Wednesday, January 07, 2015

Victim rights' back-story at heart of new Cassell-Dershowitz blood feud

Lots of criminal justice folks are buzzing about the extraordinary spitting match that has broken out between notable criminal law professors Paul Cassell and Alan Dershowitz.  Helpfully, Jacob Gershman has this effective Wall Street Journal posting which explains the interesting criminal justice issues that got this heavyweight fight started.  The piece is headlined "Behind Epstein Suit, a Tussle Over Due Process and Victims’ Rights," and here are excerpts:

The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention.  Drawing less coverage is the lawsuit itself — a case with the potential to expand the rights of crime victims during federal investigations.

The lawsuit centers on a 2007 agreement the federal government made with Mr. Epstein, a Florida financier suspected of sexually abusing multiple underage girls.  Under its agreement with Mr. Epstein, who had been the target of an FBI probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to a state felony charge of soliciting an underage prostitute.  Mr. Epstein pleaded guilty to the state charge in 2008 and served about 13 months behind bars.

Two of Mr. Epstein’s alleged victims then filed suit against the U.S. government in 2008, claiming federal authorities violated their rights under a 2004 law by keeping them in the dark about the non-prosecution deal.  They want a federal court to invalidate the agreement, a position fiercely contested by the government.  The law in question is the Crime Victims’ Rights Act, a statutory bill of rights for victims of federal crimes.  Among other things, the law grants victims a “reasonable right to confer with the attorney for the Government in the case.”

The case exposes tensions between the due-process rights of the accused and the rights of victims.  Attorneys representing the plaintiffs, former federal judge Paul Cassell and Florida lawyer Bradley Edwards, say at stake “is whether a federal statute protecting crime victims rights can be ignored with impunity or, as we argue, whether instead real remedies exist for its violation.”

U.S. prosecutors say the government had no obligation to confer with the alleged victims. Since they never charged Mr. Epstein with a crime, they argue, the plaintiffs don’t qualify as victims under that 2004 law.  And even if that right existed, the government argues, the Constitution’s due-process guarantees bar prosecutors from reneging on their agreement with Mr. Epstein.

In making their argument, prosecutors have cited a Dec. 2010 opinion issued by the Justice Department’s Office of Legal Counsel, which provides legal advice to the president and executive-branch agencies.  The opinion states that the “rights provided by the CVRA are guaranteed” only after “criminal proceedings are initiated through a complaint, information, or indictment.”

In a 2011 ruling, the federal judge presiding over the case, Kenneth A. Marra, sided with the plaintiffs’ interpretation of the law, writing that the CVRA “clearly contemplates pre-charge proceedings.”  And in a 2013 order, rejecting a motion by the government to dismiss the case, the judge wrote that a non-prosecution arrangement may be “re-opened” if it were reached in “violation of a prosecutor’s conferral obligations under the statute.”

The plaintiffs’ lawyers allege that the government failed to meet those obligations. In court documents, they accuse the U.S. attorney’s office of concealing the agreement “to avoid a firestorm of public controversy that would have erupted if the sweetheart plea deal with a politically-connected billionaire had been revealed.”

January 7, 2015 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, January 05, 2015

Extraordinary review of messiness of Prez Obama's clemency push

Josh Gerstein has this extraordinary Politico piece which provides a terrific (and disconcerting) review of the Obama Administration's recent clemency activities.  The lengthy piece is a must-read for lots of reasons. It is headlined "Obama's drug-sentencing quagmire: Justice Department turns to ACLU, others to prepare thousands of commutation requests," and here is how it starts:

President Barack Obama’s sweeping plan to commute the sentences of nonviolent drug offenders who were caught up in the disparities in laws governing crack and powder cocaine is lagging, burdened by vague guidelines, lack of Justice Department resources and the unusual decision to invite advocacy groups like the ACLU to help screen applications, according to lawyers close to the process.

In the year since the Justice Department encouraged inmates to apply to cut short their sentences, more than 25,000 prisoners have come forward.  But when Obama announced his annual commutations last month, only eight were given.  That reflects deeper problems in the government’s process for reviewing sentences and determining which ones are, indeed, overly long because of the crack-powder distinction, according to those familiar with the system.

The piece includes lots of interesting and notable comments by various unnamed lawyers discussing how the President, the Justice Department, and the Clemency Project 2014 are handling matters. Here are excerpts with some of these quotes:

With so many thousands of petitions pending, the tiny number of commutations announced during the Christmas season prompted a new round of skepticism about the administration’s capacity to ease onerous drug sentencing.

“This is paltry,” said one lawyer familiar with the process. “It is very disappointing.”

“I’d be shocked if it skyrockets to 100 before [Obama] leaves office,” another added....

[DOJ] officials encouraged the groups forming the Clemency Project to recruit and train private attorneys to prepare applications. The organizations have instituted their own screening effort to try to determine if prisoners meet the criteria and to make sure the private lawyers spend time on meritorious cases....

Some liberal-leaning lawyers and clemency advocates ... say the private consortium has taken on an outsize, quasi-official role in the process and has an inherent conflict of interest: Project organizers want to get the strongest possible applications to the Justice Department, which may mean abandoning prisoners whose cases fall into a gray area.

“It bothers me that you have a group of private citizens who have an under-the-table deal with the deputy attorney general to help him do his job and the promise is, ‘We’re going to put your guys at the front of the list,’” one lawyer involved said.  “Instead of dealing with a process that’s already opaque and bureaucratic and too slow, they’ve added this additional layer that’s even more opaque and bureaucratic and too slow.”...

One benefit to the administration of its current approach of working with outside groups is that it could mute criticism from advocates wrapped up in the effort — at least as long as there seems to be a prospect of a meaningful wave of commutations.  “They’ve co-opted all the people who would usually be critics,” said one lawyer close to the project.  “You have that dynamic in play, and I’m not sure that’s a good thing.”

The Clemency Project groups insist their involvement hasn’t silenced them.

Though I am not too concerned about clemency critics being co-opted through the Clemency Project, I am concerned about what will be a poor allocation of pro bono lawyering efforts if 1,500 lawyers spend months and years working on clemency applications for thousands of offenders if Prez Obama ends up granting commutations to only a few hundred prisoners. I genuinely believe that an army of 1,500 lawyers working on aggressive for months and years on federal sentencing litigation — perhaps in marijuana cases or attacking some extreme mandatory minimums through habeas actions or other means — could produce jurisprudential development that could end up helping many more than a few hundred defendants.

January 5, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Sunday, January 04, 2015

Despite recent reforms, Indiana and Ohio still struggling greatly with prison crowding and costs

This weekend brought two similar stories from two heartland states struggling with similar persistent prison problems.  Here are links to the stories with their headlines and highlights:

From Indiana here, "Despite code changes, state's prisons will grow":  

Amid other demands the Legislature will be juggling starting this month is a request from the Indiana Department of Correction for money to build and operate new prison cells. Without those cell units, department officials told legislators recently, the state will run out of beds for male inmates in about two years....

One reason is that the criminal code revisions, in addition to sending more prisoners back to the county, tightened the credit-for-time-served formula for other types of prisoners, keeping them in state prisons longer. It's not yet clear exactly how much more pressure that will put on the prison system, but DOC officials believe they would have had to increase capacity soon anyway. Indiana's prison population numbered 6,281 in 1980. At the end of 2013, it was 29,377. That's more than 4½ times as many prisoners.

From Ohio here, "Emergency early release of prisoners is considered":

As Ohio’s inmate population once again approaches record levels, with no money available for bricks and mortar, prisons chief Gary Mohr is looking at something never used here before — emergency early release of prisoners.

In his budget overview for 2015-16, Mohr said, the department will “request strengthened language on emergency release of inmates contained in Ohio Revised Code 2967.18.” The changes Mohr will ask the General Assembly to make weren’t specified. JoEllen Smith, spokeswoman for the Department of Rehabilitation and Correction, emphasized that emergency release will be an option only if overcrowding persists and money is unavailable for additional prison beds....

As of Dec. 29, Ohio prisons held 50,641 inmates, 31 percent above design capacity and about 1,000 more than two years ago at this time.

The section of state law Mohr referenced, ORC 2967.18, specifies the chain of events for declaring an “overcrowding emergency,” resulting in the release of some nonviolent prisoners 30, 60 or 90 days early. Enacted in 1997, the early-release provision has never been used.

Mohr’s budget letter said the state is at a “significant decision point for criminal justice policy. Do we invest in people or in bricks and mortar? To build and operate one prison for two decades would cost Ohioans one billion dollars.”

New projections have the population hitting 50,794 by July 1, and rising to 52,844 by 2023. Ohio’s all-time high was 51,273 on Nov. 10, 2008. The prison population is increasing despite an overall drop in the crime rate and the fact that Franklin and the other five largest counties are sending fewer people to state prisons. The other 82 counties are making up for it....

State lawmakers have in recent years passed a host of laws adding offenses or increasing prison time for existing ones. Reform efforts to rein in the growth have helped, but the slow creep in prison population continues.

As outlined in law, Mohr would submit a declaration of an overcrowding emergency to the Ohio Correctional Institution Inspection Committee, a legislative watchdog agency, which would forward a recommendation to Gov. John Kasich. The governor could then declare an official emergency, clearing the way for early release of qualifying nonviolent offenders. That would exclude inmates serving sentences for murder, voluntary manslaughter, felonious assault, kidnapping, rape, aggravated arson and aggravated robbery.

January 4, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, December 29, 2014

Split Ninth Circuit panel reverses Arizona death sentence over sharp dissent

The Ninth Circuit today issued a notable reversal of an Arizona death sentence by finding that the defendant's attorney was ineffective at sentencing even though the Arizona courts found to the contrary. The ruling in Mann v. Ryan, 09-99017 (9th Cir. Dec. 29, 2014) (available here), produced a notable dissent by Judge Kozinski starting this way:

Once more unto the breach.  Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.”  Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted).  In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review.  The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

If we are not summarily reversed, Mann’s death sentence will surely be reimposed by the state court.  One way or the other, Mann will be executed, if he doesn’t die of old age first.  But only after he — and the families of the two people he killed 25 years ago — endure what may be decades of further uncertainty.  Where’s the justice in that?  I respectfully dissent from Part III of the majority’s opinion.

December 29, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Pennsylvania Supreme Court declares state's sex offender registration regulations violate juve offenders' due process rights

Via How Appealing, I see that the Supreme Court of Pennsylvania issued this majority opinion in In the Interest of J.B., J-44A-G-2014 (Pa. Dec. 29, 2014), declaring unconstitutional part of the state's sex offender registration laws (over a lone justice's dissenting opinion). Here is a portion from the start and end of the majority opinion:

In this case, we consider the constitutionality of provisions of the Sex Offender Registration and Notification Act (SORNA) as applied to juveniles.  42 Pa.C.S. §§ 9799.10-9799.41. Pursuant to 42 Pa.C.S. § 722(7), we review this case directly from the order of the York County Court of Common Pleas holding the statute unconstitutional as violative of the ex post facto clause, protections against cruel and unusual punishment, and due process rights through the use of an irrebuttable presumption.  In the Interest of J.B. et al., No. CP-67-JV-726-2010 (CP York Nov. 1, 2013).  After review, we affirm the determination that SORNA violates juvenile offenders’ due process rights through the use of an irrebuttable presumption....

Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption.

December 29, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Friday, December 26, 2014

Pennsylvania chief justice blames federal public defenders for death penalty problems

I highlighted a few weeks ago in this post the first article in a local series about the high costs and low productivity of the Pennsylvania death penalty system. Thanks to a helpful reader, I just now noticed this interesting final piece in the series headlined "State's chief justice cites 'meddling, intrusion' in death penalty cases." Here are excerpts:

The state's top judge, speaking after a Reading Eagle series examined the dysfunctional Pennsylvania death penalty system, blamed its failings largely on what he described as unethical intrusions and meddling by a group of federally funded attorneys.

Chief Justice Ronald D. Castille of the Pennsylvania Supreme Court made the comments in a telephone interview Thursday, the day after the newspaper's four-day series "When Death Means Life" ended. Also that day, state Sen. Daylin Leach, in a separate interview, said he believed the state was not getting its money's worth out of the death penalty and that there was momentum to abolish it.

The series delved into a system in which 429 death warrants have been signed since 1985 but only three people have been executed. Others who have extensive dealings with the system and read the newspaper stories spoke of the death penalty's expense and necessity, and of the need for caution in modifying its appeals process. The newspaper's research produced an estimate that the death penalty in Pennsylvania has cost more than $350 million, gave a glimpse of life on death row and detailed two death penalty cases....

[T]he Federal Community Defender Office [is] the group Castille singled out for criticism. The chief justice said the ... the organization prolongs death penalty proceedings, using unethical delaying tactics and summoning many experts.  

Beyond that, he said, the FCDO's mission is supposed to be federal in nature. Funded by $17 million a year in federal taxpayer funds, the federal office has injected itself into many Pennsylvania-jurisdiction death row cases, creating more costs for state taxpayers, Castille said. "Tremendous extra costs," Castille said....

Paid for by state taxes, the death penalty is essentially a government program, said Leach, a Montgomery County Democrat who plans to reintroduce a bill next legislative session to abolish capital punishment.  "Is this program getting us our money's worth? There's no way you can look at the death penalty and say that it is," Leach said.  "The death penalty is far more expensive than life in prison."...

Richard Long, executive director of the Harrisburg-based Pennsylvania District Attorneys Association, said he didn't think anyone disputed the fact that the system was expensive. "We have to be careful that we don't compromise public safety and doing the right thing strictly because of dollars and cents."...

Gov.-elect Tom Wolf said that when he takes office in January, he'll place a moratorium on executions until concerns about the state's death penalty system, voiced by the state Supreme Court and the American Bar Association, are properly addressed.

Three years ago Pennsylvania lawmakers ordered a government-run study of the state's death penalty system, and though that study was created with a two-year deadline, it's still not done.  Wolf said that once it's complete, he'll use the findings to help guide his actions regarding the death penalty....

Castille said it was up to the Legislature, not the courts, to change the system. But, he said,  "The only way you will be able to change the system is to get the Federal Community Defender Office out of the system."  Castille is nearing the end of his tenure as chief justice.  Having reached the high court's mandatory retirement age of 70, Castille will retire at the end of the month.

I am inclined to assert that Chief Justice Castille's criticisms of the public defenders amounts to "shooting the messenger." But given that Pennsylvania cannot find its way to carrying out any death sentences, I suppose I should just say that Chief Justice Castille is blaming the messenger.

December 26, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, December 25, 2014

Ohio officials (and taxpayers) get a lethal injection lawsuit for the holidays

On the last day of Hanukkah which happened also to be Christmas Eve, a group of lawyers for a quartet of Ohio condemned prisoners gave the state a very predictable present: a lawsuit challenging Ohio's new lethal injection law.  This local story, headlined "Death-row inmates challenge new execution-secrecy rules," provides the details (and this link to the suit):

Four death-row inmates are challenging the constitutionality of Ohio's new execution secrecy rules, their attorney announced Wednesday morning.  In a lawsuit filed in U.S. District Court in Columbus, the inmates claim the new law, which shields the identities of most participants in Ohio's execution process, violates their rights to free speech and due process.

Proponents of the rules, signed into law by Gov. John Kasich last week, say they are needed to protect individuals involved with Ohio executions from harassment and potential harm.

The lawsuit was filed Tuesday afternoon on behalf of death-row inmates Ronald Phillips, Raymond Tibbetts, Robert Van Hook and Grady Brinkley.  The first three are scheduled to be executed next year; Brinkley's execution date has not yet been set.

Under the new law, House Bill 663, Ohio must keep secret the names of people involved with executions, other than top officials.  The law also protects the identity of small-scale drug manufacturers called compounding pharmacies if they make lethal-injection drugs for the state.  The inmates' lawsuit claims these measures violate the First Amendment because they were passed to silence death-penalty critics and "foreclose all effective advocacy" against executions in Ohio.

The lawsuit also challenges other parts of the law that require courts to seal such information from the public and prevents the state's medical board from disciplining physicians who testify about Ohio's execution method.  "These laws violate some of the most basic principles upon which our democracy was founded," said Timothy Sweeney, the inmates' attorney, in a statement.  "Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts: the taking of a human life."

The defendants in the lawsuit are Kasich, Attorney General Mike DeWine, state prisons director Gary Mohr and Donald Morgan, warden of Southern Ohio Correctional Facility, where Ohio's executions are carried out.  DeWine spokeswoman Lisa Hackley said Wednesday that the attorney general's office is reviewing the lawsuit.  Spokesmen for the governor's office and the state's prisons agency declined comment.

HB 663 is an attempt to overcome problems that Ohio — like many other states — has had obtaining lethal-injection drugs in recent years. Ohio ran out of its preferred lethal-injection drug, pentobarbital, last year because European pharmaceutical companies refused to continue selling it for use in executions....

Supporters of HB 663 say that the state could turn to compounding pharmacies to make pentobarbital, but the companies are reluctant to make lethal-injection drugs unless they can remain anonymous, for fear of public reprisal.  DeWine and other proponents of the legislation have said the changes are needed if Ohio is to resume executions next February, once a court-ordered moratorium ends.

As long-time readers know, Ohio's execution problems, plans and procedures have been subject to extensive litigation over the last half-decade. Time will tell if this latest litigation will extend another half-decade. As the title of this post indicates, Ohio (and federal) taxpayers get the bill for all this litigation, and I cannot help but wonder how much Ohio costs its taxpayers by trying took keep its death penalty system alive and killing.

December 25, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Wednesday, December 24, 2014

"Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction, 2009-2014"

States-rethink-collateral-consequences-infographic-v3The title of this post is the title of this notable new report from The Vera Institute of Justice. Here are excerpts from the report's summary:

Collateral consequences of criminal convictions are legion and present significant and often insurmountable barriers to housing, public benefits, employment, and even certain civil rights (e.g., voting rights) for people with criminal histories well after sentence completion.

Lessening the burden of post-punishment penalties has become a matter of significant bipartisan state-level legislative activity in recent years.  In this report, Vera’s Center on Sentencing and Corrections provides (1) concise summaries of representative legislation, (2) an analysis of the limitations of current reforms, and (3) recommendations for making future efforts sustainable and comprehensive.

Since 2009, forty-one states and the District of Columbia, enacted 155 pieces of legislation to mitigate collateral consequences for people with certain criminal convictions.  In reviewing this legislative activity, Vera found that states have pursed one or a combination of seven broad approaches to reform.  They created or expanded expungement and sealing remedies; issued certificates of recovery; allowed for offense downgrades; built relief into the criminal justice process; ameliorated employment-related collateral consequences; improved access to information; and addressed discrete collateral consequences.

While efforts to remove or alleviate the impact of collateral consequences may indicate a broader shift in how the criminal justice system views law-breakers, vast numbers of post-punishment penalties remain in place and a closer look at recent legislation suggests that efforts do not go far enough.  In particular:

  • Reforms are narrow in scope;
  • Relief mechanisms are not easily accessible;
  • Waiting periods are long in many cases; and
  • New rules restricting third-party use of criminal history are difficult to enforce.

December 24, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, December 23, 2014

Are Arizona and Oklahoma likely to have their machineries of death operational early in 2015?

I blogged here a few days ago about steps taken by the Ohio legislations to get its lethal injection drugs and protocols shored up so the state can get back in the business of executing condemned murderers in 2015.  Now I see from this New York Times report that Arizona and Oklahoma, two others states that had messy execution in 2014, now also appear poised to get their death chambers revved up again in the coming new year.  Here are the basic details why:

A federal judge in Oklahoma City on Monday said that the state can resume executing prisoners this winter, rejecting the argument by some medical experts that using the same sedative involved in the bungled execution of Clayton D. Lockett in April amounted to an illegal experiment on human subjects.

Judge Stephen P. Friot of Federal District Court, ruling against condemned prisoners who sought to delay new executions, said that lethal injection was more humane than historical methods like hanging, and that since the sedative in question, midazolam, had been successfully used in a dozen executions elsewhere, it should not be considered new or experimental.

“Federal courts should not sit as a board of inquiry as to best practices,” Judge Friot said, adding, “The plaintiffs have failed to present a known and available alternative.” An occasional isolated episode does not constitute cruel and unusual punishment, he said.

Also Monday, in a separate ruling on another prolonged execution by lethal injection, a report commissioned by corrections officials in Arizona said the killing of Joseph Wood in July had been conducted properly. Mr. Wood appeared to gasp for nearly two hours before dying, but the report concluded that he was unconscious during that time and did not feel pain.

The unusually protracted and, in the view of many witnesses, agonizing executions in the two states led to new questions about the reliability of lethal injection and whether it can be performed humanely. These states and others have also been forced to try new drugs and combinations as manufacturers have refused to supply the barbiturates traditionally used in lethal injections.

Dale A. Baich, a lawyer for the Oklahoma prisoners, said they would appeal Judge Friot’s decision. “We are still concerned about Oklahoma’s ability to carry out executions humanely using midazolam,” Mr. Baich said....

The Arizona report, by consultants hired by the State Department of Corrections, cited the Pima County medical examiner’s statement that Mr. Wood’s “gasps, snorting and body reflexes are the normal bodily responses to dying, even in someone highly sedated.” Arizona used midazolam in a different combination from Oklahoma, pairing it with the opiate hydromorphone. Medical experts cited in the report said they could not determine why it took so long for Mr. Wood to die.

Still, Arizona’s director of corrections, Charles L. Ryan, said Monday that the state would abandon that two-drug protocol. The state will continue to search for supplies of the barbiturates of choice, pentobarbital or sodium thiopental, Mr. Ryan said. But if they remain unavailable, Arizona will use midazolam in the same three-drug regimen planned in Oklahoma, with the sedative followed by a paralyzing agent and a caustic heart-stopping drug.

Oklahoma has had a moratorium on executions since April 29, when the lethal injection of Mr. Lockett went awry. Now, saying that improved procedures are in place and that they will boost the dosage of midazolam, they plan to execute four men in three months, starting with Charles F. Warner on Jan. 15.

December 23, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Sunday, December 21, 2014

Shouldn't every parole board (and sentencing commission) include a former inmate?

The question in the title of this post is promoted by this interesting and lengthy New York Times article headlined "Ex­-Inmate on Connecticut Parole Board Brings an Insider’s View to Hearings." Here are exceprts:

There was the usual grab bag of inmates preparing to be heard here, from the career offender with a heroin problem to the plotter of a jewel heist to the glum men with girlfriend trouble. All were former convicts who had landed back in prison on parole violations, and this was their chance to explain their conduct to the Connecticut Board of Pardons and Paroles.

One by one, they were led to rooms at their prisons to participate via teleconference in hearings that dispensed assembly­line justice. Soon, they were offering reasons for their mistakes that ran from the fantastic (“Yes, I had a knife but only because I was cooking”) to the familiar (“My girlfriend made me do it”).

One cog in the machine was different, though: The two-­member panel weighing each inmate’s fate included a man who was himself a former inmate. The expertise that the former prisoner, Kenneth F. Ireland, brought to the task — intimate knowledge of the state’s criminal justice system — came in a way no one could envy: In 1989, a day after he turned 20, Mr. Ireland was convicted of raping and murdering Barbara Pelkey, a Wallingford factory worker.

The crime occurred when he was 16. He received a 50­-year sentence and spent nearly half his life, from the age of 18 until he was 39, in prison. Despite his assertions that he was innocent, friends stopped believing in him, and family drifted away. Then, in 2009, DNA testing performed at the insistence of the Connecticut Innocence Project exonerated him and identified the real culprit.

Rather than spurn further dealings with the authorities, Mr. Ireland, 45, allowed his name to be suggested for a seat on the parole board this year. “I’ve been on the inside, and I understand the programs, the issues confronting the inmates,” he said.

Nominated in October by Gov. Dannel P. Malloy, a Democrat, Mr. Ireland is now serving provisionally, along with four other nominees, until state legislators vote on the appointments next year.

Timothy S. Fisher, dean of the University of Connecticut School of Law, got to know Mr. Ireland through work he does on behalf of the wrongfully convicted. Mr. Fisher championed the idea of adding Mr. Ireland to the board in a letter to Nancy Wyman, the lieutenant governor, in March.

“He has a very cleareyed understanding of the people in prison,” Mr. Fisher said. “How so many of them say ‘I didn’t do it,’ and yet he’s no fool. He’s been around them and he knows there’s injustice, but he also knows that there are people who will try to pull a fast one. I think he will be a more discerning judge of character on this board than almost anyone.”...

The idea of having Mr. Ireland on the board appears to have originated with Vivien Blackford, a member of the Connecticut Sentencing Commission, according to people who supported the appointment. “Having been in prison, he brings so much to the board because he understands the experience, the perspectives and the reasons that people do what they do,” Ms. Blackford said.

Mr. Ireland quit a steady job as a bookkeeper to accept the appointment, which comes with a salary — though that does not seem to be what motivates him

December 21, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, December 18, 2014

Call for Papers for 2015 Innocence Network Conference

I am happy to convey upon a kind request this Call for Papers that might be of interest to readers of this blog:

The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2015 Innocence Network Conference in Orlando, Florida on May 1-2, 2015.

Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English.  Please submit a title and paper proposal to the Innocence Scholarship Committee at this G-Mail account: innocencescholarship@gmail.com by February 13, 2015.  Paper proposals must be no more than 200 words.  Completed drafts must be submitted to the Committee by April 17, 2015.

The Innocence Scholarship Committee is actively seeking publication for those papers accepted for Conference presentations in a law review symposium edition. More information about that is forthcoming.

The Innocence Scholarship Committee is comprised of the following Members: Professor Aliza Kaplan, Oregon Innocence Project, Lewis & Clark School of Law, Portland, Oregon; Professor Valena Beety, West Virginia Innocence Project, West Virginia School of Law; and Dr. Robert Schehr, Arizona Innocence Project, Northern Arizona University.

December 18, 2014 in Recommended reading, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Wednesday, December 17, 2014

President Obama (aka clemency grinch) grants a few holiday pardons and commutations

GrinchFollowing the holiday script he first wrote with a few clemency grants last year the week before Christmas (as reported in this prior post), President Obama this afternoon granted 20 clemencies in the form of 8 commutations and 12 pardons.  This AP story provides the basics and some background:

President Barack Obama on Wednesday cut short prison time for eight drug convicts as part of his new initiative to reduce harsh sentences under outdated guidelines, a step that could lead to a vast expansion of presidential clemency in his final two years in office.

The president also is pardoning 12 convicts for a variety of offenses.  But the commutations are particularly significant because they are the first issued under new guidelines announced earlier this year designed to cut costs by reducing the nation's bulging prison population and grant leniency to nonviolent drug offenders sentenced to double-digit terms....

The White House said the eight new commutations Obama granted were for prisoners who likely would receive a substantially lower sentence today and would have already served their time.  For example, they include Barbara Scrivner, who was sentenced to 30 years in 1995 when she was 27 years old for a minor role in her husband's meth ring. Obama ordered her sentence to expire June 12, while others will expire April 15.

Administration officials say they expect Obama to grant more clemency petitions in his final two years in office under the changed policy he ordered from the Justice Department. The White House said 6,561 people already have applied in the past year, compared to 2,370 the year before. "I think there is an awareness out there that this president is interested in granting clemency on these kinds of matters," White House counsel Neil Eggleston said in an interview.

The clemency policy changes aren't limited to drug offenders, who comprise about half of the roughly 216,000 federal prisoners, but the criteria makes it clear they are the main target. To be eligible, inmates must have already been behind bars for at least 10 years, have a nonviolent history, have no major criminal convictions, have a good behavior record in prison, and be serving a sentence that, if imposed today, would be substantially shorter than what they were given at the time....

In his first term, Obama commuted just one drug sentence and pardoned 39 people, causing prisoner advocates to accuse him of being too stingy with his power. Obama aides said it was because he wasn't receiving more positive recommendations from the Office of the Pardon Attorney so he directed the Justice Department to improve its clemency recommendation process and recruit more applications from convicts.

Deputy Attorney General James Cole, who in April announced the clemency policy changes, said the sentence commutations reflect a "commitment to bring fairness to our criminal justice system."

"While all eight were properly held accountable for their criminal actions, their punishments did not fit their crimes, and sentencing laws and policies have since been updated to ensure more fairness for low-level offenders," he said in a statement....

The White House noted Obama now has commuted 18 sentences, compared to 11 under President George W. Bush and three in the first six years of the Clinton presidency. Clinton eventually commuted 61, most in a controversial action on his last day in office.

The full list of the lucky receipients of this act of presidential grace can be found here via the White House.  And this link provide the full text of Deputy AG Cole's statement about these clemency grants.  I expect the folks who follow the ins-and-outs of clemency even more closely than I do will have a lot to say in the days ahead about what might be special about the folks on this clemency list.

Though I do not want to criticize the President too much on a day in which he finally saw fit to make some minor use of his constitutional clemency authority, I will still think of him as a clemency grinch until he begins more regularly granting commutations to a whole lot more offenders still stuck serving severe (and now repealed) crack sentences.  There are, I believe, thousands of federal prisoners still serving time for crack offenses based on the old 100-1 crack/powder ratio, and there are surely many thousands more low-level drug offenders arguably just as deserving of clemency consideration.  President Obama would have to grant eight commutations every single day over the two years remaining in his presidency to even start to make a serious dent in federal prison population.

December 17, 2014 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, December 15, 2014

NJ Supreme Court clarifies legitimacy and importance of considering post-offense conduct at sentencing

This local article, headlined "Court: ‘Post-offense conduct’ must be gauged at sentencing," provides an effective summary of a notable New Jersey Supreme Court ruling today. Here is the start of the article:

A man who pleaded guilty to a drug offense was entitled to have the positive changes he made in his life between the time of his plea and sentencing considered by the judge determining punishment, the state Supreme Court ruled Monday.

The state’s highest court ruled that sentencing judges must consider relevant, post-offense conduct when they weigh aggravating and mitigating factors during their sentencing analysis. In the Morris County case involving Joseph M. Jaffe, now 42, and last of Brick, the sentencing judge told his lawyer in 2012 that New Jersey law precluded him from considering Jaffe’s conduct in the year-long span between his guilty plea in August 2011 and sentencing in August 2012.

“In conclusion, the trial court should view a defendant as he or she stands before the court on the day of sentencing,” the Supreme Court said in its opinion, released Monday. “This means evidence of post-offense conduct, rehabilitation or otherwise, must be considered in assessing the applicability of, and weight to be given to aggravating and mitigating factors,” the court said.

The full unanimous opinion in New Jersey v. Jaffe, No. A-12-13 (N.J. Dec. 15, 2014), is available at this link.  Here is how the opinion gets started:

Defendant Joseph M. Jaffe received a three-year state prison sentence almost a year after pleading guilty to an accusation charging him with third-degree conspiracy to possess cocaine with the intent to distribute.  At sentencing, defense-counsel asked the court to consider defendant’s rehabilitative efforts since he was arrested and charged. The trial court declined to weigh such evidence in assessing mitigating factors, concluding that applicable law did not allow him to consider “post[-]offense conduct.” In light of our recent holding in State v. Randolph, 210 N.J. 330 (2012), that a defendant should be assessed as he stands before the court on the day of sentencing, we conclude that the sentencing court must consider a defendant’s relevant post-offense conduct in weighing aggravating and mitigating factors.

A judge’s sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the competent and credible evidence raised by the parties at sentencing.  Because we decide here that the trial court must consider at sentencing evidence of a defendant’s post-offense conduct, we are compelled to remand for resentencing to ensure consideration of all of the facts relevant to the applicable aggravating and mitigating factors.

December 15, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Friday, December 12, 2014

Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively

The Supreme Court, as revealed by this order list, finally appears set to resolve an issue that it has been avoiding for a few years as lower courts have split over implementing its Eighth Amendment work in Miller v. Alabama.  Here is the basic news as set out in the order list:

TOCA, GEORGE V. LOUISIANA

The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following questions: 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

December 12, 2014 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Federal task force on corrections getting geared up for (big?) work in 2015

Logo5As effectively reported in this Crime Report piece, earlier this week the members of a "congressionally mandated task force on the federal prison system" were announced.  Here is the context for this notable development:

[The task force is now] headed by a bipartisan duo of former House members, Republican J. C. Watts of Oklahoma and Democrat Alan Mollohan of West Virginia.  They are being be joined by seven other experts in a yearlong study that many analysts hope will result in agreement on ways to cut the prison population.

There were 212,438 federal inmates last week, a total that has jumped from about 136,000 since the turn of the century -- even though crime rates have steadily fallen. (The federal inmate total exceeded 218,000 two years ago; it has shrunk as the Obama administration has reduced the terms of some prisoners serving time for low-level drug offenses.)...

Last month, Justice's Inspector General, Michael Horowitz, said that the Bureau of Prisons budget totals $6.9 billion and accounts for about 25 percent of the department’s "discretionary" budget, which means that prison spending hampers the DOJ's "ability to make other public safety investments."

The new task force is named for the late Chuck Colson, the former aide to President Richard Nixon who served a 7-month prison term in 1974 for obstruction of justice in the Watergate scandal and then became a corrections reformer, founding the Prison Fellowship. Colson died in 2012.  Retiring Rep. Frank Wolf (R-Va.), chairman of the committee that reviews Justice Department appropriations, successfully pushed for the task force in recent years while Congress was unable to agree on any major legal changes that would affect the federal inmate total.

Watts, who will chair the panel, served in the House from 1995 to 2003. When he was elected, he was one of only two African-American Republicans in the House.  He is a member of the conservative justice-reform group Right on Crime.  Last summer, in an article in the Tulsa World on prison reform in Oklahoma, Watts wrote that, "for nonviolent offenders, watching television and receiving 'three hots and a cot' in prison does far less to advance personal responsibility than paying restitution to the victim, performing community service, holding a job and paying child support."

Mollohan, who serve as vice chair, was Wolf's predecessor as the House's chief Justice Department appropriator when the Democrats controlled the House.  Mollohan has presided over many hearings on corrections issues.  In 2012, he co-authored an op-ed article with David Keene, former chairman of the American Conservative Union, declaring that, "Instead of throwing good money after bad, Congress should follow the example of ... states and take steps to curb federal prison population growth."...

The task force will hold the first of five meetings on January 27 in Washington, D.C. Its official mandate is to "identify the drivers of federal prison population growth and increasing corrections costs; evaluate policy options to address the drivers and identify recommendations; and prepare and submit a final report in December 2015 with findings, conclusions, policy recommendations, and legislative changes for consideration by Congress, the Attorney General, and the President."

The Urban Institute and the Center for Effective Public Policy will provide "research, analysis, strategic guidance and logistical support" for the task force under an agreement with the Justice Department's Bureau of Justice Assistance.   A year ago, the Urban Institute published a study titled "Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System," that might be something of a blueprint for the Colson group....

Several members of Congress, notably Senators Rand Paul (R-KY) and Cory Booker (D-NJ), have introduced proposals that could lead to reductions in the federal prison population, but it is not clear that any will be enacted while the Colson task force is conducting its study.

In any case, the task force's final report is likely to include recommendations that will go beyond any bills that might be approved in the next year.  The group's eventual proposals may include some that require Congressional approval and others that the Obama administration could put into effect by executive order.

This new Charles Colson Task Force on Federal Corrections rolled out this website, which I am hopeful over time might become a source of new research and data about the federal criminal justice system.  And though I tend to be somewhat cynical and pessimistic about what task forces can really achieve, I am hopeful and optimistic that this group will be an effective and important contributor to on-going federal sentencing reform efforts.

December 12, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Texas top court rules juveniles getting transferred to adult court too readily

As reported in this Texas Tribune article, headlined "CCA Offers Guidance to Courts Trying Teens as Adults," the top criminal court in Texas issued a significant ruling earlier this week about bringing juvenile offenders into the adult system. Here are the details:

A Houston teen sentenced to 30 years in prison should not have been tried as an adult, the state's highest criminal court ruled Wednesday in a decision calling for greater judicial scrutiny before young defendants are transferred into the adult court system.

"The transfer of a juvenile offender from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule," Court of Criminal Appeals Judge Tom Price wrote in the majority opinion, agreeing with an earlier ruling by the 1st Court of Appeals in Houston....

Trial judges can transfer a juvenile's case to adult court after considering criteria including whether the crime was against a person or property, the juvenile defendant's maturity level and previous criminal record. The court's ruling zeroes in on how prosecutors prove a juvenile has sufficient maturity to be tried as an adult. In Moon's case, prosecutors called one witness, the arresting officer.

In Wednesday's opinion, Price, citing a 1995 change in the law, said that a juvenile court should "take pains to 'show its work' in coming to that certification decision.

"This legislative purpose is not well served by a transfer order lacking in specifics that the appellate court is forced to speculate as to the juvenile court’s reasons for finding transfer to be appropriate or the facts the juvenile court found to substantiate those reasons," Price wrote.

The Houston Chronicle has reported that when Moon was certified, Harris County judges were granting prosecutors' requests for certifications about 95 percent of the time.

The Court of Criminal Appeals' decision sends Moon's case back to Harris County, where a spokesman for the prosecutor's office said they were "disappointed" about the court's ruling. "But we're going to revisit the case, and there's a possibility we will try to recertify him," said Jeff McShan, spokesman for the Harris County district attorney's office.

"It's a nice Christmas present," said Jack Carnegie, Moon's attorney, adding that the ruling gives trial courts better guidance on what they need to do certify juvenile defendants. "This is a roadmap for how you have to do it now."

The full 40-page Texas ruling in this case is available at this link.

December 12, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, December 10, 2014

Various appeals do not interfere with Georgia and Missouri completing final executions of 2014

As detailed in this lengthy AP/CBS article, headlined "Missouri, Georgia execute murderers, one a cop killer," two executions were carried out over the last 24 hours.  Here are some of the details:

A Missouri inmate was put to death early Wednesday for fatally beating a 63-year-old woman with a hammer in 1998, the state's record 10th lethal injection of 2014, matching Texas for the most executions in the country this year.  In Georgia, a man convicted of killing a sheriff's deputy moments after robbing a convenience store in central Georgia was executed Tuesday night.

The Missouri case involved Paul Goodwin, 48, who sexually assaulted Joan Crotts in St. Louis County, pushed her down a flight of stairs and beat her in the head with a hammer. Goodwin was a former neighbor who felt Crotts played a role in getting him kicked out of a boarding house.

Goodwin's execution began at 1:17 a.m., more than an hour after it was scheduled, and he was pronounced dead at 1:25 a.m.  Efforts to spare Goodwin's life centered on his low IQ and claims that executing him would violate a U.S. Supreme Court ruling prohibiting the death penalty for the mentally disabled.  Attorney Jennifer Herndon said Goodwin had an IQ of 73, and some tests suggested it was even lower....

Missouri's 10th execution of 2014 matches the state's previous high of nine in 1999. Neither Missouri nor Texas has another execution scheduled this year.  Texas, Missouri and Florida have combined for 28 of the 34 executions in the U.S. this year.  Missouri has scheduled one execution each month since November 2013.  Two were halted by court action, but 12 were carried out over the past 14 months.

In Georgia, Robert Wayne Holsey, 49, was declared dead at 10:51 p.m. at the state prison in Jackson, authorities said.  Holsey was sentenced to die for the Dec. 17, 1995, killing of Baldwin County sheriff's deputy Will Robinson.  A jury convicted Holsey in February 1997.

Holsey robbed a convenience store in the town of Milledgeville early on Dec. 17, and the store clerk immediately called police, describing the suspect and his car, prosecutors said. According to court documents, Robinson stopped a car at a nearby hotel minutes later and radioed in the license plate number.  As Robinson approached the vehicle, Holsey fired at him, prosecutors said.  The deputy suffered a fatal head wound....

Holsey's lawyers filed a number of last-minute appeals to stop the execution but they were all rejected.  Holsey was executed nearly an hour after the U.S. Supreme Court rejected a request for a stay....

Holsey's lawyers had argued in a clemency petition that their client should be spared lethal injection because his 1997 trial was mishandled by an alcoholic lawyer who was distracted by his own problems.  The trial lawyer died in 2011.  The original lawyer told the court that intellectual disability would not be a factor in the case, despite records showing Holsey was intellectually disabled, Holsey's lawyers argued.  And the jury also didn't hear details about Holsey's childhood, which was characterized by horrifying abuse at the hands of his mother, according to the petition.

In their efforts to halt the execution, Holsey's lawyers argued that he was intellectually disabled. The U.S. Supreme Court in 2002 barred execution of the intellectually disabled, but left the states to determine who is intellectually disabled.  Georgia requires death-row inmates to prove intellectual disability beyond a reasonable doubt in order to be spared execution on those grounds.  Courts have consistently upheld Georgia's toughest-in-the-nation standard of proof on this issue....

The state of Georgia argued in court filings that Holsey is not intellectually disabled.  An expert found that Holsey had a learning disability but was not disabled, and his siblings relied on him as a leader, the state's lawyers argued.  The state also disputed the idea that Holsey's trial lawyer was ineffective, saying the prosecutor in the case and the judge both testified that the original lawyer performed very well.

December 10, 2014 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Tuesday, December 09, 2014

Scheduled Georgia execution raising again issues of poor lawyers and intellectual disability

This New York Times article reports on the legal issues surrounding the fate of a condmned murderer scheduled to be executed tonight in Georgia.  Here are the basics:

A parole panel in Georgia refused on Monday to grant clemency to a man who is scheduled to die by lethal injection on Tuesday evening, apparently unpersuaded by evidence that he was ineptly represented at trial by a drunken lawyer, had an exceptionally harsh childhood and has a severe intellectual deficit.

But in what could be a legal decision with wider effects, lawyers for the man, Robert Wayne Holsey, were still waiting for the Georgia Supreme Court to respond to a last-­minute appeal. They argued that the state’s standard for determining intellectual disability in capital cases — the country’s most stringent — runs afoul of a recent decision by the United States Supreme Court.

Mr. Holsey was convicted of armed robbery and murder in 1997 and sentenced to death. He had robbed a convenience store and shot and killed a pursuing officer.  His trial lawyer later admitted that at the time he was drinking up to a quart of vodka daily and facing theft charges that would land him in prison. He said he should not have been representing a client.

On appeal, a Superior Court judge ruled that during the penalty phase of Mr. Holsey’s trial, his lawyer had failed to effectively present evidence that might have forestalled a death penalty, including facts about Mr. Holsey’s history and his intellectual deficit. That judge called for a new sentencing trial.  But the Georgia Supreme Court reversed the decision, ruling that the jury had heard enough evidence about mitigating factors during the initial trial....

That Mr. Holsey had received ineffective counsel seemed clear, said John H. Blume, a professor and director of the death penalty project at the Cornell Law School. “But the quality of representation in capital cases is often so low,” he said, “that it’s difficult to shock the courts.”

He and other legal experts said a more promising tack — if not for Mr. Holsey, then for defendants in the future — is the challenge to Georgia’s standard of proof for intellectual disability.  The state requires defendants to prove that they are intellectually disabled “beyond a reasonable doubt.”  For those near the borderline, often described as an I.Q. around 70, that standard is nearly impossible to meet.  Many legal experts think it violates a Supreme Court ruling last May that said states cannot create “an unacceptable risk that persons with intellectual disability will be executed.”

In other states, either a “preponderance of evidence” or “clear and convincing evidence” is necessary to establish disability, said Eric M. Freedman, a law professor and death penalty expert at Hofstra University. Both are less stringent standards than the one used in Georgia.

In a landmark decision in 2002, the United States Supreme Court barred the execution of mentally disabled people, but largely left it to the states to set the criteria. In its decision in May, the court added new conditions, ruling in Hall v. Florida that the state could not rely on a simple I.Q. cutoff but rather must take a broad look at a person’s ability to function.

Mr. Holsey’s I.Q. has been measured at around 70.... The state, he said, had argued that because he could drive a car and had a girlfriend, Mr. Holsey could not be disabled....

Constitutional scholars say it is most likely that at some point either the Georgia Supreme Court or the federal Supreme Court will strike down the standard as an unreasonable outlier. “You’ve got a national constitutional rule that people with intellectual disability shouldn’t be executed, but it’s being applied differently in different states,” Mr. Blume of Cornell said

December 9, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, December 08, 2014

Seventh Circuit affirms, over government complaints, way-below-guideline sentence for child porn producer

Regular readers are familiar with my tendency to lament the failure of circuit courts to scrutinize rigorously post-Booker claims by defendants that within or above-guideline sentences are unreasonably high.  But a recent opinion from a Seventh Circuit panel in US v. Price, No. 12-1630 (7th Cir. Dec. 5, 2014) (available here), prompts me to note that there can be occassions when circuit courts seem a bit too willing to approve way-below-guideline sentences that the government asserts are unreasonably low.  Here are the basics of the defendant's crime and sentencing in Price:

Jeffrey Price took numerous sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12.  He put some of them on the Internet, and they have been implicated in at least 160 child-pornography investigations across the country.  Price also kept a large stash of child pornography depicting other children, which he stored on two computers.

For this conduct Price was indicted on charges of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  A jury convicted him as charged.

Price is more dangerous than the average child-pornography offender because he also has a history of sexually abusing children.  He molested R.P. on multiple occasions, and he sexually abused his sister on a regular basis when she was between the ages of 8 and 14. Despite this history, the district judge imposed a sentence well below the 40-year term recommended by the sentencing guidelines: 18 years on the production count and a concurrent 6-year term on the possession count.

Here is the heart of the Seventh Circuit panel's rejection of the government's appeal of this sentence (with my emphasis added):

The government argues in its cross-appeal that Price’s 18-year sentence — less than half the 40-year guidelines sentence — is substantively unreasonable....

The district judge did exactly what she was supposed to do under the advisory guidelines regime. She correctly calculated the guidelines sentence and exhaustively considered the § 3553(a) factors, giving particular emphasis to the aggravated facts of this case. But she also exercised her discretion to consider the scholarly and judicial criticism of the guidelines for child-pornography offenses, as she is permitted to do. She expressed substantial agreement with the Second Circuit’s opinion in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which explained that the guidelines in this area are not the product of the Sentencing Commission’s empirical expertise, but rather reflect directions from Congress to punish these crimes more harshly, id. at 182.  Dorvee also notes that § 2G2.2, the guideline for possession of child pornography, calls for the application of multiple enhancements that apply in almost every case, making inadequate distinctions between the worst offenders and those who are less dangerous. Id. at 186–87.

The judge acknowledged that most of the criticism of the child-pornography guidelines is aimed at § 2G2.2, the guideline for the possession offense. But she concluded that § 2G2.1, the guideline for production of child pornography, “presents some of the same problems.” Both guidelines, she said, are vulnerable to the critique that they are not the product of the Sentencing Commission’s empirical study and independent policy judgment. She also noted that both guidelines call for enhancements that apply in nearly every case, exerting virtually automatic upward pressure on sentences and failing to separate less dangerous offenders from those who are more dangerous....

The government objects that Price’s 18-year sentence is only three years above the 15-year statutory minimum. See § 2251(e). Canvassing the aggravated facts of the case and Price’s history of sexually abusing children, the government argues that the sentence strays too far from the 40-year guidelines sentence and is simply too low to be considered substantively reasonable. “At the very least,” the government maintains, the sentences for the production and possession counts should be consecutive, as the guidelines recommend. See § 5G1.2(d).

Price’s crimes are indeed deplorable, and a sentence of 18 years obviously represents a substantial variance from the recommended 40-year term. But there is room for policy-based disagreement with the guidelines even to this extent. The government has not established that the sentence exceeds the boundaries of reasoned discretion. More specifically, the government has not established that an 18-year sentence for Price’s crimes — even in light of his contemptible history and unrepentant nature — is so low as to be substantively unreasonable.

I have been one of a number of academic critics of the severity of the federal child pornography sentencing guidelines, but that criticism has been largely based on the fact that these guidelines often call for decade-long sentences even for those offenders who did no more than download illegal pictures and thereafter showed remorse, pleaded guilty and sought treatment for their criminal activity. In contrast, the defendant in this Seventh Circuit case seemingly has a long history of child rape to go along with producing and possessing child pornography, and the Seventh Circuit recognizes he has both he has an "contemptible history and unrepentant nature."

Though perhaps 18-year in prison is still plenty long enough for this sexual predator (as the district judge apparently concluded), I would have liked to heard a lot more from the Seventh Circuit about how this way-below-guideline sentence appears reasonable in light of all of the 3553(a) factors. Especially for a defendant who has already shown himself to be a significant danger, "close enough for government work" is not all that satisfying an approach to reasonableness review in my view.

December 8, 2014 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform

Today's must-read for all sentencing fans is this lengthy new post by Bill Otis, amusingly titled "Should I Feel Lonely?".  The piece is a fun read in part because Bill is an effective writer and advocate, but it is a must read because it highlights that (1) while many in the media now struggle to find pundits other than Bill to speak actively and vocally in support of severe sentencing laws and mass incarceration, (2) efforts in Congress to significantly reform federal sentencing laws and "on the ground" developments to reduce incarceration levels are still failing to gain much traction.

I cannot do the Bill's full post justice in a brief excerpt, but here is a taste of what one can find by clicking through here:

Not to worry -- this post is not psychobabble about my feelings.  It's about a question I was asked by two journalists with whom I spoke recently.

The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform.  Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and -- most important for journalists -- curious.

Each asked me the same question: Whether, as an opponent of sentencing reform, I feel lonely? I told them I don't.

Their question was perfectly natural. Almost everything one sees nowadays about the subject of sentencing sings the same tune -- tough sentencing might have been needed at one point, but we've gone too far; momentum has swung toward "smart sentencing;" reducing the prison population (to cut back on costs if for no other reason) is the wave of both the present and the future; and that the newly-ascendant Republican Party will lead the way through such figures as Sens. Mike Lee and Rand Paul.

But the mantra leaves something out. That would be the part of the country outside the Beltway (and outside Boston, Berkeley, New York, Seattle and a few other cities). In other words, what it leaves out is the United States.

The omission of Main Street America from the assessment about where the country is going would seem odd to most people, but for those of us, like me, who live inside the Beltway and work in academia, it's no surprise.  The liberal bubble is big. It's also, for the most part, impenetrable.

And it's one more thing -- wrong.

If one wants to know the state of play with "smart sentencing," and the Smarter Sentencing Act in particular, there might be a couple of places to look outside the editorial pages of the Washington Post and Mother Jones.  One might look, for example, to what actually happened in the last Congress, what's likely to happen in the next one, and what imprisonment trends have been over the last several years....

[T]there are some prominent people in the Republican Party on board with "sentencing reform."  But the great majority of Republicans, and the center of the Party, are not being fooled.  The much lower crime that increased incarceration helped produce are both wise policy for the country and good politics for Republicans....

So to return to my first question: Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don't feel lonely in opposing the more-crime-faster proposals marketing themselves as "sentencing reform."  Both the most recent statistics, and the most recent election, show that the American people know better than to cash in a system we know works for one we know fails.

There is much to discuss in Bill's important assessment of the current state of sentencing reform. But I have emphasized the very last phrase because I think it lacks demographic nuance based on the mostly older (and not-too-diverse) "bubble" that I suspect Bill mostly travels in.

Bill surely seems correct that an older (and mostly white) population of voters and political leaders are reasonably content with the sentencing/incarceration status quo, and that these voters and leaders still have considerable control over the policies and practices of the Republican party (as well as, for that matter, the Democratic party).  Bill stresses in his post, for example, that we do not hear much talk of sentencing reform coming from "Mitch McConnell, John Boehner, Chuck Grassley (the incoming Chairman of SJC), or Bob Goodlatte (the once-and-future Chairman of HJC) [or] Michael Mukasey."  Notably, everyone on that list is well over 60 years old, and they have all succeeded politically with "tough on crime" rhetoric and policies.

But as a new generation of GOP leaders emerge who are much younger (even though they are still mostly white), we are seeing growing concern for and focus on sentencing reform.  Leading GOP Governors from Chris Christie to Rick Perry, and leading GOP Senators from Rand Paul to Mike Lee, and leading GOP Reps from Paul Ryan to Jason Chaffetz, all have talked up sentencing reform in recent years.  And while Bill's list of older GOP leaders will control GOP policies and politics for the next few years, the younger leaders already on record supporting sentencing reform are likely to control GOP policies and politics for the subsequent few decades.

Turning from political leaders to voters, we see the same basic dynamics in play in recent election seasons.  According to polls and other sources, older and whiter voters seem much more wary about any significant changes to sentencing laws or drug laws.  But younger voters and people of color are much more open and eager to support significant sentencing and drug law reform as represented by the passage of Prop 47 and prior three-strikes reform in California and by initiatives for marijuana legalization in an array of states.

(Notably, these generational and demographic realities concerning sentencing reform are not only a  GOP story.  Older and whiter Democrats — from the Clintons to Joe Biden to Harry Reid to Nancy Pelosi to even Jerry Brown — have largely been stuck in political thinking of the 1990s and slow to warm to advocating for significant sentencing reform.  But if and when younger and more diverse voices continue to emerge on the Democratic side of the aisle, we should expect even more liberal advocacy for the kinds of criminal justice reforms championed by the Obama Administration rather than a return to the toughness championed throughout the Clinton Administration.)

Finally, and to give Bill still more credit for his analysis, despite generational and demographic shifts and divides on these matters, I agree that the future of significant sentencing reform is quite uncertain and will turn greatly on short-term and long-term assessments of "what really works."   Americans are a pragmatic people who will always move away from criminial justice policies shown or felt not to be really working.  That is why, I believe, alcohol Prohibition failed even though it had constitutional gravitas and also why we moved away from a purely rehabilitation model of sentencing and corrections through the 1970s and 1980s.  

Now we are seeing a push back on the modern drug war and mass incarceration mostly from younger folks and people of color have come to conclude that these policies are not working for their interests abd communties.  But there are still a whole lot of folks in power (particularly those who are older and whiter like Bill) who still see more a lot more good than bad from the sentencing and mass incarceration status quo.  Whether and how these competing groups views as to  "what really works" unfold and compete in the coming years will determine whether sentencing and incarceration policies in the US circa 2050 look more like they did in 2000 or in 1950. 

December 8, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack