenders, and given the recent studies by the scientific community, the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age,” Scorsone wrote.

An individual evaluation that Bredhold “operates at a level at least four years below that of his peers” further supports the exclusion of the death penalty for Bredhold, the judge concluded.

I cannot yet find a copy of Judge Scorsone's opinion, but I am looking forward to finding it and seeing what he cites to support the assertion that there is a national trend toward restricting application of the death penalty "especially in cases where defendants are 18 to 21 years of age.” I know a lot of death penalty opponents are eager to see Roper extended to older offenders, but I am not aware of any legislation in any state that has precluded those age 18 or older from the reach of the death penalty.

UPDATE:  I just found the full opinion in this case via the Death Penalty Information Center's website, and the court relies heavily on the overall decline of executions and death sentences in recent years to make the "objective" case that application of the death penalty to defendants aged 18 to 21 are in decline. 

August 4, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Split DC Circuit finds unconstitutionally excessive 30-year mandatory minimum sentences for Blackwater contractors who killed Iraqis

A huge new DC Circuit opinion released today in a high-profile criminal case include a significant Eighth Amendment ruling.  The full 100+-page opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here), gets started this way:

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security ("Blackwater"), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds....

The Court concludes ...that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

The majority's Eighth Amendment analysis is really interesting, running more than 30 pages and covering lots of ground. And it wraps up this way:

The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant.

Judge Rogers' dissent from this conclusion is also really interesting, and it concludes this way:

Although it is possible to imagine circumstances in which a thirty-year minimum sentence for a private security guard working in a war zone would approach the outer bounds of constitutionality under the Eighth Amendment, this is not that case.  The jury rejected these defendants’ claim that they fired in self-defense, and far more of their fellow security guards chose not to fire their weapons at all that day.  Yet as my colleagues apparently see it, Congress should have included an exception for all such military contractor employees, or, rather, it would have included such an exception if it had only considered the issue.  See Op. 72–74.  Perhaps so, but that is not the question before us. The district court judge made an individualized assessment of an appropriate sentencing package for each of these defendants, and the result is not disproportionate to the defendants’ crimes, let alone grossly, unconstitutionally disproportionate.

I think it possible (but not at all certain) that the feds will seek cert review of this Eighth Amendment decision, and I think it also possible (but not at all certain) that SCOTUS might be interested in this issue in this setting.

August 4, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Tuesday, August 01, 2017

Eighth Circuit affirms exclusion of juve who moved from Nebraska's sex offender registry

As noted in this prior post last year, a federal judge has blocked Nebraska from putting a 13-year-old boy who moved to the state from Minnesota on its public sex offender registry. Yesterday, an Eighth Circuit panel affirmed this ruling via this opinion which starts this way:

The State of Nebraska, along with the Nebraska State Patrol (NSP) and various state officials (collectively, the State), appeals the district court's grant of summary judgment to A.W. and A.W.'s guardians, John and Jane Doe, enjoining it from applying to A.W. a provision of Nebraska's Sex Offender Registration Act (SORA).  That provision, Neb. Rev. Stat. § 29-4003(1)(a)(iv), applies SORA to any person who, on or after January 1, 1997, "[e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."  We hold that this provision does not apply to appellant A.W. and, accordingly, affirm the district court.

The full panel ruling is interesting for how it applied Nebraska's sex offender registry law, but a final footnote highlights some broader constitutional questions the panel saw implicated in the case. Here are excerpts from the footnote:

We note that even if we found "sex offender" to be ambiguous, leaving us with the choice of selecting between two reasonable constructions, one requiring conviction and one not, we would be strongly inclined to affirm the district court.  We believe the application of SORA and its public notification requirement to juveniles adjudicated delinquent in other jurisdictions but not in Nebraska raises serious constitutional concerns under the rights to travel and to equal protection of the laws.  Of the events triggering application of SORA under NSP regulations -- residency, employment, carrying on a vocation, or attending school in Nebraska, 272 Neb. Admin. Code ch. 19 § 003.02 -- it is highly likely a juvenile would be subject to SORA due to residency. This raises troubling implications under the third prong of the right to travel, arising from the Privileges and Immunities and the Privileges or Immunities Clauses of the U.S. Constitution..., as well as under the Equal Protection Clause.  Further, to the extent the purpose of § 29-4003(1)(a)(iv) is to prevent migration into the state of undesirable citizens, application of SORA to A.W. under that provision may raise other constitutional concerns as well. Saenz, 526 U.S. at 503 ("The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons." (quoting Slaughter-House Cases, 83 U.S. 36, 112 (1872) (Bradley, J., dissenting))). Given the choice between two reasonable constructions, we will generally avoid a construction that raises "grave and doubtful constitutional questions." Union Pac. R.R. Co. v. United States Dep't of Homeland Sec., 738 F.3d 885, 892 (8th Cir. 2013).

August 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Monday, July 31, 2017

AP series looks deeply at a "patchwork of justice" for juve lifers after Graham and Miller

The AP has some new in-depth reporting on juvenile LWOP sentences and resentencings in this series labeled "Locked Up For Life."   This lead article published today is headlined "AP Investigation: A patchwork of justice for juvenile lifers," and here are some excerpts from the extended piece:

Five years ago, the U.S. Supreme Court banned mandatory life without parole for juveniles in murder cases.  Last year, the court went further, saying the more than 2,000 already serving such sentences must get a chance to show their crimes did not reflect “irreparable corruption” and, if not, have some hope for freedom.

But prison gates don’t just swing open. Instead, uncertainty and opposition stirred by the new mandate have resulted in an uneven patchwork of policies as courts and lawmakers wrestle with these complicated, painful cases.  The odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.

The Associated Press surveyed all 50 states to see how judges and prosecutors, lawmakers and parole boards are re-examining juvenile lifer cases. Some have resentenced and released dozens of those deemed to have rehabilitated themselves and served sufficient time.  Others have delayed review of cases, skirted the ruling on seeming technicalities or fought to keep the vast majority of their affected inmates locked up for life.

Many victims’ relatives are also battling to keep these offenders in prison.  They “already had their chance, their days in court, their due process,” says Candy Cheatham. Her father, Cole Cannon, was killed in 2003 in Alabama by Evan Miller, the 14-year-old whose no-parole sentence was the basis for the 2012 sentencing ban....

The AP’s review found very different brands of justice from place to place.  For years, officials in states with the most juvenile life cases were united in arguing that the Supreme Court’s ban on life without parole did not apply retroactively to inmates already serving such sentences. Now, states are heading in decidedly different directions....

The AP also found that while many states have taken steps to make former teen criminals eligible for parole, in practice, officials regularly deny release.  In Missouri, the parole board has turned down 20 of 23 juvenile lifers, according to the MacArthur Justice Center, which filed a federal lawsuit this year claiming the board is denying the state’s juvenile life-without-parole inmates a meaningful chance for release as required by the Supreme Court....  Maryland, meantime, has 271 juvenile lifers whose sentences have always given them a chance for release.  But no such prisoner has won parole in more than 20 years, prompting a lawsuit by the American Civil Liberties Union....

The impact of last year’s Supreme Court ruling goes far beyond the 2,000-plus offenders who faced mandatory no-parole sentences as teens.  In many states, legal challenges are being mounted on behalf of juveniles sentenced to life without parole at the discretion of a judge or jury, or those who are legally entitled to parole but serving such lengthy terms they are unlikely to ever get out.  The latter group encompasses some 7,300 inmates, according to The Sentencing Project.  The Supreme Court didn’t specifically address these cases, however, and that’s led to different outcomes.

July 31, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, July 20, 2017

OJ Simpson granted parole after serving nine years in prison for Nevada robbery convictions

As reported in this Los Angeles Times article, "O.J. Simpson was granted parole Thursday for convictions connected to a robbery in a Las Vegas about a decade ago. He could be out of jail as early as October. Here is bit more about perhaps the highest profile justice-involved individual:

The ruling came after a hearing in which Simpson testified that he longed to be reunited with his family and children and that he has no interest in returning to the media spotlight.

During the hearing, Simpson was assured by one of his victims that the former football star and actor already has a ride waiting for him when he gets out. “I feel that it’s time to give him a second chance; it’s time for him to go home to his family, his friends,” Bruce Frumong, a sports memorabilia dealer and a friend of Simpson’s, told the Nevada Board of Parole.

Frumong was threatened and robbed by Simpson and some of his associates in a Las Vegas hotel in 2007, and his testimony in that case led to Simpson’s imprisonment. But, Frumong told the board, “if he called me tomorrow and said, ‘Bruce I’m getting out, would you pick me up?….’” At that point, Frumong paused, turned to Simpson and addressed the former USC gridiron star by his nickname: “Juice, I’d be here tomorrow. I mean that, buddy.”

The board went into recess late Thursday morning after hearing more than an hour of testimony from Simpson; his oldest daughter, Arnelle Simpson; and Frumong, who each asked for Simpson’s release. The panel returned about a half hour later and unanimously voted to grant parole....

The commissioners asked Simpson a series of questions about how he had conducted himself in prison, what he thought his life would be like outside of prison and whether he felt humbled by his convictions. Simpson said on several occasions he was “a good guy” and indicated that he mostly wanted to spend time with his family — bemoaning missed graduations and birthdays — and that the state of Nevada might be glad to be rid of him. “No comment,” one of the commissioners said to some laughter.

He expressed regret at being involved with the crime, but drew some pushback from commissioners who took issue with his version of events, in which he said he didn’t know a gun had been brandished in the hotel room during the robbery. But Simpson held to his version, repeatedly apologizing and expressing regret that he had left a wedding in Las Vegas to go recover memorabilia he said was his. “I am sorry things turned out the way they did,” Simpson said. “I had no intent to commit a crime.”

July 20, 2017 in Celebrity sentencings, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Wednesday, July 19, 2017

Pennsylvania Supreme Court finds state sex offender registration law punitive and thus unconstitutional to apply retroactively

In a big opinion today, the Pennsylvania Supreme Court decided its state's sex offender registration law, though civil in design, was punitive in practice and thus cannot be applied retroactively. The 55-page majority opinion in Pennsylvania v. Muniz, No. (Pa. July 19, 2017) (available here), gets started this way:

We granted discretionary review to determine whether Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§9799.10-9799.41, as applied retroactively to appellant Jose M. Muniz, is unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.  The Superior Court held SORNA’s registration provisions are not punishment, and therefore retroactive application to appellant, who was convicted of sex offenses prior to SORNA’s effective date but sentenced afterwards, does not violate either the federal or state ex post facto clauses.  For the following reasons, we reverse and hold: 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The 13-page dissenting opinion authored by Chief Justice Saylor is available here and concludes this way: "Based on the Mendoza-Martinez factors, which I view as almost uniformly suggesting a non-punitive effect, I would conclude that SORNA’s registration requirements do not constitute punishment and do not violate the federal ex post facto clause."

July 19, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (27)

Will (and should) OJ Simpson get paroled in Nevada this week?

This USA Today article, headlined "Why O.J. Simpson is expected to be paroled at July 20 hearing," reports on why an infamous state criminal defendant is expected to secure parole in Nevada after serving only about 30% of his imposed prison term. Here are excerpts:

O.J. Simpson, behind bars in a Nevada prison for almost nine years, is eligible for parole Thursday and one of his former attorneys thinks the matter is all but a foregone conclusion that the former football and TV star will be eligible for release on Oct. 1.

"He’s going to get parole," said Yale Galanter, who represented Simpson during the 2008 trial when Simpson was found guilty of 12 counts, including robbery and kidnapping, and sentenced to nine years minimum and 33 years maximum. "Parole in the state of Nevada is really based on how you behave in prison, and by all accounts he’s been a model prisoner. There are no absolutes anytime you’re dealing with administrative boards, but this is as close to a non-personal decision as you can get."

Four members from the Nevada Board of Parole Commissioners will consider parole for Simpson at the board offices in Carson City, Nev., with the proceedings set to begin Thursday at 1 p.m. ET. Simpson, 70, will participate by video conference from about 100 miles away at Lovelock Correctional Center, where he has been imprisoned since December 2008.

Parole is largely determined by a point system, and how the commissioners feel about Simpson — or his acquittal in the murder of his ex-wife, Nicole Brown Simpson, and Ron Goldman — can have no impact on parole, according to Galanter. "It really is based on points," he said. "How long have you served, what your disciplinary record is, what the likelihood of committing another crime is, their age, the facts and the circumstances of the case."

The parole board has rejected the idea that Simpson could be facing more conservative commissioners because he’s imprisoned in northern Nevada. In a statement published on its website, the parole board said all commissioners use the same risk assessment and guidelines, adding, "There is no evidence that the board is aware of that indicates that one location has panel members who are more conservative or liberal than the other location."... "Simpson, with the help of several other men, broke into a Las Vegas hotel room on Sept. 13, 2007, and stole at gunpoint sports memorabilia that he said belonged to him. More than a year later, on Oct. 8, 2008, he was found guilty by a jury on all 12 charges. He was granted parole in 2013 on the armed robbery convictions. Galanter called that "the clearest indicator" Simpson will be granted parole on the remaining counts Thursday.

Simpson is being considered for parole for kidnapping, robbery, assault with a deadly weapon and the use of a deadly weapon enhancement. "It’s a fairly routine administrative matter," the attorney said. "It’s more like, 'Mr. Simpson, you’ve been a model prisoner, you have the points, congratulations, do you have anything to say, thank you very much, granted, Oct. 1.' "

Yet, it won’t exactly be routine. The parole board, for example, has said it will issue a decision Thursday so to minimize distractions. The results of some hearings, by contrast, take three weeks to reach the inmate. "The media interest in this one case is a disruption to our operation," the parole board said in its statement. "A decision (on Simpson) is being made at the time of the hearing so that the board’s operation can return to normal as soon as possible after the hearing."...

Simpson will have an opportunity to address the board by video conference as he did during the 2013 hearing. More than 240 media credentials have been approved, according to Keast, who said a dozen satellite trucks are expected at the sites in both in Carson City and Lovelock. If Simpson is paroled, the media figure to return in droves in Oct. 1, when he will be eligible for release from prison.

Notably, Gregg Jarrett at FoxNews believes strongy that OJ shoud not get parole; he explains in this commentary, headlined "O.J. Simpson, up for parole, should never be set free," how the California civil suit finding OJ responsible for wrongful deaths should be sufficient for the Nevada parole board to conclude he presents a risk to public safety.

July 19, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Tuesday, July 18, 2017

"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"

The title of this post is the title of this notable note by Jeremy Isard that was brought to my attention by a helpful reader. Here is the abstract:

This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings.  Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison.  By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science.  Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.  

July 18, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, July 17, 2017

When will SCOTUS take up a follow-up to Graham and Miller?

The question in the title of this post is prompted in part by this recent Atlantic article headlined "The Reckoning Over Young Prisoners Serving Life Without Parole." Here are excerpts:

It’s been more than seven years since the U.S. Supreme Court began to chip away at life-without-parole sentences for juvenile offenders, and lower courts are still wrestling with how to apply the justices’ logic to the American criminal-justice system.

Life sentences are an American institution. According to a recent Sentencing Project report, more than 200,000 people are serving either life in prison or a “virtual” life sentence: They haven’t been explicitly sentenced to spend their natural lives behind bars, but their prison terms extend beyond a typical human lifespan. Of these prisoners, thousands were sentenced as juveniles. More than 2,300 are serving life without parole, often abbreviated LWOP, and another 7,300 have virtual life sentences. Only after they serve decades in prison do members of the latter group typically become eligible for parole....

What happens to those previously sentenced under old laws has been left to the courts, as with three cases decided in Missouri earlier this week. Lower-court judges are forced to face complex legal and moral questions about when and if it’s proper to lock people up for most of their natural life for crimes they committed as minors. As those judges reach different conclusions, each ruling increases the likelihood the Supreme Court will need to reckon with juvenile LWOP again.

I was a bit surprised that SCOTUS took up the Miller case so soon after they decided Graham, and now I find myself a bit surprised that SCOTUS has not seemed much interested in the further development of this new line of Eighth Amendment jurisprudence. (Of course, the Montgomery case clarifying that Miller must be applied retroactively is a recent ruling in this arena and it (arguably) broke some new jursprudential ground.)

July 17, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered | Permalink | Comments (6)

Friday, July 14, 2017

Is there much to — or much to say about — reasonableness review a decade after Rita, Gall, and Kimbrough?

The question in the title of this post was the one kicking around my head as I reviewed a DC Circuit sentencing opinion handed down last week in US v. Pyles, No. 14-3069 (DC Cir. July 7, 2017) (available here). A helpful reader made sure I did not miss this lengthy opinion (nearly 50 pages), in which the panel splits over the reasonableness of a (nearly-top-of-the-guideline-range) sentence of 132-months imprisonment for child pornography distribution.   In addition to finding generally reasonable the extended reasonableness discussion of both the majority and the dissent in Pyles, I was struck by how the discussion and debate over the nature and operation of reasonableness review has really not changed much at all in the 10 years since the Supreme Court gave us Rita, Gall, and Kimbrough.

I am not sure anyone should have expected many major jurisprudential developments in the circuit courts after Rita, Gall, and Kimbrough. But, on this summer Friday morning, I am struggling to really think of any major reasonableness review developments. Though there are some important specific rulings from specific circuits on specific issues (like the Dorvee ruling on child porn sentencings from the Second Circuit), I am not sure I could describe any defining characteristics  of reasonableness review circa 2017 that is distinct in any big way from the basic reasonableness review template set by Rita, Gall, and Kimbrough in 2007.

I would especially like to hear from federal practitioners about whether I might be missing something obvious or subtle when noting the seemingly staid nature of reasonableness review jurisprudence over the last decade.  What really strikes me in this context is the fact that debates over federal sentencing laws, polices and practices have been anything but staid over the last decade even as reasonableness jurisprudence has sailed forward ever so smoothly.

July 14, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Wednesday, July 12, 2017

Missouri Supreme Court extends Miller to juvenile sentenced to mandatory life without parole eligibility for 50 years

The Supreme Court of Missouri yesterday handed down a notable ruling in State ex rel. Carr v. Wallace, No. SC93487 (Mo. July 11, 2017) (available here), which extends the reach of the US Supreme Court Miller ruling beyond mandatory LWOP sentencing.  Here is how the majority opinion in Carr gets going: 

In 1983, Jason Carr was convicted of three counts of capital murder for killing his brother, stepmother, and stepsister when he was 16 years old.  He was sentenced to three concurrent terms of life in prison without the possibility of parole for 50 years.  His sentences were imposed without any consideration of his youth.  Mr. Carr filed a petition for a writ of habeas corpus in this Court. He contends his sentences violate the Eighth Amendment because, following the decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), juvenile offenders cannot be sentenced to life without parole pursuant to mandatory sentencing schemes that preclude consideration of the offender’s youth and attendant circumstances.

Mr. Carr was sentenced under a mandatory sentencing scheme that afforded the sentencer no opportunity to consider his age, maturity, limited control over his environment, the transient characteristics attendant to youth, or his capacity for rehabilitation.  As a result, Mr. Carr’s sentences were imposed in direct contravention of the foundational principle that imposition of a state’s most severe penalties on juvenile offenders cannot proceed as though they were not children.  Consequently, Mr. Carr’s sentences of life without the possibility of parole for 50 years violate the Eighth Amendment.  Mr. Carr must be resentenced so his youth and other attendant circumstances surrounding his offense can be taken into consideration to ensure he will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.  Habeas relief is granted.

Chief Justice Fischer dissenting from the decision, and here is the heart of his short opinion:

Carr's three concurrent terms of life in prison without the possibility of parole for 50 years do not run afoul of Miller. Miller only applies to cases in which a sentencing scheme "mandates life in prison without possibility of parole for juvenile offenders." 132 S. Ct. at 2469.  Therefore, Miller does not require vacating Carr's sentences.  Nor are Carr's sentences inconsistent with this Court's or any of the Supreme Court's current Eighth Amendment jurisprudence. Indeed, the principal opinion's holding that Miller applies to Carr's sentences is, undoubtedly, not just an extension of Miller, but also calls into question whether any mandatory minimum sentence for murder could be imposed on a juvenile offender.  Accordingly, I decline to concur with that implication and remain bound by this Court's unanimous decision in Hart to apply Miller only to cases involving a mandatory sentence of life in prison without the possibility of parole.

July 12, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, July 07, 2017

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

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

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

July 7, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, July 05, 2017

Divided California Supreme Court decides Prop 47 did not alter rules for retroactivity of Prop 36 three-strikes reform

As reported in this Los Angeles Times article, headlined "California Supreme Court makes it harder for three-strike prisoners to get sentence reductions," earlier this week the top court in California divided over the resolution of an intricate and interesting retroactivity question. Here are the details:

Judges have broad authority in refusing to lighten the sentences of “three-strike” inmates, despite recent ballot measures aimed at reducing the state’s prison population, the California Supreme Court ruled Monday. In a 4-3 decision, the court said judges may freely decline to trim sentences for inmates who qualify for reductions under a 2012 ballot measure intended to reform the state’s tough three-strikes sentencing law.

Justice Leondra R. Kruger, an appointee of Gov. Jerry Brown, joined the more conservative justices to reach the result. The decision aimed to resolve questions posed by two ballot measures in recent years to reduce the population of the state’s overburdened prison system.

Proposition 36 allowed three-strike inmates to obtain sentence reductions if their third strike was neither serious nor violent. Judges were entitled to refuse a reduction if they believed the inmate posed an “unreasonable risk of danger to public safety.” They could consider the inmate’s history, disciplinary record in prison or other evidence.

Two years later, voters passed another ballot measure to reduce the prison population.  That measure, Proposition 47, created a definition of a safety risk that judges were required to apply.  Inmates could be denied a sentence reduction only if they were deemed to pose an unreasonable risk of committing certain crimes, including a killing, a sexually violent offense, child molestation or other serious or violent felony punishable by life in prison or the death penalty.

The court majority, led by Chief Justice Tani Cantil-Sakauye, said Monday that definition did not apply to three-strikers, who have been sentenced to 25 years to life for repeated crimes.  If it had, Cantil-Sakauye wrote, it would “result in the release of more recidivist serious and/or violent offenders than had been originally contemplated under Proposition 36.”

Cantil-Sakauye noted that none of the ballot materials for Proposition 47 mentioned that it would affect three-strike prisoners. Proposition 47 allowed judges to reduce some nonviolent felonies to misdemeanors.  “Based on the analysis and summary they prepared, there is no indication that the Legislative Analyst or the Attorney General were even aware that the measure might amend the resentencing criteria governing the Three Strikes Reform Act,” the chief justice wrote.

The ruling came in appeals filed by David J. Valencia and Clifford Paul Chaney, who were both sentenced to 25 years to life under the three strikes law and both eligible for reduced terms under Proposition 36. Valencia’s criminal history included kidnapping, making criminal threats and striking his wife.  Chaney’s record included armed robbery and three convictions for driving under the influence....

Justice Kathryn Mickle Werdegar and Brown’s two other appointees — Justices Goodwin Liu and Mariano-Florentino Cuéllar — noted in dissents that Proposition 47 clearly stated that the definition would apply throughout the criminal code.  The more restrictive definition advanced “the goal of concentrating state corrections spending on the most dangerous offenders,” Cuéllar wrote, and gave three-strike prisoners only “a marginally stronger basis” for winning sentence reductions.

Liu said the court majority had concluded “that the drafters of Proposition 47 pulled a fast one on an uninformed public.” But it is also possible that voters, unhappy about the huge amounts of money being spent on prisons, “knew exactly what they were doing,” Liu wrote.  Monday’s ruling “disserves the initiative process, the inmates who are now its beneficiaries, and the judicial role itself,” he said.

The full 110-page(!) opinion in this case is available at this link.

July 5, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Federal district judge explains his remarkable reasons for rejecting an unremarkable plea deal in heroin dealing prosecution

A helpful reader alerted me to a fascinating opinion issued last week by US District Judge Joseph Goodwin of the Southern District of West Virginia in US v. Walker, No. 2:17-cr-00010 (SD W. Va. June 26, 2017) (available here).  The full opinion is a must read, and here is its conclusion:

My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition.

The law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis.  The jury trial reveals the dark details of drug distribution and abuse to the community in a way that a plea bargained guilty plea cannot.  A jury trial tells a story.  The jury members listening to the evidence come away with personally impactful information about the deadly and desperate heroin and opioid crisis existing in their community.  They are educated in the process of performing their civic duty and are likely to communicate their experience in the courtroom to family members and friends.  Moreover, the attendant media attention that a jury trial occasions communicates to the community that such conduct is unlawful and that the law is upheld and enforced.  The communication of a threat of severe punishment acts as an effective deterrent.  As with other criminalized conduct, the shame of a public conviction and prison sentence specifically deters the sentenced convict from committing the crime again — at least for so long as he is imprisoned.

Over time, jury verdicts involving the distribution of heroin and opioids reinforce condemnation of the conduct by the public at large. In turn, respect for the law propagates.117 This respect for the law may eventually reduce such criminal conduct.

The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.  The bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.

For the reasons stated, I REJECT the plea agreement.

It will be quite interesting to see if the parties appeal this rejection of the plea agreement or if the defendant decides to plea without the benefit of any agreement (which I believe must be accepted if the judge finds it is voluntary).

July 5, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Monday, July 03, 2017

Highlighting Justice Gorsuch's interesting concurrence in Hicks on the perils of permitting sentencing error to persist

Adam Liptak has this effective new article in the New York Times about the effectiveness of the new Justice on the Supreme Court, Neil Gorsuch. The article is headlined "Confident and Assertive, Gorsuch Hurries to Make His Mark," and it develops the point that Justice Gorsuch's "early opinions were remarkably self-assured." The article and that line reminded me that I have been meaning to highlight Justice Gorsuch's remarkable little concurrence on the final day of the term in the Hicks v. US, No. 16-7806 (S. Ct. June 26, 2017) (available here).

Hicks is a quirky case in a quirky posture after the defendant was sentenced under the wrong crack sentencing law during the transitional uncertainty after the passage of the Fair Sentencing Act. The government admits in its briefing to SCOTUS that Hicks' 20-year mandatory-minimum sentence was legally erroneous, but the government asked SCOTUS to remand the case to the Fifth Circuit to conduct the full plain error analysis. The Supreme Court did just that via a short order, but the Chief Justice joined by Justice Thomas dissented with a short opinion suggesting that SCOTUS should make a plain error decision before being willing to vacate the judgment below. This dissent, it seems, prompted Judge Gorsuch to want to defend the Court's action and in so doing he had a lot of interesting things to say. These passages from the end of his concurrence in particular caught my attention:

A plain legal error infects this judgment—a man was wrongly sentenced to 20 years in prison under a defunct statute.  No doubt, too, there’s a reasonable probability that cleansing this error will yield a different outcome.  Of course, Mr. Hicks’s conviction won’t be undone, but the sentencing component of the district court’s judgment is likely to change, and change substantially. For experience surely teaches that a defendant entitled to a sentence consistent with 18 U.S.C. §3553(a)’s parsimony provision, rather than pursuant to the rigors of a statutory mandatory minimum, will often receive a much lower sentence.  So there can be little doubt Mr. Hicks’s substantial rights are, indeed, implicated.  Cf. Molina-Martinez v. United States, 578 U. S. ___, ___ (2016).  When it comes to the fourth prong of plain error review, it’s clear Mr. Hicks also enjoys a reasonable probability of success.  For who wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?  Cf. United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (CA10 2014).

Now this Court has no obligation to rove about looking for errors to correct in every case in this large country, and I agree with much in Justice Scalia’s dissent in Nunez v. United States, 554 U.S. 911, 911–913 (2008), suggesting caution..... But, respectfully, I am unaware of any such reason here.  Besides, if the only remaining objection to vacating the judgment here is that, despite our precedent routinely permitting the practice, we should be wary of remanding a case without first deciding for ourselves the latter elements of the plain error test, that task is so easily done that in this case that I cannot think why it should not be done. Indeed, the lone peril in the present case seems to me the possibility that we might permit the government to deny someone his liberty longer than the law permits only because we refuse to correct an obvious judicial error.

Based on Justice Gorsuch's votes in a few other criminal cases, early indications suggest that he is far more often going to vote in favor of the government rather than in favor of criminal defendants across the range of criminal law and procedure cases.  But his decision to write separately in this little case to push back at the dissenters here with this particular language leads me to wonder if Justice Gorsuch (like the Justice he replaced) might prove to be an especially interesting and unpredictable vote and voice in federal sentencing cases in particular.

July 3, 2017 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, June 29, 2017

The rest of SCOTUSblog's symposium on OT 2016 death penalty decisions

I noted in this post on Tuesday that the folks at SCOTUSblog had a new "Special Feature" in the form of a "Symposium on October Term 2016’s death-penalty decisions."  In the prior post I linked to the first four entries in this symposium, and here are now the last four:

June 29, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 27, 2017

SCOTUSblog begins symposium on OT 2016 death penalty decisions

I will not likely remember the Supreme Court term just completed, October Term 2016, as especially notable for sentencing developments.  There were no big blockbuster sentencing cases, although the Beckles vagueness ruling was certainly consequential and a few other rulings will surely launch a few law review article.  And, of course, in the intricate and endlessly litigated world of the death penalty, a mixed bag of smaller SCOTUS rulings still add up to something worth watching (especially with the added bit of uncertainty that comes with Justice Gorsuch replacing Justice Scalia).

Helpfully for those who just cannot get enough of the SCOTUS capital docket, the folks over at SCOTUSblog have this new "Special Feature" in the form of a "Symposium on October Term 2016’s death-penalty decisions."   Here are links to the four pieces already up at SCOTUSblog, and I surmise more be coming:

June 27, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Pennsylvania Supreme Court issues major Miller ruling declaring presumption against the imposition of LWOP on juvenile killers

The Pennsylvania Supreme Court yesterday handed down a major ruling on the application and implementation of the Supreme Court's modern Miller Eighth Amendment jurisprudence. The lengthy ruling in Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017 (available here), gets started this way:

Qu’eed Batts (“Batts”) was convicted of a first-degree murder that he committed when he was fourteen years old. His case returns for the second time on discretionary review for this Court to determine whether the sentencing court imposed an illegal sentence when it resentenced him to life in prison without the possibility of parole. After careful review, we conclude, based on the findings made by the sentencing court and the evidence upon which it relied, that the sentence is illegal in light of Miller v. Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life in prison without the possibility of parole, imposed upon a juvenile without consideration of the defendant’s age and the attendant characteristics of youth, is prohibited under the Eighth Amendment to the United States Constitution), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that the Miller decision announced a new substantive rule of constitutional law that applies retroactively and clarifying the limited circumstances in which a life-without-parole sentence is permissible for a crime committed when the defendant was a juvenile).

Pursuant to our grant of allowance of appeal, we further conclude that to effectuate the mandate of Miller and Montgomery, procedural safeguards are required to ensure that life-without-parole sentences are meted out only to “the rarest of juvenile offenders” whose crimes reflect “permanent incorrigibility,” “irreparable corruption” and “irretrievable depravity,” as required by Miller and Montgomery.  Thus, as fully developed in this Opinion, we recognize a presumption against the imposition of a sentence of life without parole for a juvenile offender.  To rebut the presumption, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is incapable of rehabilitation.

Because Pennsylvania has a large JLWOP population impacted by Miller and because proving rehabilitation incapacity beyond a reasonable doubt seem to be perhaps close to impossible, this Batts ruling strikes me as a  big deal jurisprudentially and practically.  (And, for any remaining Apprendi/Blakely fans, it bears noting that the Batts opinion expressly rejects the defendant's contention that a "jury must make the finding regarding a juvenile’s eligibility to be sentenced to life without parole.)

June 27, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, June 26, 2017

SCOTUS denies cert on Wisconsin case with defendant challenging risk-assessment sentencing

I had thought I had reported on all the blog-worthy action in the the Supreme Court on this busy day via prior posts here and here and here ... until one of my favorite colleagues alerted me to the fact that today's SCOTUS order list also included a denial of cert in Loomis V. Wisconsin.  This local press article discusses thie cert denial under the headline "Supreme Court refuses to hear Wisconsin predictive crime assessment case."

As some may recall from some prior postings, Loomis concerned a due process challenge to the use of risk-assessment instruments at sentencing.  And, as noted here, the Supreme Court was interested enough in this issue to invite the Solicitor General to file a brief expressing the views of the United States.  But now it seems SCOTUS was not quite yet ready to take up this interesting and important issue in this case.

Some prior related posts on Loomis case:

June 26, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

SCOTUS rules IAC of appellate counsel in state postconviction proceedings does not excuse procedural default

Resolving a technical and important issue, the US Supreme Court this morning in Davila v. Davis, No. 16-6219 (S. Ct. June 26, 2017) (available here), refused to extend some inmate-friendly habeas jurisprudence. The opinion for the Court in the 5-4 ruling was authored by Justice Thomas and it begins this way:

Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground.  A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error.  An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. See Coleman v. Thompson, 501 U. S. 722 (1991).

In Martinez v. Ryan, 566 U. S. 1 (2012), and Trevino v. Thaler, 569 U. S. 413 (2013), this Court announced a narrow exception to Coleman’s general rule.  That exception treats ineffective assistance by a prisoner’s state postconviction counsel as cause to overcome the default of a single claim — ineffective assistance of trial counsel — in a single context — where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal. The question in this case is whether we should extend that exception to allow federal courts to consider a different kind of defaulted claim — ineffective assistance of appellate counsel. We decline to do so.

The dissent authored by Justice Breyer and joined by the other more liberal justces begins this way:

As the Court explains, normally a federal habeas court cannot hear a state prisoner’s claim that his trial lawyer was, constitutionally speaking, “ineffective” if the prisoner failed to assert that claim in state court at the appropriate time, that is, if he procedurally defaulted the claim.  See ante, at 1 (the prisoner’s failure to raise his federal claim at the initial-review state collateral proceeding amounts to an “adequate and independent state procedural ground” for denying habeas relief).

But there are equitable exceptions. In Martinez v. Ryan, 566 U. S. 1 (2012), and later in Trevino v. Thaler, 569 U. S. 413 (2013), we held that, despite the presence of a procedural default, a federal court can nonetheless hear a prisoner’s claim that his trial counsel was ineffective, where (1) the framework of state procedural law “makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,” id., at 429; (2) in the state “‘initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective,’” ibid. (quoting Martinez, 566 U. S., at 17); and (3) “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit,” id., at 14.

In my view, this same exception (with the same qualifications) should apply when a prisoner raises a constitutional claim of ineffective assistance of appellate counsel. See, e.g., Evitts v. Lucey, 469 U. S. 387, 396 (1985) (Constitution guarantees a defendant an effective appellate counsel, just as it guarantees a defendant an effective trial counsel).

June 26, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

A bit of criminal justice interest in last big SCOTUS order list of Term

The last big Supreme Court order list of OT16 is available here, and an assortment of cert grants and denials, summary opinions and concurrences and dissents are notable.  For criminal justice fans in particular, the denial of a big Second Amendment case out of California and some discussion around the GVRs in a few cases seem especially noteworthy.  And the discussion around the (partial) reversal of an erroneous mandatory minimum crack sentence in Hicks v. US will merit its own posy later today because of some of the comments by the newest Justice.  But first we have some more merits opinions coming (and I have to catch a plane, so perhaps commentors can review anything I missed in transit).

June 26, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, June 23, 2017

SCOTUS decides defendant can show prejudice from bad plea advice and prevail on Sixth Amendment claim even with no defense to charge

The Supreme Court this morning handed down three more opinions, and the one notable criminal case decided today was Lee v. United States, No. 16–327 (S. Ct. June 23, 2017) (available here). The Chief Justice wrote the opinion for the Court, which starts and ends this way:

Petitioner Jae Lee was indicted on one count of possessing ecstasy with intent to distribute.  Although he has lived in this country for most of his life, Lee is not a United States citizen, and he feared that a criminal conviction might affect his status as a lawful permanent resident.  His attorney assured him there was nothing to worry about — the Government would not deport him if he pleaded guilty.  So Lee, who had no real defense to the charge, opted to accept a plea that carried a lesser prison sentence than he would have faced at trial.

Lee’s attorney was wrong: The conviction meant that Lee was subject to mandatory deportation from this country.  Lee seeks to vacate his conviction on the ground that, in accepting the plea, he received ineffective assistance of counsel in violation of the Sixth Amendment.  Everyone agrees that Lee received objectively unreasonable representation. The question presented is whether he can show he was prejudiced as a result....

We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial?  Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time.  See id., at 6.  Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.

Lee’s claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence.  Accordingly we conclude Lee has demonstrated a “reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S., at 59.

Justice Thomas wrote a dissent joined by Justice Alito which gets started this way:

The Court today holds that a defendant can undo a guilty plea, well after sentencing and in the face of overwhelming evidence of guilt, because he would have chosen to pursue a defense at trial with no reasonable chance of success if his attorney had properly advised him of the immigration consequences of his plea.  Neither the Sixth Amendment nor this Court’s precedents support that conclusion.  I respectfully dissent.

June 23, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Thursday, June 22, 2017

Today's SCOTUS CJ scorecard: government wins in two procedural cases, defendant wins in one substantive case

The Supreme Court this morning handed down opinions in three cases, all three of which involve intricate criminal law and procedure issues. I am going to copy and tweak here the summary of all the action from How Appealing for ease of exposition: 

1. Justice Elena Kagan delivered the opinion of the Court in Maslenjak v. United States, No. 16-309. Justice Neil M. Gorsuch issued an opinion, in which Justice Clarence Thomas joined, concurring in part and concurring in the judgment. And Justice Samuel A. Alito, Jr. issued an opinion concurring in the judgment. 

2. Justice Stephen G. Breyer delivered the opinion of the Court in Turner v. United States, No. 15-1503. Justice Kagan issued a dissenting opinion, in which Justice Ruth Bader Ginsburg joined. 

3. And Justice Anthony M. Kennedy delivered the opinion of the Court in Weaver v. Massachusetts, No. 16-240.  Justice Thomas issued a concurring opinion, in which Justice Gorsuch joined.  Justice Alito issued an opinion concurring in the judgment, in which Justice Gorsuch also joined.  And Justice Breyer issued a dissenting opinion, in which Justice Kagan joined. 

As the title of this post indicates, and as the pattern of votes suggests, the defendant prevailed in first of these listed cases, Maslenjak, which concerned the substantive reach of a federal criminal statute.  The government prevailed in the other two cases, one of which concerned the application of Brady (Turner) and the other of which concerned what types of errors can be found harmless in Strickland ineffective assistance analysis (Weaver).

For a variety of reasons, the procedural rulings on behalf of the government in Turner and Weaver seem like a much bigger deal than the Maslenjak ruling, perhaps especially because the government had won below in Turner and Weaver and so it could have been reasonably assumed that the Supreme Court took up the cases in order to reverse the outcome.  Also, of course, issues related to the application of Brady and Strickland impact so many cases, especially on collateral appeal.

Over at Crime & Consequences, Kent Scheidegger has this helpful summary post on all these cases simply and appropriately titled "Materiality."

June 22, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, June 21, 2017

Henry Montgomery (of Montgomery v. Louisiana) re-sentenced to life with parole

As reported in this lengthy local article, a defendant whose surname means a lot to a lot of juvenile offenders long ago sentenced to life without parole was resentenced today in Louisiana. Here are just some of the details of the latest chapter of a truly a remarkable case:

A Baton Rouge judge Wednesday gave a 71-year-old man convicted of killing a sheriff's deputy when he was 17 a chance to leave prison before he dies.

Henry Montgomery has been locked up for 54 years in the killing of East Baton Rouge sheriff's deputy Charles Hurt. But Judge Richard Anderson on Wednesday re-sentenced Montgomery to a life sentence with the possibility of parole, following a pair of recent U.S. Supreme Court rulings — including Montgomery's own case — that say defendants convicted of murder for killings committed as juveniles cannot automatically be sent away to serve life without parole.

"This is not an easy thing for me to do … because one man is dead and the family is still living through the consequences. But the law is the law," said Anderson, referencing the higher court decisions that said sentences of life without parole for young killers must be "rare and uncommon" and reserved only for those who display "irretrievable depravity."

Anderson's decision during the brief hearing came nearly two months after defense attorneys presented the judge with extensive testimony about Montgomery's conduct in prison and the rough circumstances of his childhood.  Officials from the Louisiana State Penitentiary at Angola, where Montgomery has spent nearly all of the last half-century, described him as a trustworthy inmate and reliable worker who accumulated a remarkably low number of infractions during his time at the once-notorious prison.

Lindsay Jarrell Blouin, an East Baton Rouge Parish public defender who represents Montgomery, also detailed rough circumstances of Montgomery's childhood, which she wrote included neglect, physical abuse and a lack of education. Court filings also detailed Montgomery's mental limitations, including an IQ estimated by psychologists during his 1969 trial as somewhere in the 70s....

"He's been a model prisoner for 54 years, he's been a mentor and, by all appearances, he's been rehabilitated," Anderson said. "It does not appear (Montgomery) is someone the Supreme Court would consider 'irreparably corrupt.'"

Montgomery was walking near Scotlandville High School on Nov. 13, 1963, when he ran from Hurt and other deputies who'd arrived to investigate a theft complaint called in by the school.  Hurt tried to detain Montgomery, according to trial transcripts, and Montgomery killed him with a single shot from a .22-caliber pistol.  Hurt's partner that day wrote in an initial report that Hurt had his hands up and was backing away when Montgomery shot him.  But the officer testified at trial that he was some 350 yards away and couldn't see Hurt or Montgomery at the moment of the shooting, according to recent filings by Montgomery's attorneys.  The deputy was wearing plain clothes, Montgomery's attorneys wrote, and the teenager told investigators following his arrest that he thought Hurt was reaching for a gun when he fired. "This was a terrible, split-second decision made by a scared 17-year-old boy who thought he was going to be killed."

Hurt's family did not attend Wednesday's hearing.  But in April, as Anderson considered evidence in the case, Hurt's two daughters took the stand to testify to how that single gunshot upended their family, snapped previously happy childhoods and continues to reverberate in painful ways decades later.  Becky Wilson and Linda Woods both told Anderson through tears that they'd come to forgive and pray for Montgomery.  The deputy's daughters met privately with Montgomery at Angola earlier this year.

But the sisters, as well as Jean-Paul deGravelles, Hurt's grandson who's now a Lafourche Parish sheriff's deputy, all said they felt Montgomery received a just sentence when a jury in 1969 found him guilty of murder "without capital punishment" — a verdict that spared Montgomery the death penalty but sent him away for the remainder of his life.

Anderson echoed that view, noting from the bench that he felt Montgomery's life-without-parole sentence was fair. But the law has changed, Anderson said, regardless of whether the judge agrees with the Supreme Court rulings.

Prosecutors didn't argue for either life with or without parole for Montgomery but noted the gravity of the crime and its impact on the victim's family.  Lawyers with the Attorney General's Office who represented the state at the hearing declined to comment Wednesday.  East Baton Rouge District Attorney Hillar Moore III said Anderson's "difficult but well-reasoned decision" acknowledged the suffering caused by Montgomery but was bound by the U.S. Supreme Court's decision.

Wilson, who was 9 years old when her father was killed, said Wednesday she believes Anderson reached "the only decision he could" under current law in offering Montgomery a chance at parole and said she appreciates the judge's careful consideration of the case.  "As for Mr. Montgomery, I just pray for God’s perfect will to be done in his life and hope and pray he is blessed wherever he might be, today and in his future," Wilson said by email. "If he should be paroled, I hope, if given the opportunity, he will use his life experience to help keep young men and women from going down the same path he went down. Also, I pray that he will truly be thankful and humbled by the gift of freedom."

Montgomery's 1969 conviction came after the Louisiana Supreme Court overturned an earlier verdict, ruling that widespread and often racially tinged attention to the case "permeated the atmosphere" in Baton Rouge during his first trial.  The court ruled that "no one could reasonably say that the verdict and the sentence were lawfully obtained." Anderson on Wednesday noted the jury in Montgomery's second trial in 1969 chose not to impose a death sentence even though the law allowed it.  Montgomery's attorneys argued earlier that the jury's decision for a lesser sentence suggested they didn't see Montgomery as among the worst killers.

Anderson also admonished Montgomery, who stood before the judge stooped with his hands closely shackled to a belly chain, to take advantage of his opportunity at freedom.  Montgomery didn't speak during the hearing and was quickly led away after the judge read out his new sentence.  Blouin, his attorney, said after the hearing that Montgomery was pleased with the decision but "still grieves for the victim's family and the impact this has had on them."

The next step for Montgomery will be a request for a parole board hearing.  He's already served more than twice as many years as required before parole consideration and has met other requirements to apply for release. Keith Nordyke, an attorney with the Louisiana Parole Project, a nonprofit firm representing Montgomery in the parole process, said a hearing could come before the end of the year.

June 21, 2017 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Close examination of some JLWOP girls who should benefit from Graham and Miller

The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence.  Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before.  Here are their full headlines, with links, followed by an excerpt from the second of the pieces: 

"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko

"Lisa, Laquanda, Machelle, and Kenya Were Sentenced as Children to Die in Prison: Decades later, a Supreme Court ruling could give them their freedom" by Danielle Wolffe

The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.

The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.

I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.

The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.

June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, June 19, 2017

SCOTUS declares unconstitutional North Carolina criminal law restricting sex offender access to social media

Today was a big day for the First Amendment in the US Supreme Court.  In addition to a notable First Amendment trademark ruling, the Court handed down a widely anticipated ruling in Packingham v. North Carolina, No. 15–1194 (S. Ct. June 19. 2017) (available here), dealing with a state law restricting internet access for sex offenders.  Here is how the Court's majority opinion in Packingham, authored by Justice Kennedy, gets started and a key closing paragraph:

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter.  The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment....

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.  Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The majority opinion in Packingham is quite short, but that does not mean it does not pack a punch.  In fact, Justice Alito authored an extended concurrence which was joined by the Chief Justice and Justice Thomas in order to lament some of the "undisciplined dicta" in Justice Kennedy's short majority opinion.  Here is how the concurrence begins:

The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” New York v. Ferber, 458 U.S. 747, 757 (1982) — but it has a staggering reach.  It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children.  Because of the law’s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.

I cannot join the opinion of the Court, however, because of its undisciplined dicta.  The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.  Ante, at 4–5.  And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers.  I am troubled by the implications of the Court’s unnecessary rhetoric.

(Though the issues in Packingham are no laughing matter, I am getting a giggle thinking about whether the phrase "undisciplined dicta" would better serve as my stage name if I was part of a nerdy rap band or just ought to be made into a rubber-stamp to help all my students add that commentary to course evaluations.)

June 19, 2017 in Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (16)

By a 5-4 vote, SCOTUS decides failure of Alabama courts to provide expert mental health assistance to capital defendant was unreasonable

The Supreme Court handed down a notable split decision in a capital case this morning in McWilliams v. Dunn, No. 16-5294 (S. Ct. June 19, 2017)(available here). Justice Breyer authored the opinion for the Court for the usual coalition of Justices most skeptical of application of the death penalty, and that opinion starts this way:

Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death.  McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts’ refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). We hold that it was.  Our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83.  Petitioner in this case did not receive that assistance.

A sharp dissent in McWilliams, which runs longer than the majority opinion, is authored by Justice Alito (and joined by the newest Justice), and it starts this way:

We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly established that an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.

The answer to that question is plain: Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team.  Indeed, “Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.” W. LaFave, Criminal Law § 8.2(d), p. 449 (5th ed. 2010) (LaFave).  Accordingly, the proper disposition of this case is to affirm the judgment below.

The Court avoids that outcome by means of a most unseemly maneuver.  The Court declines to decide the question on which we granted review and thus leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent.  That is bad enough.  But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review.  And the Court decides that factbound question without giving Alabama a fair opportunity to brief the issue.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

SCOTUS summarily reverses Sixth Circuit reversal of Ohio death sentence

The US Supreme Court this morning issued this order list that did not include any grants of certiorari, but did include a summary reversal in the Ohio capital habeas case of Jenkins v. Hutton, No. 16-1116 (S. Ct. June 19, 2017) (available here).  Here are some key passages from this brief per curiam opinion: 

According to Hutton, the court gave the jurors insufficient guidance [when deciding on whether to recommend a death sentence] because it failed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase.  Hutton, however, had not objected to the trial court’s instruction or raised this argument on direct appeal, and the District Court on federal habeas concluded that his due process claim was procedurally defaulted....

Nonetheless, the Sixth Circuit held that the [miscarriage of justice] exception justified reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary finding of the existence of aggravating circumstances.” 839 F.3d, at 498–499.  And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury’s death recommendation “was actually based on a review of any valid aggravating circumstances.” Id., at 500....

The Sixth Circuit was wrong to reach the merits of Hutton’s claim.... Hutton has not argued that the trial court improperly instructed the jury about aggravating circumstances at the guilt phase.  Nor did the Sixth Circuit identify any such error. Instead, the instruction that Hutton contends is incorrect, and that the Sixth Circuit analyzed, was given at the penalty phase of trial.  That penalty phase instruction plainly had no effect on the jury’s decision — delivered after the guilt phase and pursuant to an unchallenged instruction — that aggravating circumstances were present when Hutton murdered Mitchell.

The Sixth Circuit’s second reason for reaching the merits rests on a legal error.  Under Sawyer, a court may review a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.”  505 U.S., at 336 (emphasis added).  Here, the alleged error was the trial court’s failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circumstances it found at the guilt phase.   Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.

June 19, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22)

Wednesday, June 14, 2017

Might judicial estoppel continue to preclude Ohio from moving forward with a three-drug lethal injection protocol?

As previously noted here, today is the day for the Sixth Circuit oral argument in its rehearing en banc of the State of Ohio's appeal of a lower court stay blocking Ohio from using its latest three-drug protocol to execute condemned murderers.  One basis for stay, as reported here, was the plan for Ohio to use midazolam as the first drug in its three-drug execution protocol.  But some recent uneventful executions by other states using midazolam may serve to make this foundation for the stay weaker than it was earlier this year.  So another issue sure to come up in this argument is the capital defendants' claim, also adopted in the initial stay order, that Ohio is judicially estopped from using a three-drug execution protocol after having years ago forsworn such a plan in favor of one-drug execution plans.

In this recent post at the ACS blog, titled "Ohio’s Lethal Flip Flop: Court Should Hold State To Consistent Legal Position on How To Execute," Virginia Sloan makes the case for the judicial estoppel arguments to block Ohio's execution plans.  Here are excerpts:

Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation....

After [a] failed execution, and facing an imminent trial in July 2010 on the prisoners’ challenges to Ohio’s three-drug lethal injection method, Ohio announced in November 2009 that it would never again use the paralytic drug pancuronium bromide and potassium chloride in executions. State officials represented they would use a one-drug, barbiturate-only method instead. The same day Ohio announced this change, it filed a motion for summary judgment in the pending litigation, asking the federal court to dismiss all challenges to the three-drug protocol because, as the State argued, the change in execution drugs meant the claims about the two painful drugs were “moot.” The State’s filing unequivocally declared “there is no possibility here that the allegedly unconstitutional conduct will reoccur.” The federal courts accepted Ohio’s argument, and its representations, with the Sixth Circuit explicitly holding that “any challenge to Ohio’s three-drug execution protocol is now moot.” With the prisoners’ constitutional claims thus mooted in this way, the State proceeded to carry out 20 executions over the next eight years, including that of Mr. Biros in December 2009.

Fast forward to October 2016: Ohio reneged on its promises. State officials announced that their “new,” three-drug protocol will again include a paralytic and potassium chloride. Unsurprisingly, the courts did not look favorably upon Ohio’s flip-flopping. In his order, following a five-day evidentiary hearing in 2017, U.S. Magistrate Judge Michael R. Merz wrote that “the position the State of Ohio now takes — that it will execute [prisoners] using a paralytic agent and potassium chloride — is completely inconsistent with the position it took on appeal in Cooey (Biros) and on remand from that decision before Judge Frost. Ohio prevailed on its contrary position and is now judicially estopped from re-adopting a paralytic agent and potassium chloride as part of the Execution Protocol.”  On April 5, 2017, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit agreed, upholding the preliminary injunction.

The State petitioned for the full court to hear the case, and in coming weeks, Ohio will try for the third time to explain why it is acceptable to render litigation moot by making one representation, and then later in that same litigation to propagate actions in contravention of that representation.

Judicial estoppel prevents parties from manipulating legal proceedings, requiring parties to maintain consistency within the course of litigation. The changing of positions based on convenience or “exigencies of the moment” is not authorized by law, and is particularly reprehensible when the issue at hand is one of life or death. Ohio apparently needs a third ruling to remind officials that what they promised the federal courts in 2009 still binds them in 2017. The law demands that the State devise an execution protocol consistent with its word.

Even without hearing the outcome of today's oral argument, I am predicting that this judicial estoppel claim does not end up carrying the day with the full en banc Sixth Circuit.  Ohio officials are claiming that they have returned to a three-drug execution protocol because of a state legal obligation to carry out lawful death sentences AND a constitutional obligation to carry out executions in the least painful way possible. If Ohio officials reasonably and accurately assert they had to return to a three-drug protocol to comply with these obligations, I doubt the full Sixth Circuit will conclude a prior litigation position must now thwart these efforts.  

June 14, 2017 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, June 12, 2017

In summary reversal, SCOTUS holds AEDPA precluded federal court from finding Virginia's geriatric release system was insufficient to comply with Graham

One may need to be a hard-core law-geek to fully appreciate all the nuance that it is in the title of this post, which aspires to be an accurate accounting of the Supreme Court's decision six-page per curiam decision this morning in Virginia v. LeBlanc, No. 16–1177 (S. Ct. June 12, 2017) (available here).  Here are excerpts from the heart of the opinion:

The Court of Appeals for the Fourth Circuit erred by failing to accord the state court’s decision the deference owed under AEDPA. Graham did not decide that a geriatric release program like Virginia’s failed to satisfy the Eighth Amendment because that question was not presented. And it was not objectively unreasonable for the state court to conclude that, because the geriatric release program employed normal parole factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole. The geriatric release program instructs Virginia’s Parole Board to consider factors like the “individual’s history . . . and the individual’s conduct . . . during incarceration,” as well as the prisoner’s “inter-personal relationships with staff and inmates” and “[c]hanges in attitude toward self and others.” See 841 F. 3d, at 280–281 (Niemeyer, J., dissenting) (citing Virginia Parole Board Policy Manual 2–4 (Oct. 2006)).  Consideration of these factors could allow the Parole Board to order a former juvenile offender’s conditional release in light of his or her “demonstrated maturity and rehabilitation.” Graham, 560 U.S., at 75. The state court thus did not diverge so far from Graham’s dictates as to make it “so obvious that . . . there could be no ‘fairminded disagreement’” about whether the state court’s ruling conflicts with this Court’s case law. White v. Woodall, 572 U.S. ___, ___ (2014) (slip op., at 11).

“Perhaps the logical next step from” Graham would be to hold that a geriatric release program does not satisfy the Eighth Amendment, but “perhaps not.” 572 U.S., at ___ (slip op., at 11). “[T]here are reasonable arguments on both sides.” Id., at ___–___ (slip op., at 11–12).  With respect to petitioners, these include the arguments discussed above. Supra, at 4. With regards to respondent, these include the contentions that the Parole Board’s substantial discretion to deny geriatric release deprives juvenile nonhomicide offenders a meaningful opportunity to seek parole and that juveniles cannot seek geriatric release until they have spent at least four decades in prison.

These arguments cannot be resolved on federal habeas review.  Because this case arises “only in th[at] narrow context,” the Court “express[es] no view on the merits of the underlying” Eighth Amendment claim. Woods, supra, at ___ (slip op., at 7) (internal quotation marks omitted).  Nor does the Court “suggest or imply that the underlying issue, if presented on direct review, would be insubstantial.” Marshall v. Rodgers, 569 U. S. ___, ___ (2013) (per curiam) (slip op., at 7); accord, Woodall, supra, at ___ (slip op., at 5). The Court today holds only that the Virginia trial court’s ruling, resting on the Virginia Supreme Court’s earlier ruling in Angel, was not objectively unreasonable in light of this Court’s current case law.

A proper respect for AEDPA’s high bar for habeas relief avoids unnecessarily “disturb[ing] the State’s significant interest in repose for concluded litigation, den[ying] society the right to punish some admitted offenders, and intrud[ing] on state sovereignty to a degree matched by few exercises of federal judicial authority.” Harrington, supra, at 103 (internal quotation marks omitted).  The federalism interest implicated in AEDPA cases is of central relevance in this case, for the Court of Appeals for the Fourth Circuit’s holding created the potential for significant discord in the Virginia sentencing process. Before today, Virginia courts were permitted to impose — and required to affirm — a sentence like respondent’s, while federal courts presented with the same fact pattern were required to grant habeas relief.  Reversing the Court of Appeals’ decision in this case — rather than waiting until a more substantial split of authority develops — spares Virginia courts from having to confront this legal quagmire.

Justice Ginsburg wrote a separate concurrence in LeBlanc to make this point:

Graham v. Florida, 560 U.S. 48 (2010), as today’s per curiam recognizes, established that a juvenile offender convicted of a nonhomicide offense must have “some meaningful opportunity to obtain release [from prison] based on demonstrated maturity and rehabilitation.” Id., at 75. See ante, at 2.  I join the Court’s judgment on the understanding that the Virginia Supreme Court, in Angel v. Commonwealth, 281 Va. 248, 704 S.E.2d 386 (2011), interpreted Virginia law to require the parole board to provide such a meaningful opportunity under the geriatric release program.  See id., at 275, 704 S.E.2d, at 402 (“the factors used in the normal parole consideration process apply to conditional release decisions under this statute”).  In other words, contrary to the Fourth Circuit’s interpretation of Virginia law, the parole board may not deny a juvenile offender geriatric release “for any reason whatsoever,”  841 F.3d 256, 269 (2016) (emphasis in original); instead, the board, when evaluating a juvenile offender for geriatric release, must consider the normal parole factors, including rehabilitation and maturity.  See ante, at 4.

June 12, 2017 in Assessing Graham and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Notable report of Missouri parole board playing a version of "turkey bingo" during hearings with inmates

I just noticed an interesting report from the St. Louis Post-Dispatch about an intriguing controversy swirling around Missouri's parole board.  Here are links to two lengthy stories about the controversies and their first few paragraphs:

"Missouri parole board played word games during hearings with inmates"

The Missouri Board of Probation and Parole allegedly toyed with prisoners during hearings by trying to get them to say a chosen word or song title of the day, such as “platypus” and “Hound Dog.”

Don Ruzicka, a member of the seven-member board, along with an unnamed government employee were accused of keeping score during the hearings, according to a Department of Corrections inspector general report completed on Nov. 1, 2016. Each time one of them used a predetermined keyword while interviewing an offender they earned a point. Two points were granted if the offender repeated the word. Occasionally, the duo spiced the game up by wearing matching clothing, like the time they dressed in black shirts, ties, pants and shoes.

The Roderick and Solange MacArthur Justice Center at St. Louis recently obtained the state report and released it Thursday after a news conference, asserting that public servants “played games with people’s lives and liberty.”

"Officials insist Missouri parole board takes job seriously despite games played during hearings"

The day after a human rights law firm called on Republican Gov. Eric Greitens to remove former state Rep. Don Ruzicka from the Missouri Board of Probation and Parole for toying with inmates during hearings, two top prison officials stood by the panel on Friday.

A previously undisclosed state investigation found that Ruzicka and an unidentified Department of Corrections employee entertained themselves at some parole hearings by trying to get inmates to say words and song titles such as “platypus” and “All My Rowdy Friends Are Coming Over Tonight.” They even kept score.

“We have very credible members who take their job seriously,” insisted Parole Board Chairman Kenneth C. Jones, who is also a former Republican state representative as well as a former sheriff. “There is no joking around. It’s a very serious job.”

June 12, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, June 07, 2017

Spotlighting the continued challenges for juve lifers like Henry Montgomery even after SCOTUS victories in Miller and Montgomery

Mother Jones has this notable new article about Henry Montgomery and other juveniles who are still fighting to get relief after seemingly helpful recent Supreme Court Eighth Amendment rulings. The full headline of this piece is "The Supreme Court Said His Prison Sentence Was Unconstitutional. He’s Still Behind Bars. Despite a ruling in their favor, Henry Montgomery and other juvenile lifers are no closer to getting out."  Here are excerpts:

But although the Supreme Court often appears all-powerful, its clout is more limited than it seems. Nearly 18 months after his victory, Montgomery is still sitting in Angola, and there’s no guarantee that he — or many of the roughly 1,000 others serving similar sentences across the country — will ever get out....

Montgomery’s saga began in November 1963 in East Baton Rouge, Louisiana, during a turbulent time of racial tensions, Ku Klux Klan activity, and cross-burnings. Montgomery, who is African American, was in 10th grade and playing hooky when he encountered the local sheriff, Charles Hurt, who was white. In a panic at being caught out of school, Montgomery allegedly shot and killed Hurt with his grandfather’s gun, which he had stolen....

[If sentenced today], Montgomery would be allowed to present evidence of mitigating circumstances, and his lawyers could argue that his youth and mental disability — he had an IQ of around 70 — should be grounds for a reduced sentence. Instead, a state appellate court upheld his mandatory life sentence, and that was the end of his contact with a lawyer for decades to come....

In 2012, the US Supreme Court offered juvenile lifers such as Montgomery a glimmer of hope. In Miller v. Alabama, a case of two men who’d been sentenced to mandatory life without parole for crimes they committed at the age of 14, the court ruled 5-4 that such sentences were unconstitutional. Mandatory life without parole violated the Eighth Amendment prohibition on cruel and unusual punishment, the court said, because such sentences failed to recognize that adults differ from children, who have “diminished culpability and greater prospects for reform.” The court held that life-without-parole sentences should be used only for “the rare juvenile offender whose crime reflects irreparable corruption.”

The decision set off a flurry of litigation by inmates incarcerated as children who argued that the Miller decision should be applied retroactively. Montgomery filed a petition to have his sentence overturned without the help of a lawyer, but the Baton Rouge public defender’s office eventually took up his case. The local district attorney fought him every step of the way, and he lost in all the state appeals courts. But in 2015, the US Supreme Court agreed to hear his case.

In January 2016, the court ruled in Montgomery’s favor, with Kennedy writing that the decision, which gave juvenile lifers a shot at parole, “would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”

But the decision was only the beginning of Montgomery’s fight.  The Supreme Court decision gave states a lot of leeway in how they handle cases like Montgomery’s and punted the details to lower-court judges and state legislators.  In Louisiana, a judge could reduce Montgomery’s sentence to life with parole, but that would leave his fate to Louisiana’s notoriously stringent parole board, which could deny him release.  The Supreme Court also left room for judges to simply resentence eligible inmates to life without parole by declaring them irreparably corrupt. And that’s exactly what the Baton Rouge district attorney pushed for in Montgomery’s case....

Montgomery’s case has languished in part because the state didn’t know quite how to handle Louisiana’s 300 juvenile lifers who’d won the right to resentencing.  Should an inmate have a full-blown sentencing hearing that would resemble those used in capital cases?  And who should decide the outcome, a jury or a judge?  The courts put Montgomery’s case on hold while the state Legislature considered a bill that would automatically grant juvenile lifers a shot at parole after they’d served 30 years in prison.  But the bill died last summer, and although it’s been taken up again this year, the courts have decided to move forward without any new legislation.  Some juvenile lifers have been able to win plea bargains that freed them, but they aren’t the majority.

Working against Montgomery is the fact that the adult children and grandchildren of his victim have been involved in the process and are opposed to his release....

Montgomery is one of many juvenile lifers whose sentences remain in limbo after the Supreme Court decision. Michigan, for example, has about 350 juvenile lifers behind bars. Since the Supreme Court decision in Montgomery, the state has begun resentencing them.  [Juvenile Law Center's Marsha] Levick says that in about 85 percent of those cases, prosecutors are again seeking life without parole.  In one jurisdiction, the local prosecutor is the same former judge who sentenced many of the inmates to life in the first place. She has requested new life sentences for 44 of 49 inmates serving life without parole for murders they committed before the age of 18....

Jody Kent Lavy, executive director of the Campaign for Fair Sentencing of Youth, visited Montgomery in Angola earlier this year and says that because of the resistance of states like Louisiana and Michigan to implementing the Montgomery decision, the high court really “needs to take another step to bar life without parole [for juveniles] outright.”  She notes that local district attorneys are usually elected, and so the Montgomery decision “still leaves room for racially charged decisions, politically motivated decisions, as opposed to what is fair.  It keeps me up at night.”

A state court judge heard Montgomery’s case last month and promised a decision by late June.

June 7, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, June 05, 2017

Gearing up for big state court argument on the state and fate of California's death penalty

The San Francisco Chronicle has this new article about the new issues the California Supreme Court is facing concerning the state's old death penalty problems. The piece is headlined "State high court ruling on death penalty could restart executions<" and here are excerpts:

The California Supreme Court hears many high-stakes cases on issues such as individual rights, taxes, and the lawmaking powers of the state and its voters. But it has seldom confronted a case with such potentially dramatic consequences as Tuesday’s hearing on the Proposition 66 death-penalty initiative.

If the court — traditionally deferential to the will of the voters — upholds the central provisions of Prop. 66, it will open the door to the resumption of executions in a state that last put a prisoner to death in January 2006. Nearly 750 condemned inmates inhabit the nation’s largest Death Row, and about 20 have run out of appeals to their conviction and sentence.

Prop. 66 also seeks to speed up future executions, in part by requiring the state’s high court to decide all death-penalty appeals within five years of sentencing — more than twice its current pace. If the court upholds that requirement, one of the most hotly contested in the case, it may have to reconfigure itself as a tribunal that gives priority to capital cases over all other types of criminal and civil law disputes in the nation’s most populous state.

California has long been what one expert calls a "symbolic death penalty state," one of 12 that has capital punishment on the books but has not executed anyone in more than a decade. Prodded by voters and lawsuits, the nation's most populous state may now roll back toward allowing executions, though observers are split on how quickly they will resume, if at all.

The justices could reject the deadlines while upholding other Prop. 66 provisions aimed at shortening the death-penalty process, such as limiting prisoners’ appeals and requiring more lawyers to accept capital cases. But opponents say the proposed timetables for court action are the heart of an initiative that seeks to hamstring judicial authority over state law.

Neither lawmakers nor voters can “force the courts to prioritize a certain type of case at the expense of all other types of cases,” said Christina Von der Ahe Rayburn, a lawyer in the suit to overturn Prop. 66. The requirement to move death cases to the front of the line, she said, would “impair the court’s inherent function of giving fair and equal treatment to (all) litigants.”

Not so, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an author of Prop. 66. He said the measure would actually relieve the state Supreme Court of some of its current death-penalty workload by transferring some hearings to trial courts. It sets a five-year deadline that he says the court could meet if it eliminated needless delays. “If our side wins, we can get back to having a death penalty that actually works and really see some executions being carried out,” probably before the end of this year, said Scheidegger, who will argue in defense of the measure along with Attorney General Xavier Becerra’s office at the hearing in Los Angeles.

Rayburn said an unrelated federal court case would probably delay any executions in California by at least six months, even if Prop. 66 were upheld. If the court overturns most or all of the initiative, executions will remain on hold for a year or longer as challenges to proposed new lethal-injection procedures work their way through state and federal courts....

Prop. 66 passed with 51 percent of the vote on the same November ballot in which a rival measure to repeal the death penalty in California was rejected by about seven percentage points, nearly twice the margin of defeat for a similar measure in 2012. While the votes were close, the message seemed clear: Californians want the death-penalty law enforced.  But the far-reaching provisions of Prop. 66, which received little attention during the campaign, have evidently raised concerns among the justices, who put the measure on hold while they consider a lawsuit seeking to overturn it....

Another provision of the measure seeks to expand the pool of defense lawyers by requiring attorneys to take capital cases if they already accept court appointments to represent defendants in other criminal cases.  Supporters say the change would ease the shortage of available lawyers, one of the chief reasons appeals take so long.  Opponents say it would put condemned inmates’ fates in the hands of unqualified lawyers and prompt many lawyers to refuse future assignments.

Prop. 66 would also speed up the state’s switch from three-drug executions, in use from 1996 to 2006, to lethal injections of a single barbiturate. Gov. Jerry Brown’s administration proposed procedures for one-drug executions last year in settlement of a lawsuit by relatives of murder victims.  Prison officials are still reviewing those procedures under a long-standing law that requires them to consider public comments.  The commenters have included organizations that say the proposed drugs are untested in executions and the procedures are unreliable....

Two of the court’s seven justices, Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, have removed themselves from the case because they are members of the state’s Judicial Council....  Their replacements are two randomly selected appeals court justices, Andrea Hoch of the Sacramento court, an appointee of Gov. Arnold Schwarzenegger, and Raymond Ikola, appointed to the court in Santa Ana by Gov. Gray Davis.

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

Supreme Court unanimously limits reach of federal drug-offense forfeiture statute

The US Supreme Court this morning handed down a unanimous opinion in Honeycutt v. United States, No. 16-142 (S. Ct. June 5, 2017) (available here), a case concerning the reach of the federal criminal forfeiture statute. The opinion for the Court was authored by Justice Sotomayor, and it starts and ends this way:

A federal statute — 21 U.S.C. § 853 — mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes.  This case concerns how § 853 operates when two or more defendants act as part of a conspiracy. Specifically, the issue is whether, under § 853, a defendant may be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. The Court holds that such liability is inconsistent with the statute’s text and structure....

Forfeiture pursuant to § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime.  In this case, the Government has conceded that Terry Honeycutt had no ownership interest in his brother’s store and did not personally benefit from the Polar Pure sales.  App. to Pet. for Cert. 60a.  The District Court agreed. Id., at 40a.  Because Honeycutt never obtained tainted property as a result of the crime, § 853 does not require any forfeiture.

The opinion's first footnote indicates that a majority of circuit courts embraced a broader view of the federal forfeiture statute, which in turns further reinforces my long-standing view that SCOTUS these days is generally more pro-defendant on a wide range of sentencing issues than most lower federal courts.

June 5, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, June 02, 2017

"From Grace to Grids: Rethinking Due Process Protection for Parole"

The title of this post is the title of this notable new paper available via SSRN authored by Kimberly Thomas and Paul Reingold. Here is the abstract:

Current due process law gives little protection to prisoners at the point of parole, even though the parole decision, like sentencing, determines whether or not a person will serve more time or will go free.  The doctrine regarding parole, which developed mostly in the late 1970s, was based on a judicial understanding of parole as an experimental, subjective, and largely standardless art — rooted in assessing the individual “character” of the potential parolee.

In this Article we examine the foundations of the doctrine, and conclude that the due process inquiry at the point of parole should take into account the stark changes in sentencing and parole practice over the years.  Since the development of the parole due process doctrine in the 1970s, two seismic shifts have occurred.  First, the constitutional protections provided at the initial sentencing have vastly increased.  Second, the parole process itself has been transformed by the move to evidence-based parole guidelines and the use of actuarial risk-assessment instruments as the norm in parole decision-making.

In this Article we document the changes in this under-scrutinized area and assert that the liberty interest in parole should more closely match the present-day legal account of the liberty interest that courts afford defendants at sentencing. 

June 2, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, May 31, 2017

Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

The Second Circuit today released a 139-page panel opinion in US v. Ulbricht, No. 15-1815 (2d Cir. May 31, 2017) (available here), which starts this way:

Defendant Ross William Ulbricht appeals from a judgment of conviction and sentence to life imprisonment entered in the United States District Court for the Southern District of New York (Katherine B. Forrest, J.).  A jury convicted Ulbricht of drug trafficking and other crimes associated with his creation and operation of Silk Road, an online marketplace whose users primarily purchased and sold illegal goods and services.  He challenges several aspects of his conviction and sentence, arguing that (1) the district court erred in denying his motion to suppress evidence assertedly obtained in violation of the Fourth Amendment; (2) the district court committed numerous errors that deprived him of his right to a fair trial, and incorrectly denied his motion for a new trial; and (3) his life sentence is both procedurally and substantively unreasonable.  Because we identify no reversible error, we AFFIRM Ulbricht’s conviction and sentence in all respects.

The sentencing discussion covers roughly the last 25 pages of this lengthy unanimous panel opinion, and it includes a number of notable passages while covering a lot of notable ground. Here are just a few highlights of an opinion that sentencing fans and drug policy folks should read in full:

Ulbricht’s only claim of procedural error is that it was improper for the district court to consider six drug-related deaths as relevant to his sentence because there was insufficient information connecting them with drugs purchased on Silk Road.  In terms of our sentencing jurisprudence, Ulbricht claims that the district court relied on clearly erroneous facts in imposing sentence.  We are not persuaded....

[I]t was certainly appropriate for the district court to consider the risk of death from use of drugs in assessing the seriousness of the offense conduct, one of the factors that a judge must consider in imposing sentence.  See 18 U.S.C. § 3553(a)(2)(A).  That appears to be the only way the judge in this case used the evidence of the drug-related deaths. Emotionally wrenching as the statements of the decedents’ parents were, we cannot and do not assume that federal judges are unable to put their sympathies for particular victims to one side and assess the evidence for its rational relationship to the sentencing decision. And here, the record makes clear that the district court did not use the evidence of the drug-related deaths to enhance Ulbricht’s sentence, either as a formal matter under the Guidelines or otherwise....

[W]hile a life sentence for selling drugs alone would give pause, we would be hard put to find such a sentence beyond the bounds of reason for drug crimes of this magnitude. But the facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal.  Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite....

Ulbricht and amici point out that life sentences are rare in the federal system, typically reserved for egregious violent crimes, thus rendering Ulbricht’s sentence substantively unreasonable.  Moreover, according to amici, life sentences are normally imposed in cases where that is the district judge’s only sentencing option.  Thus, they claim that Ulbricht’s life sentence is substantively unreasonable in the context of the federal system, where life sentences are particularly rare for those with no criminal history who are convicted of drug crimes.

We agree with Ulbricht that life sentences are extraordinary and infrequent, which is as it should be.  But the rarity of life sentences does not mean that the imposition of such a sentence in this case is substantively unreasonable under our law.  Each case must be considered on its own facts and in light of all of the circumstances of a particular offense as well as other relevant conduct, which, in this case, includes five attempted murders for hire.  As we have described, the district court carefully considered Ulbricht’s offense, his personal characteristics, and the context for his crimes, recognizing that only exceptional cases justify such a severe sentence. Although we might not have imposed the same sentence ourselves in the first instance, on the facts of this case a life sentence was “within the range of permissible decisions” that the district court could have reached. 

A few prior related posts:

May 31, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (6)

Tuesday, May 30, 2017

Consensus reigning (for now) as SCOTUS continues working through its criminal docket

Because the Supreme Court has already resolved all of its major sentencing cases, there is not all that much for sentencing fans to anticipate as the Justices wind down with final opinions over the final weeks of its Term.  But there are still plenty of criminal justice cases pending that may still lead to notable opinions, and two such rulings were handed down this morning.  As the title of this post highlights, what strikes me as notable about these new opinions is how the Justices were content to speak in one voice despite the potential contentiousness of the issues.  

In Esquivel-Quintana v. Sessions, No. 16-54 (S. Ct. May 30, 2017) (available here), Justice Thomas wrote the opinion for the unanimous Court and it starts this way:

The Immigration and Nationality Act (INA), 66 Stat. 163, as amended, provides that “[a]ny alien who is convicted of an aggravated felony after admission” to the United States may be removed from the country by the Attorney General. 8 U. S. C. §1227(a)(2)(A)(iii). One of the many crimes that constitutes an aggravated felony under the INA is “sexual abuse of a minor.” §1101(a)(43)(A). A conviction for sexual abuse of a minor is an aggravated felony regardless of whether it is for a “violation of Federal or State law.” §1101(a)(43). The INA does not expressly define sexual abuse of a minor.

We must decide whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA.  We hold that it does not.

In County of Los Angeles v. Mendez, No. 16-369 (S. Ct. May 30, 2017) (available here), Justice Alito wrote the opinion for the unanimous Court and it starts this way:

If law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force?  The Ninth Circuit has adopted a “provocation rule” that imposes liability in such a situation.

We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.

May 30, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, May 28, 2017

"No Indeterminate Sentencing Without Parole"

The title of this post is the title of this new paper available via SSRN authored by Kevin Morrow and Katherine Puzauskas. Here is the abstract:

This article looks critically at Arizona’s indeterminate sentencing system that survived after the elimination of parole in Arizona in 1993.  It begins by exploring the purpose and history of indeterminate sentencing and parole as well as its earliest constitutional challenges and eventual decline.  Next it compares two commonly confused forms of “release”: parole and executive clemency.  The article then examines the three types of defendants and the potential consequences if Arizona does not reestablish parole for its indeterminate sentences: death row defendants denied parole eligibility instructions at trial, defendants whose plea agreement includes parole and defendants sentenced to parole at trial.  Finally, the article argues that without parole, Arizona’s indeterminate sentences should be ruled unconstitutional.

May 28, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)