Wednesday, November 26, 2014

Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people

MaccheeseAs detailed in this AP story, headlined "Obama Defends Legal Authority — to Pardon Turkeys," there was much jocularity at the White House today as President Obama continued the White House tradition of giving executive grace to a couple of feathered friends:

President Barack Obama has issued an executive action that some of his Republican opponents may be hard-pressed to disagree with — sparing Thanksgiving turkeys from the dinner table.

In the spirit of the holiday, Obama on Wednesday took "action fully within my legal authority, the same kind of action taken by Democrats and Republican presidents before me," to pardon the National Thanksgiving Turkey, a 49-pound bird named Cheese. He also spared an alternate turkey, a 47-pounder named Mac. Both came from Cooper Farms in Oakwood, Ohio.

"If you're a turkey, and you're named after a side dish, your chances of escaping Thanksgiving dinner are pretty low," Obama said at the annual event, which drew international media coverage. He was accompanied by his daughters, Malia and Sasha, who declined his invitation to pet the birds. "No," Malia said....

"So these guys are well ahead of the curve. They really beat the odds," he said of Mac and Cheese. Obama last week announced a series of highly anticipated executive actions immigration that have left Republicans crying "fowl."

Joking about his poultry action, Obama said: "I know some will call this amnesty. But don't worry. There's plenty of turkey to go around." Later Wednesday, Obama took his family to a neighborhood food pantry to donate a pair of turkeys "that didn't make the cut."...

At the pardoning ceremony, Obama referenced news reports that questioned the wisdom of the turkey pardon tradition and said "it is a little puzzling that I do this every year." But Obama said he enjoys the tradition because "with all the tough stuff that swirls around in this office, it's nice once in a while just to say 'Happy Thanksgiving,' and this is a great excuse to do it."

Presidents as far back as Abraham Lincoln spared turkeys, according to the White House. President George H.W. Bush granted the first turkey pardon in November 1989.

At the risk of being a holiday party pooper, I cannot help but note that it has now been a full 10 months since the Obama Administration publicly announced (as detailed here) that it was eager to identify low-level, nonviolent drug offenders for possible clemency relief. Since that time, however, the President has granted clemency to a grand total of one prisoner and now to two turkeys.  Thus, as I have said often in the past and will continue to say unless things change dramatically, President Obama's clemency record to date to be not merely disappointing, but truly disgraceful.  

A few of many recent and older posts concerning federal clemency practices:

November 26, 2014 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Some unusual suspects working to stop Texas from executing mentally ill condemned murderer

Panetti003This new Mother Jones article reports on some of the interesting persons who are eager to prevent Texas from carrying out a notable death sentence next week.  The article is headlined "Can Ron Paul and Conservative Evangelicals Save a Texas Death-Row Inmate? A rightwing crusade aims to stop the execution of Scott Panetti, a mentally ill convicted murder." Here are excerpts:

When Scott Panetti represented himself in a Texas capital murder case in 1995, wearing a purple cowboy suit and calling himself "Sarge," he called as a witness a veterinarian who once lived across the street from him. Panetti questioned the vet about the time he euthanized Little Blue, Panetti's old dog. The episode had nothing to do with the case. Other witnesses Panetti tried to call to the stand: John F. Kennedy and Jesus.

Trial transcripts, medical records, and expert witness testimony have documented that Panetti suffers from severe schizophrenia. He believes Texas is going to execute him to stop him from preaching the gospel — not because he shaved his head, donned camo fatigues, and shot and killed his in-laws in 1992. The Supreme Court has declared that executing the mentally ill violates the Eighth Amendment's prohibition on cruel and unusual punishment, but several Texas and federal courts — including the US Supreme Court — have reviewed Panetti's case, and each one has ruled that the state can proceed with his lethal injection. Now, with Panetti’s execution scheduled for December 3, the only thing that might save him is a national campaign being mounted by conservatives, including former Texas Republican congressman and libertarian icon Ron Paul.

Panetti's lawyers have filed a clemency petition with the Texas Board of Pardons and Parole, which can recommend that Gov. Rick Perry, a Republican, commute Panetti's sentence to life in prison without parole. That petition has received an outpouring of support from conservatives and evangelicals. In addition to Paul, this group includes Jay Sekulow, an evangelical lawyer famous for pressing religious liberties cases on behalf of social conservatives.

Paul's involvement in the case is unusual. Last year, he publicly endorsed a new advocacy group, Conservatives Concerned About the Death Penalty, saying, "I believe that support for the death penalty is inconsistent with libertarianism and traditional conservatism." This was the result of a years-long evolution....

It’s also unusual for conservative Christians to support a clemency petition like Panetti's. The last time evangelicals really rallied en masse to prevent a pending execution was in 1998, in the case of Karla Faye Tucker, who converted to Christianity in prison and became a conservative cause celebre. Despite the pleadings of evangelicals such as Pat Robertson, the Texas governor at the time, George W. Bush, went ahead with the execution, and Tucker became the first woman executed in the state since 1863.

The Panetti case is different. His religious fervor is the product of a brain disorder, and the evangelicals' opposition to his execution is not related to his religious proclamations. It is more of a reflection of the shift in public attitudes regarding capital punishment that has been driven by the growing number of exonerations of death-row inmates, the high number of mentally ill and disabled people sentenced to die, and the inefficient and expensive administration of capital punishment. "A lot of conservatives are late to realize that the whole criminal justice system is part of the government," says Richard Viguerie, a prominent conservative leader and an ardent opponent of the death penalty.

Religious conservatives are increasingly joining those who would like to see the end of the death penalty, citing their movement’s commitment to a "culture of life," which has traditionally focused primarily on restricting abortion. Conservative evangelicals, says Beaudoin, have been animated by the Panetti case over the past few weeks. Her outfit has opposed other executions, but, she says, the Panetti case has hit a nerve. She has been surprised by the number of influential Christians who have signed on to the clemency petition, especially Samuel Rodriguez, the president of the National Hispanic Christian Leadership Coalition, who's on Time magazine's 2013 list of the 100 most influential people in the world. Abby Johnson, a former Planned Parenthood clinic director who now runs a pro-life ministry for former abortion clinic employees, wrote an editorial in the Dallas News calling on Texas to spare Panetti.

"This is the largest outpouring of support on a death penalty case we've seen from evangelicals, and you can see why, given the ridiculous nature of this case," Beaudoin says. "A lot of folks who signed this [clemency] letter might have given pause about signing on to a letter opposing the death penalty generally, but they think we have no business executing Scott Panetti." She adds, "As Christians, we're called protect the most vulnerable. And there's just no question that Scott Panetti is in that number as someone who's suffered from severe mental illness. We all want to keep society safe, but I'm thankful there are other ways to do that than executing people."

November 26, 2014 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Monday, November 24, 2014

"Will Texas Kill an Insane Man?"

The question in the title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:

On Dec. 3, Texas plans to execute an inmate named Scott Panetti, who was convicted in 1995 for murdering his in-laws with a hunting rifle. There is no question that Mr. Panetti committed the murders. There is also no question that he is severely mentally ill, and has been for decades.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ.  A standby lawyer said his behavior was “scary” and “trance-like,” and called the trial “a judicial farce.”

It was not an act.  Mr. Panetti, now 56, was first diagnosed with schizophrenia when he was 20, and in the years before the murders he was hospitalized several times for delusions and psychotic episodes.  

In this respect, he is no different from the estimated 350,000 inmates around the country with mental illness — 10 times the number of people in state psychiatric hospitals.  But Mr. Panetti is not just another insane prisoner; his name is synonymous with the Supreme Court’s modern jurisprudence about mental illness on death row. In Panetti v. Quarterman, decided in 2007, the justices held that it is not enough for a defendant simply to be aware that he is going to be executed and why — the previous standard the court had used in permitting the execution of the mentally ill....

But the justices refused to set precise guidelines for determining whether someone is competent enough to be executed, and they did not overturn Mr. Panetti’s sentence. Instead, they sent the case back to the lower courts for a fuller reconsideration of his current mental state.

By any reasonable standard — not to mention the findings of multiple mental-health experts over the years — Mr. Panetti is mentally incompetent. But Texas, along with several other stubborn states, has a long history of finding the loopholes in Supreme Court rulings restricting the death penalty.  The state has continued to argue that Mr. Panetti is exaggerating the extent of his illness, and that he understands enough to be put to death — a position a federal appeals court accepted last year, even though it agreed that he was “seriously mentally ill.”

Mr. Panetti has not had a mental-health evaluation since 2007.  In a motion hastily filed this month, his volunteer lawyers requested that his execution be stayed, that a lawyer be appointed for him, and that he receive funding for a new mental-health assessment, saying his functioning has only gotten worse.  For instance, he now claims that a prison dentist implanted a transmitter in his tooth.

The lawyers would have made this motion weeks earlier, immediately after a Texas judge set Mr. Panetti’s execution date. But since no one — not the judge, not the district attorney, not the attorney general — notified them (or even Mr. Panetti himself), they had no idea their client was scheduled to be killed until they read about it in a newspaper. State officials explained that the law did not require them to provide notification.

On Nov. 19, a Texas court denied the lawyers’ motion. A civilized society should not be in the business of executing anybody. But it certainly cannot pretend to be adhering to any morally acceptable standard of culpability if it kills someone like Scott Panetti.

November 24, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, November 22, 2014

Interesting look at California's Proposition 47 and undoing collateral consequences

I just noticed, over at the Collateral Consequences Resource Center, that California Federal Public Defender Jeffrey Aaron has this new posting exploring the impact of his state's approval of Proposition 47 which downgraded various felonies to misdemeanors.  Here are excerpts:

Significantly, Proposition 47 applies not only to persons who are currently “serving a sentence,” but also to those who have already fully served their sentences.  This means that thousands of people with California felony convictions can under certain circumstances petition to have their case recalled, the crime re-designated a misdemeanor, and be resentenced.  Once reduced to misdemeanors, qualifying crimes can be set aside under California Penal Code § 1203.4 (felony or misdemeanor cases sentenced to probation) or 1203.4a (misdemeanor cases sentenced to prison).  These provisions allow a defendant to withdraw his plea of guilty, enter a not guilty plea, and have the judge dismiss the case.  The record can then be expunged.

The importance of this retroactive effect of the new law cannot be over-estimated.  While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community.  For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.

It is amazing that just a few months ago, a defendant with two prior felony drug possessions in state court, and currently charged with drug distribution in federal court, faced a mandatory sentence of life imprisonment.  Now he can have those California priors reduced to misdemeanors, and then dismissed, so that, under certain circumstances, they can no longer be used to enhance the federal sentence.  Generally, convictions that are set-aside for reasons not involving innocence or errors of law will still result in criminal history points.  Counsel might argue in resentencing that the reduction from felony to misdemeanor supports a finding that the conviction over-represents the defendant’s criminal history....

The Proposition provides relief to anyone convicted in the past of a wide range of property and drug crimes, as long as the person does not have a “disqualifying prior.”   Disqualifying priors include offenses requiring sex offender registration, and specified violent offenses....

Simply by going to court to have their felony charges converted to misdemeanors, people can end up with a criminal record that looks very different, and has a very different effect.

 

November 22, 2014 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Friday, November 21, 2014

Unpacking why DOJ is so concerned about federal prison populations and its costs

As highlighted in this effective piece by Andrew Cohen published by The Marshall Project, earlier this month Michael Horowitz, the Justice Department’s Inspector General (and a former member of the US Sentencing Commission), authored this memorandum describing DOJ's concerns with federal prison overcrowding and costs. These excerpts from Cohen's piece highlight some of the Horowitz memo's most notable messages:

The Bureau of Prison’s budget now ($6.9 billion) is nearly twice what it was ($3.8 billion) in 2000, Horowitz tells us, an increase at “almost twice the rate of growth of the rest of the Department.” Worse, he writes, even though federal prison officials have been warned that their part of the budget is draining funding away from other Justice Department programs (like those that support victims groups) they asked for more money this past budget cycle....

Horowitz didn’t mince words, either, about what is costing so much. The federal prison population is aging at a fast pace. “From FY 2009 to FY 2013, the population of sentenced inmates age 50 and over in BOP-managed facilities increased 25 percent, while the population of sentenced inmates under the age of 30 decreased by 16 percent,” he notes. As a result, “the cost for providing healthcare services to inmates increased 55 percent from FY 2006 to FY 2013.”...

If you think the facts and figures above are disconcerting, the numbers Horowitz offers about conditions within our federal prisons are even more dire. Prison overcrowding, he asserts, is “the most significant threat to the safety and security of Bureau of Prisons staff and inmates”.... When it comes to easing overcrowding it’s clear that Horowitz believes we are headed in the wrong direction, which is another reason why he keeps calling current conditions at the Bureau of Prisons “a crisis.”

To bring the ratio of inmate to space available to appropriate levels, to eliminate the overcrowding “without expending additional funds to build more federal prison space or to contract for additional non-federal bed space,” Horowitz says that the Justice Department “would have to achieve a net reduction of about 23,400 federal prisoners from the June 2014 prison population...” That’s more than ten percent of the current population. Can you imagine? I can’t.

November 21, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, November 19, 2014

"Death, Desuetude, and Original Meaning"

The title of this post is the title of this notable new paper by John Stinneford now available via SSRN. Here is the abstract:

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law.

This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.

November 19, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Massachusetts special commission urges repeal of all drug mandatory minimums

DownloadAs reported in this local article, "a special commission studying the state's criminal justice system recommended eliminating mandatory minimum sentences for all drug offenses in Massachusetts."  Here is more about the commission's work and recommendations to date:

The commission also voted to recommend parole eligibility for all state prison sentences after an inmate has served at least two-thirds of the lower end of their sentence, except in cases of murder or manslaughter, and to maintain the current parole eligibility standards in houses of correction of half-time served on sentences of 60 days or more.

The commission, formed over two years ago, is trying to produce an in-progress report before the end of the year to inform Governor-elect Charlie Baker's administration. Baker, during his campaign for governor, voiced support for striking mandatory minimums for non-violent drug offenses as part of a broader approach to combat substance abuse.

The Special Commission to Study the Commonwealth's Criminal Justice System on Tuesday began debating legislative recommendations members plan to make to strengthen post-release supervision, improve prisoner reentry outcomes and reduce recidivism, and address overcrowding in the state's jails and prisons.

"Drug offenses are a huge reason we have so much overcrowding in the prison system," said Patty Garin, a criminal defense attorney and co-director of the Northeastern University Law School Prisoners Assistance Program. Garin and other commission members argued judges should be able to practice evidence-based sentencing, and suggested mandatory minimums disproportionately impact poorer communities and communities of color.

The 9-2 vote, with Attorney General Martha Coakley's representative abstaining, came over the objections of Cape and Islands District Attorney Michael O'Keefe, who sits on the commission. O'Keefe did not attend Tuesday's meeting, but submitted a letter expressing his opposition and later told the News Service that mandatory minimums are a tool prosecutors "use and use very effectively to stem the flow of drugs into communities."

"We utterly reject this notion that the criminal justice system is warehousing these non-violent drug offenders. That simply is not the case. People have to work extremely hard to get themselves into jail here in the Commonwealth of Massachusetts," O'Keefe said.

The commission was formed by Gov. Deval Patrick and the Legislature in 2012, and Undersecretary of Criminal Justice Sandra McCroom said she hopes to publish a report by the end of the year, though she acknowledged that all of the commission's work likely won't be completed by then. Patrick has also reconstituted the Sentencing Commission, which has met twice over the past two months and whose work could coincide with the criminal justice commission's recommendations....

Public Safety Secretary Andrea Cabral, who does not have a vote on the commission, said she would have carved out an exception from the mandatory minimum recommendation for trafficking crimes. While supporting enhanced drug treatment options, she said not all people convicted of drug offenses are struggling with addiction, and some are driven by money. "I think there should be a line drawn on trafficking," Cabral said.

Others on the commission, including Garin and Anthony Benedetti, chief counsel at the Committee for Public Counsel Services, argued that judges should be given discretion even in trafficking cases, expressing confidence that harsh sentences will be issues for those who deserve them. Worcester County Sheriff Lewis Evangelidis, a Republican, and a staff member representing Judiciary Committee Vice Chairman Rep. Chris Markey (D-Dartmouth) voted against the recommendation to do away with mandatory minimum sentences. "To me it's overreaching and too broad," said Evangelidis, a former state representative....

O'Keefe, the recent past president of the Massachusetts District Attorneys Association, expressed concern that if the Legislature were to eliminate mandatory minimum drug sentences, the courts would see defendants shopping for more lenient judges to avoid prison time. "Mandatory minimum sentences came into being in the first place to ensure relative uniformity in the sentencing of individuals distributing drugs," O'Keefe said....

Attorney General-elect Maura Healey has also backed ending mandatory minimums for non-violent drug offenses, and during her campaign called for expanding the use of drug courts.

November 19, 2014 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, November 18, 2014

Ninth Circuit upholds injunction, on First Amendment grounds, blocking California law requiring sex offenders to report report online activities

As reported in this Bloomberg story, "California can’t enforce a law to combat sex trafficking because it tramples on free speech rights of sex offenders by requiring them to report online activities, such as their Twitter, e-mail and chatroom accounts, a U.S. appeals court ruled." Here are more of the ruling's basics via the press:

The San Francisco-based court today upheld a judge’s decision to block enforcement of a voter-approved law that was backed by former Facebook Inc. (FB) executive Chris Kelly and garnered support from more than 80 percent of California voters in 2012.

The measure, known as Proposition 35, isn’t clear about what accounts or Internet service providers offenders are required to report and targets online speech that could include blogging about politics and posting comments on news articles, the appeals court’s three-judge panel said today.

The law also harms sex offenders’ ability to engage in anonymous speech because it allegedly allows police to disclose their online identities to the public, the court said. Failure to report on Internet activity can lead to criminal sanctions.

A requirement that registered sex-offenders notify police within 24 hours of using a new Internet identity chills activity protected by the U.S. Constitution’s First Amendment, U.S. Circuit Judge Jay S. Bybee wrote in the unanimous ruling.

The ruling in Doe v. Harris, No. 13-15263 (9th Cir. Nov. 18, 2014) (available here), officially gets started this way:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement.  Cal. Penal Code §§ 290.012, 290.015.  The Californians Against Sexual Exploitation (“CASE”) Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person.” Id. § 290.015(a)(4)–(5).  The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider (“ISP”). Id. § 290.014(b). 
Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment.  Appellees filed a motion for a preliminary injunction, which the district court granted.  Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal.  We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.

November 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections | Permalink | Comments (11) | TrackBack

"Criminal Sentencing Reform: A Conversation among Conservatives"

Thanks to this post by Bill Otis at Crime & Consequences, I see that the Federalist Society recent National Convention included a panel discussion on sentencing reform, which can now be watched in full via YouTube at this link.  Here is how the discussion is described along with its participants:

Although prison populations at the federal level have very recently declined for the first time in decades, prisoner population at the state level rose.  The cost of crime, some that can be measured and some that are impossible to measure, is undoubtedly high, but so too is the cost of incarceration.  Are we striking the right balance in length of sentences?  And what is the proper balance between latitude and sentencing guidelines for judges?  Do the answers to these questions differ for the state versus the federal criminal justice system?

The Federalist Society's Criminal Law & Procedure Practice Group presented this panel on "Criminal Sentencing Reform: A Conversation among Conservatives" on Friday, November 14, during the 2014 National Lawyers Convention.

For a host of reasons, I am very pleased and impressed that the Federalist Society brought together a bunch of leading conservatives with various viewpoints to discuss these issues at their National Lawyers Convention. (It would have been nice to have had more than a single panelist who was not a former senior official with the Bush Administration's Justice Department, but I suspect it might be hard to find many conservatives who know a lot about sentencing who were not part of the Bush Administration's Justice Department.)

November 18, 2014 in Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Marshall Project investigation, "Death by Deadline," looks at capital appeals impact of AEDPA

As noted here yesterday, The Marshall Project, an important new reporting outlet focused on criminal justice issues, is now running full steam and has now lots of notable new content on its slick website. And the big first feature from The Marshall Project is a lengthy two-part investigative report titled "Death by Deadline" focused on the legal and practical impact of the capital appeal restriction in the Anti-Terrorism and Effective Death Penalty ACt (AEDPA).  Below are links and key passages from each part of the report.

Part One: How bad lawyering and an unforgiving law cost condemned men their last appeal:

An investigation by The Marshall Project shows that since President Bill Clinton signed the one-year statute of limitations into law — enacting a tough-on-crime provision that emerged in the Republicans' Contract with America — the deadline has been missed at least 80 times in capital cases. Sixteen of those inmates have since been executed — the most recent on Thursday, when Chadwick Banks was put to death in Florida.

Part Two: When lawyers stumble, only their clients fall:

[A]n investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline — sometimes through remarkable incompetence or neglect — it is almost always the prisoner alone who suffers the consequences.

Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found.  And that attorney was given a simple censure, one of the profession's lowest forms of punishment. The lack of oversight or accountability has left many of the lawyers who missed the habeas deadlines free to seek appointment by the federal courts to new death-penalty appeals.

November 18, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, November 14, 2014

Over lengthy dissents, en banc Eleventh Circuit shuts 2255 door to claims based on advisory guideline misapplication

The Eleventh Circuit has today provided some special weekend reading for hard-core federal sentencing fans with a special interest in finality issues (which, I realize, might be a small group).  Specifically, the en banc ruling together with dissents in Spencer v. US, No. 10-10676 (11th Cir. Nov. 14, 2014) (available here), runs more than 100 pages. More than three-quarters of those pages come from the dissents to a majority opinion (per Judge William Pryor) that begins this way:

This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence.  After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.”  United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006).  Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review.  We disagree.

Spencer cannot collaterally attack his sentence based on a misapplication of the advisory guidelines.  Spencer’s sentence falls below the statutory maximum, and his prior conviction for felony child abuse has not been vacated. Spencer’s sentence was and remains lawful.  We affirm the denial of Spencer’s motion to vacate his sentence.

At the very end of a very long week, I cannot do justice to the majority opinios or the dissents in this space, so I will close by quoting from the start of one of the dissents (per Judge Jordan) to highlight the human story at the center of the legal debate in Spencer:

At the end of the day, what constitutes a fundamental defect resulting in a complete miscarriage of justice comes down to a matter of considered judgment.  In my judgment, having an individual serve an additional 81 months in prison due to an erroneous career offender designation under the advisory Sentencing Guidelines constitutes such a miscarriage of justice, and for that reason I respectfully dissent.

Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine.  The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months.  For those of us familiar with — and sometimes numbed by — the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error.  To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.

Mr. Spencer timely and consistently objected to the career offender designation, only to be told he was wrong.  As it turns out, he was right.  Unfortunately, the majority now rules that Mr. Spencer cannot use 28 U.S.C. § 2255 to correct the error.

November 14, 2014 in Advisory Sentencing Guidelines, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Notable new AG Holder comments on reducing crime rates and incarceration levels

Last night Attorney General Eric Holder gave this speech at the Southern Center for Human Rights and had a lot to say about crime and punishment.  Here are some passages that caught my eye (with one particular phrase emphasized):

Over the years, we’ve seen that over-incarceration doesn’t just crush individual opportunity.  At a more fundamental level, it challenges our nation’s commitment to our highest ideals.  And it threatens to undermine our pursuit of equal justice for all.

Fortunately, we come together this evening at a pivotal moment — when sweeping criminal justice reforms, and an emerging national consensus, are bringing about nothing less than a paradigm shift in the way our country addresses issues of crime and incarceration, particularly with respect to low-level, nonviolent drug offenses.

For the first time in many decades, it’s clear that we’re on the right track, and poised to realize dramatic reductions in criminal activity and incarceration.  In fact, the rate of violent crime that was reported to the FBI in 2012 was about half the rate reported in 1993.  This rate has declined by more than 11 percent just since President Obama took office.  And the overall incarceration rate has gone down by more than 8 percent over the same brief period.

This marks the very first time that these two critical markers have declined together in more than 40 years. And the Justice Department’s current projections suggest that the federal prison population will continue to go down in the years ahead.  As a result of the commonsense, evidence-based changes that my colleagues and I have implemented – under the landmark “Smart on Crime” initiative I launched last year — I’m hopeful that we’re witnessing the beginning of a trend that will only accelerate as new policies and initiatives fully take hold.

Our Smart on Crime approach is predicated on the notion that the criminal justice system must be continually improved — and strengthened — by the most effective and efficient strategies available. That’s why we’re increasing our focus on proven diversion and reentry programs – like drug courts, veterans’ courts, and job training initiatives – that can help keep people out of prison in appropriate cases, and enable those who have served their time to rejoin their communities as productive citizens. It’s why we are closely examining the shameful racial and ethnic disparities that too often plague the criminal justice process  — and working to mitigate any unwarranted inequities.  And it’s why I have mandated a significant change to the Justice Department’s charging policies — so that sentences for people convicted of certain federal drug crimes will be determined based on the facts, the law, and the conduct at issue in each individual case and not on a one size fits all mandate from Washington....

Equal justice is not a Democratic value or a Republican value.  It’s an American value — and a solemn pursuit – that speaks to the ideals that have always defined this great country.  It goes to the very heart of who we are, and who we aspire to be, as a people. And it will always drive leaders of principle from across the political spectrum — including those in this room and others throughout the nation — to keep moving us forward along the path to transformative justice.

The phrases I highlighted should be of interest to all SCOTUS followers because the term "emerging national consensus" has great meaning and significance in Eighth Amendment jurisprudence. I think it is quite right to say that there is now a constitutionally significant "emerging national consensus" concerning the use of mandatory long terms of imprisonment "particularly with respect to low-level, nonviolent drug offenses." And it is quite exciting to hear this legally-important phrase coming from the US Attorney General, especially because I think statements like this might lay the foundation for overturning, sooner rather than later, troublesome Eighth Amendment precedents like Harmelin v. Michigan (and maybe even also Ewing v. California).

November 14, 2014 in National and State Crime Data, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

NY Times debates "Parole When Innocence Is Claimed"

The Room for Debate section of the New York Times has this new set of pieces discussing parole practices and claims of innocence. Here is the section's set up:

With the increasing notoriety of cases in which prisoners have proved their innocence, some parole boards have permitted the release of inmates without the traditional requirement that they admit their guilt, if there is strong evidence of wrongful convictions.

Should prisoners for whom there is substantial evidence of innocence be required to admit guilt to be granted parole?

Here are the contributions, with links via the commentary titles:

November 14, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, November 12, 2014

Split South Carolina Supreme Court declares Miller retroactive AND applicable to state's nonmandatory LWOP sentencing scheme

As reported in this local article, "at least 15 South Carolina felons serving life sentences for homicides they committed while they were minors are eligible to return to court to be resentenced for their crimes, a divided S.C. Supreme Court ruled Wednesday." Here are the basics of the ruling: 

The 3-2 decision cites the U.S. Supreme Court's 2012 decision in Miller v. Alabama, which banned mandatory life sentences without the possibility of parole in instances where juveniles commit murder....

The [Miller] ruling applied to mandatory sentences and the U.S. Supreme Court justices avoided declaring whether the new standard should be applied retroactively to older cases. South Carolina's high court, however, not only called for a rehearing of older cases but applied the new parameters to all juveniles cases where life sentences were imposed, even when that decision was at a judge's discretion.

Colin Miller, an associate professor at the University of South Carolina School of Law, and who participated in a moot court dry run of the Supreme Court arguments with attorney John Blume, called the high court's ruling "significant" and a victory for juvenile rights.  He said the court went beyond what many observers expected in extending projections to all juveniles facing life without parole.  "That was not a foregone conclusion," he said. "Here we have the Supreme Court of South Carolina saying the state will not impose life without parole on a juvenile without looking at the totality of the person in this situation."

I concur with the view of Professor Miller that this new South Carolina Supreme Court ruling in Aiken v. Byars, No. 27465 (S.C. Nov. 12, 2014) (available here), is a big win for juvenile justice advocates. Here are a few passages from the majority opinion that lead me to this view:

We conclude Miller creates a new, substantive rule and should therefore apply retroactively.  The rule plainly excludes a certain class of defendants — juveniles — from specific punishment — life without parole absent individualized considerations of youth. Failing to apply the Miller rule retroactively risks subjecting defendants to a legally invalid punishment....

We recognize that in holding the Eighth Amendment proscribes a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders, the Court did not expressly extend its ruling to states such as South Carolina whose sentencing scheme permits a life without parole sentence to be imposed on a juvenile offender but does not mandate it.  Indeed, the Court noted that because its holding was sufficient to decide the cases before it, consideration of the defendants' alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles was unnecessary.  Id. at 2469.  However, we must give effect to the proportionality rationale integral to Miller's holding — youth has constitutional significance. As such, it must be afforded adequate weight in sentencing.

Thus, we profoundly disagree with the position advanced by the respondents and the dissent that the import of the Miller decision has no application in South Carolina. Miller is clear that it is the failure of a sentencing court to consider the hallmark features of youth prior to sentencing that offends the Constitution.  Contrary to the dissent's interpretation, Miller does more than ban mandatory life sentencing schemes for juveniles; it establishes an affirmative requirement that courts fully explore the impact of the defendant's juvenility on the sentence rendered.

As evidenced by the record, although some of the hearings touch on the issues of youth, none of them approach the sort of hearing envisioned by Miller where the factors of youth are carefully and thoughtfully considered.  Many of the attorneys mention age as nothing more than a chronological fact in a vague plea for mercy.  Miller holds the Constitution requires more.

November 12, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Sunday, November 09, 2014

Florida Supreme Court dealing with Miller retroactivity issue after legislative fix

As reported in this local Florida piece, headlined "Supreme Court ponders life sentences for juveniles," the Sunshine State's top court this past week was starting to puzzle through what Miller and new state legislation mean for old juve LWOP sentences. Here are the details:

The Florida Supreme Court on Thursday heard arguments in a debate about sentencing for juveniles convicted of first-degree murder. Pointing to a 2012 U.S. Supreme Court ruling, two inmates who are serving life in prison for murders they committed as juveniles are challenging their sentences.

The ruling, in a case known as Miller v. Alabama, banned mandatory life sentences for juveniles convicted of murder. Juveniles can still face life sentences in such cases, but judges must weigh criteria such as the offenders’ maturity and the nature of the crimes before imposing that sentence.

On Thursday, attorneys for Rebecca Lee Falcon and Anthony Duwayne Horsley argued that the ruling — and a new state law that carries it out — should apply retroactively to their clients, giving them the possibility of release.

The session was lively, with most of the Florida justices’ questions directed at what the Legislature intended by passing the new law. An underpinning of the Miller ruling was that juveniles are different from adults and function at different stages of brain development, so that a life sentence without the possibility of parole violates the Eighth Amendment ban on cruel and unusual punishment....

Lawmakers this spring approved new juvenile sentencing guidelines that went into effect July 1 in response to Miller and to a 2010 U.S. Supreme Court ruling in a case known as Graham v. Florida.

The Miller and Graham rulings have spawned legal questions in Florida courts since the Graham ruling was handed down. It took lawmakers that long to agree on the sentencing guidelines, but this year — reluctant to leave it to courts to decide on a case-by-case basis — did so unanimously. That’s almost unheard of,” Justice Barbara Pariente said. “It’s the entire Legislature saying, after lots of hearings, ‘We think this is both good from a policy point of view as well as faithful to Miller.’ “

Under the new law, a juvenile convicted of a murder classified as a capital felony could be sentenced to life in prison after a hearing to determine whether such a sentence is appropriate. If a judge finds that a life sentence is not appropriate, the juvenile would be sentenced to at least 35 years. Also, juveniles convicted in such cases would be entitled to reviews after 25 years....

On Thursday, Assistant Attorney General Kellie Nielan argued that a life sentence does not violate the Constitution if it includes the option of parole. But Justice Ricky Polston said that would create new questions, due to Florida abolishing parole decades ago on new crimes. A commission still hears cases from before the time parole was abolished.

“If there’s no parole, are you asking this court to order the parole commission to hear these cases even though we don’t have the power of the purse?” Polston asked. “We can’t give them the money or authorization to do this. Are you asking us to — from the bench — require a branch of government to enact the parole commission that’s been abolished?”

“I’m asking this court to follow precedent,” Nielan said. “I understand that we have to fashion a remedy for this.” But while the new law was designed to bring Florida into compliance with the U.S. Supreme Court rulings, it doesn’t mention retroactivity.

And in July, when the Florida Supreme Court asked attorneys representing juvenile offenders to weigh in on the new law, Senate Criminal and Civil Justice Appropriations Chairman Rob Bradley, the Senate sponsor, said it was not intended to address retroactivity. “We were simply looking at a statutory scheme that was clearly unconstitutional,” the Fleming Island Republican told The News Service of Florida. “We were looking at two United States Supreme Court decisions that set forth certain parameters, and we developed a sentencing framework that complied with those two decisions. As far as how that applied individually to individual defendants, we’ll leave that to the court system.”

November 9, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, November 07, 2014

Guest SCOTUS argument analysis: "Fish are apparently funny . . . and other quick thoughts on Yates"

Professor Todd Haugh was kind enough to send along for posting here this analysis of one of the notable federal criminal justice cases just heard by the Supreme Court:

The Supreme Court heard argument this week in Yates v. United States, the oddball case requiring the Court to determine whether the “anti-shredding” provision of the Sarbanes-Oxley Act applies to a fisherman who threw a crate of undersized grouper overboard after he was ordered not to by a federal agent.  The precise issue was whether the fisherman, John Yates, had adequate notice that 18 U.S.C. § 1519’s “tangible object” provision covered fish along with financial records, which were the focus of SOX following the Enron and Arthur Anderson document-shredding scandal. Although there have been a number of comprehensive posts about the statutory interpretation aspects of the case, see here and here, I wanted to offer my quick reaction to the argument, which I attended.

Fish are funny.  First of all, although this may be trivial for hardcore criminal law and sentencing buffs, this was one of the most jovial arguments I have seen, riotous even.  The argument was interrupted numerous times by the gallery’s laughter — 15 times according to the transcript — which was prompted by both the litigants and the Justices.  And this wasn’t all the Scalia show.  Justices Kagan, Sotomayor, and Breyer all offered quips that gave the audience quite a show.

But overcriminalization is not.  Part of the reason everyone was in a joking mood was the inherent absurdity of the underlying prosecution.  Although Roman Martinez, the Assistant SG, tried to convey that Yates had not just tossed away a few fish, but had directly disobeyed a federal agent and then enlisted his crew to lie about it, the Justices weren’t buying it.  At one point, Chief Justice Roberts interrupted Martinez, saying, “You make him [Yates] sound like a mob boss or something.”  (Again, to great laughter.)  In between the laughs, however, the Court conveyed a serious concern over the sweep of § 1519 and the government’s exercise of discretion.  Justices Breyer and Alito, in particular, posed squirm-inducing hypotheticals to Martinez demonstrating that the only thing stopping this provision from criminalizing obviously trivial conduct is the U.S. Attorney’s Office. Martinez’s admission, solicited from Justice Ginsburg, that the U.S. Attorney’s Manual instructs prosecutors to bring the most severe charge available did not help the government’s cause.  Justice Scalia, who had previously asked what kind of “mad prosecutor” brought the case and questioned whether it was the “same guy . . . that brought the prosecution in Bond last term,” said that if the government’s policy was to always prosecute so severely, the Court was “going to be much more careful about how extensive statutes are” and how much “coverage” to give them.

And neither is severe sentencing.  Much of this was driven by the sentencing risk Yates faced — twenty years for destroying evidence of a civil infraction.  A number of Justices questioned why Congress needed to enact another obstruction provision with a 20-year max when there were others available.  The government tried to back its way out of the inquiry by explaining that the prosecutor had recommended a Guideline sentence of 21 to 27 months and Yates only got 30 days in jail, but Chief Justice Roberts highlighted that the issue was not the actual sentence received but the “extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.”  He specifically mentioned prosecutors using the risk of severe sentencing to force pleas, and Justice Scalia’s questions suggests he was troubled by the same thing.  

Overcriminalization exacts real hams.  I’m by no means a statutory interpretation wonk, so my interest in Yates is focused on how the case tees up the issue of overcriminalization (particularly in the white collar context).  Overcriminalization exacts harms by making prosecutors lawmakers and adjudicators of the criminal code, which invariably leads to arbitrary enforcement.  This is what so many of the Justices were reacting to during the argument.  But overcriminalization’s real harm, which flows from that arbitrary enforcement, is that it lessens the legitimacy of the criminal law.  The absurdity of the Yates prosecution, while making for a lively and fun argument, demonstrated the point. It’s fine to laugh, but when that laughter is directed at our criminal justice system, that’s a serious matter. The question is whether the Court will take this opportunity to provide a serious response.

Predicting a winner. Using the method of tallying questions to the litigants during argument as a way to predict the outcome — the party receiving the most questions from the Justices during oral argument is more likely to lose (see here for a discussion of the methodology) — I’ll go ahead and predict a winner.  According to my notes, Yates’ attorney received approximately 29 questions (I say approximately because it’s hard to know how to count Justice Breyer’s three-part hypotheticals) to the government’s 36, which suggests Yates will prevail.  The tone of the questions certainly point to the same conclusion, and it’s consistent with how other’s saw the argument — see here.

November 7, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (19) | TrackBack

After state's capital repeal, Maryland AG argues the state cannot execute those already on death row

As reported in this Baltimore Sun piece, headlined "Gansler argues state must vacate sentences of death row inmates," Maryland's Attorney General has concluded that it would not be proper to see execution of those on state's death row after the legislature repealed capital punishment. Here are the details:  

More than a year after the repeal of capital punishment in Maryland, Attorney General Douglas F. Gansler says the state has no choice but to change the sentences of its remaining death row inmates.

Gansler has filed a legal brief in support of an appeal by Jody Lee Miles, who is asking to be resentenced for the 1997 murder of an Eastern Shore musical theater director. Miles' lawyers — and Gansler — argue the state no longer has the authority to execute the four men already on death row because lawmakers abolished capital punishment in 2013. With repeal, they argue, legislators took away the state's power to issue the regulations necessary to put someone to death.

Instead, Miles should be sentenced to life without the possibility of parole, Gansler argued in a brief filed with the Court of Special Appeals. "Whether or not you agree with the death penalty, the recent repeal of capital punishment in Maryland nevertheless demands that we pursue a prison sentence that ensures Jody Lee Miles dies behind bars, where he belongs," Gansler said in a statement Thursday.

Speaking at a news conference, Gansler called capital punishment in Maryland "illegal and factually impossible." Though the brief relates only to Miles, Gansler acknowledged that his position has implications for the other death row inmates.

His position drew criticism from the family of Miles' victim, Edward Joseph Atkinson, and from the Wicomico County state's attorney, whose office prosecuted the case.

Atkinson's mother, Dottie Atkinson, said Miles should be put to death. "It's been appeal after appeal. We get some hope each time, and all these appeals have been in our favor, and all of a sudden we get this news. We've been let down," she told reporters on the Eastern Shore, according to The Daily Times. "It's an impact people shouldn't have to go through."

Wicomico County State's Attorney Matt Maciarello also denounced the decision. But he added that, if the state's position is set, Gov. Martin O'Malley should move to commute Miles' sentence and spare the family the court hearings and drawn-out process associated with appeals. "If the attorney general is committed to this approach, let's give this family some finality," Maciarello said. "It's cruel to put this family through more suffering."

Gansler noted that O'Malley, who supported repeal, could commute the death sentences to life without the possibility of parole. The governor has at least one petition — from inmate Heath William Burch — on his desk that he has yet to take action on, Burch's attorney said.

Through a spokeswoman, O'Malley declined to comment on Gansler's opinion, saying only that the attorney general "has a constitutional obligation to determine how the law applies." Regarding the governor's ability to commute sentences, the spokeswoman said O'Malley "continues to consider each case and will address the issue when a decision has been made."

Gov.-elect Larry Hogan and incoming attorney general Brian Frosh did not respond to requests for comment.

Gansler — who opposed the repeal legislation but never sought the death penalty as the top prosecutor in Montgomery County — said his office was obligated to weigh in on Miles' case before the Court of Special Appeals. He noted that after a court threw out Maryland's lethal injection procedure as unconstitutional in 2006, the state did not adopt new regulations. When his staff researched the issue, the conclusion was that the "uncertain enforceability" of the death penalty in Maryland threatened due process, he said....

His opinion contrasts with that of a Queen Anne's County judge, who rejected Miles' argument last year. In that case, Judge Thomas G. Ross found the lack of rules for executions "troubling" but said even after the repeal went into effect the Division of Correction retained the authority to develop new rules....

Miles' attorneys commended Gansler's move but said they believe he should be eligible for release at some point, not sentenced to life without parole. Miles has expressed "extreme remorse" for the killing, had a "devastating childhood history" and has been a model inmate while behind bars, the attorneys say. Gansler said life without parole is the appropriate sentence because the jury had a choice between that and the death penalty.

November 7, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, November 06, 2014

How might election results (and subsequent sparring) impact Prez Obama's clemency plans?

In this prior post, I wondered aloud "How might election results impact replacing Eric Holder as Attorney General?."  Since then, I have turned to thinking about, as the title of this post highlights, whether and how the Republican electorial success this election cycle might impact the President's thinking and plans about finally making some real use of his clemency powers.

As regular readers know, I consider President Obama's clemency record to date to be not merely disappointing, but truly disgraceful.  That said, earlier this year, Deputy AG Cole and others talked up a new DOJ effort to identify worthy clemency candidates so that the President might start to do better.  From the get-go, I have been concerned that all the talk of new clemency developments might prove to be just another example of the Obama Administration being real good at "talking the talk" and not nearly so good at really "walking the walk."  Indeed, until President Obama starts seriously and consistently using his clemency power, I remain deeply fearful that the so-called Clemency Project 2014 could prove to be much ado about nothing (or about very little relief for very few).

With these realities as backdrop, I have no sense at all whether the consequential political developments of the last few days will have little, some or much impact on whatever Prez Obama had in mind with respect to clemency.  Does anyone else have any insights or even wild speculations on this front?

A few of many recent and older posts concerning federal clemency practices:

November 6, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Impact of California's Prop 47 already being felt ... by defense attorneys and police

This local article from California, headlined "Scramble to implement Prop 47 begins," spotlight the impact already being felt by the passage of the biggest criminal justice reform initiative of Election 2014.  Here are the (already remarkable) basics:

Just hours after the last ballot returns were counted, the phone lines of defense attorneys across the state began to light up Wednesday morning with calls from inmates.

With the passage of Proposition 47, simple drug possession and property crimes valued under $950 are now misdemeanors, effective immediately. Punishment means, at the worst, up to a year in jail, no longer prison. It also means up to 10,000 inmates serving time for those crimes can begin to apply for shortened sentences, a process many were eager to get started.

“This morning at 8 a.m., we took 10 attorneys and put them on the phones,” said Randy Mize, a chief deputy at the Public Defender’s Office. “They were taking 200 calls an hour from inmates in county jail. These are people asking us to file petitions on their behalf.”

The scramble to put the new law into practice was starting to touch all corners of the criminal justice system Wednesday, from the City Attorney’s Office, which will have to handle 3,000 extra cases a year, to police officers who will have new protocols to follow for certain arrests.

At Juvenile Hall Wednesday morning, six kids were released because they had felony charges that are now classified as misdemeanors under Proposition 47, and legally minors can’t be detained longer than an adult would, authorities said. “I think the roll out today started fairly smoothly,” Mize said. He attributed much of that to the fact that criminal justice leaders from around the county — including prosecutors, public defenders, the sheriff and probation officers — have been meeting for the past month to prepare for this day....

The law is intended to ease prison overcrowding, and put most of the estimated $200 million saved in prison costs annually into drug and mental health treatment programs to staunch recidivism. The majority of law enforcement officials around the state and the county are skeptical it will have the desired effect, and fear less time behind bars will only contribute to the revolving door of the criminal justice system. But, officials say, they will do their best to make it work. “It’s still a work in progress,” Sheriff Bill Gore said Wednesday. “Our primary concern is clearly the public’s safety.”...

Law enforcement officers were reminded of the new law in police lineups around the county. As of Wednesday, six crimes that used to be felonies are now misdemeanors: drug possession for personal use, as well as five property crimes valued below $950, theft, writing bad checks, forgery, shoplifting and receiving stolen property.

One of the biggest differences when arresting someone on a misdemeanor, rather than a felony, is that the crime must have occurred in the officer’s presence, or be witnessed by a citizen willing to sign an affidavit saying so. Several training memos have been distributed in the past few weeks to prepare deputies on such arrests, Gore said....

The Public Defender’s Office has already identified about 200 state prisoners and 1,800 other offenders either in jail or under the supervision of probation who might be eligible to be resentenced under Proposition 47. The first set of petitions are expected to be filed within the next day or so, with priority given to those in custody. Once the application is filed in court, the District Attorney’s Office will review it to make sure the person is eligible, then a judge will OK it and hand down a new, shorter sentence. The process could be as quick as a few weeks for the first group of offenders, said Mize, with public defender’s office.

“There will be a few cases that the DA thinks should be excluded, and we don’t, and those will be litigated,” Mize said. There may also be a few offenders that prosecutors think are too dangerous to be released, and those cases will be argued. Inmates who can’t be resentenced are those who have prior convictions such as murder, attempted murder and violent sex crimes.

The public defender’s office has also identified nearly 200,000 other people who have been convicted since 1990 — that’s as far back as its database goes — of the crimes reclassified under Proposition 47. They can now apply to have their records show misdemeanor rather than felony convictions. Statewide, that could apply to millions of people. Said Mize, “It will certainly take a lot more work in the short term.”


Prior related posts on California's Prop 47:

November 6, 2014 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Based on questions asked at SCOTUS oral argument, wins predicted for federal defendants in Johnson and Yates

As discussed in prior posts here and here, yestderay the Supreme Court heard oral argumentsin two notable federal criminal justices cases,  Yates v. United States and Johnson v. United States.  I am hoping soon to find the time to read the full arguments transcripts in both cases (which are available here and here).  Fortunately, thanks to my old pal Professor Ed Lee and this post at ISCOTUSnow, I do not have to read the transcripts in order to have an informed guess as to who will prevail.  Here is why:

I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose....

Yates v. United States asks whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519—which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation—where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

This is a close call. The Court was very active in questioning both sides. By my count, the Petitioner (Yates) received 49 questions and the Respondent (Solicitor General) 54 questions, which militates slightly in favor of the Petitioner.

But, if you break down the questions asked by Justice, the picture gets more complicated. Four Justices (Kennedy, Ginsburg, Sotomayor, and Kagan) asked the Respondent fewer questions, while only three Justices (Roberts, Scalia, and Breyer) asked the Petitioner fewer questions. Justice Alito asked both sides an equal number of questions (3). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. The total number of questions slightly favors the Petitioner, while the questions per Justice slightly favors the Respondent. If I had to choose, I would give a slight nod to the Respondent (Solicitor General) based on the higher number of Justices (4) who asked the Respondent fewer questions.

The second case, Johnson v. United States, asks whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

This case is easier to predict, even though the total question count per side was closer. The Court asked almost the same number of questions to each side: 36 to the Petitioner (Johnson) and 37 to the Respondent (Solicitor General). The questions asked by each Justice tells a different picture. Four Justices (Roberts, Ginsberg, Breyer, and Kagan) asked the Petitioner fewer questions. Only two Justices (Scalia and Alito) asked the Respondent fewer questions. Justice Sotomayor asked the same number of questions (5) to each side, while Justices Kennedy and Thomas asked no questions. Another noteworthy point: Justice Alito, in fact, asked 17 questions to the Petitioner — a high number of questions that is somewhat unusual for a Justice to ask one side during oral argument. Justice Alito’s questioning might have inflated the Petitioner’s total question count, in other words. Accordingly, I predict a win for the Petitioner (Johnson), who argued that mere possession of a short-barreled shotgun is not a violent felony under the ACCA.

Previous related posts:

November 6, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack