Monday, February 16, 2015

Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences

As reported in this AP piece, headlined "Federal prosecutors want same sentences in Amish beard-cutting case when they are resentenced," the feds are claiming that the reversal on appeal of the most-serious charges against a group of Amish defendants (details here) should not impact their sentence one whit.  Here are the details:

Sixteen Amish men and women whose hate crime convictions in beard- and hair-cutting attacks were overturned still should receive the same sentences, federal prosecutors told a judge who will resentence the group.

The members of the eastern Ohio Amish group are scheduled to be resentenced March 2 after the 6th U.S. Circuit Court of Appeals overturned only their hate crimes convictions. New sentences are required because the original sentences were based both on hate crimes convictions and convictions on other charges but did not differentiate between them.

The attacks were in apparent retaliation against Amish who had defied or denounced the authoritarian style of Sam Mullet Sr., leader of the Bergholz community in eastern Ohio. The U.S. Attorney's Office, in a court filing on Friday, said Mullet should be resentenced to 15 years for concealing evidence and making false statements to the FBI. Both of those charges were not overturned.

The other defendants should also be given the same lesser sentences. Those defendants who have already been released should be sentenced to time served, the prosecutors said.

Prosecutors argued that the conduct that led to the hate crime charges, which included kidnapping, should still be considered even if the defendants are no longer convicted of a hate crime.

Defense attorneys are expected to file their response next week.

I am neither surprised or troubled that the feds want the same sentences imposed on the less culpable defendants who have already finished serving their prison time. But I struggle to see how urging the same exact sentence for Sam Mullet Sr. despite reversal of the most serious convictions against him serves to "promote respect for the law" as 18 USC 3553(a)(2)(A) requires.

Related prior posts:

February 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, February 15, 2015

"Procedural Proportionality"

The title of this post is the title of this notable new paper by William Berry III now available via SSRN. Here is the abstract:

Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment.  Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.

Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases.  Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.

February 15, 2015 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 13, 2015

Pennsylvania Gov declares moratorium on state death penalty

As reported in this local piece, headlined "Gov. Tom Wolf declares moratorium on death penalty in Pa.," there is some headline-making news about capital punishment administration emerging from the Keystone State: 

Gov. Tom Wolf declared a moratorium Friday on the death penalty in Pennsylvania, potentially halting the process for 186 prisoners who've received a death sentence. Since 1693, the commonwealth has executed 1,043 prisoners, the last of which was Philadelphia torture killer Gary Heidnik in 1999. That execution took place, in large part, because Heidnik gave up his right to appeal.

In a statement released Friday, Wolf said the state's current death penalty is "a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive."...

Wolf's first action was a temporary reprieve to Terrance Williams, who was scheduled to be executed on March 4. Williams was convicted of two murders he committed as a teenager in 1984. "Today's action comes after significant consideration and reflection," Wolf said. "This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes."

Shortly after Wolf's announcement, Sen. Daylin Leach, D-Montgomery, said he reintroduced his bill Friday to abolish the death penalty altogether. "I am extremely grateful that our governor will stop spending our tax dollars to, in the words of former US Supreme Court Justice Harry Blackmun, tinker with the machinery of death," he said, in a written statement.

Gov. Wolf's detailed four-page statement justifying his decision today is a fascinating read (which I am going to make my sentencing students read and re-read). The full statement is available at this link, and here are excerpts:

Pursuant to authority granted in Article IV, § 9 of the Constitution of Pennsylvania, I am today exercising my power as Governor to grant a temporary reprieve to inmate Terrence Williams. A death warrant for this case was signed on January 13, 2015 by my predecessor, acting pursuant to Section 4302 of the Pennsylvania Prisons and Parole Code. The execution was scheduled for March 4, 2015.

The reprieve announced today shall remain in effect until I have received and reviewed the forthcoming report of the Pennsylvania Task Force and Advisory Committee on Capital Punishment (established under Senate Resolution 6 of 2011), and any recommendations contained therein are satisfactorily addressed. In addition, it is my intention to grant a reprieve in each future instance in which an execution is scheduled, until this condition is met....

There are currently 186 individuals on Pennsylvania’s death row. Despite having the fifth largest death row in the nation, the death penalty has rarely been imposed in modern times. In the nearly forty years since the Pennsylvania General Assembly reinstated the death penalty, the Commonwealth has executed three people, all of whom voluntarily abandoned their right to further due process.

In that same period, Governors have signed 434 death warrants. All but the three noted above have subsequently been stayed by a court. One inmate has been scheduled for execution six times, each of which has been cancelled due to a state or federal appeal. Two inmates have remained on death row for more than three decades. This unending cycle of death warrants and appeals diverts resources from the judicial system and forces the families and loved ones of victims to relive their tragedies each time a new round of warrants and appeals commences. The only certainty in the current system is that the process will be drawn out, expensive, and painful for all involved.

While the pace of the process frustrates some, the fail-safes of appellate review are essential in avoiding a catastrophic miscarriage of justice. Since reinstatement of the death penalty, 150 people have been exonerated from death row nationwide, including six men in Pennsylvania....

If the Commonwealth of Pennsylvania is going to take the irrevocable step of executing a human being, its capital sentencing system must be infallible. Pennsylvania’s sy stem is riddled with flaws, making it error prone, expensive, and anything but infallible....

[A]administering the death penalty, with all the necessary legal appeals and safeguards as well as extra security and individual cells on death row, is extremely expensive. A recent analysis conducted by the Reading Eagle estimates that the capital justice apparatus has cost taxpayers at least $315 million, but noted that this figure was very likely low. Other estimates have suggested the cost to be $600 million or more. The Commonwealth has received very little, if any, benefit from this massive expenditure.

February 13, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, February 11, 2015

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders.  Here is how the majority opinion concludes: 

We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution.  Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution.  We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.

Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:

When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....

The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.

 

Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.

February 11, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, February 10, 2015

Two notable Second Circuit opinions upholding aggravated sentencing decisions

A helpful reader alerted me to two Second Circuit sentencing decisions handed down this morning. Though neither seems all that ground-breaking, both still strike me a blogworthy.  Here are links to the rulings along with an excerpt from the start of the opinions:

United States v. Morrison, No. 14-485 (2d Cir. Feb. 10, 2015) (available here):

Defendant-Appellant Shane Morrison appeals from a February 6, 2014 judgment of the United States District Court for the Eastern District of New York (Wexler, J.) sentencing Morrison to, inter alia, eighteen months’ imprisonment following his guilty plea to one count of conspiracy to distribute cocaine.  Morrison argues that 18 U.S.C. § 3153(c) bars the district court’s reliance on positive results on drug tests administered by the Pretrial Services Agency (“pretrial services”) to enhance his term of imprisonment.  Because the district court did not violate § 3153(c) by relying on the information from pretrial services in determining Morrison’s sentence, we affirm the judgment.

United States v. Cramer, No. 14-761 (2d Cir. Feb. 10, 2015) (available here):

Defendant Thomas Cramer appeals from a judgment of conviction and sentence of 360 months’ imprisonment and 15 years of supervised release, entered on February 21, 2014 by the U.S. District Court for the Western District of New York (Geraci, J.), following his guilty plea to four counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). On appeal, Cramer argues that his sentence was procedurally unreasonable because he received a two-point enhancement under U.S. Sentencing Guidelines Manual  section 2G1.3(b)(3) for use of a computer in the commission of the crimes.  This case presents two issues of first impression in this Circuit: First, does the computer-use enhancement under Guidelines subsection 2G1.3(b)(3)(A) apply to a defendant who begins communicating and establishing a relationship with a minor by computer, but then entices the victim through other modes of communication? Second, is Application Note 4 to Guidelines section 2G1.3 plainly inconsistent with subsection 2G1.3(b)(3)(B) and therefore inapplicable to that subsection? We answer both questions in the affirmative.

February 10, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, February 09, 2015

"Inside The Koch Campaign To Reform Criminal Justice"

The title of this post is the headline of this new Huffington Post piece that reviews a modern sentencing-reform story that is surely becoming familiar to regular readers of this blog.  Here are highlights from the piece which seem to add a few new elements: 

Koch Industries, Inc., the corporation led by conservative billionaires Charles and David Koch, is holding discussions with a coalition of strange bedfellows to tackle criminal justice reform.

In conversations with people like Sen. Cory Booker (D-N.J.) and organizations like the ACLU, the Koch brothers are homing in on reducing overcriminalization and mass incarceration, as well as reforming practices like civil forfeiture.  Progressives, rather than giving the Kochs the stink eye, are welcoming their efforts.

Koch Industries general counsel and senior vice president Mark Holden told The Huffington Post that he met with Booker and his staff a few weeks ago.  The New Jersey Democrat and Sen. Rand Paul (R-Ky.) are co-sponsoring the REDEEM Act, legislation that would give states incentives to increase the age of criminal responsibility to 18, among other reforms.

"We must reform our criminal justice system. It is an urgency more and more recognized by people across the political spectrum," Booker told HuffPost in an email.  "To make change in Congress and beyond I will work with just about anyone who shares my passion for this mission -- that includes Republican members of Congress and other leaders I've begun to work with like Newt Gingrich, Grover Norquist and Charles Koch's team."...

The Kochs have outlined five pillars for reform: The right not to be prosecuted for accidentally breaking the law; fair treatment under the law; competent and fair representation; mandatory minimum reforms; and restoration of rights.

When Koch Industries leaders talk about criminal justice, they at times sound like bleeding-heart progressives.  Holden, for example, called civil forfeiture practices, where police seize assets from someone accused of a crime, "a huge, grave injustice." He also praised Attorney General Eric Holder for taking a stand against the practice, and worried about the longterm consequences of the U.S. prison system.  "[S]omeone makes a mistake sometimes and it falls on the rest of their life, because they can't get a job, they can't vote, can't get a loan, that type of thing,” he said....

[O]organizations that work on criminal justice reform say they believe the Kochs' efforts are sincere and not monetary. "I think there are some people that worry perhaps the Kochs might be prioritizing things like environmental crime, or crimes more likely to impact white people with means," said Alison Holcomb, the national director of the ACLU’s Campaign to End Mass Incarceration. "My experience so far has been that they are genuinely interested in the issues across the board."

Some prior related posts on Koch family efforts in support of criminal justice reform:

February 9, 2015 in Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells

As regular readers may recall from this post, a few months ago a Sixth Circuit panel rejected an Eighth Amendment challenge brought by Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer."  I helped file an amicus brief on in support of Mr. Young's claim in the Sixth Circuit, and now I have  helped put together another amicus brief in support of his SCOTUS cert petition.  

The SCOTUS cert amicus, which can be downloaded below, makes a number of distinct points based in part on the (little-known) fact that the Supreme Court has never reviewed on the merits a federal term-of-years sentences under modern Eighth Amendment doctrines.  Writing along with Prof Michael J. Zydney Mannheimer, this brief starts and ends this way: 

This Court has never addressed how the Eighth Amendment’s proportionality and procedural safeguards for defendants facing the most serious penalties are to be applied when federal courts consider a challenge to a federal sentence. Both the original meaning of the Cruel and Unusual Punishments Clause and modern Eighth Amendment jurisprudence reasonably suggest that the proportionality and procedural safeguards in the Eighth Amendment should have a more robust application when federal courts are reviewing federal sentences, especially when a severe sentence significantly conflicts with state punishment norms.

These realities call for this Court to take up Mr. Young’s petition for certiorari and declare unconstitutional his fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells in violation of 18 U.S.C. § 922(g)(1).  The vast majority of U.S. States do not even criminalize possession of shotgun shells by a convicted felon (surely because mere passive possession of ammunition alone is neither inherently dangerous nor a ready instrument of crime absent possession of a firearm).  The handful of States that do criminalize this possession offense treat the crime as a misdemeanor or set a statutory maximum prison sentence for the offense well below the 15- year mandatory minimum federal term Mr. Young received. Moreover, Amici are unaware of any case from any State or locality in which a defendant received any prison sentence of any duration for offense conduct that involved only the harmless possession of a small number of shotgun shells. Legislative enactments and state practices thus provide in this case potent objective evidence of a national consensus against Mr. Young’s federal punishment....

Perhaps a majority of this Court has come now to the view that the Eighth Amendment functionally and formally provides no restrictions whatsoever on how severe Congress may punish adults through prison terms for conduct it deems criminal, and that only structural provisions like the Commerce Clause “impose[] real limits on federal power” and establish “boundaries to what the Federal Government may do” in the exercise of its police powers through the federal criminal justice system.  Alderman v. United States, 562 U.S. ___ (2011) (Thomas, J., dissenting from the denial of certiorari).  But, as explained above, a sounder originalist and modern understanding of the Cruel and Unusual Punishments Clause is as a constitutional provision that can operate to protect individual Americans from the most extreme application of severe mandatory prison terms for the most minor transgression of federal law.  Indeed, if Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).

  Download Young v US Cert Amicus

Prior related posts:

February 9, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 07, 2015

Split Washington Supreme Court decides accomplices must receive distinct sentencing treatment

As reported in this local article, headlined "Washington Supreme Court alters sentencing structure for accomplices," the top court in the Evergreen State earlier this week issued an interest opinion concerning how the state's sentencing structure should be applied to those found guilty as accomplices. Here is a summary from the press report:

In a 5-4 opinion released Thursday, the state’s high court ruled that convicted identity thief Larry Hayes should have received a standard-range sentence after being convicted of a host of felonies in 2009.  Instead, he got a 15-year term under a provision that allows prosecutors to seek extra punishment for egregious offenders. The majority ordered the case back to Pierce County for re-sentencing.

At issue is how people charged as accomplices should be treated under the law at sentencing. For years, Washington law has prescribed that accomplices and principle actors in a crime be exposed to the same culpability, a concept Pierce County Prosecutor Mark Lindquist on Thursday called “in for a penny, in for a pound.”

In an opinion written by Justice Charles Johnson and signed by Justices Charles Wiggins, Susan Owens, Mary Fairhurst and Sheryl Gordon McCloud, the majority ruled that should not always be the case, especially where sentencing is concerned.

Until Thursday, when a prosecutor sought an exceptional sentence for a criminal defendant, he or she had to prove to a jury that certain aggravating factors made the crime worse than usual. The requirement applied to principle actors and accomplices alike. Thursday’s majority opinion said the blanket application to accomplices is improper.

Accomplices should be judged for their specific role in the crime and not just on the crime itself, the majority ruled. An accomplice, to qualify for an exceptional sentence, must have knowledge that the crime he or she is involved in is worse than usual, Johnson wrote, and prosecutors now must prove that knowledge to a jury. “...this finding of knowledge ensures that the defendant’s own conduct formed the basis of the sentence,” Johnson wrote....

Justice Debra Stephens authored the dissent, which was signed by Chief Justice Barbara Madsen and Justices Mary Yu and Steven Gonzalez. Stephens argued that the majority was turning decades of case law on its head for no good reason. “It makes no sense that a principal should be punished regardless of whether he or she knew the crime was a major economic offense but an accomplice, who committed the same crime, should not be,” she wrote.

She went on to say the ruling would have far-reaching impacts. “It is no exaggeration to say that the way co-participants have long been tried in this state will need to change in order to accommodate the knowledge finding the majority superimposes on the enhancement statute,” Stephens wrote.

Lindquist agreed with Stephens’ assessment and said he would consider asking state lawmakers to pass legislation clarifying what they want to happen to accomplices. “They could say, ‘We meant what we wrote: Principals and accomplices are equally culpable,’” Lindquist said.

Appellate attorney Nancy Collins, who worked on Hayes’ appeal, said she thinks the majority got it right and that the application of the ruling would not be onerous. “I don’t see it as a change in the law at all,” Collins said. “The majority said the jury needs to consider the defendant’s individual conduct.”

The full opinion in Washington v. Hayes, No. 89742-5 (Wash. Feb. 5, 2015), is available at this link.

February 7, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Friday, February 06, 2015

Highlighting President Obama's pitiful pardon record

ZZoTyPLThis lengthy USA Today piece, headlined "The 50-year-old pardon: Obama picks safe clemency cases," provides yet another review of the now-too-familiar story of President Obama awful record on his use of his clemency authority. Here are excerpts:

Of the 64 pardons President Obama has granted over six years, half are for offenses that happened before 1989. Six are from the 1960s. On average, 23 years have elapsed between the sentencing date and the day Obama has granted a pardon or commutation — an all-time high. A century ago, three or four years was the norm.

It's part of a decades-long trend toward presidents being more cautious in their pardon power, picking older and safer cases for clemency. But Obama has been the most cautious of all, and some critics say he is shirking his constitutional power — some say duty — to "grant reprieves and pardons for offenses against the United States."

"'Safe' is being nice. I would almost say irrelevant. The people who are being pardoned are people on Social Security," said P.S. Ruckman Jr., a political scientist who studies pardons. "The people who need pardons are young and need to establish themselves and get a job, get a Pell grant and go to college."...

Many of Obama's pardons are for old, obscure and sometimes trivial crimes:

• Ronald Lee Foster, of Beaver Falls, Pa., was convicted of mutilating coins in 1963. He had shaved the edges off pennies to fool vending machines into thinking they were dimes. He was pardoned in 2010 at the age of 66.

• David Neil Mercer of Grand Junction, Colo., was convicted in 1997 of violating the Archaeological Resources Protection Act by disturbing Indian artifacts in Utah. He now owns an automotive business and was pardoned last year at the age of 56.

• Bobby Gerald Wilson, of Summerton, S.C., was convicted in 1985 of aiding and abetting in the possession and sale of illegal American alligator hides. He was pardoned in 2011 at the age of 61.

Obama has issued fewer pardons than any president since James Garfield, who served just 199 days in office, and fewer than any two-term president since George Washington, according to Ruckman, a Rock Valley College professor who tracks clemency trends on the blog Pardon Power.

The few pardons Obama is granting often come late in life — sometimes to people on their deathbeds. Albert Byron Stork, a defense attorney from Delta, Colo., was convicted of tax evasion in 1987, when he took money from his fugitive brother for the down payment of a house. He received a pardon the same day as Auvil — and died of brain cancer two weeks later.

The White House said the president has an "ongoing commitment" to granting clemency. "The president believes strongly that a critical component of our criminal justice system is for deserving and qualified applicants to have the ability to petition for clemency," said White House spokeswoman Brandi Hoffine. She said Obama "looks forward to reviewing additional requests for clemency in the coming months."

The Office of the Pardon Attorney, in the Justice Department, is responsible for sifting through the hundreds of applications received each year.... Pardon Attorney Deborah Leff's recommendations go to Deputy Attorney General James Cole, then to White House Counsel Neil Eggleston, and ultimately to the president. That's how it works in principle. But in practice, the Justice Department is run by career prosecutors who are often hostile to those seeking pardons, defense attorneys say.

"They churn out a steady stream of no," said Sam Morison, a lawyer specializing in pardon cases who worked in the Office of the Pardon Attorney in the Clinton, Bush and early Obama administrations. "That doesn't mean that the president has to do what they say. But the president almost always does what the Justice Department recommends, even when he doesn't agree with what the Justice Department recommends." But the Justice Department has to recommend some favorable applications, and they tend to be older, easier cases, he said....

Delegating the decisions to the Justice Department helps to depoliticize the pardon power, but it's also led to its own problems. An internal Justice Department investigation found that President George W. Bush's pardon attorney withheld information from the White House about a commutation he opposed. And in 2010, the nonprofit news organization Pro Publica published an investigation in the Washington Post revealing that, under Bush and Obama, white criminals were four times more likely to get a pardon than black offenders.

Last year, the Justice Department announced a clemency initiative in an attempt to rectify some of the inequities in the system. Inmates who would have gotten lighter sentences under current federal guidelines were encouraged to apply to have their sentences commuted, or reduced.  But the Justice Department says that's a separate issue from pardons. 

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

February 6, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, February 05, 2015

"Could 2015 be the year Congress finally gets serious about criminal-justice reform?"

The title of this post is the subheading of this new Mother Jones piece which carries this main headline: "On These 5 Things, Republicans Actually Might Work With Dems to Do Something Worthwhile." Here are highlights (mostly) from the start and end of the piece:

Recently, bipartisan momentum has been building behind an issue that has historically languished in Congress: criminal-justice reform. Recent Capitol Hill briefings have drawn lawmakers and activists from across the political spectrum—from Sen. Al Franken (D-Minn.) to Koch Industries general counsel Mark Holden, whose boss, conservative megadonor Charles Koch, has made reform a key philanthropic priority.

The emergence of this unlikely coalition has been building for some time: Liberals have long been critical of the criminal-justice status quo, and many "tough on crime" conservatives — growing concerned by the staggering costs of mass incarceration and the system's impingement on liberty — are beginning to join their liberal and libertarian-minded colleagues. In the past, bills aimed at overhauling the criminal-justice system have stagnated on Capitol Hill, but the bipartisan players who are coming together to push for change means that there are some reforms that could realistically gain traction, even in this divided Congress....

Earned-time credits....

Easing up mandatory minimums....

Juvenile-justice reform....

Reducing recidivism....

Sealing and expunging records....

Despite the bipartisan efforts, many experts still believe that there are plenty of issues that could pose serious obstacles to compromise. Beyond the disagreement on mandatory minimums, there's potential conflict on the role of for-profit prisons, which conservatives praise and Democrats like Booker loathe. Additionally, support for loosening drug penalties — particularly for marijuana — is growing broadly popular, but powerful Republicans remain vocal opponents....

There is one especially powerful force pushing along reform: The federal government is expected to spend nearly $7 billion on prisons this year, and conservatives in charge of Congress will be under pressure to bring down costs. "With every Congress, I'm hopeful for reform," Hurst says. "But this Congress' argument is based on money, not humanity, which is why it's more realistic that it'd happen."

February 5, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 04, 2015

A positive perspective on possible prison reform emerging from Congress

This lengthy new article in The National Journal provides an interesting and informative look at the politics and people at the center of federal sentencing and prison reform discussions. The piece's headlined highlights its themes: "This Is How Justice Reform Can Actually Happen This Year: Chuck Grassley's power will change the dynamics of sentencing reform. But there's still a bipartisan way forward in the Senate." The full piece is a must-read for anyone closely following congressional reform realities, and here is how the article starts:

The rise of Sen. Chuck Grassley to the head of the Judiciary Committee has made a lot criminal-justice reform advocates nervous.

Four months ago, before Republicans took back the Senate, it appeared that reducing mandatory minimums had overcome crucial hurdles.  The Smarter Sentencing Act, which would reduce mandatory minimums for some drug offenders, passed out of committee in January 2014 and attracted a roster of high-profile backers, from former GOP vice presidential nominee Paul Ryan to progressive leader Elizabeth Warren of Massachusetts. Potential 2016 presidential candidates such as Sens. Rand Paul and Ted Cruz had decried mandatory minimums.  Even President Obama and the Koch brothers, who have spent millions against him, agreed the sentencing requirements had to be reduced.

But, like many conservatives who came to power in an era when Republicans branded themselves as the "tough on crime" party, Grassley has made it clear that he sees the steady reduction in violent crime in the United States over the last 30 years as a direct reflection of more-effective policing strategies.  And he believes that mandatory minimum laws that ensure criminals stay locked up have been key to that progress.

Grassley's posture toward mandatory minimums has given some advocates pause. "I do think we can work with him," Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, said of Grassley.  "He knows some changes need to be made, but it does influence how far you can go if the chairman stands opposed."

In a Democratic-controlled Congress, many saw a clear path for reducing mandatory minimums.  A handful of vocal GOP supporters have continued to say justice reform should remain a key priority in the new Senate.  But with Grassley in charge, the path forward for criminal-justice reform will likely look very different.

And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas introduces a rare bill that could actually get through Congress and be signed by the president.  That legislation would be similar to what was known as the Recidivism Reduction and Public Safety Act in the 113th Congress.  That bill was also bipartisan but far less contentious than the Smarter Sentencing Act among the Republican rank-and-file. Even Grassley voted it out of committee last year, where it passed 15 to 2.  Many of the same members are still sitting on the committee with a few GOP additions, including Thom Tillis of North Carolina and David Perdue of Georgia.

The bill next week will focus on transitioning prisoners back into the community after they have served their time. It requires that each inmate undergo a risk assessment to evaluate his or her propensity for recidivism.  Then it allows those deemed medium- and low-risk to earn credits for participating in programs such as job training or substance abuse counseling.  Certain well-behaved and low-risk offenders could then use those credits to serve out the final days of their sentences under some kind of community supervision.

Grassley's office insists that it is early, and no decisions have been made on what bills will make it through the committee.  There is an attorney general to confirm and more on the committee's docket that comes before discussions about far-reaching justice reform.  But, shuffling down the hallways of the Dirksen Senate Office Building in January, Grassley rattled off his top three goals for the committee. "Juvenile-justice reform, patent trolling, and ... prison reform," he said.  "There are some things where there is a pretty good shot of getting some bipartisan agreement."  And, if the Senate GOP's No. 2 introduces the bill, it will make it harder for Grassley to ignore.

February 4, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, February 03, 2015

A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos

Download (1)If the wealthy truly have extraordinary influence on modern federal politics and policies, a notable defendant serving a mandatory 55-year sentence as a result of a few small marijuana sales ought to be getting out of prison before too long.  I say this because, according to this Daily Beast piece, my former client Weldon Angelos is now a "poster boy" for the latest Koch-brothers-backed political effort.  This piece is headlined "The New Face of the Koch Campaign" and here is its subheading: "A father of two was sentenced to 55 years in jail for selling pot. The Koch brothers want to help set him free and make him the face of their new campaign for criminal justice reform."  Here are excerpts:

Weldon Angelos could have hijacked a plane and spent less time in jail.  But due to mandatory sentencing laws, the father of two was sentenced to 55 years in jail for selling pot — a term so long even the judge who gave it to him protested its injustice.  A group backed by the Koch brothers agrees, and is now fighting to get him out of prison.

Angelos is an extreme case: even though the crime was considered non-violent, Angelos carried a firearm during a series of marijuana sales to a Salt Lake City police informant —  so federal mandatory minimums required that he be put in jail until he’s 80 years old. Judge Paul Cassell protested the sentence when he was forced to make it in 2004, a move he told The Daily Beast he considers “the most unjust, lengthy sentence that I had to hand down.”...

Angelos is now 35 years old and has spent some 11 years behind bars.  He has more than 40 years left to go.  Even though his crime was non-violent, parole is not an option at the federal level.  His only hope for relief from his sentence is an order by the president.

“If we’re going to deprive someone of liberty, and deal with the high cost of incarceration, it better solve a problem.  And in this case, it doesn’t solve any problem,” argued Mark Osler, Angelos’ lawyer, who filed a clemency petition on his behalf in 2012.

This is where the Koch brothers come in.  The case is being highlighted by Koch-backed group Generation Opportunity, which targets millenials, in a broader campaign to press for criminal justice reforms this year.  They will kick off the campaign with a documentary highlighting Angelos’ predicament, premiering at Washington, D.C.’s Newseum next week. “[This year] offers a unique moment in history in which people of different backgrounds and political leanings are coming together to facilitate a substantive dialogue on how to fix [the criminal justice system],” said Evan Feinberg, the group’s president. “We can work towards a more just system that reflects the rule of law without overcriminalizing non-violent offenses.”

The new campaign will target the overcriminalization of non-violent crime, mandatory minimum laws, and helping criminals who have served their sentences reintegrate into society.  The demilitarization of police and the excesses of civil asset forfeiture will also be addressed.

Generation Opportunity worked with Families Against Mandatory Minimums on the documentary.  FAMM founder Julie Stewart was in the room during Angelos’ first sentencing hearing.  It was, she said, a severe example of a worrisome trend in the criminal justice system....

“A lot of people just thought that because of the amount of time my brother was [sentenced to], he had done something terrible, just because of the ignorance that is out there about mandatory sentencing,” said Lisa Angelos, Weldon’s older sister and advocate. “Before the case, I had no idea that this was possible in America.”  The judge who was forced to hand down the sentence, Paul Cassell, said the Angelos case is an example of “clear injustice marring the public perception” of the federal courts — and victimizing taxpayers who have to pay to keep him locked up.

“We have in place in our country today some very draconian penalties that distort our whole federal sentencing scheme,” Cassell said.  “When people look at a case like Weldon Angelos and see that he got 55 years, and they see other cases where victims have gotten direct physical or psychological injuries and don’t see a similar [result] from the system, they start to wonder if the system is irrational.”

When he was sent to prison, Angelos’ children were small, now both are in their teens. Without their father, the family fell on hard financial times.  His children rarely talk to him, Weldon’s sister says, because they can’t afford a cell phone on which they can be reached.  “When I tell him stories about his kids, you can tell how very hard it is for him to hear it… to know that he can’t be here,” Lisa Angelos said. “It’s destroyed him in many ways.”

The Angelos’ have waited for more than two years for word on their executive clemency request.  The average successful clemency request takes approximately four years, according to his lawyer.  Weldon Angelos deserves clemency, Osler said, because his sentencing “doesn’t correlate in this country with what’s wrong, and what those wrongs deserve.”

Long-time readers are likely familiar with the Angelos case, which came to my attention on a few months after I started this blog 11 years ago. I litigated pro bono, unsuccessfully, Weldon's 2255 motion with claims (that I still find compelling) that his prosecution and sentencing involved violations of the Second, Fifth, Sixth and Eighth Amendments. I continue to hope Weldon will receive clemency or some other form of relief soon not merely to remedy the injustice of his extreme prosecution and sentencing, but to vindicate critical constitutional principles.

Related prior posts providing some Angelos case history:

February 3, 2015 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, February 02, 2015

Indiana sentencing reforms highlight how low-level criminal justice is forced to fill public health gaps

This lengthy local article from Indiana, headlined "County jails fear onslaught of addicts, mentally ill from prisons," provides an effective showcase of the relationships between criminal-justice issues and public-health issues. Here is how:

With the passage of sentencing reforms last year, one study estimates that more than 14,000 low-level offenders, some with serious addictions and mental illnesses, will no longer be kept in prison.  They will be diverted to county jails and community corrections programs that [Franklin County Sheriff Ken] Murphy and others say are ill-equipped to handle the onslaught.

Many such offenders need expensive mental health care — some requiring hundreds of dollars a month in medication.  "These are people with real problems that need treatment," Murphy said. "We need a secure facility or work release or whatever where we can send these folks ... where they can receive treatment, and when they're released, somebody follows up with them."

Sheriffs across the state say jails are not designed for all that.  Jails are meant to hold people awaiting trial, not to house and rehabilitate those who have been convicted. Many do not have mental health services.  Some counties also lack money to expand treatment programs or to launch community corrections programs that provide alternatives to jail, such as housing and GPS monitoring.  That, Murphy said, makes this legislative session critical for public safety.

The success of the criminal code reform under House Enrolled Act 1006, which took effect in July, hinges largely on providing funds for county programs.  Without them, Murphy and others say, people with mental illness and substance abuse problems have a higher risk of failing and re-offending....

"County jails are totally based on the idea in our society that you are innocent until proven guilty," said Howard County Sheriff Steve Rogers. "(HEA) 1006 wants us to hold folks after they've been convicted. Then they won't be pretrial detainees." Rogers said HEA 1006 will put a strain on his jail's mental health resources. "If we can reduce the amount of people that have these mental health issues in our jail," Rogers said, "I think we can handle what 1006 will bring us."

Jails also lack educational programs and vocational training offered in the DOC. "We're not here to rehabilitate," said Capt. Harold Vincent, commander at the Howard County Jail. "That doesn't happen in the jail setting."

Inmates with mental illnesses and substance abuse problems are expensive to incarcerate because of their medical and psychiatric needs. In Marion County, for instance, about 30 percent of inmates are mentally ill, and they take up roughly $7.7 million of the sheriff's budget every year, Layton said. Eighty-five percent have substance abuse problems.

Medication for the mentally ill costs about $800 to $1,500 per dose per person, said Dr. Erika Cornett, medical director for the behavioral health division of Community Howard Regional Health.  Some need an injection once a month, while others need two. That means one mentally ill inmate can cost a jail up to $3,000 a month in medication alone....

Will the political atmosphere be agreeable to spending more money on programs and services that help criminals?  Some hope so....   Some, however, think there will be political resistance.  Investing in other areas, such as education, is more popular.

This article is notable in part because it helps highlight that efforts to reduce prison populations and associated costs could be "penny wise, pound foolish" if there are not adequate resources devoted to services needed to aid localities with community supervision and reentry needs.  More broadly, by detailing various links between health-care needs and criminal justice institutions, this article suggests that effective health-care reform (especially for the poor) may be as critical to public safety and to the public fisc as is effective sentencing reform.

February 2, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, February 01, 2015

Seemingly without a "grim roster of victims," California reduces extreme prison crowding as ordered in Plata

DownloadAs long-time readers will recall, the US Supreme Court in 2011 in Plata upheld, by a 5-4 vote, a lower-court order that imposed on California a requirement to have its prison population reduced below 137.5% of capacity to remedy extreme Eighth Amendment violations in prison conditions (basics here).  In their dissenting Plata opinions (as noted here and here), Justices Alito and Scalia predicted this ruling would likely produce "a grim roster of victims" and a massive number of "murders, robberies, and rapes" in California.  Similarly, as noted here, in response to Gov Jerry Brown's realignment plan to deal with the Plata problems, the Los Angeles DA predicted "the greatest spike in crime of the last several decades."

Fast forward a few years and this local story now reports that "California’s prison system has hit a milestone, with new figures showing that the inmate population inside the state’s 34 adult prisons has fallen below a court-ordered cap more than a year ahead of schedule."  Here is more: 

California’s prisons steadily filled in the 1990s as tough-on-crime measures such as the “three-strikes” law won public support. In November 2006, the prison population hit 162,804 -- larger than Elk Grove’s current estimated population -- or 200.2 percent of the design capacity at that time.

Lawyers for the inmates said overcrowding had reached the point that medical and mental health care services for prisoners were unconstitutional, and they renewed their legal challenge to a system in which inmates were being housed in triple-deck bunks in prison gyms and other open spaces.  The state disagreed and continued to fight, but in August 2009 a panel of three federal judges said the situation had “brought California’s prisons to the breaking point.”

The panel decreed that within two years the state would reduce inmate populations to 137.5 percent of capacity.  The U.S. Supreme Court agreed in a 5-4 decision in 2011 that the prison population had to be reduced, prompting a series of efforts under Gov. Jerry Brown that led to Thursday’s levels.

Under the latest court orders, California has until Feb. 28, 2016, to cut its inmate population to the 137.5 percent benchmark. The early success in getting to that point can be traced largely to the governor’s prison realignment plan, passed in 2011, which shifted responsibility for nonviolent, low-level offenders from the state to counties.

Before that plan, as many as 60,000 inmates annually were sent to prisons as parole violators and served an average of 90 days. The Department of Corrections says realignment has cut the prison population by about 25,000 inmates. Counties statewide have seen an increase in jail inmates during that time frame....

[In addition,] 2,035 inmates have been released since passage of Proposition 47 in November, which redesignated several felony-level crimes, including some drug possession and property offenses, as misdemeanors. [And] 1,975 inmates in prison after a “third strike” have been released since voters approved Proposition 36 in 2012.  The measure allows for inmates to seek resentencing if their third strike was not considered serious or violent.

So, one should ask, what has happened recently in California with respect to crime rates, especially violent crimes that produce the greatest harms to victims.  This Crime & Consequences post provides a quick summary of the latest official data: "California property crimes per 100k population totaled 2,665.5 in 2013, a 3% drop from the 2012 figure although still above the rate before the realignment law went into effect.  Even better, the rate of violent crimes, less affected by that law, is down to a level not seen since 1967."

Posts at C&C highlight data indicating an increase in car thefts and other property crimes in recent years in California.  But I do not think even the greatest critics of Plata and the state's responses can assert that, as was predicted by a prominent prosecutor, California has experienced "the greatest spike in crime of the last several decades."  In sharp contrast, violent crime has continued to drop in the state in the wake of Plata.  

Though I doubt we will be hearing any sort of mea culpa from those who predicted that the public safety sky was sure to fall after Plata, I hope the California story will help inform assessments of future Chicken-Little-type predictions.

February 1, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, January 29, 2015

Intriguing review of early impact of California's Prop 47 reducing offense seriousness

La-me-g-early-release-20150127Though marijuana reform is the national criminal justice reform story most significantly driven by voter initiatives, voters in California the last two major election cycles have been enacting significant sentencing reforms through the initiative process.  In 2012, voters approved Proposition 36 to revise the state's tough Three Strikes Law; last year, voters passed Proposition 47 to reduced various crimes from felonies to misdemeanors. These developments provide yet another reason to view California as the most interesting and dynamic of all states in the history of modern sentencing reform.

The Los Angeles Times now has this lengthy new article detailing some early impacts of Prop 47. The piece is headlined "Prop. 47 brings a shift to longer time spent behind bars," and here are excerpts:

For decades, Los Angeles County jail inmates divided their sentences by five, 10 or 20 to calculate the time they would actually spend behind bars. Because of overcrowding, they left after completing as little as 5% of their sentences.

Now, as Proposition 47 begins to reshape the California criminal justice system, they are serving much more of their time. The new law, passed by voters Nov. 4, reduced drug possession and other minor crimes from felonies to misdemeanors. The county jail population plummeted and sheriff's officials began increasing the time served for the remaining inmates to 90% or more.

Most of the affected inmates will end up serving only half of that, due to automatic credits prescribed by state law, but the change is still profound. Because of Proposition 47, others who would have landed in jail are not being arrested as street cops take a pass because of the low stakes. At the Los Angeles County Sheriff's Department, bookings are down by 23% and narcotics-related arrests are down 30%.

Other California counties are also seeing significant decreases in their jail populations as a result of the new law. In Los Angeles County, the altered landscape has led to renewed questions about how big the new Men's Central Jail should be, as well as concerns about whether those now being issued misdemeanor citations are missing out on drug treatment that could turn their lives around.

Under the new law, the cost savings from smaller county jail populations, which the state legislative analyst estimated could be hundreds of millions of dollars, will be channeled into substance abuse and mental health programs, victim services and reducing school dropouts and truancy.

But some, including law enforcement officials, worry that people who need help will not enter the system. Already, fewer are opting for mandatory drug treatment programs because they face little to no jail time as an alternative. "What concerns me is that some of those offenders were getting treatment," said Gardena Police Chief Ed Medrano, the Los Angeles County representative for the California Police Chiefs Assn., which lobbied against Proposition 47. "If they're getting arrested less, that doesn't mean their drug addiction problems have gone away."

Early release has been a near-constant feature in Los Angeles since 1988, when a federal judge allowed sentenced inmates to be let out early as a temporary solution to overcrowding. Many inmates were freed after serving only 10% of their time. A 2006 Times investigation found that nearly 16,000 were rearrested for new offenses while they could have been finishing out their sentences. Sixteen were charged with murder....

Over the years, the county has tried solutions including electronic monitoring, work programs and firefighting camps. But nothing had a dramatic impact until Proposition 47 passed with nearly 60% of the vote.

More than 400 county jail inmates have been released in the last three months because their crimes — which include theft and writing bad checks as well as drug possession — have been downgraded to misdemeanors under Proposition 47. That, combined with the reduced number of arrests, helped bring the jail population down to a low of about 15,000 from 18,600. Since early release has been scaled back, the inmate count has rebounded to about 17,400.

Inmates with county sentences for burglary, theft, DUI and the like are now serving 90% of their terms, whereas men had been serving 20% and women serving 10%. Those convicted of more serious offenses such as child molestation or assault with a deadly weapon are now serving 100% of their terms, compared with 40% previously. About 3,000 inmates are serving the longer county sentences; most of those serving state sentences are not affected.

The smaller jail population has allowed sheriff's officials to complete overdue repairs and has freed up more space for educational programs, Cmdr. Jody Sharp said. Dist. Atty. Jackie Lacey praised the news that serious offenders in Los Angeles County are now serving most of their terms, calling it "a positive and welcome effect" that could help her office strike better plea deals. "Every defendant asks the following question: 'When can I get out?' " Lacey said. "If the 'when can I get out' is far in the future, it could impact if they plead guilty early or if they demand a trial."

Lacey emphasized that keeping a close eye on crime and recidivism rates will be key to understanding the full impact of the new law.

In Orange County, the inmate count has dropped nearly 22% since Proposition 47 took effect after the election, allowing sheriff's officials to close a section of the James A. Musick jail. Previously, there were no extra beds for new arrivals on the long weekends when court was not in session. "Now, we've got the luxury of not waiting on pins and needles — now we have some space," said Lt. Jeff Hallock, a department spokesman.

This report provides early evidence that Prop 47 has succeeded in redirecting California's state law enforcement and correction resources principally to the most serious offenders presenting the greatest risk to public safety.  Of course, long-term developments and analyses will been needed to conclusively assess whether the Prop 47 reform is an unqualified success.  But this early report sure is encouraging (and perhaps explains why the folks at Crime & Consequences, who had substantive posts assailing Prop 47 before the November vote, have not substantively discussed the law since its passage).

Some prior related posts on California's Prop 47:

January 29, 2015 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, January 26, 2015

"Beyond a Reasonable Disagreement: Judging Habeas Corpus"

The title of this post is the title of this notable new article by Noam Biale now available via SSRN. Here is the abstract:

This Article addresses ongoing confusion in federal habeas corpus doctrine about one of the most elemental concepts in law: reasonableness.  The Supreme Court recently announced a new standard of reasonableness review for habeas cases, intended to raise the bar state prisoners must overcome to obtain federal relief.  This new standard demands that errors in state court decisions be so profound that “no fairminded jurist could disagree” that the result is incorrect. Scholars have decried the rigid and exacting nature of this standard, but very little interpretive work has yet been done to theorize what it means and how it should be used.

This Article develops a theoretical framework for understanding the new habeas standard and shows that the assumptions lower courts are making about its meaning are wrong. It concludes that federal courts need more data beyond the mere possibility of fairminded disagreement to find that a decision is reasonable.  The Article draws on scholarship and jurisprudence in other areas of law that employ reasonableness standards, and argues that the missing data should be supplied by examining the state adjudicative process.  The case for focusing on state process in federal habeas cases is not new, but this Article represents the first argument that the new habeas standard not only permits such a focus but, in fact, requires it.

January 26, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead.  Here is how the piece starts:

There are nine justices on the Supreme Court.  It takes four votes to hear a case, but it takes five to stay an execution.

That can leave a lethal gap.  A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year.  But the prisoner who brought it may not live to see the decision.

In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-­death importance of a single vote.  The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.

“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high­-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”

The case the court agreed to hear used to be called Warner v. Gross, No. 14­7955.  On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 14­7955. It may change again.  The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday.  The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.  

The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review.  He seemed to indicate that the state was prepared to proceed with the executions.

The petitioners’ lawyers will doubtless seek stays.  In Mr. Glossip’s case, they will have to act quickly.  How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions.  Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.

Recent related posts:

January 26, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, January 24, 2015

Another remarkable exoneration thanks only to NC Innocence Inquiry Commission

3a47dbc6b83315036c0f6a70670038b2On this blog, I typically do not extensively cover or frequently discuss exonerations and criminal appeals based on actual innocence claims because, as some may know, I fear guilt/innocence concerns can at times distort sentencing procedures and policy debates focused only on indisputably guilty persons.  But this new amazing story out of North Carolina, headlined "After 36 years, Joseph Sledge's unfamiliar feeling: normal," seemed especially blogworthy for various reasons.  

Most significantly, I think, is that this remarkable NC story highlights the unique benefits resulting if (and perhaps only when) a jurisdiction has a special institution and special procedures for  dealing specifically with innocence claims. Here are the basic of one remarkable story that is embedded in the broader realities of North Carolina's unique approach to innocence concerns:

Joseph Sledge looked out across Lake Waccamaw on Friday afternoon, shivering against a cold January rain and trying to embrace an unfamiliar feeling: normal. Sledge walked out of jail Friday for the first time in 36 years without the burden of handcuffs and shackles.

He is finally free. The state had been wrong about him in 1978, and in all the years since; he is no killer. At 70, he will begin again. “I’m full up on freedom,” Sledge said shyly, leaning over a menu at Dale’s Seafood, a lakeside restaurant in rural Columbus County.

Sledge is the eighth man freed through a unique process that forces the state to deal with prisoners’ claims of innocence. The North Carolina Innocence Inquiry Commission, created in 2006, examined Sledge’s innocence claim over the last 18 months, and in December, it voted that his case merited a possible exoneration.

On Friday afternoon, a trio of judges did just that. Jon David, the Columbus County district attorney, made their decision swift and easy; David told judges he had become convinced that Sledge was innocent.

As Superior Court Judge Tom Lock announced Sledge’s exoneration, a dozen photographers and reporters rushed toward Sledge and his attorneys. Sledge smiled slightly as his attorneys, Christine Mumma and Cheryl Sullivan of the North Carolina Center on Actual Innocence, pulled him close. Applause erupted....

Sledge ... stole some T-shirts from a department store in the early 1970s. A judge sentenced him to four years in a prison camp in rural Eastern North Carolina. In 1976, with just a year left in his sentence, he escaped from the White Lake Prison Camp one night after a beef with another inmate.

That very night, not 5 miles away, someone brutally murdered Josephine and Ailene Davis, a mother and daughter, who lived together in rural Bladen County. That horrible coincidence set the course for Sledge’s life.

Sledge’s exoneration is bittersweet. It comes after dozens of mistakes and casual dismissals of his pleas for help. David, the district attorney, ticked through the justice system’s blind spots in Sledge’s case. The system wasn’t what it is now, he said. No DNA testing was available. The best it had – microscopic hair comparison – could only determine that Sledge’s pubic hair was consistent with pieces left on one victim’s exposed torso. Sledge’s escape and the wild testimony of two jailhouse informants made it all seem too obvious during the 1978 trial, which had been moved to Columbus County.

David said Friday that he regretted the system’s weaknesses and any part that court officials played in it. “There’s nothing we regret more to our values as prosecutors than to believe an innocent person is in prison,” David said. He offered Sledge an apology.

Mumma, who first encountered Sledge’s case a decade ago, has had a hard time swallowing all of the ways the criminal justice system failed Sledge – and the amount of time it took to make it right. Clues that should have sent investigators to other suspects were disregarded. None of the nearly 100 fingerprints taken from the crime scene matched Sledge’s. Investigators also collected head hairs from the victims’ bodies, but Sledge had always shaved his bare.

During two decades, Sledge sent dozens of letters to judges, police officials and prosecutors asking that they find and test evidence from his case for DNA. Yet it took nearly 20 years for a clerk to find hairs that would prove his innocence. By happenstance, a Columbus County clerk climbed a ladder in late 2012 while cleaning the evidence vault; she found an envelope flat on the top shelf with the missing hairs. The clerks had been ordered to search for that evidence as far back as 2003.

Without the state’s new apparatus for testing innocence claims, Sledge might have remained in prison. The Center on Actual Innocence and the Innocence Inquiry Commission interviewed dozens of people, testing memories that had faded over decades.  Commission staff discovered crime scene evidence and investigators’ notes that local sheriff’s deputies had said for years had been lost or destroyed.  The commission spent $60,000 on forensic testing.

January 24, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, January 23, 2015

Seven years after Baze, Supreme Court takes up another lethal injection challenge

As reported in this new USA Today piece, taking up a "case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment."  Here is more:

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will likely be heard in April, though it could be held over until the next term begins in October.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.... "States now experiment with various drug formulations that have resulted in multiple malfunctioning executions — indeed, spectacles — over the past year," the challengers' brief says....

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in their eight-page dissent last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

I presume this cert grant will halt all scheduled executions in Oklahoma until the Supreme Court rules.  Left unclear, however, is whether other states will be able to move forward with executions while this case is pending.  This DPIC page with scheduled executions suggest that at least a half-dozen states have more than a dozen serious execution dates scheduled before the Supreme Court is likely to resolve this new case from Oklahoma.

I am sure that these states will try to move forward with executions, especially if their protocols are dissimilar to what Oklahoma does in executions. But I am also sure that death row defendants and their lawyers will urge states to postpone all execution until the Supreme Court rules in this new case (as happened when the Supreme Court first took up this issue eight years ago in Baze v. Kentucky). In short, here we go again!

Recent related posts:

January 23, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Wednesday, January 21, 2015

Speculating about how new California Supreme Court will now handle capital cases

This new Los Angeles Times article, headlined "Brown appointees to Supreme Court renew hopes in death penalty cases," reviews reasons why some think that new California Justices might mean a new type of California capital justice. Here are excerpts from the piece:

In the long run, the new composition [of the California Supreme Court] could affect an array of cases, including medical malpractice and medical marijuana, but probably will be most felt in the criminal arena. The court, long dominated by former prosecutors, has affirmed about 90% of the death sentences it has reviewed. Criminal defendants rarely win.

"Brown certainly seems to have reshaped this court in a fairly dramatic way," said Jan Stiglitz, a co-founder of the California Innocence Project, which is representing a client in a case before the newly constituted court. Instead of appointing former prosecutors, Stiglitz said, "Brown has brought in not just people from the outside but people who don't have this background that sort of predisposes them to be cynical in criminal cases."

But little experience in criminal law also can be a handicap, critics said. Former prosecutors have "stared evil in the face and know what it looks like," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. None of the Brown appointees have had prior judicial experience. "The academic view of criminal law is what produces bad decisions," Scheidegger said.

[Mariano-Florentino] Cuellar, the court's only Latino, is a former Stanford law professor. [Leondra] Kruger, the only African American justice, has worked primarily in Washington, where she represented the federal government in cases before the U.S. Supreme Court. Justice Goodwin Liu, Brown's first appointee last term, was a law professor at UC Berkeley....

Legal analysts expect the Brown justices may form a new majority with Justice Kathryn Mickle Werdegar, a moderate to liberal Republican appointee.  Unlike the other Republican appointees, she was never a prosecutor.  She worked for the federal government on civil rights matters and as staff attorney on appellate courts.

January 21, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack