Wednesday, May 27, 2015

Split Connecticut Supreme Court applies Miller retroactively to 50-year discretionary juve sentence

Yesterday the Connecticut Supreme Court, splitting 4-3, gave the Supreme Court's Eighth Amendment jurisprudence concerning juvenile LWOP sentencing the furthest reach of any major ruling I have seen through its opinion in Casiano v. Commissioner of Correction, No. SC19345 (Conn. May 26, 2015) (majority opinion here, dissents here and here).  Here is how the majority opinion gets started:  

We recently held in State v. Riley, 315 Conn. 637, 659, A.3d (2015), that, to comport with the eighth amendment to the federal constitution, the trial court must give mitigating weight to the youth related factors set forth in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 2464–65, 2468, 183 L.Ed. 2d 407 (2012), when considering whether to impose a life sentence without the possibility of parole on a juvenile homicide offender.  In Riley, the defendant challenged on direct appeal a total effective sentence of 100 years with no possibility of parole before his natural life expired, a sentence that the state conceded was the functional equivalent to life without parole.  State v. Riley, supra, 642. The different procedural posture and sentence in the present case raises two significant issues regarding the reach of Miller: whether Miller applies retroactively under Connecticut law to cases arising on collateral review, and, if so, whether Miller applies to the imposition of a fifty year sentence on a juvenile offender.  We answer both questions in the affirmative and, therefore, reverse the habeas court’s decision rendering summary judgment in favor of the respondent, the Commissioner of Correction, on the petition for a writ of habeas corpus filed by the petitioner, Jason Casiano.

May 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 26, 2015

Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State

As reported in this local article, "Gov. Pete Ricketts delivered Tuesday on his promise to veto legislation that would repeal the death penalty for murderers in Nebraska." Here is more on the decision and what is likely to follow it:

"This is a matter of public safety," Ricketts said. "We need to have strong sentencing. We need to be sure our prosecutors have the tools to put these hardened criminals behind bars."

"I urge our senators to stand with Nebraskans and law enforcement," Ricketts said.

The governor was joined by Attorney General Doug Peterson and family members of Evonne Tuttle, who was one of five people killed in the 2002 Norfolk bank robbery. Three of the killers involved in the robbery are on death row. Evonne's mother, Vivian Tuttle, said she sat through the trials. In each one, she watched the surveillance video that showed Jose Sandoval put a gun to her daughter Evonne's head as she knelt on the floor and was shot to death. "I want justice for my grandchildren. I want justice for the other families," she said.

The Legislature passed the death penalty bill (LB268) on Wednesday on a 32-15 vote. Thirty votes would be required to override the governor's veto. The governor said Friday that senators who voted to repeal the death penalty weren't in touch with their constituents. But a number of those senators said Tuesday at least half of their constituent contacts are telling them to stick to their votes in favor of repeal.

Supporters have lost at least one override vote -- Sen. Jerry Johnson of Wahoo. Johnson said he was shaky on his repeal vote last week. Then, most of his emails urging him to vote for repeal were from the faith community. What he has learned since last week's vote is that people in the pews aren't necessarily on the same page as church leadership, he said....

Another senator who voted for repeal -- Sen. John Murante of Gretna -- also is reconsidering his vote, he said. He is discussing it with many constituents who have called him over the past few days, he said. "I've always been torn on the issue of the death penalty," he said, "and I'm gathering as many opinions as I can before rendering a vote on the veto override."

Sounds like every single vote is going to matter now in Nebraska's unicameral legislature. Stay tuned.

May 26, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS grants cert on a federal sentencing case and state capital case

This morning's Supreme Court order list, available here, includes two grants of certiorari.  Both cases are criminal cases, Lockhart v. US and Foster v. Humphrey, and here are the links to casepages and the issues via SCOTUSblog:

Lockhart v. US:  Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.

Foster v. Humphrey: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

May 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 22, 2015

"Federal Sentencing Error as Loss of Chance"

The title of this post is the title of this notable new piece available via SSRN authored by Kate Huddleston. Here is the abstract:

Federal courts have taken the wrong approach to discussing sentencing error.  Circuit court opinions in career offender cases have framed the debate over collateral review of federal sentencing error as a conflict between finality and fairness.  This Comment contends that disagreement over the cognizability of such claims is actually a dispute about the nature of the harm in sentencing error.  What federal courts are actually asking, in effect, is whether the lost probability of a lower sentence is itself a cognizable injury.

The Comment draws on an analogy to tort law to argue that sentencing debates are, at their core, about loss of chance.  Part I highlights the role that probability plays in recent sentencing opinions.  It argues that, as an empirical matter, loss of chance is an accurate way to describe sentencing error given the anchoring effect of the Federal Sentencing Guidelines on sentencing practices.  Part II makes the structural case for conceptualizing Guidelines sentencing error as a problem of probability, arguing that failure to recognize the probability dispute has obscured an underlying debate about the continued vitality of the Guidelines system.  After United States v. Booker, the Sentencing Guidelines are advisory in principle and influential in practice. Part II argues that treating Guidelines error as loss of chance — and a loss that may constitute a fundamental miscarriage of justice — is necessary in order to enforce a Guidelines regime that is neither too rigid nor wholly indeterminate.

May 22, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Two notable voices from the (far?) right calling again for drug war and sentencing reform

Download (2)The two recent stories about recent comments by notable advocates reinforce my sense that more and more traditional (and not-so-traditional) conservative voices are feeling more and more confortable vocally criticizing the federal drug war and severe drug sentencing:

Headline: "Grover Norquist: Malloy Right On Drug Sentencing Reform"

Money Quotes:   If you told me a year ago that I [Grover Norquist] would be speaking out in favor of one of Gov. Dannel P. Malloy's top priorities, I would have said you were crazy. The governor is a tax-and-spend liberal and I have spent my entire career fighting high taxes and wasteful government spending. Yet, just as a broken clock gets it right once in a while, Gov. Malloy is right about the need to reform mandatory minimum sentencing laws.

Contrary to their original intent, mandatory minimum laws have done little to reduce crime. They have, however, been significant drivers of prison overcrowding and skyrocketing corrections budgets. That's why conservatives and liberals in Washington, D.C., and in statehouses all across the country are coming together to repeal and reform these one-size-fits-all laws. Oklahoma, Georgia, South Carolina, Texas and Florida are just a handful of the states where conservatives have not simply supported, but led, the efforts to scale back mandatory minimum sentences.

Conservatives in Connecticut should support the governor's mandatory minimum proposals for two reasons. First, the reforms are very modest — addressing only drug possession. In some states, such as Connecticut's neighbor, Rhode Island, and Delaware, lawmakers have repealed mandatory minimum sentences for all drug offenses. Still more states have enacted significant reform to their drug mandatory minimum laws so that judges have discretion to impose individualized sentences that fit the crime. In all of these states, crime rates have dropped.

Conservatives in Connecticut also should embrace sentencing reform because of the state's awful budget mess. For too long, fiscal hawks have turned a blind eye to wasteful law enforcement spending. Not wanting to appear "soft on crime," they have supported every program and policy to increase the prison population without subjecting those ideas to cost-benefit analysis.

Those days are over. After watching state spending on prisons skyrocket more than 300 percent over the last two decades, state leaders across the country seem to understand that they can no longer afford to warehouse nonviolent offenders in prison.

-----

Headline: "Glenn Beck Calls for the Repeal of Federal Drug Prohibition"

Money QuotesToday on Glenn Beck's radio (and TV) show, I [Jacob Sullum] debated marijuana prohibition with Robert White, co-author (with Bill Bennett) of Going to Pot: Why the Rush to Legalize Marijuana Is Harming America The conversation turned to the war on drugs in general and also touched on federalism, the Commerce Clause, the nature of addiction, and the moral justification for paternalistic interference with individual freedom.  Reading from my recent Forbes column, Beck said he is strongly attracted to the Millian principle that "the individual is sovereign" over "his own body and mind," which rules out government intervention aimed at protecting people from their own bad decisions. "I'm a libertarian in transit," he said. "I'm moving deeper into the libertarian realm.... Inconsistencies bother me." By the end of the show, Beck was declaring that the federal government should call off its war on drugs and let states decide how to deal with marijuana and other psychoactive substances.

Addendum: Marijuana Majority's Tom Angell notes that Beck indicated he favored marijuana legalization back in 2009, saying, "I think it's about time we legalize marijuana...  We either put people who are smoking marijuana behind bars or we legalize it, but this little game we are playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border...  Fifty percent of the money going to these cartels is coming just from marijuana coming across our border." As far as I know, however, this is the first time Beck has explicitly called for an end to federal prohibition of all the other currently banned drugs.

May 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 21, 2015

Examining what qualifies as an LWOP sentence for purposes of Graham and Miller

This new piece at The Marshall Project, headlined "Life Expectancy: How many years make a life sentence for a teenager?," spotlights an Eighth Amendment issue that has been engaging lower courts in the five years since SCOTUS in Graham began putting limits of LWOP sentences for juvenile offenders.  Eventually the Supreme Court will have to resolve the issue of just what qualifies as an LWOP sentence, and here is an account of issue (with some links to notable rulings):

James Comer was 17 when he, an older cousin, and their friend made a series of violent and irreversible decisions: One night in April 2000, they robbed four people at gunpoint. They followed one of their victims for miles as she drove home from her night shift as a postal worker, then pointed a gun at her head outside her house.  Comer’s friend, 17-year-old Ibn Ali Adams, killed their second victim when he discovered the man had no money.

Comer’s youth, his lawyers argue, was at least partly responsible for his poor judgment and impulsive behavior. And it is his youth that may save him from dying in prison. Earlier this month, an Essex County, New Jersey, judge ordered a new sentencing hearing for Comer in light of Miller v. Alabama. ...

But Comer isn’t serving life without parole, at least not technically. For felony murder and multiple counts of armed robbery, he was sentenced to 75 years. He will be eligible for parole, but not until his 86th birthday — more than 20 years past his life expectancy, according to actuarial data his lawyers cited. This sentence “amounts to de facto life without parole and should be characterized as such,” the judge wrote.

Miller v. Alabama was the third in what’s come to be known as the “Roper/Graham/Miller trilogy” of cases in which the Supreme Court ruled, essentially, that kids are different. Teenagers’ still-developing brains make them more impulsive, more susceptible to peer pressure, and less able to understand the consequences of their actions. This makes them less culpable than adults and more amenable to rehabilitation as they mature, the court said.

With Roper, the court outlawed the death penalty for juveniles. With Graham, it struck down life-without-parole sentences for non-homicide crimes. With Miller, the justices forbid mandatory life-without-parole sentences, even for murder. Life sentences for juveniles are allowed only if the judge first has the chance to consider how youth and immaturity may have contributed to the crime....

Now a growing number of courts are interpreting the trilogy even more broadly, applying their principles to cases, like Comer’s, that aren’t explicitly covered by the court’s rulings.

“When read in light of Roper and Graham,” Miller v. Alabama “reaches beyond its core holding,” the Connecticut Supreme Court held last month in State v. Riley. In that case, 17-year-old Ackeem Riley was sentenced to 100 years in prison after he shot into a crowd in a gang-related incident, killing one teenager and wounding two children.  The court ordered a new sentencing hearing, finding that the sentencing judge had not adequately considered Riley’s youth.  Though Miller specifically targeted mandatory life without parole sentences — technically, Riley’s sentence was neither mandatory nor life without parole — the Supreme Court’s reasoning “counsels against viewing these cases through an unduly myopic lens,” the Connecticut court said.

Courts have handed down similar rulings in Wyoming, Florida, California, Iowa, and Colorado.  Another case is pending in Ohio.

In Brown v. Indiana, the state supreme court ordered a new sentencing hearing for Martez Brown, who was 16 when he and two friends killed a couple in a botched robbery. Quoting Miller, the court ruled that “similar to a life without parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal.’”  Although Brown’s sentence was not formally a life-without-parole sentence, they wrote, “we focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.”

May 21, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

After Boston bomber's condemnation in liberal Massachusetts, is the death penalty really "withering away"?

Download (1)The question in the title of this post is prompted by this lengthy new commentary by George Will carrying the headline "Capital punishment’s slow death." Here is the full commentary, which claims to be making a "conservative case against capital punishment":

Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.

It is difficult to imagine moral reasoning that would support the conclusion that an injustice will be done when, years hence, the death penalty finally is administered to Dzhokhar Tsarnaev, the Boston Marathon terrorist who placed a bomb in a crowd and then strolled to safety. Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality. This is, however, purchased with disproportionate social costs, as Nebraska seems to be concluding.

Nebraska is not a nest of liberals. Yet on Wednesday its 49-member unicameral legislature passed a bill abolishing the death penalty 32 to 15. Gov. Pete Ricketts, a Republican, vows to veto it.

This comes at a time when, nationwide, exonerations of condemned prisoners and botched executions are dismayingly frequent. Nebraska’s death penalty opponents, including a majority of Nebraskans, say it is expensive without demonstrably enhancing public safety or being a solace to families of murder victims. Some Nebraska families have testified that the extended legal processes surrounding the death penalty prolong their suffering. That sentiment is shared by Bill and Denise Richard, whose 8-year-old son was killed by Tsarnaev.

Last month, the U.S. Supreme Court heard oral arguments about whether one component of a three-drug mixture used in lethal injection executions — and recently used in some grotesquely protracted ones — is unreliable in preventing suffering that violates the Eighth Amendment proscription of “cruel and unusual punishments.” States use the drug in question because more effective drugs are hard to acquire, partly because death penalty opponents are pressuring drug companies not to supply them.

For this, Justice Antonin Scalia blamed a death penalty “abolitionist movement.” Justice Samuel A. Alito Jr. asked, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony M. Kennedy wondered, “What bearing, if any, should be put on the fact that there is a method, but that it’s not available because of opposition to the death penalty? What relevance does that have?”

The answers are: Public agitation against capital punishment is not relevant to judicial reasoning. And it is not the judiciary’s business to worry that a ruling might seem to “countenance” this or that social advocacy.

The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.

Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.

Those who favor capital punishment because of its supposed deterrent effect do not favor strengthening that effect by restoring the practice of public executions. There has not been one in America since 1937 (a hanging in Galena, Mo.) because society has decided that state-inflicted deaths, far from being wholesomely didactic spectacles, are coarsening and revolting.

Revulsion is not an argument, but it is evidence of what former chief justice Earl Warren called society’s “evolving standards of decency.” In the essay “Reflections on the Guillotine,” Albert Camus wrote, “The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail.” Capital punishment, say proponents, serves social catharsis. But administering it behind prison walls indicates a healthy squeamishness that should herald abolition.

May 21, 2015 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Wednesday, May 20, 2015

Nebraska legislature votes by large margin to repeal state's death penalty

As reported in this new AP article, " Nebraska lawmakers gave final approval on Wednesday to a bill abolishing the death penalty with enough votes to override a promised veto from Republican Gov. Pete Ricketts."  Here is more:

The vote was 32 to 15 in Nebraska's unicameral Legislature.  If that vote holds in a veto override, Nebraska would become the first conservative state to repeal the death penalty since North Dakota in 1973.  The Nebraska vote is notable in the national debate over capital punishment because it was bolstered by conservatives who oppose the death penalty for religious reasons and say it is a waste of taxpayer money.

Nebraska hasn't executed a prisoner since 1997, and some lawmakers have argued that constant legal challenges will prevent the state from doing so again.

Republican Gov. Pete Ricketts, a death penalty supporter, has vowed to veto the bill. Ricketts announced last week that the state has bought new lethal injection drugs to resume executions.  Ricketts, who is serving his first year in office, argued in his weekly column Tuesday that the state's inability to carry out executions was a "management problem" that he is committed to fixing.

Maryland was the last state to end capital punishment, in 2013. Three other moderate to liberal states have done so in recent years: New Mexico in 2009, Illinois in 2011, Connecticut in 2012. The death penalty is legal in 32 states, including Nebraska.

May 20, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 19, 2015

Notable sentencing and clemency comments from newly-confirmed Deputy Attorney General

I just came across this recent Washington Post profile of Sally Quillian Yates, the new number two at the Department of Justice.  The piece is headlined "New deputy attorney general: ‘We’re not the Department of Prosecutions’," and here are some notable excerpts:

The odds were stacked against lawyer Sally Quillian in her first trial in rural Barrow County, Ga. Before an all-white jury, she was representing the county’s first African American landowning family against a developer over a disputed title to six acres of land. The family was so distrustful of the court system back in the 1930s that they hadn’t recorded their deed.  Instead, the family’s matriarch kept the deed, written on cloth, folded inside her dress every day while she worked the fields.  Now, a developer was trying to take their property, and Quillian was arguing the case using an arcane legal theory.

“I had no idea what I was doing,” Quillian — now Sally Quillian Yates — recalled. “I had never tried a case before.”  But the jury came back with a verdict in favor of her client. “These 12 white jurors, who knew and went to church with and socialized with everybody on the other side, did the right thing,” said Yates, who was then at a private firm.  “This court system that my client’s family had mistrusted so much that they wouldn’t even file their deed had worked for them as it’s supposed to and had given them back the property that had been so important to their family all of these years.”

That case some 30 years ago had a deep impact on Yates, who went on to become a prosecutor in Atlanta for 20 years.  In 2010, President Obama nominated Yates to be the U.S. attorney for the Northern District of Georgia.  Last week, she was confirmed to be deputy attorney general , the second-highest-ranking position at the Justice Department.  A bottle of champagne still sits in her fourth-floor corner office, which overlooks Constitution Avenue and where senior officials celebrated her ­84-to-12 Senate vote....

One of Yates’s priorities will be to follow through with the criminal justice reform efforts begun by Attorney General Eric H. Holder Jr., including the push to give clemency to “nonviolent drug ­offenders” who meet certain criteria set out by the department last year, she said in her first interview since taking the job.

Yates and other prosecutors enforced the harsh sentencing policies from the 1980s and ’90s.  “Those policies were enacted at a time of an exploding violent-crime rate and serious crack problems,” Yates said.  “They were based on the environment we were in. But things have changed now, and violent crime rates have dropped dramatically.”

More than 35,000 inmates are seeking clemency, but a complicated review process has slowed the Obama administration’s initiative.  In February, Obama commuted the sentences of 22 drug offenders, the largest batch of prisoners to be granted early release under his administration and the first group of inmates who applied after the new criteria were set.

“Certainly, there’s some growing pains at the beginning,” Yates said.  “There’s start-up time involved in this. I think all of us are frustrated that it’s taken longer than we would like for this to be operating as efficiently as possible.  But I think we are headed down that road now. There are going to be more recommendations from the department, and I would expect more commutations that the president will be issuing.”...

Yates commutes every other weekend to Atlanta to be with her husband, who is the director of a school for children with learning disabilities, and to plan the wedding of her 24-year-old daughter, the older of two children.  She said the back-and-forth is worth the opportunity to influence criminal justice issues, including civil rights and sentencing reform, at the highest level.

She plans to urge lawmakers on Capitol Hill to pass legislation to change sentencing policies. “Certainly, I don’t think I can ever be accused of being soft on crime,” Yates said. “But we need to be using the limited resources we have to ensure that we are truly doing justice and that the sentences we’re meting out are just and proportional to the crimes that we’re charging.”

“We’re not the Department of Prosecutions or even the Department of Public Safety,” Yates said. “We are the Department of Justice.”

May 19, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Is a former lobbyist and former federal prisoner likely to be a uniquely good sentencing reform advocate?

The question in the title of this post is prompted by this notable new CQ Roll Call article headlined "Out of Prison, Ex-Lobbyist Pushes Sentencing Overhaul." Here are excerpts:

Kevin Ring helped write a bill in the 1990s that toughened penalties for methamphetamine charges. Now, recently out of prison, the former Team Abramoff lobbyist says he wants Congress to overhaul the nation’s justice system and to undo mandatory minimum requirements altogether.

His own effort comes at a pivotal time for the issue on Capitol Hill, where bipartisan measures (S 502, HR 920) to reduce stiff sentencing requirements for drug charges appear to be gaining some traction.

Ring, a former Hill aide, is wrapping up his 20-month sentence for an honest services fraud conviction by serving home confinement that allows him to work in downtown Washington, D.C. He is drawing on his K Street and criminal justice experiences at Families Against Mandatory Minimums, an advocacy group devoted to peeling back the same sort of laws he helped push through while serving as a Senate Judiciary Committee staffer.

“We wanted to look tough on meth,” said Ring, a Republican, who recently started working full-time as FAMM’s new director of strategic initiatives. “The Hill is run by too many 20-year-olds with a lot of opinions and not enough experience, and I was part of that. I didn’t have enough experience to write criminal statutes. What did I know?”

Ring is a former colleague of ex-K Street power player Jack Abramoff, and like Abramoff he went to the federal prison camp in Cumberland, Md. Ring started working with FAMM part-time five years ago, doing grant writing. He’d already lost two jobs at K Street firms amid the unraveling Abramoff scandal, and he needed work. He had to terminate all outside employment during his prison term.

“When he first interviewed with us, he was incredibly humble, hat in hand, and said, ‘I’m about to be indicted,’” recalled Julie Stewart, FAMM’s president and founder and a self-described libertarian. “I immediately realized what an incredible gem we had in Kevin because of his conservative background. It was very clear to me that Kevin could do so much good for FAMM and for our issue and promoting it in a voice that could really be heard by the people we were trying to influence on the Hill.” FAMM, she noted, is a rare organization that gets funding from conservative David Koch and liberal George Soros.

Ring, 44, said he doesn’t expect he will meet the legal definition of a lobbyist at FAMM, but he intends to write op-eds, congressional testimony and advocacy letters. In short, he plans to influence the process largely from the background. It's not likely to be an easy sell.

Even as the White House and Republicans on the Hill, including Sen. Mike Lee of Utah and Rep. Raúl R. Labrador of Idaho, are championing sentencing overhaul legislation, such proposals are far from a fait accompli. Senate Judiciary Chairman Charles E. Grassley of Iowa has pushed back on criticism that he is blocking sentencing legislation, but he’s made clear his support would come with a price....

Grassley, in a recent speech at the Press Club, said white-collar criminals such as Ring receive "paltry sentences." He has suggested such criminals ought to be subject to mandatory minimums in exchange for reduced minimums for nonviolent drug offenders. "The last thing we need is to take away a tool that law enforcement and prosecutors use to get the bad guys," Grassley said.

His spokeswoman, Beth Levine, said Grassley’s staff and aides to the lawmakers pushing for sentencing legislation “have been sitting down to work something out.”

FAMM, as well as Ring, opposes new mandatory minimum requirements for white-collar crimes. “It’s an awful, awful idea,” Ring said during an interview last week in FAMM’s offices near Metro Center. “Even without mandatory minimums, prosecutors can threaten you with such a long sentence that you want to plead guilty.”

He said the mandatory minimums have inflated sentencing guidelines across crimes, even those not subject to mandatory sentences. In Ring’s case, prosecutors asked the judge to sentence him to at least 20 years in prison. He said even his current home confinement, which includes a GPS ankle tracker to monitor his location 24 hours a day, is surprisingly restrictive and ought to be used more for nonviolent offenders — keeping them out of the prison system and allowing them to continue to work, pay taxes and care for their children.

It’s a message that resonates with budget-conscious Republicans, especially those with a libertarian stance. Stewart, who started FAMM 24 years ago, when her brother went to federal prison for growing marijuana in Washington state, said the current conversation on Capitol Hill and across the country is unprecedented. “My one fear is that talk is cheap,” she said. “It’s going to be a push.”

And Ring will be right in the middle of it. “I believed it before, and now I just feel like I’m better informed for having had the experience,” Ring said. “You know I wouldn’t wish the experience on anyone, but now that I have it, I feel compelled to say what I saw. So that goes to not only how prosecutions work, how sentencing works, but then also how prisons work or don’t work.”

May 19, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 18, 2015

DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)

I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire.  Thus, when reading the DC Circuit's recent  opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest.  Here is how the per curiam opinion gets started:

Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation.  See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995).  But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.

Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:

“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008).  I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance.  But the burden of providing a brief explanation is small and the advantages great.  “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”).  It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.

Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:

When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.

In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement.  Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.

May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

NY Times editorial astutely praises "Justice Reform in the Deep South"

Throughout too much of America's history, the term "Southern Justice" would invoke shudders and fear. (Indeed, as discussed here, Norman Rockwell used this term as the title for his historic painting depicting the deaths of three civil rights workers killed for seeking to register African American voters.) But, as effectively highlighted by this new New York Times editorial, lawmakers in the deep south are lately doing a lot to remake the image of southern justice:

It has been getting easier by the day for politicians to talk about fixing the nation’s broken criminal justice system. But when states in the Deep South, which have long had some of the country’s harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Almost all of these deep-­red states have made changes to their justice systems in the last few years, and in doing so they have run laps around Congress, which continues to dither on the passage of any meaningful reform.  Lawmakers in Alabama, for example, voted nearly unanimously early this month to approve a criminal justice bill.  Alabama prisons are stuffed to nearly double capacity, endangering the health and lives of the inmates, and the cost of mass imprisonment is crippling the state budget at no discernible benefit to public safety.

The bill would cut the state’s prison population of nearly 25,000 by about 4,500 people over the next five years. Sentences for certain nonviolent crimes would be shortened, and more parole supervisors would be hired to help ensure that people coming out of prison don’t return. Gov. Robert Bentley is expected to sign the measure as soon as Tuesday.

Before Alabama, South Carolina passed its own package of reforms in 2010.  In February, it closed its second minimum-­security prison in a year.  Georgia got on board with significant reforms to its adult and juvenile prison systems in 2012 and 2013, including giving judges more leeway to sentence below mandatory minimums and increasing oversight of prisons.  In 2014, Mississippi passed its own systemic fixes, like providing more alternatives to prison for low­level drug offenders.

Of course, all these states had abysmal conditions to start with. Mississippi imprisons more of its citizens per capita than China and Russia combined. That’s worse than any state except Louisiana, which has not yet managed reforms as broad as its neighbors. Alabama was facing the threat of federal intervention to alleviate its crushingly overcrowded prisons if it didn’t act.  And many of these state reforms are far more modest than they should be....

Nonetheless, these initiatives show important progress. Less than a decade ago, it was difficult to find any governor anywhere, of either party, who would go near this issue. Now, a Republican governor like Nathan Deal of Georgia is pointing with pride to two major reform packages, as well as the state’s “ban the box” law, which prohibits the state from asking potential employees about their criminal history until later in the hiring process.

Still, justice reform is a fragile proposition, and can be easily thwarted by more powerful political forces.  As the 2016 presidential election approaches, most of the major candidates agree that criminal­justice reform is a priority, but there remains a good deal of ambivalence on how to move forward.  There needn’t be.  The reforms in the southern states, though limited, are already paying off.  The presidential candidates — not to mention Congress — should be paying close attention.

May 18, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, May 17, 2015

"Does Michigan's sex offender registry keep us safer?"

B9317136721Z.1_20150516190456_000_G8HANTDOK.1-0The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:

It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies.  Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.

Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons.  It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031.  "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.

Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police.  Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names.  The registries are widely monitored by parents, potential employers and cautious neighbors.

To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online.  But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional.  For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.

Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....

Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors.  No one was charged.

At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law.  But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life.  "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."

But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people.  The supporters also dismiss the research, saying it's impossible to determine who might re-offend.  They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.

"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."

Many parents say the registries makes them feel safer.  Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know."  Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."

Sex offender registry laws were first passed in the 1990s following a string of horrific child murders.  The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.

Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives.  In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....

Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective.  And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law.  For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.

Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes.  A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....

Nationally, there are about 800,000 people registered as sex offenders across the 50 states.  Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens.  It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....

Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant.  Some, though, think tougher laws are in order.  And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.

Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."

A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."

J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees.  He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....

While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.

May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

After reversal of most serious charges, elderly nun and fellow peace activists released from federal prison

As reported in this AP article, headlined "3 anti-nuclear activists released from federal prison," a notable federal civil disobedience case has taken some notable new turns this month. Here are the details:

An 85-year-old nun and two fellow Catholic peace activists who vandalized a uranium storage bunker were released from prison on Saturday, their lawyer said.  Attorney Marc Shapiro says Sister Megan Rice was released just hours after 66-year-old Michael Walli and 59-year-old Greg Boertje-Obed also were let out of prison.

The trio was ordered released by a federal appeals court on Friday.  The order came after the 6th U.S. Circuit Court of Appeals in Cincinnati last week overturned their 2013 sabotage convictions and ordered resentencing on their remaining conviction for injuring government property at the Y-12 National Security Complex in Oak Ridge.

The activists have spent two years in prison.  The court said they likely already have served more time than they will receive for the lesser charge.

On Thursday, their attorneys petitioned the court for an emergency release, saying that resentencing would take weeks if normal court procedures were followed.  Prosecutors responded that they would not oppose the release, if certain conditions were met. "They are undoubtedly relieved to be returning to family and friends," said Shapiro, who represented the activists in their appeal.

Rice, Walli and Boertje-Obed are part of a loose network of activists opposed to the spread of nuclear weapons.  To further their cause, in July 2012, they cut through several fences to reach the most secure area of the Y-12 complex.  Before they were arrested, they spent two hours outside a bunker that stores much of the nation's bomb-grade uranium, hanging banners, praying and spray-painting slogans....

Rice was originally sentenced to nearly three years and Walli and Boertje-Obed were each sentenced to just over five years.  In overturning the sabotage conviction, the Appeals Court ruled that their actions did not injure national security.

Boertje-Obed's wife, Michele Naar-Obed, said in a phone interview from her home in Duluth, Minnesota, she hoped her husband would be released from prison by Monday, which will be his 60th birthday.  Naar-Obed previously served three years in prison herself for anti-nuclear protests.  She said that if their protests open people's minds to the possibility of life without nuclear weapons, then "yeah, it was worth it."

Prior related posts:

May 17, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Wednesday, May 13, 2015

Former Georgia Supreme Court Chief Justice call for absolute capital abolition

As reported in this Atlanta Journal-Constitution article, headlined "Former justice calls for end to death penalty," reports on a notable speech given by a notable former jurist.  Here are the details:

A former chief justice of Georgia’s highest court on Tuesday strongly renounced the death penalty and called for its abolition.  Norman Fletcher, who served 15 years on the Georgia Supreme Court, said the death penalty is “morally indefensible,” “makes no business sense” and is not applied fairly and consistently.

“Capital punishment must be permanently halted, without exception,” Fletcher said. “It will not be easy, but it can and will be accomplished.”

Fletcher, now a Rome lawyer, retired from the state Supreme Court in 2005.  Although considered one of the court’s more liberal members, he cast numerous votes upholding death sentences.  In more recent years, he has signed on to legal briefs urging courts to halt the executions of a number of condemned inmates.

Fletcher made his remarks Tuesday evening at the Summerour Studio near Atlantic Station, where he received the Southern Center for Human Rights’ Gideon’s Promise Award for his role in helping create a statewide public defender system.  In his acceptance speech, Fletcher said he was about to “shock” those attending the ceremony.

Lawyers who once criticized his decisions upholding death sentences were justified, he said. “With wisdom gained over the past 10 years, I am now convinced there is absolutely no justification for continuing to impose the sentence of death in this country,” Fletcher said....

Fletcher added, “There can be no doubt that actually innocent persons have been executed in this country.”  Too often, Fletcher contended, budgetary issues, race and politics factor into the decision-making of whether to seek the death penalty.

Fletcher cited the late U.S. Supreme Court Justice Harry Blackmun, who once said he could “no longer tinker with the machinery of death.”  Blackmun made this declaration before he retired from the high court in 1994. “It is time for us to quit the tinkering and totally abolish this barbaric system,” Fletcher said.

May 13, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Senator Cornyn highlights his plan to "ensure that prisons don’t become nursing homes behind bars"

This recent post spotlighted the Washington Post's extended front-page story about the graying of America's prison populations.  Notably, Senator John Cornyn has now penned this letter to the editor to explain what he is trying to do to deal with this issue:

A bipartisan proposal working its way through Congress would offer a path home for some nonviolent, elderly prisoners.

The Corrections Act, which I have introduced with Sen. Sheldon Whitehouse (D-R.I.), includes a provision that would make prisoners age 60 and older eligible for early release after serving two-thirds of their sentences.  This reform builds on an expired pilot program from a bipartisan prison reform law known as the Second Chance Act of 2007.  That program showed good results before it was canceled last year, and our proposal would save taxpayer money by treating seriously ill and dying individuals with compassion.

It is becoming increasingly clear that we must make bipartisan efforts to reform our criminal justice system.  Many of the issues involved are complex, but reforming the system to ensure that prisons don’t become nursing homes behind bars doesn’t need to be one of them.

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

Thursday, May 07, 2015

Electrifying Tennessee fight over electric chair as back up execution method

BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee.  This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet."  Here are some details from the start of the article:

Can death-row inmates challenge the constitutionality of electrocution?  The Tennessee Supreme Court will soon decide.  

Death penalty states once phased out the electric chair in favor of drugs — for humane reasons.  Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.

On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality.  Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.

But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.

Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy.  Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.

“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.

May 7, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Saturday, May 02, 2015

Seventh Circuit, in 6-5 en banc ruling, allows new federal 2241 review of Atkins claim based on new evidence

If you love to spend a spring weekend thinking through the statutes and policies that govern federal collateral review of federal death sentences — and really, who doesn't? — then the en banc Seventh Circuit has a great ruling for you.  Dividing 6-to-5, the Seventh Circuit in Webster v. Daniels, No. 14-1049 (7th Cir. May 1, 2015) (available here), decided that a federal death row inmate was "not barred as a matter of law from seeking relief under section 2241" to continue to pursue based on new evidence his claim that he was "so intellectually disabled that he is categorically ineligible for the death penalty under Atkins and Hall."

This following paragraph from the dissent authored by Judge Easterbrook highlights why this ruling took the majority many pages to reach and is controversial:  

Whether Webster is “retarded” was the principal issue at his trial and sentencing.  He raised his mental shortcomings as a mitigating factor, and four jurors found that they mitigate his culpability, but the jury still voted unanimously for capital punishment.  The sentencing hearing spanned 29 days, with abundant evidence.  The district judge found that Webster is not retarded within the meaning of §3596(c) and sentenced him to death. The Fifth Circuit affirmed on the merits and later affirmed a district court’s decision denying a petition under §2255 addressed to retardation.  If Webster is retarded, he is ineligible for the death penalty.  Whether he is retarded has been determined after a hearing, collateral review under §2255, and multiple appeals.  What Webster now wants is still another opportunity to litigate that question.  The majority gives Webster that opportunity in a new district court and a new circuit, setting up a conflict among federal judges.  Section 2255 is designed to prevent that, and prudential considerations also militate against one circuit’s disagreeing with another in the same case.

May 2, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 01, 2015

Judicial second-thoughts leads to greatly reduced prison sentences for cheating Atlanta school administrators

As reported here a few weeks ago, the judge presiding over the sentencing of 10 former Atlanta public school educators convicted of participating in a widespread conspiracy to cheat on state tests ordered three of the defendants to serve seven years in state prison.  But, as this CNN article reports, now that same judge has reduced their sentences to three years in prison. Here is why:

"I'm not comfortable with it," Fulton County Superior Court Judge Jerry Baxter said of the sentences he handed down to the three defendants April 14. "When a judge goes home and he keeps thinking over and over that something's wrong, something is usually wrong."

Tamara Cotman, Sharon Davis-Williams and Michael Pitts also were ordered Thursday to serve seven years on probation, pay $10,000 fines and work 2,000 hours in community service.

Baxter had come under fire from some community leaders for giving prison sentences to eight teachers and administrators who stood trial and were convicted of racketeering. They'd been accused of taking part in an effort to raise tests scores at struggling schools by erasing wrong answers and putting in correct answers.

Outside of court, Benjamin Davis, the lawyer for Cotman, questioned the judge's rationale in handing down heavy sentences a few weeks ago. "I had never seen a judge conduct himself in that way," he said. "What was going on with Judge Baxter?"

Davis-Williams said she was pleased judge Baxter changed his mind. Her attorney, Teresa Mann, added, "We are happy. We are elated that judge Baxter took the opportunity to reflect." Cotman, Davis-Williams and Pitts, all school reform team executive directors, got the harshest sentences during an April 14 hearing: Seven years in prison, 13 years of probation and $25,000 fines.

Baxter said of his change of mind: "I'm going to put myself out to pasture in the not-too-distant future and I want to be out in the pasture without any regrets."

During the earlier sentencing hearing, Baxter was frustrated when defendants didn't admit their guilt. "Everybody knew cheating was going on and your client promoted it," Baxter said to an attorney representing Davis-Williams. At one point he said, "These stories are incredible. These kids can't read."

At a press conference held April 17, most of the convicted educators insisted they were innocent. "I didn't cheat. I'm not a racketeer," said Diane Buckner-Webb, a former elementary teacher.

All defendants sentenced to prison have appealed and are out on bond. The lower prison sentences given to other defendants -- ranging from one to two years -- have not been reduced....

Of 35 Atlanta educators indicted in 2013, more than 20 took a plea deal. Twelve educators went on trial six months ago, with 11 convicted and one acquitted on April 1. Of the 11 convicted, two took a deal in which they admitted guilt, waived their right to appeal and received much lighter sentences. One defendant was giving birth during the sentencing phase not been sentenced.

On Thursday, Baxter urged the defendants to engage in community service while they're appealing. He said that might lighten the punishment if the convictions are upheld. The judge said he was tired of dealing with the Atlanta Public Schools cheating scandal, which he referred to as "this mess."

"I'm ready to move on. So, anyway, adios," Baxter said, and ended the hearing. 

Notably, under federal law, a judge is not legally permitted to change a sentence based only on subsequent second thoughts about the appropriateness of the sentence. I have long understood (though not always thought wise) that a federal judge gets only one bite at the sentencing apple, and I would love to hear from commentors whether they this is it just and appropriate to let sentencing judges adjust sentences in the way and for the reasons done in this state case.

Prior related post:

May 1, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, April 30, 2015

Ninth Circuit finds procedural error in teen's 30-month federal sentence for laser beam prank

A Ninth Circuit panel today handed down a notable sentencing opinion in US v Gardenhire, No. 13-50125 (9th Cir. April 30, 2015) (available here).  This unofficial summary of the ruling provided by court staff highlights why federal sentencing fans will want to check out the full ruling:

The panel vacated a sentence imposed for knowingly aiming the beam of a laser pointer at an aircraft in violation of 18 U.S.C. § 39A, and remanded for resentencing, in a case in which the district court applied an enhancement for reckless endangerment under U.S.S.G. § 2A5.2(a)(2)(A).

The panel held that the district court erred in concluding that the defendant acted recklessly when he aimed his laser beam at the aircraft, where the record is devoid of evidence, let alone clear and convincing evidence, that the defendant was aware of the risk created by his conduct.

The panel could not say that the error was harmless, and instructed that the matter be assigned to a different district judge on remand.  The panel observed that the district court’s statements show its commitment to the idea that, regardless of the evidence presented, the defendant’s conduct was reckless, and that it would likely impose the same sentence on remand, regardless of this court’s rulings.

In light of the extremely steep sentencing regime dictated by the recklessness enhancement for wide-ranging conduct covered by § 2A5.2, the panel wrote that it is particularly important that the government is held to its burden of proof and that the enhancements are supported by clear and convincing evidence.

April 30, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, April 29, 2015

Intriguing reports on Supreme Court oral argument about Oklahoma's lethal injection protocol

Lyle Denniston at SCOTUSblog has this report on the oral argument today in the Supreme Court case concerning Oklahoma's lethal injection protocols.  It starts this way:

For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years.

On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.

That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.”

And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that.

But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad. “Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”

This Reuters article about today's arguments, headlined "Lethal injection case exposes U.S. top court's death penalty divide," develops similar themes in its review of the arguments. It starts this way:

Tensions on the Supreme Court over America's use of the death penalty boiled over on Wednesday as the justices appeared badly split in a case challenging Oklahoma's lethal injection method as a breach of the Constitution's ban on cruel and unusual punishment.

The nine-member court's five conservatives seemed likely to side with Oklahoma in the case brought by three death row inmates, while its four liberals expressed doubt about the propriety of using the drug at the center of the dispute. Conservative Justice Anthony Kennedy, who often casts deciding votes in close cases, said nothing to suggest he would side with the liberals.

The full oral argument transcript is available at this link.

Recent related posts:

April 29, 2015 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"The Supreme Court Is About to Decide the Future of Lethal Injections"

The more I think about the Glossip lethal injection case being considered by the Supreme Court today (basics previewed here), the more I think the Justices will be inclined to issue a very narrow ruling that only clearly impacts the lethal injection protocol in Oklahoma and perhaps a few other states.  However, this National Journal article which carries the headline I used in the title of this post, seems to think it will be a huge deal whatever SCOTUS does in the case.  Here is how the piece starts:

How much pain is constitutionally acceptable for a prisoner sentenced to death to feel during his or her execution? What, exactly, is cruel and unusual punishment?

Though not the precise question presented before the justices, the Supreme Court will be forced to wrestle with those nagging Eighth Amendment concerns Wednesday as it hears arguments in a case challenging the application of a combination of lethal drugs that have been linked to a string of grisly botched executions over the past year.

In Glossip v. Gross, the Court is being asked to determine whether the use of of a sedative known as midazolam by Oklahoma and a number of other states is reliable and effective enough to use as part of three-drug lethal cocktail to execute prisoners on death row.

Midazolam has been subject to rising scrutiny since it was first used by Florida in 2013 as a replacement for another drug that became difficult for states to acquire, amid boycotts from European drug manufacturers opposed to capital punishment.

Even a narrow ruling striking against the use of midazolam could reverberate much more widely and further disrupt states' ability to carry out death sentences—a penalty that has grown increasingly rare in recent years as only a handful of states continue the practice. States scrambling to find suitable lethal cocktails are finding the task increasingly difficult, as fewer and fewer options remain available.

Recent related post:

April 29, 2015 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, April 28, 2015

Just what will SCOTUS focus on when reviewing Oklahoma's lethal injection protocol?

The Supreme Court concludes its oral arguments with a capital bang on Wednesday by hearing the case of Glossip v. Gross.  Lyle Denniston at SCOTUSblog has this effective argument preview which starts this way:

In an era when botched executions of death-row inmates happen more often, raising new questions about capital punishment, the Supreme Court continues to rely upon a set of legal principles about lethal-drug protocols that have not been reexamined in seven years.  The Justices have given themselves the opportunity to do so next week when they hear an Oklahoma case, but just how far they are prepared to go to reopen those principles probably will only be clear as the oral argument unfolds.

In one sense, the case of Glossip v. Gross is focused on the use of a single drug in a three-drug execution “cocktail” — a sedative, the first dose, that is supposed to put the inmate in a sufficiently deep state of unconsciousness that there will be no pain, or at least only tolerable pain, from injections of the other two drugs, which paralyze and then kill.  But in another sense, the entire constitutional structure surrounding execution by lethal drugs could be at stake.

This extended US News and World Report article about the case, headlined "At the Supreme Court, a Lethal Injection Drug on Trial," starts by providing this helpful background:

The Supreme Court on Wednesday will consider the methods states use to execute criminals — an issue attracting increasing attention, but one the high court has avoided for the better part of a decade.  The case — Glossip v. Gross — will focus on one specific drug, Midazolam, that some states are using to render inmates unconscious in capital punishment procedures.  Yet it reflects the larger challenges correctional departments are having in obtaining lethal injection drugs in light of a global boycott and increasing public scrutiny.

Prompted by four apparently botched executions that made national headlines last year, the lawsuit the justices will consider was brought by three inmates on Oklahoma's death row.  Their lawyers say Midazolam — the drug used to render inmates unconscious before administering drugs to paralyze and kill them — does not put inmates in a deep enough coma to shield them from pain and thus violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  In executions using the drug in Oklahoma, Ohio and Arizona, prisoners reportedly gasped for air, groaned, writhed, grimaced and even said they were experiencing burning pain.

Three other states currently include Midazolam in their lethal injection protocols. But more are considering it, the plaintiffs' lawyers says, and a Supreme Court decision that affirms its constitutionality will likely increase its use.  Conversely, a ruling finding use of the drug unconstitutional could lead to further declines in what has been the predominate method of execution for decades, even as capital punishment overall dropped last year to a 20-year low and the number of death sentences issued hit its lowest mark since 1976.  The death penalty is currently legal in 32 states, but only about a dozen states still regularly execute prisoners.

Some states are considering abandoning lethal injection altogether.  Utah lawmakers recently approved allowing firing squads if death penalty drugs are not available, while Oklahoma has made nitrogen gas chambers a back-up for its executions.

April 28, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"Solutions: American Leaders Speak Out on Criminal Justice" (with some notable omissions)

The first part of the title of this post is the title of this fascinating new publication released today by the Brennan Center for Justice.  Here is how the 164-page text is described in an e-mail I received this morning:

In a remarkable cross-ideological effort, this book includes essays by public figures and experts who will play a leading role in the nation’s debate over the coming year.  The book contains original essays by Joseph R. Biden, Jr., Cory Booker, Chris Christie, Hillary Rodham Clinton, Ted Cruz, Mike Huckabee, Cathy L. Lanier, Martin O’Malley, Janet Napolitano, Rand Paul, Rick Perry, Marco Rubio, Bryan Stevenson, Scott Walker, and Jim Webb, among others.

In his foreword, former President William J. Clinton writes, “There is one area where we have a genuine chance at bipartisan cooperation: the over-imprisonment of people who did not commit serious crimes.  The drop in violence and crime in America has been an extraordinary national achievement.  But plainly, our nation has too many people in prison and for too long — we have overshot the mark.”

This book offers a first-of-its-kind preview of the solutions likely to be debated in the lead up to 2016. There is striking consensus around one idea: the need to reduce mass incarceration.  Solutions range from releasing low-level offenders waiting for trial to using federal grants to change police practices … from eliminating prison for low-level drug crimes to increasing mental health treatment.

This effort, spearheaded by our Justice Program director Inimai Chettiar, aims to elevate ending mass incarceration as a vital national issue in need of urgent attention. We look forward to your partnership in the months ahead — as these reforms are debated before the nation.

I am very interested in seeing what everyone in this new publication has to say, and I suspect the words of the presidential candidates in this collection will prove especially important in the months ahead. In short, this is must-read, perhaps especially as sad, harmful and disturbing events continue to unfold in Baltimore this week.

That all said, I must state that I am a bit put off by the fact that Bill Clinton authors the foreword without noting his own significant role in helping to encourage the adoption and preservation of, in his words, the "too many laws [that were] overly broad instead of appropriately tailored [which has resulted in] some [who] are in prison who shouldn’t be, others [who] are in for too long, and without a plan to educate, train, and reintegrate them into our communities." Relatedly, I am deeply disappointed that none of the other three living Presidents, all of whom have long and notable criminal justice track records (especially both President Bushes) are included in this important collection of "American Leaders" speaking out.

Particularly notable and disconcerting is the absence of anything in this collection by our most recent in former President, George W. Bush, especially in light of Bill Clinton's justifiable concerns about the importance of efforts to "educate, train, and reintegrate [former offenders] into our communities." As often highlighted on this blog (and in too few other places), President George W. called America "the land of second chance" in his 2004 State of the Union address while spotlighting prisoner re-entry issues and proposing "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."

In his important 2004 SotU speech, President Bush compelling advocated that "when the gates of the prison open, the path ahead should lead to a better life."  But now, more than a decade later, and thanks largely to the failings of both Congress and President Bush's successor in the Oval Office, there is still far too little attention given to the needs and challenges of former offenders.  President Bush highlighted 11 years ago that persons released from prison each year represented  "another group of Americans in need of help," but it seems only now have a number of other "American Leaders" gotten the message. 

April 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Going Retro: Abolition for All"

The title of this post is the headline of this notable new and timely article authored by Kevin Barry now available via SSRN. Here is the abstract:

The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so.  Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes.  State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row.  In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty.

Some states, however, are “going retro.”  In 2012, California’s Proposition 34 would have applied retroactively, reducing over 700 death row prisoners’ sentences to life without parole (“LWOP”).  More states should attempt to pass retroactive death penalty repeals, but they are not doing so, for two reasons.  The first is political: legislators are not pursuing retroactive legislation because they do not have the votes.  The second reason is legal: legislators are not pursuing retroactive legislation because they believe that the separation of powers and state constitutional prohibitions on retroactive laws forbid it. These arguments are reasonable ones, and they reach far beyond the death penalty sphere — to retroactive crack sentencing laws and retroactive juvenile LWOP sentencing laws, among others.

This Article argues that neither the separation of powers nor state constitutional prohibitions on retroactive laws prohibits states from retroactively repealing their death penalties. While politics may prevent legislatures from pursuing retroactive repeal of the death penalty, the law should not.  As California’s 2012 repeal bill makes clear, “fairness, equality, and uniformity” demand retroactivity.  They demand abolition for all.

April 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 27, 2015

Interesting analysis of "Watersheds" in state collateral retroactivity review

Especially with the Supreme Court finally taking up the retroactivity of its 2012 Eighth Amendment ruling in Miller, I have been giving extra thought to the Supreme Court's Teague doctrine and jurisprudence.  Consequently, I found this new article on SSRN titled simply "Watersheds" of particular interest. The piece is authored by Dov Fox and Alex Stein, and here is the abstract:

Watershed doctrine governs the conditions under which a prisoner who has exhausted his appeals is entitled to retrial or even release based on a change in the rules of constitutional criminal procedure. Newly announced due process rules unavailable to him at trial or on direct review can provide a constitutional basis to reopen his guilty verdict or punishment.  The Supreme Court, however, has imposed strikingly demanding requirements for backdating any such rule to a finalized conviction or sentence.  It has since Teague v. Lane held that no new due process rule applies retroactively unless it is a “watershed” protection that profoundly enhances not only the accuracy of convictions across the board but also “our very understanding of the bedrock procedural elements.”

In the twenty-five years since Teague, the Court has explicitly refused to confer this watershed status on even a single new rule of criminal procedure among the dozens of major protections that it has announced.  Unsurprisingly, scholarly consensus casts watershed doctrine as exceptional, obscure, and insignificant.

This Essay breaks new ground in the law of retroactivity.  We use the “dynamic concentration” model of game theory to identify the important and unrecognized role that watershed doctrine plays in counteracting the structural undersupply of constitutional due process rules.  The Supreme Court maintains too small a caseload to scrutinize every state court decision or specify each demand of criminal procedure.  The Court’s inability to review more than a fraction of due process violations or to detail more than a fraction of due process directives ill equips it to rein in the punitive tendencies of state judges who owe their jobs to constituencies that tend to value crime prevention more than defendants’ rights.

Watershed doctrine mitigates this enforcement problem by creating an extreme, if low-probability, threat of repealing scores of finalized convictions.  By issuing a single new watershed rule, the Court can mandate sweeping retrials or release of state prisoners into the public.  This existential threat motivates state courts to venture beyond existing precedents and align the due process practices in their states with the potentially farther-reaching protections the Supreme Court might make retroactive in the future.  The watershed doctrine accordingly incentivizes state courts to sustain a constitutional safe harbor for state criminal procedures.

Confirmation of this enforcement theory comes from our comprehensive study of all 338 watershed decisions that state courts have issued over that doctrine’s quarter of a century between 1989 and 2014.  We find that a conspicuous proportion of these decisions — more than one in ten — demonstrably inflates the retroactivity rights of criminal defendants and that not one of these cases fails to accord watershed status to a rule that might qualify.

April 27, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, April 23, 2015

Florida Supreme Court reverses cop killer's death sentence on proportionality review

As reported in this local article, the "Florida Supreme Court has overturned the death sentence of Humberto Delgado, who was convicted of gunning down Tampa police Corporal Mike Roberts in 2009." Here are the details of why:

In an opinion issued Thursday, a unanimous court ruled that Delgado's extreme mental illness, coupled with the circumstances of the crime, made a death sentence disproportionate as compared with other murder cases. The court sent the case back to the circuit court, where Delgado will be resentenced to life in prison with no chance of release....

Delgado, 40, who once worked as a police officer in his native Virgin Islands, was sentenced to death in 2012. At his trial, doctors testified about Delgado's history of delusions and psychotic behavior. All diagnosed him with bipolar disorder with varying degrees of psychosis.

Their examinations revealed that in his early adulthood, Delgado was plagued by a belief that police were out to kill him and that people were following him and sitting in trees outside his home. He also told his family that he had to cut off his children's legs because they were "goat legs" and they were "evil." He was known to wander the streets at night, saying that demons, the Masons, and the rapper 50 Cent were trying to kill him.

Delgado had been hospitalized multiple times before he ended up living with relatives in Oldsmar. On Aug. 19, 2009, he walked 15 miles from there, pushing a shopping cart that held four guns, on his way to a veterans hospital in Tampa. That night, Roberts stopped Delgado near the corner of Nebraska Avenue and Arctic Street. Delgado gave Roberts his identification. When Roberts started to search his belongings, Delgado tried to run. Roberts then shocked Delgado with a Taser. Delgado hit Roberts several times before shooting him....

In its opinion, the Supreme Court noted that the death penalty is intended for cases in which the aggravating factors greatly outweigh any mitigating factors presented by the defense. "We do not downplay the fact that Corporal Roberts lost his life as a result of Delgado's actions," the justices wrote. "However ... we are compelled to reduce Delgado's sentence to life imprisonment because death is not a proportionate penalty when compared to other cases."...

Mentally ill inmates are rarely executed in Florida, due to the length of the appeals process and the moral, ethical and legal issues associated with executing the insane. Recently, courts have trended away from capital punishment for the mentally ill.

The full opinion is available at this link.

April 23, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Tuesday, April 21, 2015

"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"

The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday.  The piece is authored by Leah Litman, and here is the abstract:

This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief.  In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause.  It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.

April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"What's the Matter with Cumulative Error?: Killing a Federal Claim in Order to Save It"

The title of this post is the title of this notable new paper concerning federal habeas review authored by Ryan Semerad now available via SSRN. (For the record, Ryan happens to be one of (many) wonderful students in my sentencing class this spring, but I am pretty sure he hd finished most of this article before I started polluting his mind.). Here is the abstract:

This Note investigates the inefficacy of cumulative error claims raised by state death row inmates in their federal habeas corpus petitions. It surveys modern federal habeas precedents giving rise to cumulative error claims, investigates the various circuit standards used in evaluating these claims, and concludes that these claims fail due to the confluence of vague historical precedent and increasingly restrictive federal habeas law. It recommends constructing a mandatory pre-federal habeas review procedure wherein claims of cumulative error are evaluated on the merits by all the stakeholders in the state criminal justice systems in order to ensure the integrity of that system and the reliability of criminal convictions and sentences. 

April 21, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, April 15, 2015

"Database Infamia: Exit from the Sex Offender Registries"

The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:

Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means.  Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.

This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.

April 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

New York State court concludes multiple mandatory minimum fines constitutionally excessive

Thanks to this post by Eugene Volokh, I discovered an interesting New York trial court Excessive Fine ruling in Pujols v. City of New York, No. 103637/12 (N.Y. Sup. Ct. April 2, 2015) (available here). Here is the heart of the ruling concerning an attack on a $11,175 fine for illegally posting 149 flyers advertising babysitting services:

It is undisputed that petitioner violated the relevant Administrative Code provision and substantial evidence supports ECB's determination that petitioner is liable for violating § 10-119 of the New York City Administrative Code, which generally prohibits the posting or other placement of handbills, posters, notices, signs and other written materials on certain public property.  Nonetheless, this Court finds that under the specific circumstances presented herein, the imposition of the mandatory minimum of $75.00 per violation for a total penalty of $11,175.00, amounts to an unconstitutionally excessive fine, and cannot be viewed as solely remedial.

Moreover, this Court, in considering the seriousness of the offense, the severity of the harm caused to petitioner, and the City's objective to deter posting of materials on public property, we find that the fine imposed is "grossly disproportional" to the gravity of petitioner's offense.

April 15, 2015 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Canadian Supreme Court declares gun mandatory minimums unconstitutional

A helpful reader alerted me to a notable sentencing ruling from our northern neighbor reported in this press account headlined "Supreme Court quashes mandatory minimum sentences for gun crimes: Court upholds Ontario ruling that struck down mandatory minimum sentences of 3 and 5 years." Here are the basics:

The Supreme Court of Canada dealt the Harper government's tough-on-crime agenda a serious blow Tuesday by striking down a law requiring mandatory minimum sentences for crimes involving prohibited guns. The 6-3 ruling, penned by Chief Justice Beverley McLachlin, said the statute was unconstitutional as it upheld a 2013 Ontario Court of Appeal ruling that labelled the law cruel and unusual.

The ruling said the mandatory minimum sentence could ensnare people with "little or no moral fault" and who pose "little or no danger to the public." It cited as an example a person who inherits a firearm and does not immediately get a license for the weapon. "As the Court of Appeal concluded, there exists a 'cavernous disconnect' between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment," McLachlin wrote for the majority.

Justice Minister Peter MacKay said in a statement that the government will review the decision to determine "next steps towards protecting Canadians from gun crime and ensuring that our laws remain responsive."...

Liberal Leader Justin Trudeau said there is a place for mandatory minimums in certain situations, noting that past Liberal governments have introduced them for "extreme crimes."

"But I think the over-use of them that the Supreme Court has highlighted, by this Conservative government, isn't necessarily doing a service to Canadians, both by not necessarily keeping us that much safer and also wasting large amount of taxpayers dollars on unnecessary court challenges," he told reporters in Oakville.

Keeping Canadians safe is cited by the government as the reason for its tough sentencing laws. McLachlin took aim at that justification in her ruling. "The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes," she wrote. "Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes."

The court was deciding two appeals involving mandatory minimum sentences for gun crimes brought by the Ontario and federal attorneys general. The top court upheld the appeal court's quashing of both the three-year mandatory minimum for a first offence of possessing a loaded prohibited gun, as well as the five-year minimum for a second offence.

The Ontario and federal governments argued that the minimums do not breach the charter protection against cruel and unusual punishment. The new sentencing rules were enacted in 2008 as part of a sweeping omnibus bill introduced by the federal Conservatives.

The full ruling from the Supreme Court of Canada is available at this link.

April 15, 2015 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 14, 2015

"Criminal Justice Reform: The Present Moment"

The title of this post is the title of this notable new article by Lynn Adelman now available via SSRN. (Notably, Judge Adelman was among a small handful of judges who got a shout-out in Judge Rakoff's provocative recent speech at Harvard Law School about the need for the judiciary to speak out about modern mass incarceration.)   Here is the article's abstract:

As part of a symposium on the collateral consequences of criminal convictions sponsored by the Wisconsin Law Review, this paper, entitled “Criminal Justice Reform: The Present Moment,” discusses whether we have reached a point where we have a realistic opportunity to implement major reforms in our criminal justice system.

While recognizing both that the prospects for reform are greater than they have been, largely because of the increased awareness of the harm caused by mass incarceration, and that some progress has been made as, for example, the Supreme Court’s decision in Brown v. Plata upholding a lower court decision requiring California to reduce its prison population by approximately 40,000, the paper points out that any reforms would come on the heels of an approximately 35 year period of unremitting punitive legislation. As a result, it will be very difficult to put a serious dent in the mountain of harsh consequences, both direct and collateral, that is part of our present criminal justice system.

April 14, 2015 in Collateral consequences, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Senator Grassley again expresses interest in talking about federal criminal justice reform

Senator Charles Grassley is right now arguably the most significant and most important player in all on-going debates over federal sentencing and criminal justice reform.  As Chair of the Senate Judiciary Committee, Senator Grassley can (and seems eager to) block the advancement of any and every federal criminal justice reform bill that he does not personally favor.  

Consequently, even if the vast majority of Senators strongly support significant reforms to federal mandatory minimum sentencing provisions or to federal marijuana provisions, Senator Grassley can ensure— at least until 2017, and perhaps after that if the GOP retains control of the Senate — that federal reform bills do not even get a committee hearing, let alone a committee vote.   Indeed, even if the vast majority of 300 million Americans, and even if the vast majority of the 718,215 Iowans who voted for Senator Grassley in 2010, would strongly favor a reform bill, the bill is likely DOA if Senator Grassley himself is not keen on the bill's particulars.  Frustratingly, that is how our democracy now functions.

Bill Otis, whom I believe has Senator Grassley's ear and with whom he shares many sentencing views, predicted after the 2014 election that Senator Grassley's position as Judiciary Chair all but ensured that there would be almost no chance of significant federal sentencing reform until at least 2017.  But this new piece in Roll Call, headlined "Grassley Resistant to Criminal Justice Overhaul, but Says He’s Willing to Talk,"  provides at least of glimmer of hope that this old Senate dog might be open to some new sentencing tricks.  Here is an excerpt:

Grassley has made no bones about his passionate opposition to reducing mandatory minimum prison sentences, as proposed by Republican Sen. Mike Lee of Utah and Senate Minority Whip Richard J. Durbin of Illinois in the so-called Smarter Sentencing Act (S 1410). On the floor, Grassley has called rolling back such fixed sentences “dangerous,” “ill-conceived” and “indefensible.” Last year, he tried to gut a version of the bipartisan bill, which the Obama administration backs, with an amendment in committee.

Even so, Grassley told CQ Roll Call that he’s ready to start looking for common ground with the bill’s supporters. What’s been missing, he adds, is an invitation — from Obama, from the senators sponsoring the bill, from their staffs — from anyone willing to start a conversation. “First of all, nobody’s asked me even though for three months, including my speech last week, I said I would be glad to meet people about what we could possibly do because I’m open to some reform,” Grassley says.

Juvenile justice is among his top legislative priorities, and he has said he plans to co-sponsor a bill with Rhode Island Democrat Sheldon Whitehouse to reauthorize the 1974 Juvenile Justice and Delinquency Prevention Act. That law has not been reauthorized since 2002.

Grassley says he thinks there could be some reductions in mandatory minimums, but at the same time he wants to see increases in minimum sentences in other areas, such as child pornography and white-collar crime. He has also cited the need to prevent abuses in the forfeiture of civil assets, and to ensure that offenders receive fair representation. “It may just be time” to start criminal justice talks, Grassley says.

Long story short: anyone and everyone seriously interested in the passage of federal criminal justice reform anytime soon would be wise to invest considerable time and energy figuring out exactly what Senator Grassley is now willing to talk about.  Notably, as stressed in this prior post, Senator Grassley recently penned a strong commentary extolling the importance of transparency and accountability in the federal criminal justice system, and I urge advocates to highlight for Senator Grassley and others how statutory mandatory minimums and other laws that empower and enhance federal prosecutorial overreaches significantly undermine these important goals.

A few prior related recent posts:

April 14, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert"

The title of this post is the title of this interesting and timely new piece on SSRN authored by Peter Westen. Here is the abstract:

In 2009 New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence — death — that state officials had been lauded in Europe for outlawing three years earlier.

A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty.  It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”).  The latter doctrine is a counterpart to the ex post facto prohibition.  Both doctrines both concern retroactivity in criminal law, but they are the converse of one another.

The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely.  In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishments for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment.  He concludes that, although doing can be morally justified under limited circumstances, typically it is not — a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.

April 14, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, April 12, 2015

"Ending the Death Lottery"

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

When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment.  In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases.

This Article explores this unfortunate phenomenon.  Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.

After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional.  The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.

Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review.  Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions.  Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment.  Next, Part VI proposes ways to remedy the constitutional shortcoming.  Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.

April 12, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Considering one defendant getting a second look due to Miller retroactivity

10juvenile-1-master675One big reason I believe the Supreme Court's Eighth Amendment ruling in Miller v. Alabama ought to be fully retroactive is because doing so will not be any kind of windfall for juve murderers given a mandatory LWOP.  Rather, as this new New York Times article highlights, all that Miller retroactivity entails is that an offender get a new sentencing hearing in which a judge will consider whether an LWOP sentence was truly justified in light of the nature and circumstances of the offense and the full history and characteristics of the defendant.  The article, headlined "A Murderer at 14, Then a Lifer, Now a Man Pondering a Future," merits a full read, and here is a teaser from the start of the piece:

Adolfo Davis admits he was a swaggering thug by the age of 14 as he roamed and dealt drugs with a South Side gang.

He also describes a childhood of emotional and physical deprivation: a mother fixated on crack, an absent father, a grandmother’s overflowing and chaotic apartment.

From the age of 6 or 7, he often had to buy his own food or go hungry, so he collected cans, pumped gas for tips and shoplifted. At 10, he went to juvenile hall for wresting $3 worth of food stamps and 75 cents from a girl. At 12, he fell in with the Gangster Disciples. “I loved them, they protected me, they were my family,” Mr. Davis said in a recent interview.

At 14, in 1990, he was out with two gang members when they robbed a rival drug house and shot the occupants, leaving two dead.  Now 38, he has spent the last 24 years in prison on a mandatory sentence of life without parole.

But his future will be reconsidered in a new sentencing hearing here on Monday. It is one of the first such proceedings in Illinois to result from the Supreme Court’s landmark ruling in Miller v. Alabama that juvenile murderers should not be subject to mandatory life without parole....

The 2012 decision did not say whether the new rules should apply retroactively, to cases long closed. Since then, state and lower federal courts have disagreed, creating drastic differences for prisoners depending on where they live.

Ten states, including Illinois, are applying the standard to pre­2012 cases and have started the process of resentencing. Four states — Louisiana, Michigan, Minnesota and Pennsylvania, with about 1,130 prisoners who could be affected — have declined to make the ruling retroactive.  The Supreme Court is expected to clarify the issue next fall, when it hears the appeal of a convict in Louisiana....

Here and around the country, victim rights groups have strongly opposed the reopening of past sentences.  “The families of the victims will suffer the most,” said Jennifer Bishop-Jenkins, a co­founder and board member of the National Organization of Victims of Juvenile Murderers.

She became a champion of victim rights 25 years ago when her pregnant sister and her sister’s husband were murdered in Winnetka, Ill., by a 16­-year-old who received a mandatory life sentence. “When I started thinking of the possibility that we’d have to go back to court, I couldn’t sleep for four months,” she said.  “Our mother was devastated.”

A new sentencing hearing in that case is scheduled for this month. While Ms. Bishop­-Jenkins feels confident that the killer, because of the particulars of his acts, will have the life sentence renewed, she noted that the transcript of his original sentencing hearing was missing and that key witnesses were dead or gone. 

Re­creating a fair sentencing process is often impossible in old cases, she said, and there are ample existing ways to pursue what seem to be unwarranted life sentences, such as executive clemency or other petitions.

Mr. Davis’s supporters said they had not been able to find any relatives of the two murder victims in his case; none have come forward to comment on his resentencing....

Before the hearing on Monday, Mr. Davis’s lawyers — Patricia Soung of the Loyola Law School in Los Angeles and Rachel Steinback, a lawyer with the civil rights law firm Loevy & Loevy in Chicago — prepared a sentencing memo calling for his release because of his remorse, his growth and his mentoring of others while in prison.

The Cook County prosecutors have not prepared a written statement, but they are expected to argue for a new life sentence.  Opposing the 2012 clemency bid, the prosecutors said young Adolfo had been “an active and willing participant in the murders” and “was not simply a naïve child being led astray by older friends.”...

The two sides will present their cases orally before Judge Angela Petrone of the Cook County Circuit Court.  During or after the hearing, the judge could order anything from a new life term to an immediate release for time served.

April 12, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, April 10, 2015

Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term

As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:

Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.

At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.

"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.

"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."

Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...

Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."

But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...

Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...

The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....

"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.

During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."

The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.

The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."

Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.

"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.

Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.

April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Based on "discovery violation," Florida appeals court reverses convictions for defendant given LWOP sentence for first child porn possession conviction

Long-time readers may recall the remarkable state sentencing story, covered here and here,  involving Daniel Enrique Guevara Vilca.  In 2011, a Florida circuit court judge sentenced Vilca, then aged 26 and without any criminal record, to LWOP based on a laptop containing hundreds of pornographic images of children.  On appeal, Vilca challenged his trial and his severe sentence, and he prevailed in an opinion released just today.  Here are part of the opinion in Guevara-Vilca v. Florida, No. 2D11-5805 (Fla. App. 2d Dist. Apr. 10, 2015) (available here), with a few cites omitted):

Daniel Guevara-Vilca appeals his convictions for possession of child pornography.  Owing to a discovery violation by the State, we reverse and remand for a new trial....

During the trial, the State introduced 206 photographs and 248 videos containing child pornography, each of which was charged in a separate count.  The file names generally contained descriptive terms.  All of the material had been downloaded to the laptop from January 2009 to January 2010 using LimeWire, a file-sharing program.  The files were found in thirteen different folders on the computer, including the recycle bin....

The jury returned guilty verdicts on all 454 counts.  Although Guevara-Vilca had no prior criminal record, under his sentencing scoresheet the minimum permissible sentence was 152.88 years in prison; the scoresheet contained enough points to permit a sentence as severe as life imprisonment.  The trial court sentenced Guevara-Vilca to 454 concurrent life terms....

Guevara-Vilca raises multiple issues on appeal.  We agree with his assertion that the trial court erred in its handling of the State's discovery violation.  The State was required to disclose Guevara-Vilca's pre-Miranda response to the detective's question, see Fla. R. Crim. P. 3.220(b)(1)(C), and it admittedly did not do so.... The record cannot be said to affirmatively reflect that the discovery violation caused no prejudice to the defense; to the contrary, the record strongly supports the opposite conclusion....

We reverse Guevara-Vilca's convictions and remand for a new trial.  This renders moot, for now, the sentencing issue raised on appeal.  Guevara-Vilca argued, below and on appeal, that a life sentence violated the constitutional prohibition against cruel and unusual punishment.  Our analysis of the sentence at this point would be dicta, and it is not our intention to prejudge an issue that may be raised in a subsequent appeal if Guevara-Vilca is convicted on remand.  But the issue, if raised, deserves serious consideration by the sentencing court.  Indeed, it is noteworthy that if Guevara-Vilca had been charged with possession of child pornography with intent to promote, he could have been convicted and sentenced for only one second-degree felony count rather than 454 third-degree felony counts.

Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure. Guevara-Vilca's mother testified at sentencing that her son was born prematurely and that, at ages five and around thirteen, he had surgeries to remove brain tumors.  Expert testimony may illuminate the ramifications of this medical history. Guevara-Vilca stated in his interview that while he graduated from high school, his grades were "D's and E's."  Cf., e.g., § 921.0026(c), (d), Fla. Stat. (2008) (providing for downward departures when defendant's capacity to appreciate criminal nature of conduct or conform to law was substantially impaired; or when defendant requires, and is amenable to, treatment for mental disorder unrelated to substance addiction).

Prior related posts:

April 10, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Thursday, April 09, 2015

US Sentencing Commission votes to amend fraud guidelines (but not really "fix" that much)

As reported in this official press release, "United States Sentencing Commission voted today to adopt changes to the fraud guideline to address longstanding concerns that the guidelines do not appropriately account for harm to victims, individual culpability, and the offender’s intent. The Commission also voted to change the drug quantity table to account for the rescheduling of hydrocodone." Here are some details from the press release concerning this important federal white-collar sentencing news:

The Commission altered the victim enhancement in the fraud guideline to ensure that where even one victim suffered a substantial financial harm, the offender would receive an increased sentence. It also made changes to refocus economic crime penalties toward the offender’s individual intent, while maintaining an underlying principle of the fraud guideline that the amount of loss involved in the offense should form a major basis of the sentence.

“We found through comprehensive examination that the fraud guideline provides an anchoring effect in the vast majority of cases, but there were some problem areas, particularly at the high-end of the loss table,” said Chief Judge Patti B. Saris, chair of the Commission. “These amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss.”

The Commission also acted today to provide additional guidance as to which offenders are eligible to receive a reduced sentence as a minor or minimal participant in an offense. “This change is intended to encourage courts to ensure that the least culpable offenders, such as those who have no proprietary interest in a fraud, receive a sentence commensurate with their own culpability without reducing sentences for leaders and organizers,” Saris said....

The Commission also made an adjustment to monetary tables to account for inflation. This goodgovernment measure derives from a methodology provided by Congress and will have an effect on both penalty and fine tables.  The amendments will be transmitted to Congress by May 1, 2015. If Congress does not act to disapprove some or all of the amendments, they will go into effect November 1, 2015.  More information about this process and the amendments approved today will be available on the Commission’s web site at www.ussc.gov.

At the USSC's website, one can now find this "Preliminary 'Reader-Friendly' Version of Amendments. Though "reader-friendly," the amendments themselves do not really provide a complete picture of just how much these amendments, assuming they are not disapproved by Congress, could impact guideline-sentencing ranges in future high-loss white-collar cases.  In addition, and of perhaps particular interest to some currently incarcerated  defendants, the Commission has to my knowledge not yet indicated in any formal documents whether, when and how it might consider making these amendment retroactive in a manner that might impact past high-loss white-collar cases.

IMPORTANT FRAUD AMENDMENT RETROACTIVITY UPDATE: A helpful colleague who was able to watch the USSC meeting and votes provided this report on the topic of the potential retroactivity of these amendments:

At the end of the hearing, USSC staff brought up the question of retroactivity and said a motion would be appropriate at this time if the Sentencing Commission wanted the staff to conduct a retroactivity impact analysis. USSC Chair Saris asked whether anyone wanted to make such a motion and no one did. Saris then read a brief statement saying they have a statutory obligation to consider whether any amendments should be retroactive, and they had determined in this case that for these amendments that would not be appropriate.

Notably, if Congress was truly eager to help with prison-crowding problems by doing something for some notable non-violent offenders, I think Congress could provide by statutory direction either that the amendments be made retroactive in whole or in part (or it might at least direct that the Commission consider more fully whether these amendments be made retroactive in whole or in part). Also, back in 2007, when the crack guidelines were first adjusted downward slightly, the Commission did not take up the retroactivity issue until many months after it promulgated amendments lowering the guidelines. But, I suspect absent some significant advocacy by the white-collar defense bar, the die may be already permanently cast against any even partial retroactivity of these new fraud amendments.

April 9, 2015 in Federal Sentencing Guidelines, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, April 08, 2015

Federal judge finds unconstitutional "geographic exclusion zones" for sex offenders in Michigan

Thanks to a helpful reader, I did not miss this notable new story from the state up north headlined "Sex offenders can be within 1,000 feet of schools after federal judge strikes down parts of law." Here are the details:

A federal judge struck down some portions of Michigan's Sex Offender Registry Act in a court decision handed down last week.  U.S. District Court Judge Robert Cleland issued a ruling March 31, striking down four portions of Michigan's Sex Offender Registry Act, calling them unconstitutional.  The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of five John Does and one Jane Doe against Michigan Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue.

Cleland's ruling stated the "geographic exclusion zones" in the Sex Offender Registry Act, such as student safety areas that stretch for 1,000 feet around schools, are unconstitutional, according to court documents.  

The law is too vague on whether the 1,000 feet barrier should be as the crow flies or how people actually travel, and if it goes from building-to-building or property-line-to-property-line, Cleland said in his ruling.  "While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are susceptible to vagueness concerns," he wrote.

Cleland also stated law enforcement doesn't have strong enough guidelines to know how to measure the 1,000-foot exclusion zone around schools. Neither sex offenders or law enforcement have the tools or data to determine the zones, even if the guidelines on how to measure the zones were stronger, he said. "Accordingly, due to (the Sex Offender Registry Act's) vagueness, registrants are forced to choose between limiting where the reside, work and loiter to a greater extent than is required by law or risk violating SORA," he wrote.

Cleland struck down other portions of the law as well, but ruled in favor of the government on the rest of the lawsuit. Other portions of the law ruled unconstitutional were: a requirement to report in person to the "registering authority" when an offender begins to drive a vehicle regularly or begins to use a new e-mail or instant messaging address; a requirement for an offender to report all telephone numbers routinely used by an offender; a requirement to report all e-mail and instant messaging addresses; a requirement to report the license plate number, registration number and description of any motor vehicle, aircraft or vessel used by an offender....

The ruling drew an immediate reaction from State Sen. Rick Jones, R-Grand Ledge. In a statement released Tuesday morning, Jones, a former sheriff, said he plans to help rewrite the law to make up for the judge's ruling. "I warn sex offenders to stay away from schools. This is one judge's ruling, and the law will soon be changed to clarify it," said Jones, the chair of the Senate Judiciary Committee. "I'm working to make sure there is no vagueness in Michigan's Sex Offender Registry law. Child molesters must stay away from our schools. Law enforcement will be watching."

The full ruling, which runs 70+ pages, is available at this link.

April 8, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Tuesday, April 07, 2015

"Miller V. Alabama and the Retroactivity of Proportionality Rules"

The title of this post is the title of this very timely new article by Perry Moriearty just now available via SSRN.  Here is the abstract:

In its 2012 decision in the companion cases of Miller v. Alabama and Jackson v. Hobbs, the Supreme Court declared that it was unconstitutional to sentence children to mandatory life without parole because such sentences preclude an individualized consideration of a defendant’s age and other mitigating factors.  What Miller did not address, however, and what has confounded lower courts over the last two years, is whether the ruling applies to the more than 2,100 inmates whose convictions were already final when Miller was decided.  In all but one case, the question has come down to an exercise in line drawing. If, under the Court’s elusive Teague retroactivity doctrine, Miller articulated a “substantive” rule of constitutional law, it is retroactive; if the rule is merely “procedural,” it is not.  The Supreme Court is all but certain to decide the issue in the near future.

I make two primary arguments in this Article.  The first adds to the growing body of commentary concluding that, while Miller has “procedural” attributes, they are components of a constitutional mandate that is fundamentally “substantive.”  The second argument applies broadly to all new constitutional rules which, like the Miller rule, are grounded in the Eighth Amendment’s proportionality guarantee.  As even those who favor of limitations on retroactivity have acknowledged, there is a normative point at which interests in “finality” simply must yield to competing notions of justice and equality.  I argue that finality interests may be at their weakest when the Court announces a new proportionality rule, because the practical burdens of review and theoretical concerns about undermining the consequentialist goals of punishment are simply not as pronounced with sentences of incarceration as they are with convictions. The risks of offending basic notions of “justice” may be at their most pronounced with new proportionality rules, however, because to deny relief to those whose sentences have been deemed “excessive” (or at a high risk of excessiveness) is to undermine the very principles of proportionality and fundamental fairness in which such rules are grounded.  Proportionality rules should therefore be afforded something close to a presumption of retroactivity.

Regular readers and SCOTUS fans know this article is timely because the Supreme Court has recently taken up a new case to finally resolve the lower court split over Miller's retroactivity. But I call this piece very timely because this very afternoon I am in Cambridge to talk about these exact issues with Judge Nancy Gertner's Harvard Law School sentencing class.  Coincidence?

April 7, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

More reflections on Prez Obama's recent commutations

Writing in Forbes, Jacob Sullum has this new commentary about last week's notable clemency news headlined "Obama Steps Up Commutations, Feeding Drug War Prisoners' Hopes."  Here are excerpts: 

Obama’s latest batch of commutations, which doubled his total in a single day, suggests that the president, whose clemency record during his first term was remarkably stingy, is beginning to make up for lost time. Last year the Justice Department signaled a new openness to clemency petitions, laying out criteria for the sort of applications the president wanted to see. An unnamed “senior administration official” told Yahoo News the new guidelines could result in commutations for “hundreds, perhaps thousands” of federal prisoners by the end of Obama’s second term. The president will have to pick up the pace to reach that goal. But his avowed interest in ameliorating the egregious injustices inflicted by federal drug laws seems to be more than rhetorical.

Most of the drug offenders whose sentences Obama has shortened so far, including 13 of the 22 prisoners whose petitions he granted on Tuesday, were convicted of crack cocaine offenses. There is a good reason for that: Crack sentences are especially harsh, and although Congress reduced them in 2010, it did not make the changes retroactive. That means thousands of crack offenders are still serving terms that almost everyone now agrees are too long.

The Smarter Sentencing Act, which was approved by the Senate Judiciary Committee last year but never got a floor vote, would address that problem by making the 2010 changes retroactive. The bill was reintroduced in February, but its prospects are uncertain. In the meantime, Obama has the power to bring crack sentences in line with what the law currently deems appropriate.

With an estimated 8,800 prisoners who could benefit from retroactive application of shorter crack sentences, there is plenty of room for more acts of mercy like these. But the conventional wisdom is that commutations cannot help more than a tiny percentage of those prisoners. “While Mr. Obama has pledged to make greater use of his clemency power,” The New York Times reported on Tuesday, “the White House is unlikely to make a sizable dent in the prison population. Thousands of prisoners are serving time for drug sentences under the old, stricter rules.”

It’s true that commuting thousands of sentences, as that anonymous administration official quoted by Yahoo News envisioned, would be historically unprecedented. Yet it is clearly within the president’s constitutional authority, and there is less need for a careful, case-by-case weighing of each applicant’s merits when there is already a consensus that the mandatory minimums imposed on crack offenders between 1986 and 2010 were inappropriately harsh.

But let’s not get ahead of ourselves. Despite the concerns he expressed about our excessively punitive criminal justice system while running for president, Obama issued a grand total of one commutation during his first four years in office and finished his first term with a good shot at leaving behind one of the worst clemency records in U.S. history.

Prior related posts:

April 7, 2015 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, April 05, 2015

NY Times notes Justice Kennedy's criminal justice perspective

Today's New York Times has this extended editorial effectively contextualizing recent comments by SCOTUS Justice Anthony Kennedy headlined "Justice Kennedy’s Plea to Congress." Here are excerpts:

Members of the Supreme Court rarely speak publicly about their views on the sorts of issues that are likely to come before them. So it was notable when Justices Anthony Kennedy and Stephen Breyer sat before a House appropriations subcommittee recently and talked about the plight of the American criminal justice system.

Justice Kennedy did not mince his words. “In many respects, I think it’s broken,” he said. It was a good reminder of the urgency of the problem, and a stark challenge to a Congress that remains unable to pass any meaningful sentencing reform, despite the introduction of multiple bipartisan bills over the past two years....

“The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government,” he said. He chastised the legal profession for being focused only on questions of guilt and innocence, and not what comes after. “We have no interest in corrections,” he said. “Nobody looks at it.”

That is not entirely fair; many lawyers and legal scholars have devoted their careers to studying the phenomenon of mass incarceration in America and to improving intolerable prison conditions. But Justice Kennedy was right that all too often decisions about sentencing and corrections are made without meaningful consideration of their long­-term costs and benefits, or of their effect on the millions of people who spend decades behind bars. “This idea of total incarceration just isn’t working,” he said. “And it’s not humane.”...

Justice Kennedy — whose regular role as the swing vote on a closely divided court gives him tremendous power — has a mixed record on [the Eighth] amendment.  Several times he has voted to uphold breathtakingly long sentences for nonviolent crimes.  For example, in two 2003 cases, he joined the five­-member majority that let stand sentences of 25 years to life and 50 years to life for men convicted in California of thefts totaling a few hundred dollars.

Justice Kennedy’s response to such manifestly unjust results is that fixing prison sentences is the job of lawmakers, not the courts. But that too easily absolves the justices of their constitutional responsibility.  The four justices dissenting in the California cases argued that those grossly disproportionate sentences violated the Eighth Amendment.

In more recent years, Justice Kennedy has increasingly invoked the amendment in sentencing cases, as he did in writing the 2008 decision prohibiting the death penalty as a punishment for child rape, and in 2010 and 2012 when he voted to bar sentences of life without parole for juveniles in most circumstances. He also relied on it in a 2011 decision ordering California to reduce overcrowding in its prisons, a condition that threatened inmates’ physical and mental health.

Justice Breyer, who before joining the court helped design the modern federal sentencing guidelines in the 1980s, told the committee of his own concerns about the justice system, and in particular was sharply critical of mandatory minimum sentences. Such sentences, he told the representatives, are “a terrible idea.”

The justices were right to lay these issues directly at Congress’s door. They can accomplish only so much on their own. Meanwhile, states from Texas to California to New York to Mississippi have been reforming their prisons and their sentencing laws for several years now, with overwhelmingly positive results. Now it is Congress’s turn to reform the unjustly harsh and ineffective sentencing laws it passed in the first place.

Prior related post:

April 5, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, April 01, 2015

"For principle to be served, 22 worthy, long-term narcotics prisoners granted release needs to become 2,200 or more."

The title of this post is a provocative line from this commentary piece by Mark Osler in reaction to President Obama's grants of clemency yesterday (basics here).   Here are more of his sentiments:

In one day, Obama commuted almost as many sentences as Reagan and George W. Bush did in 16 years.

What we are glimpsing like a gorilla in the mist might be something so rare it has not been spotted in four decades: the principled use of the pardon power in a systemic way to address injustice.  It could even be the reclaiming of a core Constitutional imperative that was squandered by President Clinton in his last days in office, and largely ignored by President Reagan and both Bushes.  Or maybe not; it all depends on what comes next....

The president has most of the work ahead of him if he is really to reclaim the pardon power from its long period of disrepute.  Tuesday’s 22 men and women are largely symbolic, representing the thousands like them who remain in prison.

Perhaps most importantly, the president should reform the pardon process so that it doesn’t need special initiatives like the Clemency Project 2014.  Like Presidents Bush and Clinton before him, Obama complained of not getting good cases.  The problem is the system that delivers those cases to his desk, which winds its way through the Department of Justice and the White House, navigating as many as seven levels of review....

[M]any of the most efficient [state] systems use a clemency board to make recommendations directly to the executive.  Establishing such a board cuts the levels of review down to just a few and opens up other opportunities.  For example, such a board could compile and analyze data on those released and their success, providing guidance for future cases.

The fact that 22 clemencies is historic says more about the state of federal clemency than it does about this toe-in-the-water action, given that there are over 200,000 people in federal prisons across the United States.  At best, it is a symbolic gesture, and the coming reality will be good for the prisoners released, good for the communities they return to, and good for a living Constitution in need of balance.

Prior related post:

April 1, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Should the Supreme Court reflect the country's "disenchantment with capital punishment"?

The question in the title of this post is prompted by this notable new New York Times commentary by Linda Greenhouse headlined "The Supreme Court's Death Trap."  Here are excerpts:

You wouldn’t know it from the death penalty proceeding about to take place in the Boston Marathon case, or from Utah’s reauthorization of the firing squad, or the spate of botched lethal injections, but capital punishment in the United States is becoming vestigial.

The number of death sentences imposed last year, 72, was the lowest in 40 years. The number of executions, 35, was the lowest since 1994, less than half the modern peak of 98, reached in 1999.  Seven states, the fewest in 25 years, carried out executions.

California has the country’s biggest death row, with more than 700 inmates.  Many more of them die of natural causes — two since mid-­March — than by execution.  Last July, a federal district judge, Cormac J. Carney, concluding that California’s death penalty had become “dysfunctional,” “random” and devoid of “penological purpose,” declared it unconstitutional; the state is appealing.

But if there’s one place that seems to stand apart from the tide of disenchantment with capital punishment, it’s the Supreme Court....

Adam Liptak, the Supreme Court correspondent for The Times, has highlighted the disturbing way the court handled a challenge to Missouri’s lethal­-injection protocol back in January: first, over four dissenting votes, permitting the state to execute Charles F. Warner, one of four inmates who had filed appeals, only to agree a week later to hear the appeals of three identically situated inmates.  The court then granted stays of execution to the three and will hear their case, Glossip v. Gross, on April 29....

A Texas death­-row inmate, Lester Leroy Bower Jr., managed to win a stay of execution in February to enable the justices to decide whether to hear his challenge to the state courts’ handling of his mitigating evidence.  Last week, the Supreme Court turned down his appeal, thus dissolving the stay, over the dissenting votes of Justices Breyer, Ginsburg and Sotomayor; Justice Breyer, not given to overstatement, wrote that “the error here is glaring.” Since at least two others must have voted for the stay, where were they? Perhaps after carefully considering the merits of Mr. Bower’s appeal, they found itinsufficient. Fair enough. But shouldn’t they have felt moved to tell us something — anything?

An argument on Monday was simply dispiriting. A Louisiana inmate, Kevan Brumfield, with an I.Q. of 75, was sentenced to death before the Atkins decision barred the execution of mentally disabled people.  At trial, his lawyer had presented some evidence of his disability, but not in the detail a court would expect in the post-­Atkins world.  The question for the justices in Brumfield v. Cain was whether he should have received a new hearing. The obvious answer would seem to be: Of course, why on earth not?  But the justices seemed more concerned about whether Mr. Brumfield and his lawyer were trying to game the system.

In 2008, two years before he retired, Justice John Paul Stevens renounced the death penalty.  His nuanced opinion in Baze v. Rees rewards rereading.  No current justice has taken up the call. I’m not so naïve as to predict that a majority of the Supreme Court will declare the death penalty unconstitutional anytime soon.  But the voice of even one member of the court could set a clarifying marker to which others would have to respond. And it just might over time point the way to freeing the court — and the rest of us — from the machinery of death.

April 1, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, March 31, 2015

Prez Obama starts to "walk the walk" on clemency by granting 22 new drug offense commutations

Long-time readers know I have long complained about Prez Obama's failure to make regular use of his clemency power, and I have been especially critical over the last year when we have heard the President and his agents "talk the talk" a lot about a new clemency initiative, but not actually "walk the walk" by granting relief in a significant number of cases.  But today, as reported in this USA Today article, may finally mark the start of a truly new clemency era:

President Obama commuted the sentences of 22 convicted federal prisoners Tuesday, shortening their sentences for drug-related crimes. Eight of the prisoners who will have their sentences reduced were serving life sentences. All but one of the 22 will be released on July 28.

The White House said Obama made the move in order to grant to older prisoners the same leniency that would be given to people convicted of the same crimes today. "Had they been sentenced under current laws and policies, many of these individuals would have already served their time and paid their debt to society," White House Counsel Neil Eggleston said in a statement. "Because many were convicted under an outdated sentencing regime, they served years—in some cases more than a decade—longer than individuals convicted today of the same crime."

In issuing the commutations Tuesday, Obama has more than doubled the number he's granted in his presidency. Before Tuesday, he had issued just 21 and denied 782 commutations in his more than six years. It was the most commutations issued by a president in a single day since President Clinton issued 150 pardons and 40 commutations on his last day in office.

And it could represent the crest of a new wave of commutations that could come in Obama's last two years in office. Last year, the Justice Department announced a new clemency initiative to try to encourage more low-level drug offenders to apply to have their sentences reduced. That resulted in a record 6,561 applications in the last fiscal year, at least two of which were granted commutations Tuesday, according to the Justice Department....

Obama wrote each of the 22 Tuesday, saying they had demonstrated the potential to turn their lives around. "Now it is up to you to make the most of this opportunity. It will not be easy, and you will encounter many who doubt people with criminal records can change," Obama wrote. "I believe in your ability to prove the doubters wrong."

Of the 22 commutations granted Tuesday, 17 were for possession or trafficking in cocaine. The others were for methamphetamine, heroin and marijuana. One was also convicted of a gun charge in addition to cocaine possession. Their convictions cover a 14-year span from 1992 to 2006.

A list of the 22 individuals receiving commutations today is available via this official White House press release, and the White House blog has this new entry by Neil Eggleston titled "Upholding the Principle of Fairness in Our Criminal Justice System Through Clemency." Here is an excerpt from that entry:

Building on his commitment to address instances of unfairness in sentencing, President Obama granted 22 commutations today to individuals serving time in federal prison. Had they been sentenced under current laws and policies, many of these individuals would have already served their time and paid their debt to society. Because many were convicted under an outdated sentencing regime, they served years — in some cases more than a decade — longer than individuals convicted today of the same crime.

In total, the 22 commutations granted today underscore the President’s commitment to using all the tools at his disposal to bring greater fairness and equity to our justice system. Further, they demonstrate how exercising this important authority can remedy imbalances and rectify errors in sentencing. Added to his prior 21 commutations, the President has now granted 43 commutations total. To put President Obama’s actions in context, President George W. Bush commuted 11 sentences in his eight years in office....

While today’s announcement represents important progress, there’s more work ahead. The Administration will continue to work to review thoroughly all petitions for clemency. And, while commutation is an important tool for those seeking justice and fairness in our penal system, it is nearly always an option of last resort, coming after a lengthy court process and many years behind bars. That is why President Obama is committed to working with Democrats and Republicans on sensible reforms to our criminal justice system that aim to give judges more discretion over mandatory minimum sentencing. As the Department of Justice has noted, mandatory minimum sentences have at times resulted in harsher penalties for non-violent drug offenders than many violent offenders and are not necessary for prosecutions at this level.

Already, one significant reform has become law. In 2010, the President signed the Fair Sentencing Act, which reduced the disparity in the amounts of powder cocaine and crack cocaine required for the imposition of mandatory minimum penalties. The President is encouraged by the bipartisan support for improving our criminal justice system, including promising legislation that would implement front-end changes in sentencing. In addition, he supports bipartisan efforts to provide back-end support through better education and job training for those currently incarcerated and to reform of our juvenile justice system to build on the significant reductions in the number of youth being held in secure facilities.

March 31, 2015 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, March 30, 2015

Two SCOTUS summary reversals: a notable sex-offender monitoring issue and another AEDPA enforcement

In addition to granting cert on a bunch of Kansas capital cases, the US Supreme Court this morning issued two short per curiam summary reversals today in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), and Woods v. Donald, No. 14-618 (S. Ct. March 30, 2015) (available here).  The second of these rulings is just another example of the Justices helping a circuit (this time the Sixth) better understand that AEDPA precludes a habeas grant unless and until an "underlying state-court decision [is] 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' [the Supreme Court]."  

But the first of these rulings are notable because it clarifies and confirms that the Fourth Amendment is applicable to sex offender monitoring.  Here are key passages from the ruling in Grady:

Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender.  See N. C. Gen. Stat. Ann. §§14–208.40(a)(1), 14– 208.40B (2013).  Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes.  He argued, however, that the monitoring program — under which he would be forced to wear tracking devices at all times — would violate his Fourth Amendment right to be free from unreasonable searches and seizures.  Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life....

The only explanation provided below for the rejection of Grady’s challenge is [a] passage from [a prior state ruling].  And the only theory we discern in that passage is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment.  That theory is inconsistent with this Court’s precedents....

[T]he State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information.  If the very name of the program does not suffice to rebut this contention, the text of the statute surely does....  The State’s program is plainly designed to obtain information.  And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.

That conclusion, however, does not decide the ultimate question of the program’s constitutionality.  The Fourth Amendment prohibits only unreasonable searches.  The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.  See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable).  The North Carolina courts did not examine whether the State’s monitoring program is reasonable — when properly viewed as a search — and we will not do so in the first instance.

March 30, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS grants cert on collection of capital cases from Kansas

The state of Kansas has not carried out a death sentence since 1965.  But even though the Sunflower state has not truly utilized its system of capital punishment for a full half-century, the Supreme Court apparently believes it is important to review three capital cases from the state as evidenced by its cert grants this morning in Kansas v. Jonathan Carr, Kansas v. Reginald Carr and Kansas v. Sidney Gleason.

This AP article provides this summary of the underlying crimes and defendants whose cases are now before the Justices:

The Supreme Court agreed Monday to hear Kansas' appeal to reinstate death sentences for two brothers in the fatal shootings of four people and for another man convicted of killing a couple.

The justices said they will review rulings by the Kansas Supreme Court that threw out the sentences of Jonathan and Reginald Carr and Sidney Gleason. The Kansas court hasn't upheld a death sentence since the state enacted a new capital punishment law in 1994. The state's last executions, by hanging, took place in 1965.

The Carr brothers were sentenced to death for the four killings, which occurred in Wichita in December 2000 and followed dozens of other crimes, including robbery and rape. Gleason was sentenced to die over the couple's deaths, in the central Kansas town of Great Bend in February 2004.

March 30, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, March 29, 2015

Oregon Supreme Court to consider constitutionality of LWOP sentence for public pubic promotion

This local article from the Beaver State, headlined "Oregon Supreme Court to consider: Is it 'cruel and unusual' to imprison public masturbator for life?," reports that the top court in Oregon is taking up a notable sentencing issue in a notable setting. Here are the details:

William Althouse is serving a life prison sentence -- but not because, like many in that situation, he killed someone.  Althouse, 69, has repeatedly exposed his genitals in public with sexual intent. In 2012, after a Marion County jury found him guilty of that conduct again, a judge sentenced him to life without any hope of being released.

The Oregon Supreme Court, however, announced Thursday that it will consider if that amounts to cruel and unusual punishment.  The sentence is disproportionate to the offense, said Daniel Carroll, the defense attorney who represented Althouse at trial, told The Oregonian/OregonLive on Friday. "No one died," he said.

The high court's consideration of the case seems particularly timely given another lengthy sentence -- 18 years -- handed down to a 49-year-old Sherwood man last week who was found guilty of masturbating or exposing himself eight times at the drive-through windows of fast-food restaurants and coffee shops.

In Althouse's case, the state likely will point out that he isn't only a serial flasher -- his life sentence was meant to reflect a long and concerning history of sex offenses. His sex crime convictions include sexual abuse in 1982 and kidnapping, sodomy and sexual abuse in 1993.

Typically, first-time public indecency offenders receive probation and counseling. It's unclear from court records how many times Althouse has been convicted of public indecency, but when he was convicted in 2002 of the crime, court records indicate that he had at least one earlier conviction.

Althouse, who was living in Salem, was arrested in his last case after a female jogger reported seeing him exposing his genitals -- the prosecution contended masturbating -- along a walking path next to the Salem Parkway in October 2011.  After a jury found him guilty in 2012, Marion County Circuit Judge Lindsay Partridge sentenced Althouse to the life term under an Oregon law meant to get tough on sex offenders after their third felony sex conviction.

One of many interesting aspects of this case is the import and possible impact of the age of the offender. In recent SCOTUS rulings, some Justices seemed sensibly influenced by the reality that an LWOP sentence for a juvenile offender can be functionally worse than even a no-parole 50-year sentence. But for an offender in his late 60s, an LWOP sentence is arguably functionally no worse than a no-parole 50-year sentence. Whether and how that should matter for constitutionally purposes is an issue still not yet resolved in debates over LWOP sentences that have been described as "living death sentences."

March 29, 2015 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack