Wednesday, October 07, 2015

Previewing Kansas capital case day for SCOTUS argument

The Supreme Court will be spending the morning today talking a lot about how Kansas administers its death penalty.  (The official nickname for Kansas is the Sunflower State, but perhaps the Justices will be thinking of the state's unofficial nickname of Bleeding Kansas.) Helpfully, SCOTUSblog and Crime & Consequences provides previews. Here are links and leads from their efforts:

Argument preview: Justices to tackle Eighth Amendment — again:

The Justices closed out last Term with a high-profile death penalty case, holding that Oklahoma’s lethal injection procedures do not violate the Eighth Amendment’s ban on cruel and unusual punishment.  The decision in that case may be best known for Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, in which he suggested that the death penalty itself is unconstitutional.  The Eighth Amendment is back before the Court again tomorrow, albeit with lower stakes, this time in a set of challenges to the procedures used to sentence three Kansas inmates to death.  The oral arguments and the Court’s eventual decision may tell us more about whether some of the Justices’ discomfort with the death penalty will translate into additional protections for defendants in capital cases or whether the Justices will instead remain — as they were in the Oklahoma case —  sharply divided. 

SCOTUS Considers the Wichita Massacre:

Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

UPDATEThis short post-argument Reuters piece reports that the "U.S. Supreme Court on Wednesday appeared poised to rule against two brothers challenging their death sentences for a 2000 crime spree in Kansas that included the execution-style murders of four people on a snowy soccer field."

Folks can surmise the basis for this media view by checking out the transcripts in Kansas v. Gleason, Kansas v. Carr, and Kansas v. Carr now available here and here.

October 7, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, October 06, 2015

Early prisoner release following reduced drug guideline retroactivity about to be reality

It seems like a real long time ago that the US Sentencing Commission suggested it might reduced the severity of its drug sentencing guidelines across the board. (In fact, it was way back in early January 2014, as reported in this post.)  That USSC proposal a few month later became a formal guideline amendment known as drugs -2 (as reported here in April 2014); some months after that, the USSC formally voted to make this reduced guideline fully retroactive to those already serving long federal drug prison sentences (as reported here in July 2014).  

But when making its reduced drug guidelines retroactive, the USSC also provided that no federal drug prisoner should be released until fall 2015 in order to give courts and prisons time to process all thousands of folks who would not be eligible to seek early release.  Now, as this new Washington Post piece reports, all this USSC reform is finally going to mean thousands of prisoners actually securing early releases:

The Justice Department is set to release about 6,000 inmates early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.

The inmates from federal prisons nationwide will be set free by the department’s Bureau of Prisons between Oct. 30 and Nov. 2. Most of them will go to halfway houses and home confinement before being put on supervised release.

The early release follows action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — which reduced the potential punishment for future drug offenders last year and then made that change retroactive....

The panel estimated that its change in sentencing guidelines eventually could result in 46,000 of the nation’s approximately 100,000 drug offenders in federal prison qualifying for early release. The 6,000 figure, which has not been reported previously, is the first tranche in that process.

“The number of people who will be affected is quite exceptional,” said Mary Price, general counsel for Families Against Mandatory Minimums, an advocacy group that supports sentencing reform. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016....

The U.S. Sentencing Commission voted unanimously for the reduction last year after holding two public hearings in which members heard testimony from former attorney general Eric H. Holder Jr., federal judges, federal public defenders, state and local law enforcement officials, and sentencing advocates. The panel also received more than 80,000 public comment letters, with the overwhelming majority favoring the change.

Congress did not act to disapprove the change to the sentencing guidelines, so it became effective on Nov. 1, 2014. The commission then gave the Justice Department a year to prepare for the huge release of inmates.

The policy change is referred to as “Drugs Minus Two.” Federal sentencing guidelines rely on a numeric system based on different factors, including the defendant’s criminal history, the type of crime, whether a gun was involved and whether the defendant was a leader in a drug group. The sentencing panel’s change decreased the value attached to most drug-trafficking offenses by two levels, regardless of the type of drug or the amount.

An average of about two years is being shaved off eligible prisoners’ sentences under the change. Although some of the inmates who will be released have served decades, on average they will have served 8 1/2 years instead of 10 1/2 , according to a Justice Department official.

“Even with the Sentencing Commission’s reductions, drug offenders will have served substantial prison sentences,” Deputy Attorney General Sally Yates said. “Moreover, these reductions are not automatic. Under the commission’s directive, federal judges are required to carefully consider public safety in deciding whether to reduce an inmate’s sentence.”

In each case, inmates must petition a judge, who decides whether to grant the sentencing reduction. Judges nationwide are granting about 70 sentence reductions per week, Justice officials said. Some of the inmates already have been sent to halfway houses.

In some cases, federal judges have denied inmates’ requests for early release. For example, U.S. District Judge Royce C. Lamberth recently denied requests from two top associates of Rayful Edmond III, one of the District’s most notorious drug kingpins. Federal prosecutors did not oppose a request by defense lawyers to have the associates, Melvin D. Butler and James Antonio Jones, released early in November.  But last month Lamberth denied the request, which would have cut about two years from each man’s projected 28 1/2 -year sentence....

Critics, including some federal prosecutors, judges and police officials, have raised concerns that allowing so many inmates to be released at the same time could cause crime to increase.

But Justice officials said that about one-third of the inmates who will be released in a few weeks are foreign citizens who will be quickly deported.  They also pointed to a study last year that found that the recidivism rate for offenders who were released early after changes in crack-cocaine sentencing guidelines in 2007 was not significantly different from the rate for offenders who completed their sentences.

October 6, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Monday, October 05, 2015

Previewing the early criminal law cases on the SCOTUS docket

In this post at the Federalist Society blog, Kent Scheidegger provide an effective preview of the handful of Supreme Court cases dealing with criminal law issues that are to be heard by the Supreme Court in the first few weeks of its new Term. As regular readers know and as Kent notes, a number of the early cases involve the death penalty, and this recent Wall Street Journal article highlights the capital case concentration in an article headlined "Supreme Court Docket Loaded With Death-Penalty Cases."

But before the capital case kvetching gets started in earnest, the first criminal justice case to be heard by the Justices comes on Tuesday with Ocasio v. United States.  At SCOTUSblog here, Rory Little has this lengthy preview of Ocasio, which gets started this way:

The Court’s first criminal case of the Term presents a real brain teaser: may a defendant be convicted of conspiracy to commit an offense, when he has the intent necessary to commit the offense but his co-conspirator does not?  The case arises in the specific context of the unusual federal Hobbs Act extortion statute, and getting to the specific question initially requires some complex explanation.  But unless I misunderstand it, the general question is as old as the common law.

October 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Via summary reversal, SCOTUS rejects state court determination of ineffective defense

At the end of this long SCOTUS order list (which kind of marks the official start of a new Supreme Court term, OT15) is a short per curiam opinion in Maryland v. Kulbicki, No. 14-848 (S. Ct. Oct. 5, 2015). The opinion provides a notable win for prosecuors, starting and ending this way:

A criminal defendant “shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U. S. Const., Amdt. 6.  We have held that this right requires effective counsel in both state and federal prosecutions, even if the defendant is unable to afford counsel. Gideon v. Wainwright, 372 U. S. 335, 344 (1963).  Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are “so serious” that he no longer functions as “counsel,” and prejudicial, meaning his errors deprive the defendant of a fair trial.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki’s defense attorneys were unconstitutionally ineffective. We summarily reverse....

Given the uncontroversial nature of [Comparative Bullet Lead Analysis] CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go “looking for a needle in a haystack,” even when they have “reason to doubt there is any needle there.”  Rompilla v. Beard, 545 U.S. 374, 389 (2005).  The Court of Appeals demanded something close to “perfect advocacy” — far more than the “reasonable, or CBLA competence” the right to counsel guarantees.  Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam).  

Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and to use the report’s so-called methodological flaw against Peele on cross-examination.  (We need not, and so do not, decide whether the supposed error prejudiced Kulbicki.)  The petition for writ of certiorari is granted, and the judgment of the Court of Appeals for Maryland is reversed.

October 5, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Saturday, October 03, 2015

"Why Don’t Courts Dismiss Indictments? A Simple Suggestion for Making Federal Criminal Law a Little Less Lawless"

The title of this post is the title of this notable Green Bag article authored by James Burnham. Here are excerpts from the article's introduction:

Many lawyers are familiar with the problem of overbroad, vague federal criminal laws that ensnare unwary defendants and perplex the lawyers who defend them. It is a recurring theme in academic literature and it featured prominently in Justice Kagan’s recent dissent in Yates v. United States, where she described “the real issue” in the case as being “overcriminalization and excessive punishment in the U.S. Code.”...  [Many commentators] often jump directly to the Constitution as the solution to this problem, specifically the Due Process Clause and an emphasis on fair notice as a way to narrow vaguely worded statutes.

That is a good idea, but it overlooks a tool for combating overcriminalization that is, perhaps, simpler and more readily available than the heavy artillery of constitutional law–making it easier for criminal defendants to secure a legal ruling before trial on whether their alleged conduct actually constitutes a federal crime. Implementing this basic reform would require nothing more than applying the Federal Rules of Criminal Procedure, which already contain provisions for dismissing indictments that are materially identical to the familiar 12(b)(6) standard and the rules for dismissing civil complaints. Yet the same federal judges who routinely dismiss complaints for failure to state a claim virtually never dismiss indictments for failure to state an offense. The judiciary’s collective failure to apply the dismissal standard in criminal proceedings that is a staple of civil practice plays a central role in the ever-expanding, vague nature of federal criminal law because it largely eliminates the possibility of purely legal judicial opinions construing criminal statutes in the context of a discrete set of assumed facts, and because it leaves appellate courts to articulate the boundaries of criminal law in post-trial appeals where rejecting the government’s legal theory means overturning a jury verdict and erasing weeks or months of judicial effort.

Courts should eliminate this anomalous difference between criminal and civil procedure. There is no good reason why federal prosecutors cannot abide by the same pleading standards as civil plaintiffs. That is what the rules already provide. And holding prosecutors to that reasonable standard would go a long way toward making federal criminal law a little less lawless.

October 3, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Friday, October 02, 2015

Top Oklahoma court puts all executions on hold upon state request after drug snafu

As reported in this AP piece, "Oklahoma's highest criminal court unanimously agreed Friday to halt all of the state's scheduled executions after the state's prison system received the wrong drug for a lethal injection this week." Here is more:

The Oklahoma Court of Criminal Appeals granted the state's request and issued indefinite stays of execution for Richard Glossip, Benjamin Cole and John Grant. Oklahoma Attorney General Scott Pruitt requested the stays to give his office time to investigate why the Oklahoma Department of Corrections received the wrong drug just hours before Glossip was scheduled to be executed Wednesday.

Just hours before Glossip was set to die, prison officials opened a box of lethal drugs and realized they received potassium acetate instead of potassium chloride, the third drug utilized in Oklahoma's lethal injection formula. The court ordered the state for status reports every 30 days, "including any proposed adjustments to the execution protocol."

Oklahoma's execution protocols were overhauled after last year's botched execution of Clayton Lockett, who writhed on a gurney and struggled against his restraints before being declared dead more than 40 minutes after the procedure began.

On Thursday, Oklahoma Department of Corrections Director Robert Patton insisted that those new protocols were properly followed. But the attorney general expressed concerns about the department's ability to properly carry out an execution. "Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions," Pruitt said in a statement after requesting the stays.

October 2, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, October 01, 2015

SCOTUS grants review in 13 new cases, including capital and federal sentencing appeal issues

As reported here by Lyle Denniston at SCOTUSblog, the Justices of the US Supreme Court today officially added a baker's dozen of new cases to its merits docket via this order list.  One of the grants is a capital case from Pennsylvania that is already garnering media attention, and these excerpts from the SCOTUSblog posting suggests there is a lot of interesting new matters for criminal justice fans to consider:

The judicial disqualification case the Court will hear (Williams v. Pennsylvania) will give the Court a chance to clarify when the rights of an individual are violated when a member of a state supreme court joins in ruling on a case in which that judge has been accused of bias because of a former role in the case.

Four years ago, in its decision in Caperton v. A.T. Massey Coal Co., the Court ruled that it violates constitutional due process when a member of the West Virginia Supreme Court cast the deciding vote in a case in which the judge had accepted large campaign donations from the mining company involved in the case.

One of the issues that the Court agreed to consider in the new Pennsylvania case is whether that precedent on judicial qualification also applies when the challenged judge did not cast a deciding vote. The judge involved — then Pennsylvania’s chief justice, Ronald D. Castille (who has since retired) — joined in a unanimous ruling by the state supreme court that reinstated a death sentence for a Philadelphia man, Terrance Williams.

Williams, then eighteen years old, was convicted in 1986 of murder, robbery, and criminal conspiracy in the killing of Amos Norwood and was sentenced to death. Williams contended that Norwood was a sexual predator who had preyed on underage boys, including Williams at the age of thirteen.

Later, when Williams case went before the state supreme court, his lawyers sought to have Chief Justice Castille disqualified, arguing that he had as a Philadelphia prosecutor authorized the decision to seek a death sentence for Williams, voiced strong support for the death penalty when running for a seat on the state supreme court and cited Williams’s case as an example of his “tough on crime” record. The case before the state’s highest court involved a claim that prosecutors had withheld evidence that would have aided in Williams’s defense. The state court rejected that challenge. The chief justice denied the recusal motion without explanation, and refused Williams’s request to refer it to the full court.

The commonwealth government of Puerto Rico gained Court review Monday of its claim that, since Congress gave it self-governing powers in 1950, it has the power to pass its own laws as a sovereign government, like any state in the Union. Thus, it argued, its legislature has full authority to pass criminal laws. And, as is important in this case, it has the independent right to prosecute someone for a crime even if the federal government has already prosecuted that same crime.

That argument was rejected by Puerto Rico’s Supreme Court, which concluded that Puerto Rico and the federal government were part of the same sovereignty — that of the United States. Puerto Rico, it decided, gets its power to legislate from Congress. Because the two governments are not separate sovereigns, the court declared, it would violate the Constitution’s ban on double jeopardy for a person to be tried by both Puerto Rico and federal prosecutors.

The case (Puerto Rico v. Valle), although focused on the double jeopardy issue, will apparently required the Court to decide just what constitutional significance to assign to the 1950 law on which Puerto Rico based its claim of sovereign powers....

In the other nine cases that the Court accepted for review, the questions are summarized as follows:

Utah v. Strieff — if police learn about an outstanding arrest warrant during a street or traffic stop that turns out to have been illegal, does the Fourth Amendment bar the use of any evidence obtained as a result of a search at the time of the arrest....

Duncan v. Owens — does it violate federal habeas law for a judge during a criminal trial to state a position on the accused person’s motive, based on evidence not introduced at the trial.

Taylor v. United States — must the government in a case under the Hobbs Act prove that robbery of a drug dealer does actually affect interstate commerce.

Molina-Martinez v. United States — what effect should a federal appeals court give to a district court’s ruling applying the wrong Sentencing Guideline range to a convicted individual.

October 1, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Basic elements of Sentencing Reform and Corrections Act of 2015

As I write this, I am watching (at this link) the tail end of speeches being given by a series of US Senators discussing their pleasure and thanks concerning the bipartisan agreement to propose the Sentencing Reform and Corrections Act of 2015 (which I will start calling SRCA 2015).  Here are links to two documents provided by the Senate Judiciary Committee summarizing what appears in this bill:

Here ais the full text of the summary document:

WOWSA!!  And the more detailed section-by-section analysis suggests that lots and lots of badly over-sentenced federal offenders subject to extreme mandatory minimum sentencing provisions in not-so-extreme cases (including folks I have represented or filed amicus briefs on behalf of like Weldon Angelos and Edward Young) might be able to get retroactive relief if this legislation becomes law!!  Thus, to summarize, just the introduction of SRCA 2015 is a huge development, and I strongly believe its provisions can will significantly reshape the federal sentencing and prison system if (and I hope when) it becomes law.

Though I will still need to see the precise text before I will be in a position to really assess all that appears in this bill, these summary documents confirm my hope that this bill was likely to be among the biggest and most ambitious federal sentencing reform efforts we have seen since the enactment of the Sentencing Reform Act more than three decades ago.  Mega-kudos to all involved, Senators and staffers and advocates of all stripes, and now let's see if all the good mojo that this SRCA 2015 represents might get this bill through the Congress in the coming weeks!!

UPDATE The full text of the SRCA runs 141 pages, and the folks at FAMM have it available at this link.

October 1, 2015 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?

As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana in large part because I find the substantive issues that surround Eighth Amendment retroactivity so dynamic and interesting.  But, critically, the Justices ordered briefing on a preliminary question for consideration in the Montgomery case: "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?"  

I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page).  Here is how he summarized and assessed this amicus filing which was requested by the court to make the argument against jurisdiction: 

The United States Supreme Court appointed Willkie Farr & Gallagher LLP (“WFG”) to file an amicus brief arguing that the Court lacks jurisdiction to address the merits of whether or not Miller applies retroactively in state collateral proceedings.  That is, the Court has charged WFG with the task of arguing that the Louisiana Supreme Court’s decision that Miller does not apply retroactively cannot be reviewed by the Court.

WFG’s amicus brief argues against the Court’s jurisdiction in two steps.  First, WFG argues that whether or not Miller is retroactive in the state collateral review context can only present a federally reviewable issue if Teague is binding in such proceedings.  Second, WFG argues that Teague is not binding in state collateral review proceedings because its holding was predicated upon a federal statute and nothing more.  Consequently, Montgomery presents no question of federal law and so any opinion on the merits of the Miller retroactivity issue would be only advisory (or so goes WFG’s argument).  Thus, the Court lacks jurisdiction to address the Miller retroactivity issue in Montgomery, at least in the case’s present procedural posture.

WFG’s argument turns entirely on the way in which the Louisiana Supreme Court adopted Teague some 23 years ago in a case called Taylor v. Whitley, 606 So. 2d 1292 (La. 1992). In that case, the Louisiana Supreme Court, in addressing the retroactive application of new constitutional rules, stated:

[W]e have yet to consider the issue of retroactivity on collateral review in light of Teague.  We now do so and adopt the Teague standards for all cases on collateral review in our state courts.  In doing so, we recognize that we are not bound to adopt the Teague standards. [. . .] [W]e now adopt Justice Harlan’s views on retroactivity, as modified by Teague and subsequent decisions, for all cases on collateral review in our state courts.  Taylor, 606 So. 2d at 1296–97.

WFG argues that since the Louisiana Supreme Court expressly held that it was “not bound to adopt the Teague [retroactivity] standards,” its subsequent retroactivity decisions, while based entirely on Teague and its progeny, do not “fairly appear[] to rest primarily on federal law or be interwoven with federal law” such that the presumption of federal jurisdiction articulated in Michigan v. Long, 463 U.S. 1032, 1044 (1983), applies.

While this is surely one reading of Taylor, it is a narrow one.  The argument can be made (and was made by both parties in this case, see Brief of Court-Appointed Amicus, Montgomery v. Louisiana, (No. 14-280), at 10) that the Court does have jurisdiction under the Long presumption.

Taylor supports this argument.  The Taylor court states throughout its opinion that it is closely following and examining the federal case law on retroactivity.  See Taylor, 606 So. 2d at 1293 (“In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court’s decisions in this area.”).  Further, while the Taylor court stated that it did not feel compelled to adopt the Teague standards, it definitively held that it was adopting those standards and was doing so “as modified by ... subsequent decisions” for all cases in Louisiana under collateral review.  Id. at 1297.  In this way, Taylor supports the notion that Louisiana state law does not just “rest primarily on federal law” and is not just “interwoven with federal law,” but evolves with federal law in a expressly lock-step manner.

As a consequence, Louisiana law vis-à-vis retroactivity in state collateral review proceedings is (arguably) federal law vis-à-vis retroactivity in federal collateral review proceedings as expressed by Teague and “subsequent decisions.”  Accordingly, if ever the presumption of jurisdiction embodied in Long applied in a case, this would be the case.  To be fair, WFG’s argument is unsurprising given its task. Nonetheless, it will in all likelihood be a minor opening act to the main event during oral argument.

I share my RA's sentiment that it is very unlikely a majority of the Supreme Court will decides it lacks jurisdiction in Montgomery, and I suspect relatively little of the oral argument will be focused on this issues. But I suspect the Chief Justice (and perhaps a few other Justices) may be eager to use Montgomery to contend that state courts are never obligated to apply any part of the Teague doctrines that now control federal court retroactivity decisions. Consequently, this issue may get more attention in the argument and in the ultimate opinion than some may want.

Prior posts in series:

UPDATE: A helpful reader reminded me it might be useful in this context to remind readers of this prior post which includes this link to a prior article by Steve Sanders on this jurisdictional topic.

October 1, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, September 30, 2015

Missouri Supreme Court considering constitutional challenge to lifetime sex offender registration for 14-year-old offender

As reported in this local article, headlined "Missouri’s juvenile sex offender registry challenged as unconstitutional," the top court in the Show Me state heard argument today on a notable constitutional question involve a juve sex offender.  Here are the details:

A 14-year-old Missouri boy’s vicious sexual assault on his adult sister landed him in the juvenile justice system. But should it land him on the Missouri sex offender registry for the rest of his life?

That’s the question the Missouri Supreme Court is being asked to answer by attorneys for the St. Louis boy, identified in court documents as S.C.. The court heard oral arguments on the case Wednesday morning and took the matter under advisement.

Attorneys for S.C. argue that subjecting a juvenile to the same registration requirement imposed on adult sex offenders is cruel and unusual punishment, and it contradicts the goal of the juvenile justice system to “rehabilitate and reintegrate.” They say several studies show that juvenile sex offenders are no more likely to commit sex offenses as adults than other juveniles.

“Lifetime sex offender registration has no relationship to the goal of protecting society from re-offenders and yet imposes severe hardship on juvenile offenders by impairing their ability to rehabilitate and function as productive members of society,” according to documents filed by S.C.’s lawyers.

The Missouri Attorney General’s Office argues that S.C.’s appeal should be dismissed. They say that Missouri is following federal law in requiring certain juveniles to register as offenders, and federal appeals courts have upheld the constitutionality of similar laws in other states.

“The risk posed by someone who, like S.C., has attempted to forcibly rape another, creates a sufficient mandate actions that will protect the public against the likelihood of similar future offenses,” the state says in its written answer to the appeal.

The American Civil Liberties Union of Missouri has filed a brief supporting the boy’s case. “When children are treated and punished as adults, we see constitutional difficulties,” said Gillian Wilcox, an ACLU staff attorney in Kansas City....

Under Missouri law, most juveniles placed on the registry are removed when they turn 21. But those, like S.C., who were 14 or older when they committed certain serious crimes, have to register as adults when they turn 21.

Statewide, more than 300 people are now on the registry for crimes committed while juveniles.... Once on the adult registry, placement is for life, and the law does not allow for a way to petition for removal....

In its arguments in support of S.C., the ACLU of Missouri cites research by social scientists that shows that requiring lifelong sex offender registration for juveniles can actually increase their chances of recidivism because offenders “find themselves isolated from important social, educational and family networks.”

“No opportunity exists for children or their counsel to present evidence demonstrating they should not be required to register publicly for the rest of their lives,” the ACLU argues.

Attorneys for the state, however, argue that appeals courts have found that sex offender registry laws are not criminal punishments, but are civil in nature and are designed with the “rational basis” of giving the public information about individuals who pose “a significant risk.”

September 30, 2015 in Assessing Miller and its aftermath, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8)

Georgia finally completes execution of female murderer

As reported in this NBC News article, headlined "Georgia Woman Kelly Gissendaner Sings 'Amazing Grace' During Execution," a flurry of last-minute appeals did not prevent the Peach State from finally carrying out a high-profile execution. Here are the basics:

A Georgia woman who was executed despite a plea for mercy from Pope Francis sang "Amazing Grace" until she was given a lethal injection, witnesses said. Kelly Renee Gissendaner, who graduated from a theology program in prison, was put to death at 12:21 a.m. Wednesday after a flurry of last-minute appeals failed.

Gissendaner, who was sentenced to death for the 1997 stabbing murder of her husband at the hands of her lover, sobbed as she called the victim an "amazing man who died because of me." She was the first woman executed in Georgia in 70 years and one of a handful of death-row inmates who were executed even though they did not physically partake in a murder.

The mother of three was nearly executed in February, but the lethal injection was abruptly called off because the chemicals appeared cloudy. After a new execution date was set, Gissendaner, 47, convinced the Georgia Board of Pardons and Paroles to reconsider her application for clemency.

In an extraordinary turn, Pope Francis — who called for a global ban on the death penalty during his U.S. visit last week — urged the board to spare her life. "While not wishing to minimize the gravity of the crime for which Ms. Gissendander has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been expressed to your board, to commute the sentence to one that would better express both justice and mercy," Archbishop Carlo Maria Vigano wrote on the pontiff's behalf.

Shortly thereafter, the board announced that it would not stop the execution.

The victim's family was split on whether Gissendaner should live or die: Her children appeared before the parole board to ask that their mom be spared the death chamber, but her husband's relatives said she did not deserve clemency. "Kelly planned and executed Doug's murder. She targeted him and his death was intentional," Douglas Gissendaner's loved ones said in a written statement.

"In the last 18 years, our mission has been to seek justice for Doug's murder and to keep his memory alive. We have faith in our legal system and do believe that Kelly has been afforded every right that our legal system affords. As the murderer, she's been given more rights and opportunity over the last 18 years than she ever afforded to Doug who, again, is the victim here. She had no mercy, gave him no rights, no choices, nor the opportunity to live his life. His life was not hers to take."

In the hours before her death, Gissendaner pressed a number of appeals, arguing that it was not fair she got death while the lover who killed her husband got a life sentence. She also said the execution drugs might be defective, and that she had turned her life around and found religion while in prison....

Jeff Hullinger, a journalist with NBC station WXIA who witnessed the execution, later told reporters that Gissendaner appeared "very, very emotional, I was struck by that." He added: "She was crying and then she was sobbing and then broke into song as well as into a number of apologies ... When she was not singing, she was praying."

September 30, 2015 in Clemency and Pardons, Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (9)

Tuesday, September 29, 2015

#BESTEA: "Will the Supreme Court 'peck away at' capital punishment?"

The title of this post is has my silly new SCOTUS hashtag along with the headline of this new ABA Journal article previewing the death penalty cases that the Supreme Court will hear in the next few weeks as it starts #BESTEA.  (This silly hashtag is explained in this prior post.)  Here is an excerpt:

On Oct. 7, the court will hear arguments in cases from Kansas that raise procedural questions. The key question is whether the Eighth Amendment requires that a jury considering a death sentence be given explicit instructions pointing out that mitigating circumstances do not have to be proven beyond a reasonable doubt.  The Kansas Supreme Court concluded that such an instruction was required, and the state asked the U.S. Supreme Court to review Kansas v. Gleason and Kansas v. Carr.

On Oct. 13, the justices are scheduled to hear arguments in Hurst v. Florida, another case that addresses death penalty sentencing procedures. In Florida, a defendant may not be sentenced to death without a factual finding of at least one aggravating factor.  The jury weighs aggravating and mitigating factors, and it makes a recommendation to the trial judge about whether death should be imposed.  The jury’s recommendation need not be unanimous.  But Florida law also requires the judge to independently weigh aggravating and mitigating factors.  The judge must give the jury’s recommendation “great weight” under state precedents, but he or she can override the recommendation in extraordinary circumstances.

September 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, September 28, 2015

A busy (and diverse) week for execution plans and capital concerns

Over the next three days, three condemned murderers are scheduled to be executed in three different states, and in each case a different pitch is being made to try to halt the execution.  Here are the basics: 

Tuesday, September 29Georgia is scheduled to execute Kelly Gissendaner, who would be the first woman executed by the state in 70 years. She was convicted in February 1997 of conspiring with her lover to kill her husband. (The lover, who took a plea deal and testified against Gissendaner, is serving a life sentence and he will be eligible for parole in 2022.)  The Georgia Board of Pardons and Paroles announced today it would consider additional pleas for clemency at a hearing the morning of the scheduled executions.

Wednesday, September 30Oklahoma is scheduled to execute Richard Glossip, who was the lead litigant in the challenge to Oklahoma's execution protocol which a divided Supreme Court rejected in Glossip v. Gross.  He was convicted (again) a 2004 retrial of conspiring with a co-worker to kill their boss.  (The co-worker, who took a plea deal and testified against Glossip, is serving an LWOP sentence.)  The Oklahoma Court of Criminal Appeals, in a split vote today, declined to halt Glossip's execution after having delayed it earlier this month based principally on renewed claims of Glossip's innocence.

Thursday, Oct 1Virginia is scheduled to execution Alfredo Prieto, who is a foreign national and whose guilt in a number of killings seems to be uncontested. He was first sent to California's death row for the rape/murder of a teenage girl before being transferred and sentenced to death in Virginia five years ago for the 1988 killing of two college students. His lawyers assert he is intellectually disabled and apparently want him sent back to California to have his disability claim considered on the other coast.

For the sake of assessing my ability to prognosticate in the capital arena, I will on Monday predict that at least one, perhaps two, but not all three of these executions will be completed this week. Anyone else care to make predictions about any or all of these cases on the eve of what will surely be a mid-week full of capital conversations and litigation.

September 28, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?

The silly question in the title of this post is my effort to coin a silly hashtag (#BESTEA = Best Ever SCOTUS Term for Eighth Amendment) for the start of a new Supreme Court Term in which a number of notable Eighth Amendment cases/issues are set to occupy the Justices.  Over at SCOTUSblog, Rory Little provides this effective preview of what #BESTEA is all about in this lengthy post titled "As the 2015 Term opens: The Court’s unusual Eighth Amendment focus."  I recommend reading Rory's post in full, and here is just a taste (with links from original):

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.”  Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.”  Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.”   Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

 Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty.   All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2).  One can expect that the smoldering embers of the Glossip debate will be quickly reignited.  This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

Here is a quick rundown of what is coming up:

1. Gleason and Carr — October 7...

2. Kansas v. Carr and Carr (Question 2) — October 7...

3. Montgomery v. Louisiana  — October 13...

4. Hurst v. Florida  — October 13...

5. Foster v. Chatman (Warden)  — November 2... 

After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import.  Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions.  But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment.  In at least some of these cases — with that of the Carr brothers being the best example — there seems to be no doubt about guilt.  The horrific character of multiple rapes and murders is undeniable.  Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences.  Such cases thus starkly showcase the divergent views on the Eighth Amendment — and a nine-Justice Court is not different in this regard from much of America.  So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

In part because I want a short-hand way to describe all these cases, and in part because I am a sill fool, I am likely to turn #BESTEA into an on-going meme in this bloggy space as the Supreme Court Term kicks off. If readers like the idea, I hope folks will tell me so in the comments and perhaps join me in using this short-hand. And if you hate the idea, perhaps I will grow to as well.

September 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, September 24, 2015

First Circuit panel reverses stat max drug sentence based on co-defendant disparity

A panel of the First Circuit handed down a lengthy and significant sentncing opinion yesterday in US v. Reyes-Santiago, No. 12-2372 (1st Cir. Sept. 23, 2015) (available here). Here is how the majority opinion begins:

Appellant Jorge Reyes-Santiago ("Reyes") was among 110 defendants charged in a two-count indictment with drug and firearms offenses arising from a massive drug ring operating in public housing projects in Bayamón, Puerto Rico.  Most of the high-level members of the conspiracy, Reyes among them, pled guilty pursuant to plea agreements. Other than for Reyes, the sentences imposed on Count One, the drug count, ranged from 78 months to 324 months, the latter imposed on the chieftain of the enterprise.  Reyes received the stiffest Count One sentence: 360 months. In this appeal, he seeks resentencing on Count One on three grounds: the government's alleged breach of his plea agreement, the sentencing court's alleged inappropriate conduct in demanding witness testimony, and the disparity between his sentence and those of similarly situated co-defendants.  Reyes also claims the district court erred in ordering a 24-month consecutive sentence for his violation of supervised release conditions imposed in an earlier case.

We find merit in the disparity argument.  Ultimately, in sentencing the lead conspirators, the district court refused to accept stipulated drug amounts only for Reyes, listed as Defendant #9 in the indictment, and for the conspiracy's kingpin, Defendant #1.  Although sentencing courts have the discretion to reject recommendations made in plea agreements, and need not uniformly accept or reject such stipulations for co-defendants, they nonetheless must impose sentences along a spectrum that makes sense, given the co-defendants' criminal conduct and other individual circumstances.  In this case, after reviewing Presentence Investigation Reports ("PSRs") and sentencing transcripts for the leaders in the conspiracy, we conclude that the rationale offered by the district court for the substantial disparity between Reyes's sentence and the sentences of others above him in the conspiracy's hierarchy is unsupported by the record.  We therefore must remand this case to the district court for reconsideration of Reyes's sentence.

September 24, 2015 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Is Justice Scalia saying four (and maybe five) colleagues are now ready to judicially abolish death penalty?

The question in the title of this post is prompted by press reports on Justice Antonin Scalia's speech given at Rhodes College on Tuesday. This BuzzFeed story's extended headlined provides the basics: "Justice Scalia Says He 'Wouldn’t Be Surprised' If Supreme Court Ended Death Penalty: In a speech Tuesday at Rhodes College, the conservative Supreme Court justice said that four of his colleagues think that the penalty is unconstitutional, The Commercial Appeal reported."  Here is the full context:

Supreme Court Justice Antonin Scalia told attendees of a speech given Tuesday that four of his colleagues believe the death penalty is unconstitutional and that “he wouldn’t be surprised” if the court ends the penalty, according to reports from the event.

Speaking at Rhodes College, the conservative justice bristled at the concept, believing the penalty to be constitutional and telling attendees that death penalty opponents should go to the states if they want to end it, Jennifer Pignolet of The Commercial Appeal tweeted.

According to Pignolet’s report, Scalia said that “he ‘wouldn’t be surprised’ if his court ruled it unconstitutional, despite his belief that the Constitution allows for it with the establishment of protections like a fair trial.”  Specifically, Scalia said that “he now has 4 colleagues who believe it’s unconstitutional,” Pignolet tweeted.

The statements provide new insight into the court’s internal discussions — or at least Scalia’s take on his colleagues — as his comments go further than Scalia’s colleagues have gone themselves.

After the Glossip ruling in June, I was somewhat dismissive of claims by abolitionists that Justice Breyer's dissent suggested that it might only be a matter of time before there could be a majority of Justices ready to decalre the death penalty categorically unconstitutional. But Justice Scalia's comments now suggest that hopes for coming judicial abolition of capital punishment throughout the United States may not be just wishful thinking.

Prior related posts:

September 24, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

"Johnson v. United States and the Future of the Void-for-Vagueness Doctrine"

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

Last Term, in Johnson v. United States, the U.S. Supreme Court struck down a portion of the Armed Career Criminal Act as unconstitutionally vague.  The Johnson opinion is certain to have a large impact on federal criminal defendants charged with unlawfully possessing a firearm. But it is also likely to have other important consequences.  The language deemed vague in Johnson is similar or identical to language in the Federal Sentencing Guidelines and other statutes.  What is more, the Johnson opinion elaborates on the void-for-vagueness doctrine in important ways.  Those elaborations ought to make vagueness challenges easier to win in the future.

This Commentary examines the implications of Johnson.  It also briefly discusses Justice Thomas’s concurrence.  Justice Thomas refused to join the majority opinion, instead opting to decide the case in Johnson’s favor on statutory construction grounds. In addition to his statutory construction analysis, Justice Thomas questioned the constitutional basis of the void-for-vagueness doctrine.  Justice Thomas’s approach to the vagueness doctrine, if adopted by other members of the Court, could eviscerate the notice function of the doctrine.

September 24, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (8)

Wednesday, September 23, 2015

Wisconsin appeals court declares unconstitutional criminalization of sex offenders photographing kids in public

As reported in this local article, a "Wisconsin law prohibiting registered sex offenders from photographing children in public violates their right to free speech, the state Court of Appeals held Tuesday." Here is more about this notable ruling concerning a notable sex offender restriction:

The decision by the Wausau-based District 3 court reversed the conviction of a 44-year-old Green Bay man who had been sentenced to 12 years in prison for the non-pornographic photos. It also found the law unconstitutional on its face, not salvageable by a narrowed interpretation or severing part of the statute.

Because of a 2002 child sexual assault conviction, Christopher J. Oatman was on probation in February 2011, when his agent searched his apartment and found a camera and cellphone. On them, authorities found photos Oatman had taken the previous fall of children outside his residence doing things like riding skateboards, jumping rope and dropping stones in a soda bottle. None involved nudity or obscenity.

He was charged with 16 counts of intentionally photographing children without their parents' consent, and later pleaded no contest to eight so he could appeal on the constitutional issue. The judge sentenced Oatman last year to consecutive 18-month prison terms, the maximum, on each count.

In an opinion written by Reserve Judge Thomas Cane, and joined by judges Lisa Stark and Thomas Hruz, the court found that even sex offenders have free speech rights to take non-obscene, non-pornographic photographs of children in public places. Any law that aims to restrict speech based on its content must be narrowly drawn to protect a compelling state interest. The court found the law at issue failed both tests.

While protecting children is such an interest, the court said, the law doesn't accomplish that. In fact, it could actually encourage offenders to make personal contact with children, in order to ask who their parents are so the offender might ask permission to take the photos. "Further, children are not harmed by non-obscene, non-pornographic photographs taken in public places," the court said....

The court said it does not like the idea that some people might gain sexual gratification from ordinary photos of children, but that laws can't ban protected speech just because it might lead to crime. "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," the decision reads, quoting a U.S. Supreme Court case. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

The full ruling in Wisconsin v. Oatman is available at this link, and the nature of the final ruling meant that the appeals court had no reason to consider or comment on the specific sentence that had been imposed on the defendant under this law. That said, I cannot help but wonder if the judges considering the appeal were influenced by the remarkable fact that the defendant had been sentence to more than a decade in prision(!) for simply taking pictures (presumably from inside his own home) of children playing outside in public.

September 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

Investigating how elected judiciary may impact capital punishment's administration

USA-DEATHPENALTYReuters has this new investigative report exploring the relationship between an elected judiciary and a jurisdiction's administration of the death penalty.  The full headline and subheading provide a summary of the themes of the report: "Uneven Justice: In states with elected high court judges, a harder line on capital punishment. Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed, a Reuters analysis finds, suggesting that politics play a part in appeals. Now, the U.S. Supreme Court is about to decide whether to take up the issue in the case of a Ohio cop killer." Here are passages from the report:

Ohio is one of the states where high court judges are directly elected – and that, a Reuters analysis found, makes a big difference in death penalty appeals.

A review of 2,102 state supreme court rulings on death penalty appeals from the 37 states that heard such cases over the past 15 years found a strong correlation between the results in those cases and the way each state chooses its justices. In the 15 states where high court judges are directly elected, justices rejected the death sentence in 11 percent of appeals, less than half the 26 percent reversal rate in the seven states where justices are appointed.

Justices who are initially appointed but then must appear on the ballot in “retention” elections fell in the middle, reversing 15 percent of death penalty decisions in those 15 states, according to opinions retrieved from online legal research service Westlaw, a unit of Thomson Reuters.

Some academic studies over the past 20 years have mirrored the Reuters analysis, showing a relationship between the result in death penalty appeals and how state supreme courts are selected. The U.S. Supreme Court has not addressed these findings in its rulings.

Now, however, at least three current justices are sympathetic to the idea that political pressure on judges is a factor that leads to arbitrary, and perhaps unconstitutional, application of the death penalty. The findings, several legal experts said, support the argument that the death penalty is arbitrary and unconstitutional because politics – in addition to the facts – influence the outcome of an appeal.

Courts have a responsibility to protect a defendant’s constitutional rights without political pressure, especially when the person’s life is at stake, said Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death defenses. “It’s the difference between the rule of law and the rule of the mob,” Bright said....

State supreme courts automatically review every death penalty verdict. Apart from examining whether any legal errors were made, judges must also weigh different factors to decide whether the death sentence is an appropriate punishment. Was it the defendant’s first offense or do they have a history of violent behavior? When a death sentence is reversed, the offender usually gets life in prison instead.

But as the Reuters analysis suggests, external factors may come into play. The election effect was a far stronger variable in determining outcomes of death penalty cases than state politics and even race. Justices in states that supported Democratic President Barack Obama in the 2012 election reversed death sentences at roughly the same rate as those that went for Republican candidate Mitt Romney, at around 14 percent.

African-American defendants had lower reversal rates in both elected and appointed states. Nationally, death sentences were reversed 15 percent of the time for whites, compared with 12 percent for African-Americans, according to the Reuters findings.

Reuters did not analyze the possible impact of the race of the victim on death penalty appeals. The analysis also excluded a category of death penalty appeals known as habeas challenges, because state supreme courts are not required to hear them and overwhelmingly refuse to do so....

In 2013, Justice Sonia Sotomayor cited a study showing that Alabama judges are more likely to impose the death penalty in election years, part of a failed effort to persuade her colleagues to review an Alabama capital case.

Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary because of racial bias, as well as political pressure, “including pressures on judges who must stand for election."

Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes the death penalty to be unconstitutional, said in an interview that the Reuters findings “definitely lend support” to his side of the debate because they show how arbitrary capital punishment can be.

September 23, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, September 22, 2015

"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"

Social2The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling.  In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:

In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.

While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.

In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.

That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”

This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.

Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.

Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.

Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.

There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.

September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, September 17, 2015

Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons

Images (1)As reported in this new USA Today piece, headlined "Sanders seeks to ban private prisons," a US Senator on the presidential campaign trail has come out with a distinctive and ambitious criminal justice reform proposal. Here are the basics:

Sen. Bernie Sanders said he hopes to end the “private, for-profit prison racket” with the introduction Thursday of bills to ban private prisons, reinstate the federal parole system and eliminate quotas for the number of immigrants held in detention.

The Vermont independent, who is running for the Democratic presidential nomination, introduced the “Justice is not for Sale Act” with Democratic Reps. Raúl M. Grijalva of Arizona, Keith Ellison of Minnesota and Bobby L. Rush of Illinois. It would bar the federal government from contracting with private incarceration companies starting two years after passage.

“The profit motivation of private companies running prisons works at cross purposes with the goals of criminal justice,” Sanders said. “Criminal justice and public safety are without a doubt the responsibility of the citizens of our country, not private corporations. They should be carried out by those who answer to voters, not those who answer to investors.”...

Ellison said the private-prison industry spends millions each year lobbying for harsher sentencing laws and immigration policies that serve its bottom line. “Incarceration should be about rehabilitation and public safety, not profit,” he said.

The legislation would reinstate the federal parole system, abolished in 1984, and increase oversight of companies that provide banking and telephone services for inmates. It also would end the requirement that Immigration and Customs Enforcement maintain 34,000 detention beds.

Sanders said the bill represents only a piece of the major criminal justice reforms he believes are needed, but he’s convinced the issue can find bipartisan support. “Making sure that corporations are not profiteering from the incarceration of fellow Americans is an important step forward.”

The full text of the Justice is Not for Sale Act of 2015 can be accessed at this link, and it is a very interesting read. Perhaps not surprisingly, the media is so far focused on the provisions of the bill seeking to eliminate use of private prisons. But I think the provisions in the bill that are the most important and could be, by far, the most consequential are those that would reintroduce parole in the federal system.

September 17, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

"The Meaning of 'Meaningful Appellate Review' in Capital Cases: Lessons from California"

The title of this post is the title of this notable new article authored by Steven Shatz now available via SSRN. Here is the abstract:

In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness.  The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences.  In recent years, a number of scholars have addressed the genuine narrowing requirement with empirical research on particular state schemes.

Less attention has been paid to the appellate review requirement and, in particular to Pulley v. Harris, the Court's key case on the issue.  In Pulley, the Court held that comparative proportionality review of death sentences was not constitutionally required in a state's death penalty scheme unless that scheme was "so lacking in other checks on arbitrariness" that it could not otherwise pass constitutional muster.  The Court acknowledged, however, that some form of meaningful appellate review was required. Using California as an object lesson, this article examines both aspects of the Court's opinion: what would make a state scheme so lacking in checks on arbitrariness as to require comparative proportionality review; and what would constitute meaningful appellate review by a court which eschews comparative proportionality review.

The article argues that the California death penalty scheme is that scheme imagined in Pulley — a scheme with virtually no checks on arbitrariness, producing arbitrary sentences and arbitrary executions, and, therefore, a scheme where comparative proportionality should be required.  The article also argues that, in California, there is no meaningful review of death sentences at all — not once in 593 direct appeals in death penalty cases has the California Supreme Court set aside a death sentence on the ground that it was disproportionate, excessive or otherwise aberrant.  Although California is, in this respect, is a distinct outlier, it is not alone among the states in ignoring the Furman requirements. The lesson from California is that the Supreme Court's "meaningful review" of state schemes is long overdue.

September 17, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, September 16, 2015

Oklahoma's top criminal court stays execution of Richard Glossip for two weeks

As reported in local news pieces here and here, Oklahoma Governor Mary Fallin late yesterday refused to delay today's scheduled execution of Richard Glossip amid concerns about his factual guilt.  But today the Oklahoma Criminal Court of Appeals issued a stay of execution for death row inmate Richard Glossip. Here are the basics:

Just before 12 p.m. Wednesday, a stay has been granted for him until September 30. Late Tuesday afternoon, Gov. Mary Fallin said she will not grant Glossip a stay of execution. Just before 5 p.m. Tuesday, Glossip’s attorneys filed the appeal with the Oklahoma Court of Criminal Appeals. It's their last avenue to stop the execution.

Court documents released on Wednesday stated that, "Due to Glossip's last minute filing, and in order for this court to give fair consideration to the materials included with his subsequent application for post-conviction relief, we hereby grant an emergency stay of execution for two weeks. The execution of Richard Eugene Glossip shall be reset, without further order, for September 30, 2015."

During a news conference on Wednesday, the Director of Oklahoma Department of Corrections said he does not know the reasons behind the stay, and that at this time, they are shutting down all procedures.

Prior related post:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Split en banc Third Circuit struggles through how to review and assess Alleyne error

A decade ago, way back in the early Blakely and Booker days, this blog covered lots of cases dealing with lots of Sixth Amendment sentencing problems and circuit court efforts to sort through all the problems. Anyone with a continued fondness for the legal challenges and debates of that era will want to be sure to find the time to read today's work by the full Third Circuit in US v. Lewis, No. 10-2931 (3d Cir. Sept. 16, 2015) (available here). I will provide the highlights via the first paragraph from each of the three opinions.

Here is the start of the plurality opinion in Lewis:

Jermel Lewis was sentenced for a crime with a seven-year mandatory minimum — brandishing a firearm during and in relation to a crime of violence — notwithstanding the fact that a jury had not convicted him of that crime.  Instead, he had been convicted of the crime of using or carrying a firearm during and in relation to a crime of violence, which has a five-year mandatory minimum. Lewis was never even indicted for the crime of brandishing.  In Alleyne v. United States, the Supreme Court held that this scenario, i.e., sentencing a defendant for an aggravated crime when he was indicted and tried only for a lesser crime, violates a defendant’s Sixth Amendment right to a jury trial.  133 S. Ct. 2151, 2163-64 (2013).  Even though that constitutional issue is settled, we still must address the issue of whether the error that transpired in this case was harmless. We conclude that the error was not harmless because it contributed to the sentence Lewis received.  Accordingly, we will vacate Lewis’s sentence and remand for resentencing.

Here is the start of the concurring opinion in Lewis:

Jermel Lewis was charged with and convicted of using or carrying a firearm, but was eventually sentenced on the basis of a different, aggravated crime.  Conviction of the aggravated crime would have required proof of an element unnecessary to a using or carrying offense: that Lewis had brandished a firearm.  Lewis’s indictment did not charge him with brandishing, nor did the jury find that he had committed that crime beyond a reasonable doubt.  Yet Lewis was subjected to the enhanced mandatory minimum sentence required for brandishing.  I agree with the majority that this error demands resentencing; the new sentence should be based solely on the crime with which Lewis was actually charged and for which he was convicted.  But I would hold that this error was structural and therefore reversible if properly preserved.  Structural errors do not require a court to inquire into whether the error was harmless.

Here is the start of the dissenting opinion in Lewis:

The plurality finds that Jermel Lewis’s substantial rights were affected when he was sentenced to a seven-year mandatory minimum sentence for brandishing a weapon during a crime of violence, despite undisputed and overwhelming testimony that he pointed a gun at many people during a robbery.  Though what occurred below was error, in my view, for the reasons explained in Judge Smith’s concurring opinion, the error occurred both at trial and at sentencing.  So, upon a review of the uncontroverted evidence presented to the grand and petit juries, I would hold that the error was harmless.

September 16, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Recuenco and review of Blakely error, Sentences Reconsidered | Permalink | Comments (0)

Does Glossip case reveal Oklahoma's prosecutors as immoral and its judges lacking in moral fiber?

The qustion in the title of this post is prompted by this provocative Slate commentary authored by Robert J. Smith and G. Ben Cohen which is headlined "Groundhog Day Nightmare: Oklahoma is about to execute a man who is probably innocent." Here are excerpts from the piece, including sections with the forceful rhetoric parroted in the title of this post:

Oklahoma is set to execute Richard Glossip, despite grave doubts about his guilt. A chorus of people that includes Republican former Sen. Tom Coburn; Virgin Group CEO Richard Branson; and Barry Switzer, the beloved former Oklahoma Sooners football coach, has called for Oklahoma Gov. Mary Fallin to grant a stay of execution. If she does not, and if the Supreme Court does not step in, Glossip will be put to death Wednesday....

In 1997, Justin Sneed killed Barry Van Treese, a motel owner for whom both Sneed and Glossip worked. The police found Sneed’s fingerprints all over the bloody crime scene and in the victim’s vehicle. Sneed later confessed to the killing. The prosecution’s theory at Glossip’s trial was that Glossip pressured Sneed into murdering Van Treese. What evidence supported the state’s theory? Not much....

The prosecution gave him a sweetheart deal: In exchange for his testimony against Glossip, the state waived the death penalty. The problem is that the substance of Sneed’s testimony at trial was invented by the state....

It is bad enough that Sneed received a deal in exchange for his testimony. It is worse that the detective “educated” Sneed about Glossip being the mastermind. But what’s not only unforgivable, but downright immoral, is that the prosecution put forward the Glossip-as-mastermind theory in a capital case, with a man’s life on the line, when Sneed couldn’t even keep his story straight....

If Oklahoma proceeds with this execution, Glossip will not, unfortunately, be the only plausibly innocent man put to death....

Did Georgia execute an innocent man when it killed Troy Anthony Davis? Did Texas execute innocent men when it put Cameron Todd Willingham and Lester Bower to death? Will Oklahoma add to this tragic list if neither Gov. Fallin nor the Supreme Court stops the execution of Richard Glossip? We honestly do not know. And that’s the problem. How do we preserve the integrity of our justice system and our courts if we send condemned inmates to the lethal injection chamber with no more certainty of their guilt than a coin flip?

Given all that is known today about wrongful convictions, the fallibility of our criminal justice institutions, and their fallibility in identifying these potentially fatal errors, the question should not be Is this person innocent? but rather: Is this a case of uncertain guilt? Whatever principles the state seeks to uphold, whether it is the finality of its judgments or deference to juries or state courts, nothing trumps the risk of executing a person where there is some serious doubt as to his or her guilt.

In Richard Glossip’s case, there is more than “some” doubt.  There is lots of it. No physical evidence ties him to the crime.  There is no motive that withstands scrutiny. The detectives in the case engaged in tactics known to increase the likelihood of witnesses providing false statements.  And the state’s chief witness, Justin Sneed, was unreliable at best, with clear motives for lying. Few of us would buy a used car from Justin Sneed.  Are we prepared to stake the moral fiber of our justice system on his word?  If our answer is no, we must stop the execution of Richard Glossip. His life depends upon it, and so does the soul of our nation’s justice system.

I was a bit dismissive in this prior post of eleventh-hour innocence claims here given that Glossip was twice convicted and sentenced to death (his first conviction was reversed for procedural error). But I cannot help but wonder if my eagerness to question claims of innocence here is a result of my own desire to believe that Oklahoma prosecutors would not be immorally eager to condemn to death (twice) a man based on very weak evidence and that Oklahoma and federal courts would have had the moral fiber to intervene if there was real substance to the innocence claims.

That all said, absent "smoking gun" evidence to provide some more confidence in Glossip's guilt, I can understand why the abolitionist crowd has now garnered broad support for their claim that the Glossip execution should not go forward.  Still, I continue to be deeply troubled that a case which produced two jury convictions well over a decade ago, and which has been at the center of the national death penalty debate for nearly all of 2015, is  only now struggling at the very minute with what is the most fundamental and basic question in any and every criminal case.

Prior related post:

September 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, September 15, 2015

"Here’s why Obama should pardon hundreds more women"

The title of this post is part of the headline of this recent Fusion commentary authored by Amy Ralston Povah. Here are excerpts:

After the fifth year in prison, each additional year begins to eat into the layers of your soul.  Parents pass away, friends drift off, spouses find someone else.  Children grow up, graduate, get married, have children of their own; holidays come and go, and when that 7th, 15th or 22nd year rolls around, you feel like your heart is being crushed.

I shared those emotions with the women I served time with at FCI Dublin, a correctional facility in northern California.  I was serving 24 years on a drug conspiracy charge, arrested for collecting bail money for my husband, who manufactured MDMA.  He was the kingpin, but he only received three years probation because he cooperated with the prosecutors.  I refused a plea bargain, and I got stuck in jail.

So when President Clinton commuted my sentence on July 7, 2000 — after I’d served 9 years and 3 months — I felt like I had won the lottery.  The prison compound erupted into cheers and marched me across the yard to the gate on the day I left.  And yet, it was a bittersweet victory.  While I was elated for myself, it was hard to walk away, knowing I would not see these women the next day, or possibly ever again.

I felt that mix of bittersweet emotions again this summer when President Obama commuted the sentences of 46 nonviolent drug offenders, more than any sitting president in the last 50 years.  It was the result of Clemency Project 2014, a federal initiative that encouraged over 35,000 prisoners to apply for clemency.  On one day, 42 men and four women were the lucky lottery winners chosen from a massive number of candidates....

Having served time with over a thousand women, I believe they are the hardest hit victims in the war on drugs.  Many women are indicted because they are merely a girlfriend or wife of a drug dealer, yet are not part of the inner circle and have limited information to plea bargain with.  Mandatory minimums are reserved for those who do not cut a deal with prosecutors.

Women are being overlooked by the Department of Justice as candidates worthy of a seat on that coveted commutation list.  Over the last 30 years, the female prison population has grown by over 800% while the male prison population grew 416% during the same timeframe.  More than half of the mothers in prison were the primary financial supporters of their children before they were incarcerated.  And the vast majority of women in federal prison were put there due to conspiracy laws that hold them equally culpable for the criminal actions of other co-defendants, often a spouse or boyfriend. In other words, many women are guilty by association.

There are hundreds of women sitting in federal prison on drug conspiracy charges who deserve clemency — most of them first offenders serving life without parole.  Alice Johnson is an accomplished playwright who has served 18 years on a life sentence for cocaine conspiracy and has the support of three members of Congress.  Josephine Ledezma has already served over 23 years and is still waiting to have her petition filed.  Sharanda Jones has served 15 years; filed for clemency in 2013 and has over 270,000 supporters on  Michelle West has served 22 years of a double life sentence, plus fifty years, in a case where the key witness was given immunity and never served a day for a murder he admitted to.

Some days, sitting in prison, you think life can’t get any worse.  And then another blow comes when 46 people receive clemency and your name is not on that list.  Many of the same women I said goodbye to in 2000 are still in prison, serving 30 years to life, even though, like myself, they were minor participants in a nonviolent drug conspiracy case.... But with a stroke of his pen, President Obama can help right the wrongs of the past and give these deserving women a second chance at life.  He should get started right away.

September 15, 2015 in Clemency and Pardons, Drug Offense Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (2)

Monday, September 14, 2015

Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case

In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana.  Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:

Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?

Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.

Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day).  As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.

Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case.  Here are the basics via Lyle Denniston's SCOTUSblog report:

The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors.  The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.

In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen.  In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided.   Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question. 

Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes.  The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions.  The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.

The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question.  The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.

September 14, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Is a capital case the right kind of vehicle for SCOTUS to consider solitary confinement?

The question in the title of this post is prompted by this new New York Times piece by Adam Liptak headlined "Virginia Has Solitary Confinement Case, if Justices Want It." Here are excerpts:

The Supreme Court seems eager to hear a case on the constitutionality of a distinctively American form of punishment: prolonged solitary confinement. “Years on end of near total isolation exact a terrible price,” Justice Anthony M. Kennedy wrote in a concurrence in a case in June. Justice Stephen G. Breyer echoed the point in a dissent in a case later that month.

An appeal from Virginia materialized almost immediately. Now the justices must weigh whether it has the right features — whether it is, in legal jargon, a good vehicle — to serve as the basis for a major decision on extended solitary confinement, which much of the world considers torture.

On the plus side, the case asks the sort of focused and incremental question that the justices often find attractive: May states automatically put all death row inmates in solitary confinement?

Last week, Mark R. Herring, Virginia’s attorney general, filed a brief urging the court to turn down the appeal. It is, he said, the wrong vehicle to address “the broader concerns recently voiced by Justices Kennedy and Breyer.” For starters, Mr. Herring wrote, “the case is likely to become moot before it can be decided.” That is because the state intends to execute the inmate who brought the challenge, Alfredo R. Prieto, on Oct. 1.

More generally, Mr. Herring wrote, Virginia is the wrong state in which to examine the issue of prolonged solitary confinement on death row because its capital justice system is exceptionally efficient. Inmates in other states can spend decades in solitary confinement, he wrote, but Virginia generally executes condemned inmates seven to 10 years after their convictions.

Mr. Prieto has been on death row for about seven years. But that was enough isolation, he told the justices, to have caused him mental agony. In a 2013 deposition, the warden of the prison where Mr. Prieto is serving his sentence seemed to concede the inhumanity of solitary confinement. “There is real importance to getting out and being with other people, I agree, and not being 24/7 in a cell,” said the warden, Keith Davis. “We, as humans, we don’t survive very well that way with lack of human contact.”

Later that year, a federal trial judge ruled in Mr. Prieto’s favor. “He must spend almost all of his time alone,” deprived of contact even with fellow prisoners, the judge, Leonie M. Brinkema, wrote. In theory, family members could visit on weekends in a room with a glass partition. “In actuality,” she said, “no one ever comes.”

Mr. Prieto, she said, “has not engaged in any of the behaviors that would normally support placement in segregated confinement,” and was “by all accounts a model prisoner.” On the other hand, he has a chilling criminal record. Mr. Prieto was on California’s death row for the 1990 rape and murder of a 15-year-old girl when, in 2005, DNA evidence linked him to a 1988 rape and double murder in Virginia. He was extradited to Virginia and found guilty....

In March, a divided three-judge panel of the federal appeals court in Virginia reversed Judge Brinkema’s ruling, though even the majority said the state’s approach was harsh. “Of course,” Judge Diana Gribbon Motz wrote for the majority, “the Supreme Court could prescribe more rigorous judicial review.”

Last week, Mr. Herring, the state’s attorney general, urged the Supreme Court to defer to prison officials in the case, Prieto v. Clarke, No. 15-31. “Death row offenders are sui generis,” he wrote. “States are entitled to make the judgment that death-sentenced offenders, as a class, should be confined in maximum-security conditions.”...

In June, Justice Kennedy lamented that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” That seemed to change over the summer. In July, President Obama ordered the Justice Department to review the use of solitary confinement in federal facilities....

This month, California settled a lawsuit brought by the Center for Constitutional Rights by agreeing to cut back sharply on solitary confinement. The next day, a group representing the nation’s corrections officials called for “efforts to limit or end extended isolation.”

Things are changing even in Virginia, perhaps as a consequence of Mr. Pietro’s lawsuit. In a sworn statement filed last month in a different case, Mr. Clarke, the corrections official, said death row inmates can now watch television and play games like chess or checkers with up to three other condemned prisoners for an hour a day. They can also have weekly “contact visits” with family members. These can include “one brief kiss, a handshake and/or an embrace.”

Plans are afoot, Mr. Clarke added, for an outdoor recreation yard that will allow small groups of death row inmates to play basketball and exercise together. It should be completed by the end of October, not long after Mr. Prieto’s scheduled execution.

Regular readers likely know that I believe and often lament that capital cases often get too much attention from the Supreme Court (and others) relative to other cases involving much less serious crimes and much more sympathetic offenders. Nevertheless, as this piece notes, Virginia's blanket policy of putting all death-row defendants in solitary might make this case an appropriate (and certainly interesting) setting for a foray into what the Eighth Amendment might say these days about extreme forms of imprisonment.

September 14, 2015 in Death Penalty Reforms, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"How Obama can use his clemency power to help reverse racism"

The title of this post is the headline of this provocative new MSNBC commentary authored Mark Osler and Nkechi Taifa. Here are excerpts:

In the remaining months of his second term, President Barack Obama has the chance to deliver justice for thousands of people given overly-harsh sentences for drug crimes.  The White House is probably now contemplating the next batch of clemency grants, which is expected in October.

It is likely that the vast majority of those whose sentences would be shortened will be African American. That is as it should be given that past laws and policies, as well as prosecutors and presidents, have tilted the criminal justice system disproportionately against them.

On average, blacks face unequal treatment at each stage of the criminal justice system. They are stopped and arrested more frequently than others; they are less likely to receive favorable terms on bail; and they are more likely to be victims of prosecutorial misconduct. Blacks are more likely to accept unfair plea bargains and be sentenced to rigid, lengthy mandatory minimums, or even death.  Race mattered when blacks were disproportionately targeted, imprisoned, and sentenced beyond the bounds of reason.  Race should also matter in providing relief via clemency today.

Despite the facially neutral nature of current laws that do not intentionally discriminate, disparate treatment is nevertheless sewn into the structural fabric of institutions, allowing bias to occur without direct action by a specific person.

Today’s racism is subtle and structurally embedded in many police departments, prosecutor offices, and courtrooms.  It is found in laws that look fair, but nevertheless have a racially discriminatory impact.  For example, from 1986 through 2010, the federal sentencing guidelines and the primary federal narcotics statute mandated the same sentence for five grams of crack as they did for 500 grams of powder cocaine....

Moreover, we know that even now prosecutors use the law unfairly to punish black defendants.  Writing in the Daily Beast, Jay Michaelson reports that 95% of elected prosecutors are white, and that those prosecutors disproportionately use mandatory minimum sentences to incarcerate black defendants for longer periods of time than similarly situated whites.  Again, there is seldom a “smoking gun” tying white prosecutors to specific acts of racism.  But there is a growing consensus that the system is flawed and structurally biased against blacks.

The number of African-Americans jailed under these laws and policies soared in the past few decades.  Yet previous presidents predominantly used their power to pardon to benefit high profile white men, including Vice President Dick Cheney’s former chief of staff, Scooter Libby, and Clinton donor and financier Marc Rich.  Indeed, President George W. Bush used the pardon power 200 times, but fewer than 16 of those were granted to black petitioners who have traditionally been unconnected to money, power and influence....

As the president’s clemency program accelerates over the 16 months remaining in his second and final term, we hope that he will look at the impact race has played in meting out unjust sentences.  We hope that he will broadly consider those who are worthy of a shortened sentence and a lengthened term of freedom and responsibility.  And we hope that among this group will be multitudes of eligible black men and women who will be able to be reunited with families and communities.  This does not reflect a racial bias.  It simply reflects the gut-wrenching reality of those disproportionately over-sentenced in the first place.

September 14, 2015 in Clemency and Pardons, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, September 13, 2015

Alabama Chief Justice laments mandatory LWOP drug sentence for 76-year-old offender

As reported in this AP article, "Alabama Chief Justice Roy Moore says the case of a 76-year-man sentenced to life without parole for a drug offense shows the need to change sentencing laws."  Here is more about the notable separate opinion authored by the top jurist of the the Cotton State:

Moore issued a special writing Friday as the Supreme Court refused to overturn the case of Lee Carroll Brooker. "I believe Brooker's sentence is excessive and unjustified," Moore wrote.

Brooker lived with his son in Houston County, and court documents show police found a marijuana-growing operation there during a search in 2013. The elderly man was convicted of drug trafficking last year, and a judge sentenced him to life without parole because of past robbery convictions in Florida. His son was also convicted. Moore writes that the life-without-parole sentence for a non-violent drug offense shows "grave flaws" in Alabama's sentencing system.

"A trial court should have the discretion to impose a less severe sentence than life imprisonment without the possibility of parole," Moore added. "I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose."

The full opinion by Chief Justice Moore is available at this link.

September 13, 2015 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

New gossip about claim of innocence in Glossip

As reported in this New York Times article, the condemned murderer whose name was atop the case in which the Supreme Court recently upheld Oklahoma's approach to lethal injection now has supporters raising questions anew about his factual guilt.  The piece is headlined "Oklahoma Inmate the Focus of Renewed Attention as Execution Date Nears," and here are excerpts:

Richard E. Glossip was at the center of a major Supreme Court case this year, arguing along with two other men on Oklahoma’s death row that the state’s choice of lethal injection drugs could cause unconstitutional suffering. The court rejected that claim in a 5­4 decision in June, clearing the way for Oklahoma to resume executions. Mr. Glossip’s is the first; he is scheduled to die on Wednesday.

Now Mr. Glossip, 52, is again a focus of attention, this time over whether he is guilty of the arranged murder in 1997 of the owner of a run­down motel he was managing. Mr. Glossip’s supporters call his case a striking example of a repeating pattern in American capital punishment, in which a defendant receives inadequate legal representation early on and then, many years later, only as execution nears, higher­powered lawyers and civil rights groups become involved, raising important new issues at the 11th hour, when it may be too late.

Mr. Glossip has won the fervent backing of Sister Helen Prejean, the antideath­penalty campaigner; the actress Susan Sarandon, who played Sister Helen in the film “Dead Man Walking”; and a new legal team, working pro bono, which says his conviction was marred by poor lawyering and unreliable, police-­coached testimony.

In a drumbeat of media appearances, Mr. Glossip’s supporters are calling on Gov. Mary Fallin of Oklahoma to delay his execution for 60 days while they explore what they say is important new evidence that they released on Friday and will discuss in a news conference in Oklahoma City on Monday.

The victim, Barry Van Treese, was beaten to death with a baseball bat in a room at the Best Budget Inn in Oklahoma City, a motel that he owned and Mr. Glossip managed. Justin Sneed, a 19-­year-­old drifter with an eighth­grade education whom Mr. Glossip allowed to stay at the motel in return for maintenance work, admitted to the murder and is serving life without parole.

Mr. Sneed testified that Mr. Glossip had told him to kill Mr. Van Treese in return for thousands of dollars in motel receipts. Prosecutors said Mr. Glossip was a cunning figure who feared he was about to be fired for mismanagement and stealing motel revenues, and persuaded Mr. Sneed to commit the crime....

Mr. Glossip’s appeals to the state and federal Supreme Court have been exhausted. His last hope is for Governor Fallin, a Republican, to stay his execution while his lawyers work to persuade a judge, or the state board of pardon and parole, that significant new evidence warrants a new hearing or clemency. “We are seriously racing against time, as you can imagine,” said one of those lawyers, Donald R. Knight, from Colorado. “We’re trying to do work that should have been done by trial lawyers a long time ago.”

But Governor Fallin has rejected calls to intervene. “His actions directly led to the brutal murder of a husband and a father of seven children,” she said last month in a statement about Mr. Glossip, stressing that he had been convicted in two jury trials and lost multiple appeals. “The state of Oklahoma is prepared to hold him accountable for his crimes and move forward with his scheduled execution.”

Barry C. Scheck, co­director of the Innocence Project in New York, said there were serious “residual doubts” about Mr. Glossip’s guilt. A number of cases in which those sentenced to death were later exonerated, he said, had similarly relied on witnesses who benefited from testimony.

Mr. Glossip was first found guilty and sentenced to death in 1998, but a state appeals court ordered a retrial because his defense lawyers had failed to cross­-examine or investigate witnesses effectively. He was again convicted and condemned in 2004, and the courts did not find evidence of deficiencies that would require a new appeal. But Mr. Knight said the new team had identified weaknesses with that second defense as well. By all accounts, Mr. Glossip’s behavior on the day after the murder hurt his case....

The Glossip case reflects a common problem in capital punishment, Mr. Scheck said: a poor defense in the initial trial, which then limits the legal options in later appeals. “What frequently happens in these capital cases is that the really good lawyers only get involved at the end, when it’s too late,” Mr. Scheck said.

Mr. Van Treese’s family is convinced of Mr. Glossip’s guilt and has thanked the governor for standing firm. “Execution of Richard Glossip will not bring Barry back or lessen the empty hole left in the lives of those who loved Barry,” family members said in a statement this week to The Tulsa World. “What it does provide is a sense that justice has been served.”

I use the term gossip in the title of this post in part because I find less than compelling the development of new contentions about innocence a full two decades after the crime was committed given that the defendant was convicted and sentenced to death twice by two different juries. I certainly recognize that juries can get guilt/innocence determinations wrong, but I am ever hopeful it is highly unlikely that a two different juries would both get this critical determination unanimously wrong.

In addition, Mr. Glossip's supporters had to reasonably expect he would have a serious execution date in 2015, and he has not had his death sentence carried out already only because of Oklahoma's difficulties with its lethal injection plans. And, based on the tenor of the the Supreme Court oral argument in Glossip back in April, it should have been especially obvious that Oklahoma would likely have its machinery of death up and running again pretty soon. I find it troublesome that, despite all this extra time to conduct whatever additional investigation might now unearth new concerns about guilt, defense attorneys now assert they need another 60 days to make a more forceful showing of innocence.

September 13, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

Saturday, September 12, 2015

Federal judge finds unconstitutional Missouri's operation of its sex-offender civil commitment program

As reported in this local piece, headlined "U.S. judge rules handling of state's sexual predator program is unconstitutional," a federal judge issued late friday a significant ruling concerning Missouri's sex offender laws.  Here are the details:

In an awaited ruling from the federal bench, U.S. District Judge Audrey G. Fleissig ruled late Friday afternoon that Missouri’s sexually violent predator law is constitutional, but not how it’s applied.  The judge wrote that there is a “pervasive sense of hopelessness” at the Department of Mental Health’s Sex Offender Rehabilitation and Treatment Services, or SORTS program, because patients aren’t being properly released.

With help from the state attorney general’s office, SORTS is indefinitely committing about 200 people to treatment in the belief that they might reoffend.  The program has been praised and criticized since it began in 1999.  Before the trial started in April, nobody had completed treatment and been allowed to live outside of secure SORTS facilities in Fulton or Farmington.  They entered the program after completing prison sentences for sex crimes.

“The overwhelming evidence at trial — much of which came from Defendants’ own experts — did establish that the SORTS civil commitment program suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause,” Fleissig wrote in her ruling.

“The Constitution,” the judge added, “does not allow (Missouri officials) to impose lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.”  Those issues will be addressed soon in the remedy portion of the trial.  A hearing will be held Sept. 29.

“I can’t believe it, man,” said John Van Orden, 55, who lived in the Springfield, Mo., area before being committed to SORTS in 2005.  “It’s hard to describe after all that we have been through here.  Finally, we get some light at the end of the tunnel.”  The class-action lawsuit began in 2009.

Eric Selig, a lead attorney for the plaintiffs, said Friday: “We hope to work with the attorney general’s office and the Department of Mental Health to fix the program and start releasing the people who have successfully completed treatment, which is what the statute is all about.”...

Gov. Jay Nixon, a Democrat, has supported the program as a needed public safety tool.  He has said judges weigh annual reports to determine when patients deserve to be released. And the Legislature, now Republican-controlled, adds a layer of oversight, scrutinizing the program’s budget.  Plaintiffs’ attorneys attempted to punch holes in these positions and others during the eight-day federal bench trial that ended here April 30.

The judge agreed. In her ruling, she said the state of Missouri has not:

  • Performed annual reviews in accordance with the Sexually Violent Predator Act.
  • Properly implemented any program to ensure the least restrictive environment.
  • Implemented release procedures, including director authorization for releases, in the manner required by the law.

At the center of the case in Missouri — and other states struggling with similar laws — was the question of whether SORTS facilities genuinely rehabilitate sex offenders, or are merely an extra layer of punishment outside of the prison system.  In June, a federal judge in Minnesota ruled that indefinitely committing sex offenders is unconstitutional.

While the Missouri Attorney General’s Office argued at trial that progress is being made in treatment, plaintiffs’ attorneys harped on the fact that no patient had been released back into society.  They used the state’s own witness to point out a sense of hopelessness among staff and patients, who already have completed prison sentences before being detained indefinitely for treatment.

Plaintiffs’ attorneys sifted through hundreds of thousands of pages of the program’s documents, including a memo from the former chief of operations who wrote in 2009 that 16 patients could be moved to the St. Louis Psychiatric Rehabilitation Center, a less restrictive facility at 5300 Arsenal Street. In the memo, Alan Blake wrote that the top five of those 16 patients could be moved “today” and “easily” pass a test that shows they can live close to neighbors without harm.  “The rest may need greater support/treatment, but don’t represent a risk to the community in terms of compliance and appreciation of their situation,” Blake added.  “The setting would likely enhance their treatment and provide motivation.”  The memo went on to say that a few of the patients would even make good employees or peer counselors at the St. Louis rehab center.

Testimony in the federal case showed that those details — ones that seemed to show favorable patient progress — weren’t included in the annual reports to courts that make the ultimate decision about release.  With the addition of 20 SORTS patients a year and nobody being released, plaintiffs’ attorneys pressed the issue of reforming the program and developing a fast track to a nursing home for elderly and infirm patients. At least 17 patients have died in the program, including one who was well into his 80s.

The full 60-page trial court ruling in this matter can be accessed at this link.

September 12, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, September 11, 2015

Is Arkansas about to jump back seriously into execution business?

The question in the title of this post is prompted by this recent local article from the Natural State, headlined "Dates to die set for 8 inmates: State resuming executions; first two scheduled for Oct. 21." Here are the details:

After nearly a decade since an Arkansas inmate was put to death, Gov. Asa Hutchinson on Wednesday announced the execution dates for eight. Barring intervention from a court, the state will first mete out capital punishment, by lethal injection, to convicted murderers Bruce Ward and Don Davis. They have the earliest of the execution dates, Oct. 21.

Hutchinson said he expects the execution dates to be challenged in court, but he thinks the eight offenders have gotten "finality" in their cases and have exhausted all of their standard appeals.

Hutchinson spokesman J.R. Davis said the governor is "fulfilling" a duty of his office by setting the dates. "It's not something he takes lightly at all," J.R. Davis said. "But these crimes were heinous, and they were sentenced to death because of these crimes. He will carry those out."

Jeff Rosenzweig, an attorney for the eight men, said he will seek a court injunction to delay the executions. He noted that a lawsuit filed in June seeking disclosure of the source of the drugs used in executions is still pending. Act 1096, which was passed during this year's legislative session, prohibits the Arkansas Department of Correction from disclosing the source of the execution drugs, but Rosenzweig said his clients have a right to know who made the drugs. "There are some very serious issues, starting with the fact that the state wants to hide what drugs they're using or where they got them from. They want to hide that," Rosenzweig said. Divulging that information "tells us if it's a legitimate supplier or some fly-by-night operation. If it's a fly-by-night operation, it's torture."...

A combination of legal challenges and a lack of availability of lethal-injection drugs has halted executions in Arkansas for nearly a decade. The state's last execution was that of Eric Nance in November 2005. Nance was convicted of the 1993 murder of 18-year-old Julie Heath of Malvern. He was put to death using a three-drug cocktail of phenobarbital, potassium chloride and a paralytic agent.

As of Wednesday, a Department of Correction spokesman said, there were 26 other inmates on death row.

The eight executions will occur in pairs, J.R. Davis said, because "it's more efficient to do two on one date." He and Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said all eight have exhausted their appeals....

The eight men whose execution dates are now set are challenging in Pulaski County Circuit Court the legitimacy of the state's death-penalty laws.

In 2013, then-Arkansas Attorney General Dustin McDaniel's office reached a settlement with the men, promising to disclose the source of the drugs that would be used in their executions. Act 1096 barred the release of that information, so Rosenzweig and other attorneys sued.

Rosenzweig conceded that several similar challenges have failed in federal courts across the country but said none of those challenges involved a pre-existing agreement between the prisoners and the state to share that information. Rosenzweig argues that his clients have a right to make sure the execution drugs come from a reputable source so that the risk of pain during the executions can be minimized.  "We have a situation that the other states didn't have ... it's very different from us wandering into the court and saying 'Tell me this!' We're dealing with a commitment, a contract, an agreement made by the state," Rosenzweig said. "This has ramifications far beyond executions."

Until recently, state officials had difficulties obtaining lethal-injection drugs. In 2011, the state handed over its supply of the execution drug sodium thiopental to federal drug agents after the state's prison department got the drug from a wholesaler operating out of a driving school in London. In June, the state obtained potassium chloride, vecuronium bromide and midazolam at a cost of $24,226.40.

Midazolam's effectiveness as a sedative in executions has been questioned after some botched executions, including that of Clayton Lockett, who struggled and convulsed for 43 minutes during his April 2014 execution in Oklahoma. In June, the U.S. Supreme Court, rejected claims that Oklahoma's use of midazolam violated death-row inmates' Eighth Amendment rights, and ruled that midazolam could continue to be used in executions.

On Aug. 6, the Arkansas Department of Correction formalized its policies and procedures for carrying out executions. On Sept. 1, Rutledge asked that the governor schedule the executions.

September 11, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement "

The title of this post is the headline of this notable new Issue Brief authored by Laura Rovner released today by the American Constitution Society for Law and Policy. Here are excerpts from the start of the brief (with footnotes omitted:  

Solitary confinement irreparably harms people.  For those who have endured long-term isolation, it is not an overstatement to describe it as a living death: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.”  U.S. Supreme Court Justice Samuel Miller, who was a physician as well as a lawyer, recognized the harms of solitary confinement as far back as 1890....

[I]t was more than a century ago, as Justice Kennedy recently reminded us, that the Supreme Court first recognized the harm solitary confinement causes and nearly declared it unconstitutional.  Yet, despite this unequivocal condemnation of solitary confinement by the nation’s highest court, over the course of the century that followed — and especially the last three decades — most states and the federal government have significantly increased their use of penal isolation.  Today, conservative estimates place the number of people in solitary confinement at over 100,000.  And they are there largely with the blessing of the federal courts.

While the Eighth Amendment’s prohibition against cruel and unusual punishment appears to provide mechanisms to challenge the use of long-term solitary confinement, the way the federal courts have interpreted the amendment in the past two decades has rendered judicial review virtually meaningless, resulting in an unprecedented number of people being held in conditions of extreme solitary confinement.  Part I of this Issue Brief examines the nature of solitary confinement and how it developed in the U.S.  Part II discusses (in broad outlines) the current jurisprudence of Eighth Amendment solitary confinement litigation.  Finally, Part III offers some reasons for optimism going forward and one promising path to achieving meaningful reforms through constitutional challenges to the practice.

September 11, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (7)

Thursday, September 10, 2015

Notable collective makes plans for "smart on crime" criminal code reform in Ohio

My local Columbus Dispatch has this new Ohio criminal justice reform story headlined, "Statehouse leaders push for shorter prison sentences, reducing prison population."  Here are the (still a bit fuzzy) details concerning what is afoot in the Buckeye state:

Ohio officials are undertaking a sweeping reform of the state’s criminal justice code, potentially resulting in shorter prison sentences and fewer people going to prison for non-violent drug crimes.

An unusual bipartisan coalition, including top legislative leaders, tax reformer Grover Norquist, an American Civil Liberties Union official, and Piper Kerman, author of Orange is the New Black: My Year in a Women's Prison, announced plans today to overhaul Ohio’s lengthy and cumbersome criminal code top-to-bottom.

“No one is here to say today that criminals should not be punished. We are here to say that not all crimes or criminals are created equal,” Senate President Keith Faber, R-Celina, said at a Statehouse press conference. “This is not about being hard or soft on crime. It’s about being smart on crime.”

No specifics were announced. Exactly how the criminal code will be overhauled will be up to the 24-member Ohio Criminal Justice Recodification Committee appointed by the legislature. Faber said he told the committee to “swing for the fences” when it comes to big picture reform ideas. But he balked when asked about two specific areas: revising parole standards for current inmates and marijuana legalization.

The consensus of speakers was that the reform goals are reducing the prison population by incarcerating fewer non-violent drug offenders and people with mental health issues, eliminating mandatory, flat sentences, and removing barriers for ex-offenders to return to society....

Speaker after speaker criticized the burdensome incarceration rate in Ohio and the U.S., the highest in the world. “Locking people in cages is extreme and dehumanizing,” said Allison Holcomb, head of the ACLU’s national Smart Justice program. “This is the top priority for us.”

Norquist, president of the conservative Americans for Tax Reform, said he views reform from more of an economic standpoint. “We have too many people in prison and not the right people in prison,” he said. That is costing taxpayers far too much, he said.

Kerman, now living in Columbus, came to public attention as author of her real-life story that led to the Netflix series, Orange is the New Black. “I’m fairly confident I’m the only person up here with a felony,” Kerman said opening her remarks. Following her release from a Connecticut prison on a drug-related money laundering charge, she became an advocate for sentencing and parole reform. She is teaching writing to inmates at two Ohio prisons.

Faber said the recodification committee, which is chaired by Auglaize County Common Pleas Judge Fred Pepple, does not have a specific deadline for completing its work. The final recommendations must be passed by the General Assembly.

September 10, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Wednesday, September 09, 2015

Examining death penalty developments in distinct death penalty states

The death penalty is subject to plenty of attention and scrutiny nationwide and especially in states that have traditionally carried out the most executions like Texas and Oklahoma.  But, I have noticed in the last few weeks some headline-making developments and/or notable commentary concerning capital punishment procedures and practices in a lot of distinct states with distinct death penalty histories. Going alphabetically by state, here is a round-up of some of the recent media pieces that have caught my eye:

California:  "Is Southern California the New Deep South?: Los Angeles County has sentenced more people to death than five Southern states combined."

Colorado: "After Aurora and Denver verdicts, Colorado mulls death penalty again: High-profile murder trials jump start death penalty debate in Colorado"

Delaware: "Judge blasts Delaware death penalty case

Missouri: "In the Execution Business, Missouri Is Surging: Defense lawyers call it a crisis; the state says it’s just doing its job."

Nebraska: "Back on the Agenda: Nebraska’s Death Penalty A grassroots effort aims to restore what the legislature just ended."

Pennsylvania: "End Pennsylvania’s limbo over death penalty"

September 9, 2015 in Data on sentencing, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (9)

Tuesday, September 08, 2015

Two notable new papers about plea bargaining procedures and practices

Practitioners know that the vast majority of criminal convictions are the results of plea deals.  But it has taken some time for formal legal jurisprudence and especially legal scholarship to catch up to this reality.  Fortunately, a lot of smart folks are starting to pay a lot more attention to plea dynamics, and these two notable new papers on SSRN reflect these realities:

Plea Bargaining's Baselines by Josh Bowers

Abstract: In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice.  It is not so much that the Court has ignored coercion entirely.  Rather, it has framed the inquiry in a legalistic manner that has made immaterial the kinds of considerations we might think most relevant to the evaluation.  The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility.  A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so.  In this way, the Court’s coercion baseline is legalistic — it is defined by what the prosecutor is legally entitled to pursue.

Recently, however, the Court has shifted its constitutional focus from code law. In a series of right-to-counsel cases, it has redefined prevailing plea-bargaining practice as the benchmark.  This amounts to an emerging extra-legalistic baseline, defined not by code law but rather by the parties’ efforts to circumvent it.  Of course, the Court did not mean to alter coercion’s landscape and almost certainly will not do so.  My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline — a proportionality baseline.  I defend this alternative extra-legalistic baseline and even prescribe a practical methodology for its discovery.  And, notably, my preferred approach is not without precedent.  The Court has applied analogously extra-legalistic baselines to claims of coercion in other constitutional contexts.

Training for Bargaining by Jenny Roberts and Ronald Wright

Abstract: While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys’ training.  Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they use every day.

Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself.  Our multi-phase field study examines the negotiation techniques that attorneys use during plea bargaining, as well as their preparation and training for negotiation.  This Article explores the data on the training aspects of our research.  It then discusses implications of the failure to train for bargaining by noting a variety of areas where training might improve case outcomes for defendants.

Surveys, interviews, and training agenda confirm our intuition about the lack of training for bargaining: Public defenders receive far less training in negotiation skills and strategies than they do in trial techniques.  Some defenders receive some limited training on negotiation skills in addition to trial skills, particularly when they first enter their offices. The topic of negotiation, however, almost disappears from the agenda for later training, even as trial skills remain front and center.

Leaders in public defender offices allow this training gap to continue when they view negotiation as more an art than a science, and not susceptible to rigorous analysis or systematic training.  The position that negotiation cannot be taught is demonstrably false and theoretically naïve.  Formal negotiation learning has proven effective in actual negotiations.  Negotiation theory also offers more concrete and comprehensive insights about sound practices than one can find in case law related to constitutional ineffective assistance of counsel, court rules and state statutes, or professional standards.

September 8, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, September 06, 2015

Digging deeply into the back-end of criminal justice systems

Regular readers are accustomed to seeing my praise in this space for Margaret Love's commentary about the federal clemency process and for the commentary and coverage of a range of back-end criminal justice issues at the Collateral Consequences Resource Center. These new posts at CCRC provide yet more support for my view that any and everyone interested in the so-called "back-end" of American criminal justice systems should be reading everything Margaret Love has to say and all the posts at CCRC:

September 6, 2015 in Clemency and Pardons, Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Connecticut prosecutors seek reconsideration of retroactive abolition of death sentences

This Reuters article, headlined "Prosecutors seek to re-argue case that ended Connecticut death penalty," reports on a notable (and seemingly long-shot) motion filed late last week in the Connecticut Supreme Court.  Here are the details:

Connecticut prosecutors asked the state Supreme Court on Friday to reconsider its recent decision on a narrow vote to end the state's death penalty, a clerk for the state Supreme Court said.

Prosecutors late Friday filed a motion asking the justices to allow them to re-argue the case in which justices called the death penalty cruel and unusual punishment and concluded that it "no longer comports with contemporary standards of decency."  The ruling, on a 4-3 vote, added Connecticut to the growing list of states backing away from the death penalty, including Nebraska and Maryland most recently.  Thirty-one states have the death penalty.

Prosecutors on Friday also asked the court to strike from the record a concurring opinion about racial bias in capital cases they said was barred as merely advisory, the clerk said.  In the opinion, Justices Flemming Norcott and Andrew McDonald wrote that racial and ethnic discrimination had "permeated the breadth of this state's experience with capital charging and sentencing decisions."

Prosecutors want to present new arguments in response to the majority opinions, including the rarity of executions in Connecticut, the delay in imposing death sentences and the danger of executing the innocent, the clerk said.

"The Division of Criminal Justice recognizes the complex legal and policy issues that the court confronted in this crucially important case," Chief State's Attorney Kevin Kane wrote in the motion.  "The process that the majority followed in reaching its conclusion deprived the division of the opportunity to address the concerns that drove the results and led the majority unaided by the time-tested adversarial process to inaccurate assumptions and errors of law," he wrote....

Connecticut in 2012 abolished capital punishment for future crimes but allowed the death penalty to be imposed for crimes previously committed. The current debate leaves 11 death row inmates in limbo.

I would guess that these sorts of motions for reargument in the Connecticut Supreme Court are almost never granted. But, as long-time readers know, death penalty cases can and often lead to some unusual legal developments.

Prior related posts:

September 6, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Thursday, September 03, 2015

Third Circuit panel explains Scylla and Charybdis of habeas law to prisoner John (Odysseus) Doe

Anyone who loves to read about and think a lot about federal post-conviction sentencing review rules — and really, who doesn't? — will want to make sure to preserve some time today to try to consume all of the extraordinary work done yesterday by a Third Circuit panel in US v. Doe, No. 13-4274 (3d Cir. Sept 2, 2015) (available here). The Doe decision runs 50 pages (with a table of contents longer than a page), but the starting quotes and introduction highlight the basics:

“The whole thing was a very cleverly planned jigsaw puzzle, so arranged that every fresh piece of knowledge that came to light made the solution of the whole more difficult.” — Agatha Christie, Murder on the Orient Express.

“It’s like kind of complicated to me” — John Doe, on the withdrawal of his § 2255 motion.

John Doe, whose identity we protect because he is a Government informant, appeals from the denial of (1) a 28 U.S.C. § 2255 motion filed in 2012 and (2) a request made in 2013 to reopen a § 2255 motion filed in 2008.  Doe was sentenced pursuant to the then-mandatory Sentencing Guidelines as a “career offender” on the basis of two convictions for simple assault in Pennsylvania.  He argued in his 2008 motion that his convictions were not “crimes of violence” within the meaning of the Guidelines and thus he was not a career offender.  Our precedent foreclosed that argument when he made it, but, in light of the Supreme Court case Begay v. United States, 553 U.S. 137 (2008), we reversed ourselves, and Doe’s argument became plausible.  He therefore filed another § 2255 motion, but it too was denied.

This case presents many procedural complexities of first impression within this Circuit. If Doe can manage the Odyssean twists and turns of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), including the Scylla of the second-or-successive bar and the Charybdis of the statute of limitations, he may find a meritorious claim at the end of his journey.  However, we do not definitively reach the merits here and instead remand to let Doe’s case continue its uncertain course.

September 3, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Tuesday, September 01, 2015

California settles prisoner lawsuit by agreeing to limit use of solitary confinement

As reported in this local AP piece , headlined "California to end unlimited isolation for most gang leaders," a lawsuit concerning California's use of solitary confinement culminated today in a significant settlement. Here are the details:

California agreed Tuesday to end its unlimited isolation of imprisoned gang leaders, restricting a practice that once kept hundreds of inmates in notorious segregation units for a decade or longer.

The state is agreeing to segregate only inmates who commit new crimes behind bars and will no longer lock gang members in soundproofed, windowless cells solely to keep them from directing illegal activities by gang members.  "It will move California more into the mainstream of what other states are doing while still allowing us the ability to deal with people who are presenting problems within our system, but do so in a way where we rely less on the use of segregation," Corrections and Rehabilitation Secretary Jeffrey Beard told The Associated Press.

The conditions triggered intermittent hunger strikes by tens of thousands of inmates throughout the prison system in recent years.  Years-long segregation also drew criticism this summer from President Barack Obama and U.S. Supreme Court Justice Anthony Kennedy.

"I think there is a deepening movement away from solitary confinement in the country and I think this settlement will be a spur to that movement," Jules Lobel, the inmates' lead attorney and president of the Center for Constitutional Rights, said in a telephone interview.

The lawsuit was initially filed in 2009 by two killers serving time in the security housing unit at Pelican Bay.  By 2012, Todd Ashker and Danny Troxell were among 78 prisoners confined in Pelican Bay's isolation unit for more than 20 years, though Troxell has since been moved to another prison. More than 500 had been in the unit for more than 10 years, though recent policy changes reduced that to 62 inmates isolated for a decade or longer as of late July.

The suit contended that isolating inmates in 80-square-foot cells for all but about 90 minutes each day amounts to cruel and unusual punishment.  About half the nearly 3,000 inmates held in such units are in solitary confinement.  Inmates have no physical contact with visitors and are allowed only limited reading materials and communications with the outside world.

The settlement will limit how long inmates can spend in isolation, while creating restrictive custody units for inmates who refuse to participate in rehabilitation programs or keep breaking prison rules....  Lobel said the new units, by giving high-security inmates more personal contact and privileges, should be an example to other states to move away from isolation policies that he said have proven counterproductive in California....

Nichol Gomez, a spokeswoman for the union representing most prison guards, said it was disappointing that "the people that actually have to do the work" weren't involved in the negotiations, so she couldn't immediately comment.

Beard said he will work to ease the unions' previously expressed concerns that guards could face additional danger. He said the settlement expands on recent changes that have reduced the number of segregated inmates statewide from 4,153 in January 2012 to 2,858 currently.

Until recently, gang members could serve unlimited time in isolation.  Under the settlement, they and other inmates can be segregated for up to five years for crimes committed in prison, though gang members can receive another two years in segregation.

September 1, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Previewing the latest (and most important) bipartisan federal statutory sentencing reform effort in Congress

ImagesAs regular readers know, September is the month that a (long-forecast) important new federal sentencing reform bill has become likely to emerge from the US Senate.  This new Daily Signal article, headlined "Bipartisan Group of Senators Set to Announce Deal to Reduce Prison Population," which reports that this bill is going to be unveiled a week from today, provides an account of what we can expect to see in this bill.  Here are excerpts:

Soon after lawmakers return to Washington, D.C., on Sept. 8, a bipartisan group of members on the Senate Judiciary Committee is expected to announce a deal meant to relieve the overcrowded federal prison population.

The bill, which is still being written and near completion — according to Beth Levine, a spokeswoman for Judiciary Committee Chairman Chuck Grassley — would give judges more discretion in sentencing offenders of certain nonviolent drug crimes and let well-behaved inmates earn time off their prison terms.

“They want to announce a deal as soon as they get back, but they just aren’t quite there yet,” says Conn Carroll, the communications director for Sen. Mike Lee, a committee member and leading reform advocate. “Let’s just say it’s first and goal on the one, everyone thinks we’ll score, we just don’t know when,” Carroll continued.

The legislation, the result of months of negotiations, will likely incorporate policies from previously introduced legislation in both houses of Congress.

The judiciary committee’s compromise bill is not expected to include reductions to mandatory minimums that are blamed for mass incarceration. Mandatory minimums require binding prison terms of a particular length and prevent judges from using their discretion to apply punishment. But the legislation is expected to give judges some leeway in sentencing drug offenders....

A new Pew study, using data from the Federal Bureau of Prisons, reveals that there are more than 207,000 inmates in federal prisons, and 95,000 of those inmates are incarcerated for drug-related offenses — up from fewer than 5,000 in 1980.

The jump in the number of inmates has cost a lot of money. From 1980 to 2013, federal prison spending increased 595 percent, from $970 million to more than $6.7 billion. According to the study, prison spending now represents one of every four dollars spent by the U.S. Justice Department. The report says growth of the prison population, and the longer drug sentences, can be pinned on a tough-on-crime mentality that dominated the 1980s.

Reform advocates say these policies — such as laws passed by Congress enacting mandatory minimum sentences of five, 10, or 20 years for drug offenders, and abolishing parole for federal offenders — have outlived their usefulness and need to be revised.

“The question really boils down to, has Sen. Grassley come to recognize mandatory minimums are a policy failure?” says Alison Holcomb, the director of the ACLU’s Campaign for Smart Justice. “Whether the bill is worth all the time and effort of the negotiations depends on a large part to the answer to that question.”

Grassley, as the judiciary committee chair, is the gatekeeper of the talks. Experts such as Holcomb say Grassley is opposed to across-the-board repeal of mandatory minimum sentences. “The real question of this bill is, how far can Grassley go?” says Molly Gill, the government affairs counsel for Families Against Mandatory Minimums, a nonprofit. “There’s a lot of pressure to do something significant. Is Grassley’s definition of significant close to everyone else’s? There becomes a certain point where you ask, is this real reform?”

Though Grassley’s office won’t share the exact details, the bill is expected to address a “safety valve” law that’s supposed to keep people from receiving unfair sentences.

Under the law, a federal drug offender can avoid a mandatory minimum sentence if he passes a five-part “safety valve” test. A convicted felon can be sentenced below a mandatory minimum if he was not a drug leader or “king pin,” he did not use or possess a gun during the offense, the offense is nonviolent, he was truthful with the government, and he has little or no other criminal activity on his record.

Reform advocates argue that even the most minor criminal history, such as being convicted for possessing a small amount of marijuana as a juvenile, can make an offender ineligible for the safety valve exception. The Senate Judiciary Committee bill may make the criminal record aspect of the safety valve more forgiving. It may also create a new loophole to get around mandatory minimums.

In addition, the legislation will include elements of a separate bill, the Corrections Act, authored by two senators of the judiciary committee: John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.

That bill would allow certain well-behaved prisoners to earn time off their sentences by participating in recidivism reduction programs such as drug counseling and vocational training. The judiciary committee bill won’t be as comprehensive as the House’s SAFE Justice Act, sponsored by Reps. Jim Sensenbrenner, R-Wis., and Bobby Scott, D-Va., which would narrow the range of offenders that mandatory minimums apply to. Some members, like Grassley, think that reform plan is too far-reaching.

“Although there is clearly bipartisan support for a number of these proposals, [this] is a difficult issue,” says John Malcolm, the director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies. “Some believe our current sentencing regime is unfair and the pendulum has swung too far in terms of imposing harsh sentences,” Malcolm continued. “Others believe increased incarceration and harsh sentences have taken some very dangerous people off of the streets. I remain cautiously optimistic there is some ‘sweet spot’ where both sides can compromise.”

Whatever the final product looks like, all sides are optimistic that Congress will give Obama a criminal justice reform bill to sign this year — because too many people are waiting. “The American criminal justice system has gotten has so far out of whack, with far too many people behind bars for too high a price,” Holcomb said. “The cold hard fact that people across the aisle can agree on is that America is better than this.”

I am pleased that some key details of the sentencing reform bill most likely to get to Prez Obama's desk are emerging, and I am not surprised that Senator Grassley is more interested in pursuing expanded exceptions to current federal mandatory minimums rather than across the board cuts to any current mandatory minimum. At the same time, I am concerned (but again not suprised) that advocates of federal sentencing reform are worried that this latest bill which has Senator Grassley's blessing is not going to be as far-reaching or impactful as other bills that have been making the rounds.

As a general matter, I favor a federal sentencing world without any crude and strict mandatory minimums terms for any non-violent crimes. But, especially now that we have had two-plus years of talk about statutory sentencing reform and nothing at all that has made it through Congress, I am hopeful all reform advocates will get on-board with whatever comes out of the Senate later this month. Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close. If visions of the "best" or even the "really good" prompt criticisms of any bill that has a real chance of passage, we could well end up with no bill making it through Congress at all.

Some prior related posts:

September 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Monday, August 31, 2015

District Judge struggles with impact of reduced guidelines for (long-ago) kingpin crack dealer

NPR has this notable new story about a notable request by a notable federal crack offender seeking a reduced sentence based on the new reduced crack guidelines.  Ths piece is headlined "Notorious Cocaine Dealers' Release Requests Test New Sentencing Guidelines," and here are excerpts:

A longtime federal judge struggled Monday over what constitutes justice for members of one of Washington, D.C.'s most notorious drug rings. Senior U.S. District Judge Royce C. Lamberth pressed a public defender about the fate of Melvin Butler, a man who helped flood the city with cocaine that contributed to waves of violence in the late 1980s.

"You're saying that I can't consider the fact that he was one of the biggest drug dealers in the history of our city?" the judge asked. "Congress has tied my hands and I can't consider that?"

The issue arrived in a spotless second-floor room in the federal courthouse on a request from Butler, now 52, for a sentence reduction that would allow him to leave prison in November, after spending half of his life behind bars.

Butler landed in federal custody on April 28, 1989 — so long ago that most of his court records are lost somewhere in storage. Butler, based in California, was a top associate of Rayful Edmond III, Washington's most infamous drug kingpin. The two men allegedly connected at a heavyweight boxing match in Las Vegas in 1987. Two years later, their trial riveted the country. Officials outfitted the courtroom with bulletproof glass and flew Edmond in each day from a lockup in Quantico, Va.

Butler had initially been sentenced to life in prison, Judge Lamberth pointed out, as "one of the two top ringleaders" of a gang that made more than $1 million a week. But the judge who presided over the case, and died in 1997, later reduced the sentence. Now, Butler and his lawyer are trying to shave off more time using a process the U.S. Sentencing Commission approved last year for drug offenders to secure early release from prison.

"I recognize this man's stature and what happened in the '80s," said Assistant Federal Public Defender Dani Jahn. "He's now 52 years old. He's not the person that he was. This is a very lengthy sentence." Jahn said that if Butler were sentenced under laws in place now, he'd face far less time. And, she said, if the judge refuses to grant the request, Butler will still win release in 2017, having served his full term. She pointed out that Butler will remain under supervised release, subject to sanctions if he breaks the law again. "These guys have everything to lose by screwing up when they get out," Jahn said, adding that appearing before Judge Lamberth under those circumstances "would not be a good experience."...

Another member of the Edmond drug gang, lower down on the ladder, James Jones, also is seeking a sentence reduction. Now 58, Jones is scheduled to leave prison in February 2018. But he too wants to take advantage of a change in the sentencing guidelines that would allow him to go free in November with the judge's permission. Thousands of prison inmates across the country already have won the ability to leave prison early under that mechanism.

But in his courtroom, across from the U.S. Capitol, Judge Lamberth expressed reservations. "It still gives me pause what Congress is doing," the judge said. "I would have thought the top drug kingpins in the country wouldn't be the beneficiaries of what we're trying to do here."

The questions of crime and punishment are particularly timely now as the Obama administration has prioritized sentencing reform and clemency initiatives that would deliver shorter sentences and other relief to nonviolent drug criminals. Lawmakers from both political parties are preparing to advance their own proposals for overhauling the criminal justice system in September....

But the question before Judge Lamberth, and others deliberating notorious cases across the country, is what standards to consider for criminals involved at higher levels in violent drug gangs. The judge said he recalled Edmond testifying that many of his lieutenants wielded firearms. Lamberth also asked about an apparently unresolved murder allegation involving Jones dating to the 1980s. But the prosecutor, the public defender and the probation officer couldn't remember back that far, so they asked for time to research the question.

Prosecutor Barry Wiegand said he didn't want to opine about changes in criminal justice policy. But he said he lived several blocks away from what used to be a drug market under Edmond's control. "I wouldn't presume as an assistant United States attorney to be privy to the wisdom of Congress," he said. "I observe that 31- and 32-year sentences are long. I observe that a lot of places aren't what they used to be. What we did in the 1980s and 1990s was the right thing to do, and we did it well."

August 31, 2015 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

SCOTUS lets convicted former Virginia Gov to remain free pending cert decision

As reported in this local article, headlined "U.S. Supreme Court lets McDonnell stay free for now," a high-profile white-collar federal defendant has gotten a kind of prison sentence reprieve while continuing to pursue his appeals. Here are the basics:

In a surprise to many observers Monday, the U.S. Supreme Court allowed former Gov. Bob McDonnell to remain free while the justices decide whether to take up his appeal....

Should the justices not take the case, the stay ordered this afternoon will end automatically. If the court takes the case the stay will continue, the court ordered.

"Wow," said Randall Eliason, former chief of the Public Corruption/Government Fraud Section at the U.S. Attorney's Office in Washington. "It suggests there is some level of interest at the Supreme Court in reviewing the case, even though not a single appellate judge in the 4th Circuit agreed with his arguments.”

Henry Asbill, one of McDonnell’s lawyers, said “We’re very grateful for this order and we’re gratified that the justices recognize that this case raises substantial and important legal questions and we look forward to a full merits briefing."

McDonnell’s lawyers made the request to Chief Justice John G. Roberts Jr., who referred the matter to the full court. McDonnell needed a majority vote for the stay - it is unclear if the full court voted - but only needs four votes for the court to agree to take up his appeal.

"I am surprised," said Carl Tobias, a professor at the University of Richmond School of law. "There's no explanation" provided by the justices, "so it's really hard to know what the vote might have been. But I think it may be a hopeful sign for McDonnell," he said.

"It certainly buys some time," perhaps four months or more while the court considers taking the case, he said. "I think it shows there is some interest on the court in this case," but not necessarily the ultimate outcome. "There's still a lot of steps to go," he said.

The government opposed continued bond for McDonnell and argued that he should begin serving his two-year term. A spokeswoman for the U.S. attorney had no comment on the order. McDonnell and his wife, Maureen, were convicted of corruption charges stemming from $177,000 in gifts and loans from Jonnie R. Williams Sr., the former CEO of Star Scientific, in exchange for helping with the promotion of a product.

I am a bit disinclined to assert that the former Gov is getting the benefit of celebrity justice, especially because there is good reason to believe McDonnell would have possibly served the majority of his two-year prison sentence before SCOTUS would be able to decide the case on the merits if it ultimately chooses to take up his appeal.  Still, many white-collar defendants (despite presumably not being a risk to public safet) do not often get the opportunity to remain free on bail pending an appeal of right to a circuit court, let alone a cert appeal to SCOTUS. 

Prior related posts:

August 31, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

India Law Commission urges nation to abolish death penalty for all common crimes

This new article reports on an interesting and notable international sentencing reform development coming from India, a large nation within a continent which has long embraced and preserved a commitment to capital punishemnt.  The piece's extended headline provides the basics: "Law Commission recommends abolishing death penalty except in terror cases: In its 272-page draft report, the commission favoured speedy abolition of the death penalty from the statute books, except in cases where the accused is convicted of involvement in a terror case or waging war against the nation."

The full text of this lengthy report from the Law Commission of India, which is titled simply "Report No. 262: The Death Penalty," can be accessed at this link.  Here is one of many key passages leading up to the report's final recommendations:

In sum, the death penalty operates in a system that is highly fragile, open to manipulation and mistake, and evidently fallible.  However objective the system becomes, since it is staffed by humans, and thus limited by human capacities and tendencies, the possibility of error always remains open, as has been acknowledged the world over, including by the most highly resourced legal systems.

As the instances cited above indicate, while the existence of appellate procedures may reduce the chances of error, these cannot be eliminated altogether.  Given the irreversibility of the death penalty, this punishment can only be justified where the entire system works in a fool proof manner, having regard to the highest standards of due process, the fairest of investigation and prosecution, the most robust defence, and the most impartial and astute judges.  However, experiences the world over, including in India suggest, that “all it takes is one dishonest police officer, one incompetent lawyer, one over-zealous prosecutor or one mistaken witness and the system fails.”  In a perfect criminal justice system, the death penalty may be imposed error free.  However, no such system has been devised so far.  The death penalty therefore remains an irreversible punishment in an imperfect, fragile and fallible system.

August 31, 2015 in Death Penalty Reforms, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0)

"The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem"

The title of this post is the title of this interesting new paper by Margo Schlanger now available via SSRN. Here is the abstract:

Nationwide, litigation currently plays a far smaller role as a corrections oversight mechanism than in decades past, a change largely caused by the 1996 Prison Litigation Reform Act (PLRA).  Yet no such decline is evident in the nation’s most populous state, California, where prisoners’ rights litigation remains enormously influential and was the trigger to the criminal justice “Realignment” that is the subject of this symposium. Indeed, every prison in California is subject to numerous ongoing court orders governing conditions of confinement.

This article examines why California is different.  It argues California’s very large bar includes a critical mass of highly expert prisoners’ rights lawyers.  Working for both non-profits and for-profit firms, they benefited from a pipeline of large-scale, pre-PLRA, fees-paying cases that sustained them while they learned to cope with the statutory obstacles. And the Ninth Circuit’s hospitable bench awarded them some favorable fee-related rulings in support of their coping strategies.  In short, they learned how to — just barely — maintain a prisoners’ rights docket nothwithstanding very substantial financial hurdles. They continue to litigate old and new cases, but ongoing challenges pose a real threat to the fragile litigation ecosystem they have created.

August 31, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, August 30, 2015

Gearing up for the Ninth Circuit oral argument concerning California's (capricious?) capital cae review

As I have noted in a few recent posts (linked below), panel oral argument is scheduled for tomorrow, August 31, 2015, in the Ninth Circuit appeal of last year's ruling by US District Judge Cormac Carney in Jones v. Chappell (now Jones v. Davis) that California's administration of capital punishment was unconstitutional.  Unsurprisingly, media both old and new are giving significant attention to this appeal in a case that could possibly preclude any further executions in the state with the largest death row, and here are headlines/titles and links to a melange of recent media coverage I have come across recently:

As I have mentioned in prior posts, Jones was an interesting ruling from the federal district court for various reasons, and a lot of interconnected issues are in play on appeal.  As revealed via this Ninth Circuit webpage, various amici have submitted briefs to the Ninth Circuit urging reversal or affirmance of the Jones decision.  And I believe we can all watch the panel arguments live via this link from the Ninth Circuit tomorrow at 12noon EDT (9am PDT).  

Prior related posts:

UPDATE: Here are two more new (old media) pieces previewing today's oral argument in Jones v. Davis:

August 30, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, August 28, 2015

Massachusetts SJC rules local sex offender restrictions preempted by state law

As reported in this Boston Globe article, "Massachusetts cities and towns cannot broadly restrict where sex offenders can live, the state’s highest court ruled Friday, declaring that measures in place in more than 40 municipalities were in conflict with state law."  Here is more on the ruling: 

The decision came as the Supreme Judicial Court upheld a lower court ruling on a Lynn ordinance that the judges said would have affected 95 percent of the city’s residential properties.  The court decried the measure, which it said conflicted with a 1999 state law that set up a system to keep track of sex offenders in communities.

“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst,” the ruling said.

Timothy Phelan, who sponsored the Lynn ordinance when was City Council president in 2011, called the decision discouraging and disappointing. SJC rules against sex offender zone laws in Mass.  “It seems like the rights of children are taking a back seat to what is politically correct,” Phelan said.

The ordinance placed strict limits on the ability of Level 2 and 3 sex offenders — those deemed by the state to have moderate and high risks of reoffending — from living within 1,000 feet of a park or school.

John Reinstein, the attorney who argued the case on behalf of three registered sex offenders, said the strong language in the ruling is “a shot across the bow to any attempt to provide the authority for broad-based restrictions to cities and towns.” Reinstein began work on the subject while he was legal director of the American Civil Liberties Union of Massachusetts and continued after his retirement in 2013.

He and his colleagues had urged the court to reject the law on constitutional grounds, arguing that it violated the fundamental rights of sex offenders to move freely within the state and choose where they live.

Friday’s decision instead followed a lower court ruling in deciding that the ordinance violated “home rule” provisions because it is a local measure in conflict with state law. The outcome leaves open the possibility that lawmakers could restore the ability of municipalities to create residency restrictions for sex offenders.

The full unanimous Massachusetts SJC ruling is available at this link.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, August 27, 2015

Might Tennessee soon have its machinery of death up and running?

The question in the title of this post is prompted by this AP story headlined "Judge upholds Tennessee lethal injection method." Here are the basics:

A Tennessee judge on Wednesday upheld the state's lethal injection process for executing inmates.

Davidson County Chancery Judge Claudia Bonnyman said from the bench that the plaintiffs, 33 death row inmates, didn't prove that the one-drug method led to a painful and lingering death.  She also said the plaintiffs didn't show during a lengthy trial that there have been problems in states where the method has been used. "Plaintiffs were not able to carry their burdens ... on any of their claims," Bonnyman said.

Plaintiffs' attorney Kelley Henry said they plan to appeal.

Attorney General Herbert Slatery said in a statement he hoped the families of victims would be comforted by the ruling.  "The State of Tennessee has worked very hard to make sure the protocol used is reliable and humane, today the Court recognized that," the statement said.  While much of the focus of this case has been on the inmates, we should not forget the victims and the heartache suffered by their families."

Tennessee's protocol calls for the use of pentobarbital mixed to order by a pharmacist, because the only commercial producer of the drug has placed restrictions on its distribution to prevent it from being used in executions.  Tennessee has not executed an inmate for more than five years because of legal challenges and problems in obtaining lethal injection drugs.

Lawmakers moved from a three-drug lethal injection method to a one-drug method and to reinstate the electric chair as a backup.  Both changes brought challenges, and all previously scheduled executions have been put on hold.

This ruling and the planned appeals by the death row defendants suggests that Tennessee might be a good state to watch to see if the Supreme Court's ruling in Glossip can really help states finally get their death penalty machinery back up and running.  In the wake of Glossip and absent any evidence of illicit chicanery by Tennessee officials, any appeals in this case ought to be resolved fairly expeditiously (especially if Tennessee were now set execution dates for some condemned murderers). But, of course, the condemned still have every reason, and surely will seek every opportunity, to continue to extend the lethal injection litigation for as long as possible in both state and federal courts. I have thought that Glossip should speed things along in this state and others, but only time will tell.

August 27, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, August 26, 2015

Nebraska group submits signatures to halt death penalty repeal and set up fascinating 2016 vote

As reported in this new AP article, the "organization campaigning to reinstate Nebraska's death penalty after lawmakers repealed it in May said Wednesday it has collected more than enough signatures to suspend the law before it goes into effect and place it before voters in 2016."  Here is more:

Nebraskans for the Death Penalty, which was heavily financed by Republican Gov. Pete Ricketts and his family, said it had gathered 166,692 signatures from all 93 of the state's counties. Nebraska's unicameral Legislature had voted to repeal capital punishment over the objection of Ricketts, becoming the first traditionally conservative state to do so in 42 years.

The pro-death penalty group needed roughly 57,000 valid signatures from registered voters to force a statewide referendum, and double that number to immediately halt the death penalty repeal going into effect. They appear to have exceeded the 10 percent of registered voters hurdle needed to block repeal pending a November 2016 ballot measure on the issue.

"Nebraskans sent a strong message about crime and punishment in our state by signing this petition in extraordinary numbers," said state treasurer and former attorney general Don Stenberg, a co-chair of the petition drive....

Republican Attorney General Doug Peterson, who supports the death penalty, said in a statement that the signatures are "presumptively valid" until determined otherwise. Stenberg said no one will know the exact number of valid signatures for at least a month, but the state constitution makes clear that petitions go into effect on the day they're submitted.

Even if the law is suspended, Nebraska currently has no way to execute any of the 10 men on death row because its lacks two of the three required lethal injection drugs and has struggled to obtain them legally. The state paid $54,400 in May to order the drugs from a broker in India, but federal authorities have said they can't be legally imported.

Nebraska lawmakers voted by the narrowest possible margin, 30-19, to override Ricketts' veto. Ricketts assailed the Legislature as out of touch with the wishes of most residents. The repeal vote was helped by an unusual coalition of conservative state senators and more traditional death penalty opponents who had fought unsuccessfully for decades to eliminate the punishment. Some conservatives said they opposed it for religious and moral reasons, while others cast it as an inefficient government program that wastes tax money....

Nebraska hasn't executed an inmate since 1997, and has never done so using the state's current three-drug lethal injection protocol.

The announcement of the number of signatures caps an 82-day petition drive backed by Ricketts and his father, TD Ameritrade founder Joe Ricketts. The governor had given $200,000 to Nebraskans for the Death Penalty as of the last filing deadline on July 31, while his father had donated $100,000. The group raised a total of more than $652,000 from 40 individual donors and seven groups classified as businesses, political action committees and other entities.

The largest donation in July came from the conservative, Washington-based Judicial Crisis Network, which gave $200,000. Nebraskans for the Death Penalty relied on a combination of paid and volunteer petition circulators, and was aided by an Arizona-based strategist who specializes in ballot campaigns.

I find these developments fascinating, especially because it highlights that the symbolism of the death penalty seems so much more important to so many folks than the practicalities of the death penalty. Practically speaking, with no executions in nearly 20 years, the legislature's abolition largely made de jure what was already a de facto reality in the state. But that largely symbolic decision obviously troubled a lot of Cornhuskers (and motivated some folks to put some serious money into this issue), and now the issue will be decided by direct democracy rather than by representative democracy.

Because I am a huge fan of direct democracy, and especially because it will be very interesting to follow the Cornhusker capital campaigning (and its funders' capital contributions), I am pleased that this crime-and-punishment issue will now come before the voters in 2016. Sadly, because Nebraska is not likely to become a swing state in the broader presidential scene, I doubt the many wanna-be Prez candidates will feel compelled to weigh in on this "local" issue. But it still seems possible that this vote could make Nebraska a significant focal point in the (never-ending) national debate over death penalty policy and practices.

August 26, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)