Wednesday, August 20, 2014

Detailing the significant increase in California lifers getting parole

This local article, headlined "Life with parole no longer means life term: Legal ruling causes steady rise in parole for California's lifers," highlights that parole has recently become a realistic possibility again for lifers in California. Here are the details:

Not so long ago, the conventional wisdom in legal circles was that any violent criminal sentenced to life with the possibility of parole in California wasn’t likely to ever walk out of prison. Whether that inmate had served the minimum on a term of 15 years to life or 25 years to life seemed inconsequential for many prisoners in the 1990s and early 2000s. In California, life meant life.

But that’s not the case anymore. In 2009, 221 lifer inmates were released from prison on parole, more than twice the number from the year before, according to the Governor’s Office. The numbers have steadily increased since then, reaching a high of 596 lifer inmates released on parole last year.

More than 2,200 inmates who had been serving life sentences in California have been paroled over the past five years, which is more than three times the number of lifers paroled in each of the previous 19 years combined.

Authorities say the higher numbers are primarily the result of a state Supreme Court decision in 2008 that set a new legal standard for the Board of Parole Hearings and the Governor’s Office to use when determining who is suitable for parole. That standard is focused not just on the circumstances of the inmate’s offense, but whether he or she poses a current threat to public safety. If not, the inmate may be released.

Despite speculation to the contrary, Gov. Jerry Brown’s office has stressed that lifer parole grants during his current administration have had nothing to do with a federal court mandate to reduce overcrowding in California’s prisons. “The prison population has no bearing on the governor’s decision to reverse or not act on a parole grant,” said Evan Westrup, a spokesman for Brown....

The spike in paroles came during Arnold Schwarzenegger’s term as governor, when the state’s high court established the standard by which a prisoner could be determined suitable for parole. Schwarzenegger, who was governor from 2003 to 2011, reversed more than 1,100 lifer parole grants during his time in office. One of them involved Sandra Davis Lawrence, who killed her lover’s wife in 1971. Her case went to trial in 1983. She was convicted of first-degree murder and sentenced to life in prison.

The Board of Parole Hearings determined in 2005 that Lawrence was suitable for parole based on several factors, including her efforts to rehabilitate herself in prison, her acceptance of responsibility for her crime and her close ties to her family. But Schwarzenegger found that Lawrence was not a good candidate for release based on “the gravity of the commitment offense,” according to court documents.

A three-judge panel of the state Supreme Court said that’s not good enough, explaining that parole could not be denied simply because the inmate’s offense was “heinous” or “cruel.” The key factor is whether that person remains a danger at the time parole is considered. “There has to be something more than just your crime was particularly atrocious,” said Jennifer Shaffer, executive officer of the Board of Parole Hearings. Denial can’t be based on “something you can’t change,” she said.

When the board denies parole for an inmate, that decision can be appealed, which results in a court-ordered hearing. In 2009, the first full year after the ruling, there were 263 court-ordered hearings spurred by appeals. “That is basically the court saying, ‘You got it wrong,’” she said. Last year, there were only 13 court-ordered hearings, which Shaffer said indicated the board had learned over time how to do a better job of applying the new standard. “The board, as a whole, learned with a lot of guidance from the court,” she said.

The Board of Parole Hearings issued 670 parole grants in 2012, and 590 in 2013, but some of those offenders may still be behind bars. Depending on factors specific to each case, it could take five months to several years for each prisoner to actually be released. State law bars the board from taking prison overcrowding into account when making its decisions. However, Shaffer said, there may be a perception that the issues are related because of the state’s efforts to comply with the federal court order.

August 20, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"15 years without an execution: the death penalty in Pennsylvania"

The title of this post is the headline of this local article highlighting Pennsylvania's remarkably long de facto moratorium on executions despite sending a significant number of murderers to death row." Here are the details:

Pennsylvania's Governor Tom Corbett has issued his thirty-sixth execution warrant. Michael Parrish, from Monroe County, is scheduled for execution in October after being convicted of killing his girlfriend and baby.

But according to experts, if the current trend continues, it could be decades before that ever happens. "Anyone who fights the death penalty today can go on for 15 to 25 years on death row," said Northampton County District Attorney John Morganelli.

Pennsylvania ranks fourth in the United States for the most people on death row. Close to 200 people currently have a death sentence, according to the Pennsylvania Department of Corrections. But the state has executed just three people in the last 35 years.

Morganelli said lengthy appeals are a factor, but not the sole, or biggest influence. "We have federal judges who constantly block these executions…It has nothing to do with the guilt or innocence of the defendant. It is because the federal judges are philosophically opposed to the death penalty," Morganelli said. Other experts said overturned death sentences are also a reason.

Notably, Pennsylvania's modern experience with the death penalty seems somewhat comparable to what has transpired in California; the facts and factors in Pennsylvania thus seem similar to those stressed in Jones v. Chappell, last month's controversial federal district court ruling that California's death penalty is unconstitutional under Eighth Amendment (basics here). I would think more than a few savvy defense lawyers representing death row defendants in Pennsylvania are likely adding Jones claims to their appeals.

Some related posts:

August 20, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Tuesday, August 19, 2014

Washington appeals court strikes down sign-holding shaming sanction as statutorily unauthorized

Regular readers know I am always intrigued by novel punishments, especially in the form of shaming sanctions.  Consequently, I was pleased when a helpful reader altered me to a notable new Washington appellate court opinion striking down a notable shaming sanction.  Here is how the short opinion in Washington v. Button, No. 44036-9-II (Wash. App. Div. II Aug. 18, 2014) (available here), gets started:

Charlotte Ann Button appeals a sentence condition requiring her to stand on a street corner holding a sign stating, "I stole from kids. Charlotte Button."  Button contends that the trial court lacked authority to impose this condition and that it violated her rights under the First and Eighth Amendments of the United States Constitution. Because there is no statutory authority for the sign-holding condition, we need not reach Button' s constitutional challenges, and we remand for the trial court to strike the sign-holding condition from her judgment and sentence.

August 19, 2014 in Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Senator Whitehouse defends risk-assessment tools for some sentencing determinations

The New York Times today published this letter-response by Senator Sheldon Whitehouse to this recent NYT commentary expressing concern about the use of risj-assessment tools in sentencing decision making.  Here is the full text of the published letter:  

In “Sentencing, by the Numbers” (Op-Ed, Aug. 11), Sonja B. Starr highlights concern over judges’ use in sentencing of predictive tools to gauge an offender’s risk of recidivism.  But let’s not overlook the important role that risk-assessment tools can play in helping identify the factors that make sentenced inmates more likely to commit crimes after they are released.

The most useful tools emphasize dynamic factors — those the inmate has the ability to change — including things like substance abuse, lack of education or antisocial attitudes.

States as different as Rhode Island and Kentucky have found that risk-assessment tools, when coupled with appropriate in-prison programs, can help inmates prepare to re-enter society with less likelihood that they’ll reoffend.  That reduces spending on prisons, keeps us safer and also benefits the prisoners themselves. 

Recent related posts:

August 19, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, August 15, 2014

"Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal"

The title of this post is the title of this notable and timely new article by Rachel Barkow and Mark Osler.  Because I admire and respect the work of both these folks so much, I am going to make sure I read this joint-effort even on a sunny summer Friday afternoon.  Here is the abstract:

Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them.  Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked.  As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term.

The use of the pardon power is a necessary element in a fully-functioning system of criminal law.  Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways.  This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.  Specifically, we advocate for the creation of an independent commission with a standing, diverse membership.  While this commission should have representation from the Department of Justice and take the views of prosecutors seriously, the commission itself should exist outside the Department and its recommendations should go directly to the White House.  This new model of clemency should also pay attention to data both to create uniform standards and to focus the use of the pardon power on policy as a management tool.  An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry.  It is time to view clemency reform as a priority for the office of the presidency no matter who holds the position.  This is the time to create a better machine of mercy.

August 15, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, August 14, 2014

Eighth Circuit reverses 20-month sentence for police abuse and perjury as substantively unreasonable

In the post-Booker sentencing world, reversal of sentences on appeal for being substantively unreasonable are quite rare. But this week has brought two such reversal: as noted in this prior post, an Eleventh Circuit panel on Tuesday declared a probation sentence in a public corruption case to be substantively unreasonable, and today an Eighth Circuit panel declared a 20-month sentence in a police abuse case to be substantively unreasonable in US v. Dautovic, No. 13-1145 (8th Cir. Aug 14, 2014) (available here). Here is the heart of the unanimous panel ruling:

We conclude that the district court imposed a substantively unreasonable sentence in this case.  Dautovic’s offense conduct was egregious.  A police officer beat an innocent victim with a dangerous weapon, causing serious bodily injury and permanent physical damage. He arrested Bonds and Evans and then wrote a false police report that caused themto be charged with crimes.  At Bonds and Evans’s trial, where they were found innocent, Dautovic committed perjury.  Dautovic maintained throughout his trial that his actions in the early morning hours of September 13 were reasonable and that his police report was sloppy, not intentionally falsified.  A jury, however, found him guilty beyond a reasonable doubt of using excessive force and obstructing justice, and the district court’s findings atsentencing were consistent with the jury’s verdict.  The district court found that Dautovic showed no remorse and that his experience in Bosnia did not relate to his beating of Bonds.

The district court, nonetheless, varied downward from the bottom of the Guidelines range by 115 months.  The district court found that Dautovic overreacted during the arrest and beating of Bonds.  It disagreed with the Guidelines range because it believed that the color-of-law enhancement added too many months to the sentencing range and because the sentencing range exceeded the statutory maximum term of imprisonment for the excessive force count.  It found that a Guidelines-range sentence was inappropriate in light of the fact that Dautovic was a first time offender who had done good things for his community and family.  The district court acted within its discretion when it decided to vary downward based on Dautovic’s history and characteristics and on its policy disagreement with the Guidelines, but these considerations do not justify the imposition of a 20-month sentence in this case.

The district court’s justification for the variance fails to support the degree of the variance in this case.  To the extent the district court tried to avoid unwarranted sentence disparities by basing Dautovic’s sentence on the average sentence imposed for civil rights violations, we are not convinced that the U.S. Sentencing Commission surveyed defendants whose records and offense conduct were similar to Dautovic’s....  Dautovic’s offense conduct involved aggravating circumstances, including the use of a dangerous weapon, the physical restraint of Bonds during the course of the beating, and the infliction of serious injury.  Moreover, acting under the color of law, Dautovic tried to conceal his wrongdoing by falsifying a police report and lying under oath.

When the totality of the circumstances is considered, a variance from the Guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is unreasonably lenient.  The district court erred in weighing the § 3553(a) factors and abused its discretion in varying downward to the extent that it did.

August 14, 2014 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, August 12, 2014

"Waking the Furman Giant"

The title of this post is the title of this notable and timely new article by Sam Kamin and Justin F. Marceau available via SSRN. Here is the abstract:

In its 1972 Furman v. Georgia decision, the Supreme Court — concerned that the death penalty was being imposed infrequently and without objectively measurable criteria — held that the penalty violated the Eighth Amendment to the Constitution. In the four decades since Furman there has been considerable Eighth Amendment litigation regarding capital punishment, but almost none of it has focused on the Court’s concern with arbitrariness and infrequency. But this may be about to change. With a growing body of quantitative data regarding the low death sentencing rates in several states, Furman is poised to return to center stage. While previous challenges attacked the form of various state capital statutes, new empirical data is leading condemned inmates to challenge the application of state sentencing statutes.

This article announces the return of Furman — a splintered opinion that nonetheless remains binding precedent 42 years after it was decided — and provides a reading of that case that can guide courts as they consider the latest round of challenges to the application of capital punishment. A careful revisiting of Furman is necessary and overdue because the critical underpinnings of American death penalty jurisprudence — narrowing, eligibility, and individualization — are currently being conflated, or forgotten altogether by both courts and capital litigants. This Article, is a timely guidepost for the inevitable next wave of Furman litigation.

August 12, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Eleventh Circuit finds probation sentence for public corruption substantively unreasonable

All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:

“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) [1781].  And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.

In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments.  For the reasons which follow, we hold that such a sentence was indeed unreasonable.

Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion.  Here is how it gets started (with footnotes omitted):

I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed.  In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing.  The truth is that it was the Government’s doing.  To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence.  This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.

In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error.  To the contrary, it accepts the fictitious Guideline range the court adopted.  All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable.  Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal.  Yet the court fails to acknowledge that a procedural error has occurred.  Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error.  I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.

In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue.  Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief.  Part IV concludes.

August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, August 05, 2014

Another round of heated debate over guilt of executed Cameron Todd Willingham

CNN has this lengthy new article reviewing some new developments in the long-running debate over the prospect that Texas killed an innocent man when it executed Cameron Todd Willingham in February 2004.  Here are excerpts from the CNN piece:

More than a decade after his execution, Cameron Todd Willingham is still a pawn in the debate over the death penalty.

Opponents of capital punishment say Willingham's is a clear case of an inmate being wrongfully executed, while the original prosecutor and state of Texas have been steadfast in their assertion that Willingham should be no one's cause célèbre.

"Willingham was a psychopathic killer who murdered his three children," John H. Jackson, the former Navarro County prosecutor who handled the case in 1992, wrote in an e-mail. "He submitted to a polygraph with predictable results, he confessed the murders to his wife, the trial evidence established two prior incidents when he tried to kill his children in utero by vicious attacks on his wife."

Willingham was executed in February 2004 after being found guilty in an arson that killed his children, 2-year-old Amber and 1-year-old twins Karmon and Kameron.  His family has fought to have his name cleared ever since.

The Innocence Project filed a grievance Monday with the State Bar of Texas, asking that it investigate the now-retired prosecutor.  The grievance alleges Jackson "fabricated and concealed evidence," including documents indicating that a jailhouse informant received special treatment in exchange for his testimony, which Jackson and the informant both claimed was not true during the original trial....

A story in The Washington Post on Sunday, written by the Marshall Project, a journalistic group focusing on criminal justice matters, said Willingham's case is especially important to death penalty opponents because it could provide the first case showing "conclusively that an innocent man was put to death in the modern era of capital punishment."...

Appellate courts, including the Supreme Court, declined to stop Willingham's execution, yet in his final words, he claimed to be "an innocent man convicted of a crime I did not commit." Since his conviction, the science employed by investigators to determine that the fatal fire was an arson, as well as a post-conviction claim by his ex-wife, Stacy Kuykendall, that Willingham confessed to her, have been matters of debate.

The Marshall Project story reports that informant Johnny Webb, whose testimony was integral to convicting Willingham, now says he lied on the witness stand in exchange for favors from Jackson. The story also alleges that correspondence between Jackson and Johnny Webb indicate the two were in cahoots. Jackson told CNN the letters are being misconstrued....

Little seems certain in Willingham's case, outside the fact that death penalty opponents and proponents staunchly disagree over his guilt. Disagreement has been a mark of the case, as Willingham's own defense attorney told CNN in 2009 that he thought his client was guilty, while one of the jurors who convicted him expressed doubts.

Texas Gov. Rick Perry has defended his decision not to stay Willingham's execution, calling him a "monster." Meanwhile, Innocence Project Co-Director Barry Scheck said in the Monday news release that not only should the verdict be called into question, but so should the man who prosecuted Willingham.

The new Marshall Project report on the Willingham case is available at this link, and Kent Scheidegger at Crime & Consequences has collected his writing about the case in this new post.

August 5, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, August 04, 2014

Check your local PBS listings for "15 to Life: Kenneth's Story"

1234959_719906504692104_315759303_nPremiering this week on PBS stations is this new documentary titled "15 to Life: Kenneth's Story." The documentary discusses life without parole sentences for juvenile offenders with a focus on a Florida defendant, Kenneth Young, who at age 15 received four consecutive life sentences for a series of armed robberies. Here is part of the description of the film from this PBS website:

In June 2000, 14-year-old Kenneth Young was convinced by a 24-year-old neighborhood crack dealer — Kenneth's mother's supplier — to join him on a month-long spree of four armed robberies.  The older man planned the Tampa, Fla. heists and brandished the pistol— and, on one occasion, he was talked out of raping one of the victims by his young partner.  Fortunately, no one was physically injured during the crimes, although the trauma that resulted was immeasurable.

When they were caught, Kenneth didn't deny his part.  It was his first serious scrape with the law.  But at 15, he was tried under Florida law as an adult.  Astoundingly, he received four consecutive life sentences — guaranteeing that he would die in prison.  15 to Life: Kenneth's Story follows the young African-American man’s battle for release, after more than 10 years of incarceration, much of it spent in solitary confinement.  The film is also a disturbing portrait of an extraordinary fact: The United States is the only country in the world that condemns juveniles to life without parole.

Kenneth’s sentence was not a rarity.  As 15 to Life shows, there are more than 2,500 juveniles serving life sentences in the United States for non-lethal crimes, as well as for murder.  In the 1990s, many states reacted to a rise in violent youth crimes by amending their laws to allow more juveniles to be tried as adults.  Then, in 2010, the U.S. Supreme Court ruled in Graham v. Florida that life sentences for juveniles convicted of crimes other than murder were unconstitutional.  That made 77 Florida inmates, including Kenneth, eligible for early release.  But how would the Florida courts, historically in favor of juvenile life sentences, apply the Supreme Court decision to a decade-old case?...

At the core of the story, of course, stands Kenneth, now 26, who is candid about his crimes.  He says he has followed a path of self-improvement and is remorseful for what he did, even as he remains flabbergasted about his punishment.  (Oddly enough, in a separate trial, Jacques Bethea, the older man who organized the robberies and who carried the gun, received a single life sentence.)

At his hearing for a reduced sentence, Kenneth tells the court, "I have lived with regret every day ... I have been incarcerated for 11 years and I have taken advantage of every opportunity available for me in prison to better myself ... I am no longer the same person I used to be.  First Corinthians, Chapter 13, Verse 11 says: 'When I was a child I thought as a child.  When I became a man I put away all childish things.'  I want to turn around and apologize to my victim for what I did."

Kenneth's plight elicits mixed reactions.  While some of his victims are inclined to see him let go, others, along with the prosecutor, defend the original punishment.  Kenneth's contention that the older man coerced his cooperation by threatening his mother is dismissed, because he didn't speak up as a 15-year-old at his original trial.  And arguments that Kenneth's new sentence should take into account his rehabilitation may not convince this Florida court.

UPDATE A helpful reader noted that through September 3, folks can view the program online at the PBS website here.

August 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Film, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Sixth Circuit reverses federal forced labor conviction based on ordering kids to do household chores

The Sixth Circuit this morning handed down a fascinating ruling in a case which reinforces my fear that that modern federal prosecutors may often have too much discretionary criminal justice power as well as my optimism that a wise modern judiciary can and will often play a critical role in checking that power.  The unanimous panel opinion in US v. Toviave, No. 13-1441 (6th Cir. Aug. 4, 2014) (available here), starts and ends this way:

Child abuse is a state crime, but not a federal crime. Forced labor is a federal crime, 18 U.S.C. § 1589, but the statute obviously does not extend to requiring one’s children to do their homework, babysit on occasion, and do household chores. Only by bootstrapping can this combination of two actions that are not federal crimes — child abuse and requiring children to do household chores — be read as a federal crime.

Defendant Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry.  He also occasionally made the children babysit for his girlfriend and relatives.  Toviave would beat the children if they misbehaved or failed to follow one of Toviave’s many rules.  While his actions were deplorable, Toviave did not subject the children to forced labor.  The mere fact that Toviave made the children complete chores does not convert Toviave’s conduct — what essentially amounts to child abuse — into a federal crime.  Toviave’s federal forced labor conviction must accordingly be reversed....

[V]ictims in the other [discussed forced labor] cases were denied almost all contact with the outside world.  The evidence in this case shows that the children attended school, spent time with relatives and Toviave’s friends, engaged in recreational activities, and went on vacations with Toviave.  The children also interacted with teachers, classmates, and teammates on sports teams.  Viewing the evidence favorably to the government, it is true that the children probably did not have the same freedom as many other children.  For example, Toviave did not let the children have friends over, go to sleep-overs, or freely use the phone.  But their isolation was not nearly as severe as the victims in other forced labor cases.  Finally, we have found no other cases where the government convicted a victim’s relative of forced labor.  This absence is likely explained by the difficulty of drawing a line between what amounts to forced labor and what are widely accepted childrearing practices in the context of a familial relationship where the labor at issue consists entirely of household chores.

The line between required chores and forced labor may be a fine one in some circumstances, but that cannot mean that all household chores are forced labor, with only the discretion of prosecutors protecting thoughtful parents from federal prosecution.  The facts of this case fall on the chores side of the line.

Because the Government did not present sufficient evidence of forced labor, we need not reach the other issues in this case.  Toviave’s convictions for forced labor are REVERSED.

August 4, 2014 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Will any Justices express any concerns about drug secrecy after third ugly execution?

ImagesThe question in the title of this post is prompted by this new AP article headlined "Justices silent over execution drug secrecy." Here are excerpts:

No one on the Supreme Court objected publicly when the justices voted to let Arizona proceed with the execution of Joseph Wood, who unsuccessfully sought information about the drugs that would be used to kill him.

Inmates in Florida and Missouri went to their deaths by lethal injection in the preceding weeks after the high court refused to block their executions. Again, no justice said the executions should be stopped.

Even as the number of executions annually has dropped by more than half over the past 15 years and the court has barred states from killing juveniles and the mentally disabled, no justice has emerged as a principled opponent of the death penalty.

This court differs from some of its predecessors. Justices William Brennan and Thurgood Marshall dissented every time their colleagues ruled against death row inmates, and Justices Harry Blackmun and John Paul Stevens, near the end of their long careers, came to view capital punishment as unconstitutional. "They're all voting to kill them, every so often. They do it in a very workmanlike, technocratic fashion," Stephen Bright, a veteran death penalty lawyer in Georgia, said of the current court.

Wood's execution on July 23 was the 26th in the United States this year and the third in which prisoners took much longer than usual to die. Wood, convicted of killing his estranged girlfriend and her father, was pronounced dead nearly two hours after his execution began, and an Associated Press reporter was among witnesses who said Wood appeared to gasp repeatedly, hundreds of times in all, before he died.

Justice Ruth Bader Ginsburg said she and her colleagues are aware of what happened in Arizona, though she declined to say how the court would rule on a plea to stop the next scheduled execution -- of Michael Worthington on Wednesday in Missouri. "Your crystal ball is as good as mine," she said last week in an interview with The Associated Press.

The court's rejection of Wood's claim that he was entitled to learn more about Arizona's procedures and the source of the execution drugs came at the end of protracted legal wrangling. A federal judge in Arizona initially denied Wood's claim. The federal appeals court in San Francisco then granted a reprieve. But the justices reversed that ruling in a brief order. The court said the judge who initially ruled against Wood "did not abuse his discretion."...

The substance of capital punishment issues usually finds its way in front of the justices when there is no time pressure. In January, the court heard arguments in a case over a Florida law that used a rigid threshold in intelligence test scores in cases of borderline mental disability. In late May, a five-justice majority led by Anthony Kennedy struck down the law because it "contravenes our nation's commitment to dignity."

The soaring language that Kennedy often favors in his opinions has led some death penalty experts to believe that he eventually will provide the fifth vote, along with those of the court's four liberal justices, to end or severely restrict the use of the death penalty. "It is impossible to reconcile that language with the secrecy surrounding lethal injections," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. "My assumption is quite a lot is happening behind the scenes."

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. "When a stay is denied, it doesn't mean we are in fact unanimous," she said.

Still, Ifill said the court's unwillingness so far to deal with states' reluctance to reveal much about the provenance of lethal injection drugs is troubling. "I'm disappointed after all the revelations that at least some justices weren't prepared to say something pretty strong," she said.

The old saying, "Third time's a charm," has me inclined to predict that we may end up hearing from at least one Justice or two concerning execution drug secrecy the next time this issue is effectively raised before the Supreme Court. Whether that occurs this week on later this year, I suspect this issue will have some legs if states continue to have to experiment with new execution drug protocols and continue to preclude capital defendants from knowing all the experimental details.

A few recent related posts:

August 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Saturday, August 02, 2014

"Swift, Certain, and Fair Punishment — 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders"

The title of this post is the title of this notable new article by Paul Larkin of The Heritage Foundation available via SSRN.  Here is the abstract:

Local and state government officials in South Dakota and Hawaii have implemented a creative way to address some of the problems stemming from alcohol and drug use. The South Dakota 24/7 Sobriety program and Hawaii’s Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices.  Criminologists, both old and contemporary, have believed that the certainty and celerity of punishment are more effective components of deterrence than is the severity of a penalty.  In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate punishment is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road.

South Dakota and Hawaii have developed innovative programs to deal with substance use and noncompliance with the conditions of supervision.  Both programs address this problem. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce.  Hawaii has independently developed and followed a similar approach to the use of drugs and crime, subjecting certain offenders to rigorous, random drug urinalysis punished by the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims and society.

August 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, July 31, 2014

Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant

The Sixth Circuit today has reinforced its reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling in US v. Musgrave, No. 13-3872 (6th Cir. July 31, 2014) (available here).  Because post-Booker appellate sentence reversals are rare, this relatively short opinion is a must read for everyone who following federal sentencing law and policy closely.  In addition, at a time when debates over white-collar sentencing rules and practices remain hot, all those who follow white-collar crime and punishment will want to be sure to check out this opinion as well.

Here is how the Musgrave opinion starts and finishes:

A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud.  The district court sentenced him to one day of imprisonment with credit for the day of processing — a downward variance from his Guidelines range of 57 to 71 months’ imprisonment and below the government’s recommendation of 30 months’ imprisonment.  On appeal, the government asserts that Musgrave’s one-day sentence is substantively unreasonable.  For the following reasons, we vacate the district court’s sentence and remand for resentencing....

A defendant’s sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(2).  In imposing a sentence, the district court must explain, based on permissible considerations, how its sentence “‘meshe[s] with Congress’s own view of the crimes’ seriousness.’” United States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (quoting United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008)).  The collateral consequences of the defendant’s prosecution and conviction are “impermissible factors” when fashioning a sentence that complies with this directive.  Peppel, 707 F.3d at 636.  A district court’s reliance on these factors “does nothing to show that [the defendant’s] sentence reflects the seriousness of his offense. Were it otherwise, these sorts of consequences— particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” United States v. Bistline, 665 F.3d 758, 765–66 (6th Cir. 2012).  Thus, when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment.  See Peppel, 707 F.3d at 636; Bistline, 665 F.3d at 765–66.

Impermissible considerations permeated the district court’s justification for Musgrave’s sentence.  In imposing a sentence of one day with credit for the day of processing, the district court relied heavily on the fact that Musgrave had already “been punished extraordinarily” by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life.  “[N]one of these things are [his] sentence.  Nor are they consequences of his sentence”; a diminished sentence based on considerations does not reflect the seriousness of his offense or effect just punishment.  Bistline, 665 F.3d at 765.  On remand, the district court must sentence Musgrave without considering these factors....

In the context of white-collar crime, we have emphasized that “it is hard to see how a one-day sentence” would “serve the goals of societal deterrence.” Davis, 537 F.3d at 617.  “‘Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence.’” Peppel, 707 F.3d at 637 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006)); see also Davis, 537 F.3d at 617.

Consideration of general deterrence is particularly important where the district court varies substantially from the Guidelines.  See, e.g., Aleo, 681 F.3d at 300 (explaining that the greater the variance, the more compelling the justification based on the § 3553(a) factors must be).  This is even truer here, given that the crimes of which Musgrave was convicted are especially susceptible to general deterrence and the fact that there is a general policy favoring incarceration for these crimes.  Indeed, “[o]ne of the central reasons for creating the sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to eliminate disparities between white-collar sentences and sentences for other crimes.” Davis, 537 F.3d at 617.  More importantly, Congress understood white-collar criminals to be deserving of some period of incarceration, as evidenced by its prohibition on probationary sentences in this context.  Id.  Where a district court’s view of a particular crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we expect that it will explain how its sentence nevertheless affords adequate general deterrence.  Id.; Camiscione, 591 F.3d at 834.  The district court failed to do so here.

Musgrave must be resentenced.  The district court relied on impermissible considerations and failed to address adequately how what amounted to a non-custodial sentence afforded adequate general deterrence in this context. Nevertheless, it bears repeating that “[w]hile appellate courts retain responsibility for identifying proper and improper sentencing considerations after Booker, it is not our task to impose sentences in the first instance or to second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.”  Davis, 537 F.3d at 618 (citing United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)). The district court’s sentence is vacated, and the case is remanded for the district court, in its discretion, to impose a sentence sufficient but not greater than necessary to serve the § 3553(a) factors.

I view the main message of this Musgrave case, along with other cited cases in which the Sixth Circuit has reversed similar one-day sentences on appeal, that the Sixth Circuit generally believe that at least a short period of incarceration is nearly essential for any serious crime for which the guidelines recommend years of incarceration even if the defendant is a relatively sympathetic first offender not likely to re-offend.

July 31, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0) | TrackBack

Wednesday, July 30, 2014

After another ugly execution, will Missouri and Texas have any difficulties keep up monthly execution plans?

Recent troubled executions in Ohio, then Oklahoma, and most recently Arizona have seemingly contributed at least somewhat to a slowed pace of executions nationwide throughout 2014.  Nevertheless, Missouri and Texas have, so far, successfully completed scheduled executions on a pace of nearly one per month throughout out 2014.  In addition, as this DPIC list of scheduled executions spotlights, the next five serious executions dates over the next few months are in Missouri and Texas (with 2 and 3 slated executions, respectively, scheduled in the next seven weeks).

While I am sure national advocacy organizations will continue to make calls for abolition of the death penalty due to the trio of recent ugly executions in other states, I am not sure if this advocacy makes one whit of impact on key capital decision-makers in Missouri and Texas.  Time will tell if the abolistionist advocacy is really aided by all the ugly executionsin 2014, and the places for everyone to be watching most closely in the short term are the Show Me and Lone Star states. 

July 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, July 28, 2014

"The Injustice of Marijuana Arrests"

The title of this post is the headline of this latest editorial in the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here).  This lengthy editorial is authored by Jesse Wegman, and here are excerpts:

America’s four-decade war on drugs is responsible for many casualties, but the criminalization of marijuana has been perhaps the most destructive part of that war. The toll can be measured in dollars — billions of which are thrown away each year in the aggressive enforcement of pointless laws.  It can be measured in years — whether wasted behind bars or stolen from a child who grows up fatherless.  And it can be measured in lives — those damaged if not destroyed by the shockingly harsh consequences that can follow even the most minor offenses.

In October 2010, Bernard Noble, a 45-year-old trucker and father of seven with two previous nonviolent offenses, was stopped on a New Orleans street with a small amount of marijuana in his pocket.  His sentence: more than 13 years. At least he will be released. Jeff Mizanskey, a Missouri man, was arrested in December 1993, for participating (unknowingly, he said) in the purchase of a five-pound brick of marijuana.  Because he had two prior nonviolent marijuana convictions, he was sentenced to life without parole.

Outrageously long sentences are only part of the story.  The hundreds of thousands of people who are arrested each year but do not go to jail also suffer; their arrests stay on their records for years, crippling their prospects for jobs, loans, housing and benefits. These are disproportionately people of color, with marijuana criminalization hitting black communities the hardest.

Meanwhile, police departments that presumably have far more important things to do waste an enormous amount of time and taxpayer money chasing a drug that two states have already legalized and that a majority of Americans believe should be legal everywhere....

Nationwide, ... [f]rom 2001 to 2010, the police made more than 8.2 million marijuana arrests; almost nine in 10 were for possession alone.  In 2011, there were more arrests for marijuana possession than for all violent crimes put together.

The costs of this national obsession, in both money and time, are astonishing. Each year, enforcing laws on possession costs more than $3.6 billion, according to the American Civil Liberties Union. It can take a police officer many hours to arrest and book a suspect.  That person will often spend a night or more in the local jail, and be in court multiple times to resolve the case.  The public-safety payoff for all this effort is meager at best: According to a 2012 Human Rights Watch report that tracked 30,000 New Yorkers with no prior convictions when they were arrested for marijuana possession, 90 percent had no subsequent felony convictions. Only 3.1 percent committed a violent offense.

The strategy is also largely futile.  After three decades, criminalization has not affected general usage; about 30 million Americans use marijuana every year.  Meanwhile, police forces across the country are strapped for cash, and the more resources they devote to enforcing marijuana laws, the less they have to go after serious, violent crime. According to F.B.I. data, more than half of all violent crimes nationwide, and four in five property crimes, went unsolved in 2012.

The sheer volume of law enforcement resources devoted to marijuana is bad enough. What makes the situation far worse is racial disparity.  Whites and blacks use marijuana at roughly the same rates; on average, however, blacks are 3.7 times more likely than whites to be arrested for possession, according to a comprehensive 2013 report by the A.C.L.U.

While the number of people behind bars solely for possessing or selling marijuana seems relatively small — 20,000 to 30,000 by the most recent estimates, or roughly 1 percent of America’s 2.4 million inmates — that means nothing to people, like Jeff Mizanskey, who are serving breathtakingly long terms because their records contained minor previous offenses....

Even if a person never goes to prison, the conviction itself is the tip of the iceberg. In a majority of states, marijuana convictions — including those resulting from guilty pleas — can have lifelong consequences for employment, education, immigration status and family life. A misdemeanor conviction can lead to, among many other things, the revocation of a professional license; the suspension of a driver’s license; the inability to get insurance, a mortgage or other bank loans; the denial of access to public housing; and the loss of student financial aid....

As pioneers in legalization, [Colorado and Washington] should set a further example by providing relief to people convicted of crimes that are no longer crimes, including overturning convictions.  A recent ruling by a Colorado appeals court overturned two 2011 convictions because of the changed law, and the state’s Legislature has enacted laws in the last two years to give courts more power to seal records of drug convictions and to make it easier for defendants to get jobs and housing after a conviction.  These are both important steps into an uncharted future.

July 28, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice

VACATEweb-master675Regular readers are likely familiar with the remarkable series of opinions issued by US District Judge John Gleeson in which he has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. But, as reported in this New York Times piece, headlined "Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose," Judge Gleeson's latest opinion discusses how federal prosecutors ultimately aided his efforts to undo an extreme mandatory minimum sentence. Here are the basics:

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”...

Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.

For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.

None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.)...

At a hearing on the Holloway case this month, an assistant United States attorney, Sam Nitze, said that “this is both a unique case and a unique defendant,” citing his “extraordinary” disciplinary record and his work in prison. Also, he said, three of Mr. Holloway’s carjacking victims have said that the 20 years that Mr. Holloway had served in prison was “an awfully long time, and people deserve another chance.” Mr. Nitze agreed to vacate the two convictions, while emphasizing that this should not be taken as indicative of Ms. Lynch’s view on the stacking provision in other cases.

In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”

Judge Gleeson's full 11-page opinion in Holloway v. US, No. 01-CV-1017 (E.D.N.Y. July 28, 2014)(available for download below), is a must-read for lots of reasons. The opinion is not be easily summarized, but this part of its conclusion provide a flavor of what comes before:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing.  By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts.  He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....

This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....

A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway.  Some will satisfy the criteria for Department of Justice support, while others will not.  In any event, there’s no good reason why all of them must end up in the clemency bottleneck.  Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced.  Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.

Download Holloway Memo FILED 7-28-14

July 28, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Fascinating Fourth Circuit split over how federal sentencing problems should inform guideline interpretation

I just noticed a notable ruling by a split Fourth Circuit panel from late last week in US v. Valdovinos, No. 13-4768 (4th Cir. July 25, 2014) (available here). The precise legal issue concerning guideline interpretation in Valdovinos is not all that compelling, but how the judges dispute the right way to resolve the issue surely is.  Here is how the panel majority opinion (running 18 pages) concludes:

For the foregoing reasons, we hold that North Carolina’s legislatively mandated sentencing scheme, not a recommended sentence hashed out in plea negotiations, determines whether an offender’s prior North Carolina conviction was punishable by more than a year in prison.  Because Valdovinos’s offense of conviction was indeed punishable by imprisonment exceeding one year, it qualifies as a predicate felony under Section 2L1.2(b)(1)(B) of the Guidelines [thereby enhancing his sentence].  We appreciate the fervor and policy arguments of our friend in dissent.  Indeed, we can agree with many of the latter.  What we cannot agree with is that “application of relevant precedent” does not require the result here.  Carachuri and Simmons do just that.  The judgment of the district court is affirmed.

Here is how Judge Davis's remarkable dissenting opinion (running 30 pages) gets revved up and concludes (emphasis in the original):

Our disagreement as to the outcome in this case stems, I think, less over the content and application of relevant precedent and more from a fundamental disagreement regarding our role as arbiters of a flailing federal sentencing regime.  Where, as here, we have been presented with a choice in how to interpret the interstices of federal sentencing law, and where one choice would exacerbate the harmful effects of over-20 incarceration that every cadre of social and political scientists (as well as an ever-growing cohort of elected and appointed officials, state and federal, as well as respected members of the federal judiciary) has recognized as unjust and inhumane, as well as expensive and ineffectual, this insight can and should inform our analysis.  I deeply regret the panel’s failure to take advantage of the opportunity to do so here....

Here, in a tiny corner of the chaotic morass that is federal sentencing law, Mr. Valdovinos has offered us a measured approach, to a novel issue of federal sentencing law, that adheres to Supreme Court and our relevant circuit precedents and is consistent with our values. If accepted by this panel, his argument, which is surely more than merely “clever”, see ante, at 8, would affect a tiny number of federal cases drawing legal relevance from North Carolina’s historical (and now superseded) sentencing regime. And Mr. Valdovinos’s sentence in this case likely would be reduced to a bottom guideline of 15 months, instead of the bottom guideline sentence he received, 27 months.  He’d soon be on his way home to Mexico, if not already arrived.

That the majority declines the opportunity to decide this case on the foundations discussed herein is regrettable, a choice that not only ignores the growing wisdom informed by widespread acknowledgement of our unjust federal sentencing jurisprudence, but actually hinders its progress.  Would that my friends could see that it’s a new century, complete with a host of profound and valuable insights at our avail.  I discern no compelling reason why, in the performance of our adjudicative responsibilities, which every member of the panel has unfailingly carried out to the best of our ability in this case and in full accordance with our solemn oath to “administer justice,” 28 U.S.C. § 453, we ought not to draw on these insights.

One of them is that sometimes, in our shared quest for justice under law, it requires so little of us to achieve so much.  Respectfully, I dissent.

July 28, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

"Are Opponents Of The Death Penalty Contributing To Its Problems?"

The question in the title of this post is the headline of this notable recent NPR story.  Here are excerpts:

Kevin Cooper was convicted of murdering a married couple and two children, and was sentenced to die. That was back in 1985. Cooper is still awaiting execution on California's death row.

San Bernardino County District Attorney Michael Ramos, who is handling the case, blames the long delay on Cooper's multiple appeals in state and federal courts. "This is all a big strategic plan to really manipulate the system to attack capital punishment, not just in California, but in the United States," Ramos says.

The death penalty is under considerable pressure, both from court decisions and a series of problematic executions, including one this week in Arizona. Six states have abolished the death penalty over the past seven years. Death penalty supporters such as Ramos say this is no accident. They believe opponents intentionally toss sand in the gears of the execution process, and then complain that the system doesn't work. "It's a delaying tactic that then allows them to scream it's unconstitutional because it's been delayed too long," Ramos says.

Defense attorneys dismiss this as nonsense. The problems with the death penalty, they say, were not created by its opponents. "It's not the defense attorneys who are holding executions up," says Deborah Denno, a law professor at Fordham University. "Not by a long shot."...

Last week, U.S. District Judge Cormac Carney found California's system of capital punishment unconstitutional because executions are delayed for too long and are "arbitrary" in terms of which condemned prisoners are ever actually executed. Death penalty supporters argue that it's the killers — and their attorneys — causing most of the delays.

"Having done everything they can to cause the problem, they decry the problem," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, which defends victims' rights.

But many of the delays aren't caused by defense attorneys, rather the very lack of them, Denno says. In California, it can take years for a condemned prisoner even to be appointed counsel, and years more to wait for what is known as a post-conviction hearing.

"Even before a case gets to federal court, there's often more than 10 years of delays built into the system that don't have anything to do with what's brought from the defense," says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, Mo., which defends the condemned....

In addition to traditional questions regarding innocence and adequacy of counsel, defense attorneys now will typically challenge a state's method of execution. Lethal injections, which for years had a more anodyne reputation than gas chambers or the electric chair, have become problematic in and of themselves....

Scheidegger, the foundation attorney, says death penalty opponents, having successfully promoted lethal injections at the expense of older methods by portraying it as more humane, are now undermining states' use of drugs through their legal challenges.

Recent related posts on the California capital ruling by US District Judge Carney:

July 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, July 23, 2014

After SCOTUS vacates First Amendment stay, Arizona Supreme Court delays execution

As reported in this new AP story, after the US Supreme Court late yesterday vacated the novel stay imposed by the Ninth Circuit based on lethal injection drug secrecy concern, "Arizona's highest court on Wednesday temporarily halted the execution of a condemned inmate so it could consider a last-minute appeal."  Here is more:

Joseph Rudolph Wood, 55, was scheduled to be put to death Wednesday morning at the state prison in Florence, but that was delayed when the Arizona Supreme Court said it would consider whether he received inadequate legal representation at his sentencing. The appeal also challenges the secrecy of the lethal injection process and the drugs that are used.

The state Supreme Court could still allow the execution to move forward later Wednesday once it considers the arguments.

The U.S. Supreme Court on Tuesday cleared the way for Arizona to carry out its third execution in the last year following a closely watched First Amendment fight over the secrecy issue. Wood's lawyers used a new legal tactic in which defense attorneys claim their clients' First Amendment rights are being violated by the government's refusal to reveal details about lethal injection drugs. Wood's lawyers were seeking information about the two-drug combination that will be used to kill him, including the makers of the drugs.

A federal appeals court ruled in Wood's favor before the U.S. Supreme Court put the execution back on track. The 9th U.S. Circuit Court of Appeals decision marked the first time an appeals court has acted to delay an execution based on the issue of drug secrecy....

Wood was sentenced to death for killing Debra Dietz and her father, Eugene Dietz, in 1989 at the family's automotive shop in Tucson.... On the day of the shooting, Wood went to the auto shop and waited for Dietz's father, who disapproved of his daughter's relationship with Wood, to get off the phone. Once the father hung up, Wood pulled out a revolver, shot him in the chest and then smiled. Wood then turned his attention toward Debra Dietz, who was trying to telephone for help. Wood grabbed her by the neck and put his gun to her chest. She pleaded with him to spare her life. An employee heard Wood say, "I told you I was going to do it, I have to kill you." He then called her an expletive and fired two shots in her chest....

Arizona has executed 36 inmates since 1992. The two most recent executions occurred in October.... The fight over the Arizona execution has also attracted attention because of a dissenting judge's comments that made a case for a firing squad as a more humane method of execution.

Recent related posts:

July 23, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack