Wednesday, March 04, 2015

First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing

Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing.  The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:

Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.

The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.

We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges.  We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....

A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.

Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance.  We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.

Some related prior posts:

P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post.  It has been a long day.

March 4, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania

As reported in this local article, folks in Pennsylvania unhappy with "Gov. Tom Wolf's moratorium on the death penalty gathered at the state Capitol on Wednesday to criticize that decision that they say was reached without input from crime victims or law enforcement officers." Here is more:

They came together on the day that death row inmate Terrence Williams was scheduled to be executed; his being the first death sentence to be reprieved as a result of the moratorium.

"Pennsylvania crime victims deserve justice. What they are receiving from the governor is politics," said Rep. Mike Vereb, R-Montgomery, at the news conference. "He could approach the Legislature to try to get the law changed or he could have filed a lawsuit in court and seek an injunction in death penalty cases. The governor chose to pursue neither of those options."

Instead, with the stroke of his pen on Feb. 13, he signed an executive order to put capital punishment in Pennsylvania on hold until he reviews a Senate-ordered study of the issue that is due later this year....

Many are awaiting the outcome of the lawsuit filed by Philadelphia District Attorney Seth Williams challenging Wolf's authority to impose the moratorium. The Supreme Court on Tuesday agreed to hear the case.

In the meantime, Vereb has introduced a resolution calling on the governor to reverse his decision and obey the law that now exists in Pennsylvania allowing for capital punishment. While he admits that won't carry the force of law, Vereb said it at least sends a message to the governor.

House Judiciary Committee Chairman Ron Marsico, R-Lower Paxton Twp., said he plans to have at least two committee hearings on the issue of capital punishment, starting with one in Philadelphia on March 26 and the other scheduled for June. This month's hearing will focus on testimony from family members of murder victims.

Throughout the news conference, legislators along with the crime victims and district attorneys standing in front of a line of photos of murder victims criticized Wolf for failing to seek their input....

York County District Attorney Tom Kearney said victims are best suited to explain the impact of Wolf's actions. He then proceeded to read a letter from Pauline Smith, whose mother June Rose Ohlinger, was murdered in 1995 in Schuylkill County by serial killer Mark Spotz who is among the 186 inmates now on death row. In her letter, Smith described the governor's decision as "a slap in the face to all of the victims of heinous crimes."

Prior related posts:

March 4, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium

As reported in this local article, headlined "Pennsylvania Supreme Court to take death penalty moratorium case: Philadelphia DA calls governor’s actions lawless and unconstitutional," a fascinating case concerning state executive powers in the Keystone State is officially to be considered by the state Supreme Court. Here are the details:

The Pennsylvania Supreme Court on Tuesday agreed to take a case filed by the Philadelphia district attorney’s office challenging Gov. Tom Wolf’s moratorium implemented last month on capital punishment in the state. District Attorney R. Seth Williams asked the court to take up the matter involving a defendant named Terrance Williams, who was scheduled for lethal injection today.

Although Seth Williams asked that the court take the case on an expedited basis, the court refused, and it will be heard on a standard calendar, which means that both sides will file briefs and replies over the next several months, and oral argument will be scheduled at a date in the future.

It will probably be more than a year before any decision is reached, and University of Pittsburgh law professor John Burkoff said it could be even longer if the court decides it wants two new justices, who will be elected later this year, to consider the case as well.

Mr. Wolf announced on Feb. 13 that he was instituting a moratorium on the death penalty in Pennsylvania, saying that it was not an “expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes.” Instead, he continued, it was “based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive.” He cited nationwide statistics that show 150 people have been exonerated from death row, including six in Pennsylvania....

But in his filing, Seth Williams argues that Mr. Wolf’s action was lawless and unconstitutional. “Merely characterizing conduct by the governor as a reprieve does not make it so,” the prosecutor’s filing said.

Instead, it continued, “At all times in Pennsylvania history a reprieve has meant one thing and only one thing: a temporary stay of a criminal judgment for a defined period of time, for the purpose of allowing the defendant to pursue an available legal remedy. The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”

To halt the imposition of the death penalty on a defendant, the district attorney’s office continued, the sentence must be commuted, which can be done only with unanimous agreement by the state Board of Pardons. Seth Williams accused the governor of usurping judicial function.

But in the governor’s response, his attorneys said what he was doing is temporary — a reprieve — and requires no input from the Board of Pardons. “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis,’ ” they wrote, quoting an earlier court case.

Prior related posts:

March 4, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 02, 2015

California Supreme Court rules blanket sex-offender residency restriction fails rational basis review

In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds.  As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."

As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:

In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b).  As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons.  Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....

The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.  We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.

March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges"

The provocative title of this post is the provocative title of this new article authored by US District Judge Mark Bennett now available via SSRN.  Here is the abstract:

A federal district court judge who has sentenced more than 4000 defendants reflects on federal sentencing and its role in mass incarceration.  The focus of the article is on federal sentencing in crack cocaine cases and policy disagreements with the United States Sentencing Guidelines (Guidelines) in drug trafficking cases.  The article explores the U.S. Supreme Court cases in Kimbrough v. United States, United States v. Spears, and Pepper v. United States, the only U.S. Supreme Court cases that address sentencing judges’ policy disagreements with the guidelines.  Ironically, or perhaps serendipitously, the author was the sentencing judge in both Spears and Pepper, where he was reversed a whopping 5 times by the U.S. Court of Appeals for the Eighth Circuit (twice by an en banc court) before both defendants’ sentencing positions were vindicated by the U.S. Supreme Court.

The article takes exception to two Third Circuit judges who have argued in law review articles that federal sentencing judges should be concerned about "legislative backlash" if they sentence outside the now advisory guidelines.  In the arc of the history of federal sentencing and its impact on mass incarceration, we are perched at a cresting point where the gravity of reason and our Nation’s experience with mass incarceration hopefully will pull towards greater justice in sentencing.

March 2, 2015 in Drug Offense Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 26, 2015

Encouraging recidivism realities after three-strikes reform in California

This new New York Times article, headlined "California Convicts Are Out of Prison After Third Strike, and Staying Out," reports on some good post-sentencing-reform news from the West Coast.  Here are excerpts:

Mr. Taylor, 58, is one of more than 2,000 former inmates who were serving life terms under California’s three-strikes law, but who were freed early after voters scaled it back in 2012. Under the original law, repeat offenders received life sentences, with no possibility of parole for at least 25 years, even if the third felony was as minor as shoplifting....

Formerly branded career criminals, those released over the last two years have returned to crime at a remarkably low rate — partly because they had aged in prison, experts say, and because participation in crime declines steadily after age 25, but also because of the intense practical aid and counseling many have received. And California’s experience with the release of these inmates provides one way forward as the country considers how to reduce incarceration without increasing crime.

“I hope the enduring lesson is that all of these people are not hopeless recidivists,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, which provides legal aid to prisoners and training to public defenders. “Those who remain dangerous should be kept behind bars,” added Mr. Romano, who was an author of the 2012 revisions. “But there are many people in prison who are no threat to public safety.”...

In 2012, with crime down and prisons overflowing, California voters had second thoughts. Proposition 36 held that many prisoners whose third offenses were not violent or serious would be eligible for resentencing, so long as a judge did not find an “unreasonable risk of danger to public safety.”

Of about 9,000 prisoners who had been sentenced under the three-strikes law, about 3,000 qualified for a rehearing; another 6,000, with more violent records, did not. As of late February, 2,008 inmates had been released for time served, and 92 were serving out reduced sentences. More than 700 cases remain to be adjudicated.Judges ruled against just 132 of the eligible inmates.

After being free for an average of more than 18 months, just 4.7 percent of the former life prisoners have returned to prison for new crimes, usually burglaries or drug crimes. By comparison, Mr. Romano calculates based on state data, of all inmates released from California prisons, about 45 percent return for new crimes over a similar period.

February 26, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 25, 2015

Passage of Smarter Sentencing Act is reportedly "very important" to Prez Obama

This notable new USA Today piece, headlined "Bipartisan sentencing bill gets White House support," reports that President Obama indicated at a meeting yesterday with congressional leaders that he was interested and eager to have the Smarter Sentencing Act become law. Here are the details:

President Obama is throwing his support behind a bipartisan proposal to change the nation's sentencing laws by cutting many mandatory minimum sentences in half. That commitment came out of a meeting with 16 members of Congress at the White House Tuesday night, called by the president to gather their ideas on how to overhaul the criminal justice system.

Members of Congress who attended said the main topic of conversation was the Smarter Sentencing Act, a bill sponsored by Rep. Raul Labrador, R-Idaho, that would reduce mandatory minimum sentences for non-violent drug offenders.

Obama supported a similar bill in the last Congress, but the current proposal goes even further. Mandatory life sentences would be reduced to 20 years — effectively cutting life sentences in half because the current life sentence averages 40 years.

Another change: Those convicted of importing drugs into the United States would not be eligible for the reduced sentences unless they were merely couriers whose role was limited to transporting or storing drugs or money.

Sen. Mike Lee, R-Utah, who has introduced a companion bill in the Senate, said Obama "focused specifically" on the Smarter Sentencing Act "and his desire to have it passed."

"It was showing us that this is very important to him, and he has the resources of his administration that he's been willing to put out there," Lee told KSL Radio in Salt Lake City Wednesday.

White House spokesman Frank Benenati said Wednesday that the White House is still reviewing the text of the legislation, but that "it certainly appears" that the Labrador proposal meshes with the president's aims to "make our communities safer, treat individuals more justly and allow more efficient use of enforcement resources."

Obama has signaled his support for sentencing changes as recently as Monday, when he praised governors who had signed similar bills at a White House dinner. "Last year was the first time in 40 years that the federal incarceration rate and the crime rate went down at the same time," Obama said. "Let's keep that progress going, and reform our criminal justice system in ways that protect our citizens and serves us all."

Labrador said that's an important point for Obama to make. "The main obstacle is the perception that sentencing reform will lead to more crime. And I think the opposite is true," he said. "The concern is that we want to continue to be tough on crime, but we want to be smart on crime."...

House Judiciary Chairman Bob Goodlatte, R-Va., who also attended the meeting with Obama, would not comment on the meeting. He's been cool to sentencing changes in the past, but Sen. Cory Booker, D-N.J., said he thought Goodlatte seemed "remarkably open" to the issue.

February 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS in Yates rejects broad interpretation of federal criminal statute via fascinating 5-4 split (with Justice Alito as swing vote)!!

Download (5)I often tell students that one of many reasons I find sentencing and related criminal justice issues so fascinating is because truly hard and interesting Supreme Court cases will rarely be resolved via the traditional (and traditionally boring) political splits among the Justices.  This reality is dramatically and uniquely on display this morning thanks to a ruling for a federal criminal defendant today in Yates v. United States, No. 13-7451 (S. Ct. Feb. 25, 2015) (available here).  Yates has produced this remarkable and unprecedented combination of opinions and votes:

GINSBURG, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and BREYER and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. KAGAN, J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined.

Here are some money quotes from the start of the plurality opinion authored by Justice Ginsburg:

John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico.  To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U. S. C. §1519...

Yates does not contest his conviction for violating §2232(a), but he maintains that fish are not trapped within the term “tangible object,” as that term is used in §1519.

Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction.  But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.  Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.

And here are excerpts from the close of the dissenting opinion authored by Justice Kagan:

If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. See ante, at 17–18. Section 1519, the plurality objects, would then “expose[] individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” Ante, at 18. That brings to the surface the real issue: overcriminalization and excessive punishment in the U. S. Code.

Now as to this statute, I think the plurality somewhat — though only somewhat — exaggerates the matter. The plurality omits from its description of §1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting §1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor.... Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.  And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.”  Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta.  But we are not entitled to replace the statute Congress enacted with an alternative of our own design.

Great stuff here (including a cite by Justice Kagan to the esteemed source pictured above).  And surely not to be overlooked is the remarkable reality that Justice Alito, who has a history of almost always backing prosecutors in close cases, turned out in Yates to the be key vote (and author of the actual controlling opinion) for a federal criminal defendant.  

Amazing stuff... and I hope some future law review article on Yates considers a title like "One Justice, Two Justice, Red Justice, Blue Justice: What Congress Should Learn from Dr. Seuss about Writing Statutes."  

February 25, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration"

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

The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments.  The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.

The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race.  Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.

To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation.  Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures.  This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules.  Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.

Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences.  Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues.  The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.

February 25, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 24, 2015

Two notable and timely new reform reports from The Sentencing Project

Via an e-mail from The Sentencing Project (reprinted in part below), I received this summary (with links) to two notable new reports from the group:

[Here are] two new reports from The Sentencing Project documenting changes in criminal justice policy in 2014 and successful advocacy campaign strategies in conservative state environments. The reforms highlighted in these reports represent approaches that lawmakers and advocates can consider to address sentencing policy and collateral consequences at the state level.

The State of Sentencing 2014 highlights policy changes in 30 states and the District of Columbia in both the adult and juvenile justice systems, including:

  • Scaling back sentences for low-level drug offenses

  • Reducing barriers to reentry, including employment restrictions and bans on public assistance

  • Eliminating juvenile life without parole

State Criminal Justice Advocacy in a Conservative Environment documents successful advocacy strategies employed in campaigns in Indiana, Missouri, and Texas. In these states, advocates achieved the following reforms:

  • Reduced enhanced penalties in drug-free zones in Indiana by shrinking the limit of zones from 1,000 feet to 500 feet, and eliminating all zones except those around schools and parks
  • Modified Missouri’s federal lifetime ban on food stamp benefits for persons with felony drug convictions
  • Closed two Texas prison facilities: the Dawson State Jail and the Mineral Wells Pre-Parole Transfer Facility

February 24, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 23, 2015

"What rights do felons have over their surrendered firearms?"

The question in the title of this post is the substance of the title of this helpful SCOTUS argument preview of Henderson v. US authored by Richard Re over at SCOTUSblog.  Here are excerpts which highlight why I think of Henderson as an interesting and dynamic sentencing case:

Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?

The petitioner, Tony Henderson, was a Border Patrol agent convicted of distributing marijuana, a felony offense. Shortly after being arrested in 2006, Henderson surrendered his personal collection of firearms and other weapons to federal agents as a condition of release during the pendency of his criminal case. According to Henderson, his weapons collection included valuable items that had long been in the family, as well as an “antique.” Moreover, the collection was and remains Henderson’s lawful property. So, starting in 2008, Henderson asked authorities to transfer his weapons collection to someone else. But prosecutors and courts alike declined. Understandably enough, Henderson didn’t want his collection to escheat to the government like so much feudal property. So he’s pressed his rights to the Supreme Court.

The legal issues start with a conflict between a procedural rule and a federal statute. Under Federal Rule of Criminal Procedure 41, the government usually has to “return” a defendant’s lawful property. But that can’t happen in Henderson’s case because a federal criminal law (18 U.S.C. § 922(g)(1)) prohibits convicted felons, including Henderson, from possessing firearms. So if Rule 41 were allowed to operate according to its terms, Henderson would instantly be in violation of Section 922(g)(1). The courts below recognized that result as contrary to federal law and policy. (In a footnote in its merits brief, the federal government acknowledges that some of Henderson’s long-withheld weapons collection actually doesn’t consist of firearms at all. The government accordingly assures the Court that the “FBI is making the necessary arrangements to return the crossbow and the muzzle-loading rifle to petitioner.”)

To get around Section 922(g)(1), Henderson asked the government to transfer his firearms to third parties who are permitted to possess such items – specifically, either his wife or a friend who had promised to pay for them. Those proposed transfers, Henderson points out, wouldn’t result in his own possession of the firearms. And, critically, the proposed transfers would honor Henderson’s continued ownership of the weapons.... While Rule 41 by its terms may authorize only the “return” of property, Henderson argues that the federal district courts have “equitable” authority to direct transfers to third parties....

Without questioning that federal equitable authority operates in this area, the courts below apparently rejected Henderson’s transfer request in part based on the ancient rule of “unclean hands.” Under this venerable maxim, a wrongdoer (whose hands are figuratively dirty) may not seek relief at equity in connection with his own wrongful act. Based on a broad view of that precept, the courts below seemed to say that convicted felons are categorically barred from equitable relief as to their government-held property. Henderson contends that this holding revives ancient principles of “outlawry,” whereby criminals lose the protection of the law, while also running afoul of the Due Process Clause, the Takings Clause, and other constitutional provisions. However, the Solicitor General disputes that the decision below actually rested on this ground and — more importantly — has declined to defend it.

Instead, the federal government defends the result below on the ground that Section 922(g)(1) should be read to prohibit not just felons’ actual possession of firearms, but also their “constructive possession” of such weapons. On this view, impermissible constructive possession occurs when a convicted felon can exert some control over the next physical possessor of a particular item of property. Thus, Henderson would exert constructive possession – barred by federal law – if he could direct the transfer of his firearms to any particular person, including his wife or friend. Such direction, the government contends, would also create an unacceptable risk of letting the firearm find its way back to the felon. A permissible approach, in the government’s opinion, would be for it to transfer weapons to a licensed firearms dealer for sale, with proceeds going to the convicted felon.

Having gotten the federal government to endorse some remedial third-party transfers – a significant development in itself – Henderson asks why a convicted felon can’t at least nominate specific third parties, like a museum or a relative, to receive previously surrendered firearms that double as historical artifacts or family heirlooms....

While the ultimate outcome may turn in part on case-specific facts, the case touches on a number of important public debates. This becomes most obvious when the parties peripherally joust over the Second Amendment. The case has also drawn a number of amici. For instance, the Institute for Justice connects the case to public debate over forfeitures by asserting an aged canon against such forfeitures. Meanwhile, the National Association of Criminal Defense Lawyers and the National Rifle Association of America respectively argue from the Excessive Fines Clause and, of course, the Second Amendment. The Brady Center to Prevent Gun Violence, the government’s only amicus, also joins issue.

February 23, 2015 in Fines, Restitution and Other Economic Sanctions, Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS denies review for Eighth Amendment challenge to 15-year mandatory minimum sentence for possessing shotgun shells

I am quite bummed, and more than a bit grumpy, that the Supreme Court this morning denied certiorari review via this new order list of the case of Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer."  I am bummed because, as detailed in this post, I helped file an amicus brief in support of Young's Eighth Amendment claim in the Sixth Circuit and also in support of his SCOTUS cert petition.

I am grumpy because the Supreme Court's willingness to deny review in this case, without even requiring the feds to file a brief in opposition and without any noted dissents, highlights yet again that modern Supreme Court Justices remain much more concerned with whether the worst-of-the-worst state murderers might feel some momentary pain while being executed than with whether Congress and federal prosecutors have gone to far in their application of extreme mandatory prison sentencing terms.   In my amicus brief, I had these concluding sentiments about the Young case and its implications:

The essential facts of this case read like a fictional story about a totalitarian dystopian state imagined by the likes of Franz Kafka or George Orwell: after unintentionally coming into possession 18 of a handful of shotgun shells while helping his widowed neighbor — conduct which is not a crime in his home State or in the vast majority of States in our Union — Edward Young was prosecuted by federal officials using a federal law that mandated a sentencing judge to order Mr. Young to spend the next 15 years of his life locked in a cage.  Disconcertingly, this nightmare tale of extreme punishment is not only true, but it has occurred in the United States of America — a country which was supposedly “conceived in liberty,” Abraham Lincoln, Gettysburg Address, and in which school children still recite their commitment to “liberty and justice for all.”  Pledge of Allegiance (codified in Title 4 of the United States Code § 4)....

[I]f Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).

Edward Young can, and I hope will, continue to assail his prosecution and sentencing via a 2255 petition, but such actions are subject to all sorts of additional difficulties (including the absence of a right to counsel).  Moreover, for me this case was not just about how Young's minor crime was treated by the feds, but whether federal judges believe that the Eighth Amendment provides any limit on the mandatory prison terms that could be imposed by federal authorities.  I strongly believe the Framers thought they were doing something about extreme sentences like the one given to Edward Young when they enacted the Eighth Amendment, but it seems no modern federal judges agree with me on this front.  Grrr.

Prior related posts:

February 23, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Senators respond to NY Times criticisms of their sentencing work

I noted and commented here last week on this New York Times editorial about on-going debates over proposed federal sentencing reforms.  Today, the New York Times reprints two letters from the Senators whose work was subject to the Times' criticisms under the headline "Sentencing Reform: 3 Senators Speak Out."  Here are excerpts:

JOHN CORNYN & SHELDON WHITEHOUSE:  “The Roadblock to Sentencing Reform” (editorial, Feb. 17) expressed concerns about our legislation to enable federal inmates to earn earlier release from prison if they complete programs proved to reduce the risk that they’ll commit future crimes.

You worry that our “risk assessment” tools could disproportionately help white prisoners over minorities. But states across the country have found that risk assessments typically lead to results that are fairer for all groups, including minorities.  You yourself wrote last year that data­-based risk-assessment tools have been used in “at least 15 states ...with good results” (editorial, Feb. 17, 2014).  And our bill would emphasize “dynamic” risk factors — things prisoners can change — so that all inmates can lower their risk of recidivism....

We agree that we should reform other aspects of our criminal justice system. But no one should minimize the importance of ending the cycle of recidivism, reducing prison costs and helping inmates succeed upon release.

----

CHUCK GRASSLEY:  I disagree with your editorial.  The reality is that reductions in federal mandatory minimum sentences are misguided.  These sentences are vital in obtaining the cooperation necessary to prosecute leaders in the drug trade. The so-­called Smarter Sentencing Act, sponsored by Senators Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would arbitrarily cut in half the mandatory minimum sentences for importing, manufacturing and distributing drugs like heroin, PCP, methamphetamine and cocaine. Enacting such a bill during a well­-documented heroin epidemic would be irresponsible.

Both the Drug Enforcement Administration and the United States attorney in Manhattan have warned that terrorist organizations are using the drug trade to fund their operations. Under Supreme Court rulings, mandatory minimum sentences are the only tool available to Congress to ensure that judges impose adequate and more uniform sentences.

According to the United States Sentencing Commission, unlike in the states, virtually no citizen is in federal prison for drug possession.  Because a “safety valve” eliminates mandatory minimums and lowers sentences for first-time offenders, most federal drug inmates are repeat offenders who did not respond to shorter sentences, and many have extensive criminal histories, including violence.

A few recent related posts on federal sentencing reform:

February 23, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 22, 2015

Early report on the early impact of Proposition 47 in California

La-me-g-prop47-crimeThis new Los Angeles Times article provides an assessment of what we know and do not know so far about the impact of the big criminal justice reform passed by California voters back in November.  The lengthy piece is headlined "Prop. 47's effect on jail time, drug rehabilitation is mixed so far," and here are excerpts:

In the months since Proposition 47 became law on Nov. 5, California's criminal justice system is already undergoing dramatic changes — and not always in expected ways. The idea was to reduce incarceration times for nonviolent offenders and focus on rehabilitation while easing jail overcrowding.

On the streets, some people who are committing Proposition 47 crimes are not being arrested, avoiding jail but also the drug treatment that could turn their lives around. Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff's Department, as busy police officers decide that the time needed to process a case is not worth it.

Even when arrested, drug offenders are often issued a citation to appear in court and face little to no jail time if convicted. Law enforcement officials say they have lost an important tool to deal with those offenders, who remain free to get high again or steal to support their habits. Some drug addicts and their relatives agree, saying the new law allows troubled individuals to hurt themselves and steal with little consequence.

Property crimes, which include burglary, theft and motor vehicle theft, have risen in much of Los Angeles County since Proposition 47 passed, according to a Times analysis of crime data. Through the end of January, property crimes were up 10% in sheriff's territory and up 7% in the city of Los Angeles, compared with the same period a year ago.

Some criminal justice experts caution against drawing conclusions, warning that it is too soon to gauge the new law's effect and that other factors could be responsible for the increase. But to Asst. Sheriff Michael Rothans, who oversees patrol operations for the Sheriff's Department, the connection is obvious: More petty criminals on the streets mean more crimes.

"Why is property crime up? It's because of this," said Rothans, who has urged deputies to continue making drug arrests. "The same people are arrested for narcotics and property crimes. We know the cycle is continuing because we know they should have been in jail."

The new law specifies that the financial savings on the incarceration side be reinvested in truancy, drug treatment and mental health programs. But that provision does not take effect until mid-2016. Without the threat of jail time, fewer defendants are opting for the drug treatment programs that judges sometimes offer as an alternative.

Proposition 47 is at the forefront of a national trend to reduce harsh criminal penalties that led to an explosion in prison and jail populations beginning in the 1980s. It follows a revision to California's three strikes law that limits the maximum penalty to those whose last offense is serious or violent. Along with the shift of nonviolent inmates from state prison to county jails approved by the state Legislature in 2011, Proposition 47 is expected to further transform California's criminal justice landscape.

Already, the new law has had a profound effect on the Los Angeles County jails. With fewer people awaiting trial or serving time for offenses that had previously been felonies, overcrowding has subsided. As a result, jailers are keeping county-sentenced inmates for nearly all their time instead of releasing them early.

Thomas Hoffman, a former police official who was a senior advisor for the Proposition 47 campaign, said law enforcement tends to view locking up criminals as the answer, when many have reoffended after spending time in jail. Theorizing about crime increases and the proposition is premature, he said. "The arrest and rearrest of these minor offenses only postpones crime. It doesn't eliminate it. It's a momentary speed bump in these people's lives," said Hoffman, a former director of the state prison system's parole division as well as a former top official in the Inglewood and West Sacramento police departments.

Lenore Anderson, executive director of Californians for Safety and Justice, which coordinated the Proposition 47 campaign, said it will take time for the state's criminal justice system to adjust to the changes and figure out "how to hold people accountable and stop crime."

The key to the new law's success will be whether the cost savings are indeed spent on drug treatment, said Elliott Currie, a professor of criminology, law and society at the University of California, Irvine. "If it is not going to do that, then we are not going to see any change for the better, and we'll see people out there floundering more than they already are," Currie said.

February 22, 2015 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 20, 2015

Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"

Images (1)As reported in this local article, "Philadelphia District Attorney Seth Williams has sued Gov. Tom Wolf over the death penalty moratorium he imposed last week." Here the basics:

In a lawsuit filed Wednesday, Williams asks the state Supreme Court to rule Wolf's move a "lawless act," claiming the governor had no legal right to grant a reprieve to convicted murderer Terrance Williams....

The lawsuit filed by the city's Democratic district attorney is the second one the Democratic governor has faced since he was sworn in to office Jan. 20. The Republican-controlled Senate sued Wolf in Commonwealth Court over his decision to fire the executive director of the Open Records Office, which the Legislature created when it updated the state's Right-to-Know Law in 2008.

Wolf's death penalty moratorium, announced Friday, fulfilled a campaign promise. It was criticized by district attorneys, law enforcement and some lawmakers. Some religious leaders and other lawmakers praised it....

Wolf said he will grant a reprieve each time a death row inmate is scheduled for execution but keep the inmates' death sentences intact, which was what he did in the case of Terrance Williams. Williams was scheduled to be executed March 4 for the 1984 robbing and fatal tire-iron beating of another man in Philadelphia.

"The governor took the action to place a moratorium on the death penalty because Pennsylvania's capital punishment system is flawed — it's ineffective, expensive, and many times unjust," Wolf spokesman Jeff Sheridan said Wednesday. "As he stated Friday, the governor will wait for the report being produced by the bipartisan Pennsylvania Task Force and Advisory Commission on Capital Punishment, established by the state Senate, and the recommendations within the report are addressed satisfactorily."

Wolf was within his legal right to grant a reprieve under Article 4, Section 9 of the state constitution, Sheridan added. That section also gives the governor the power to commute sentences and issue pardons.

In his lawsuit, Williams says the governor can grant reprieves only as a temporary measure to allow a defendant to pursue "an available legal remedy." The governor cannot grant open-ended reprieves in cases where there are no legal questions surrounding guilt, the suit states. "Merely characterizing conduct by the governor as a reprieve does not make it so," Williams wrote, citing a successful 1994 lawsuit Northampton County District Attorney John Morganelli filed against Gov. Robert P. Casey to enforce the death penalty against Martin D. Appel and Josoph Henry....

"The scope of the reprieve power is not mysterious or vague, and it is limited," Williams' lawsuit states. "Unlike some states, Pennsylvania does not grant the governor an unlimited at-will power of clemency, without which it is not even possible to posit an arguable ability to impose a moratorium."

The filing by Philadelphia DA Williams, which is styled an&"Emergency Commonwealth Petition For Extraordinary Relief Under King's Bench Jurisdiction," was filed in the Supreme Court of Pennsylvania and is available at this link.  I find the filing quite effective and compelling, and I thought these passages were especially notable:

On February 13, 2015, the Governor issued a purported reprieve in connection with his publicly-announced assumption of a constitutionally-nonexistent power to declare a “moratorium” on death sentences in Pennsylvania.

This lawless act by the Governor, improperly and inaccurately characterized as a reprieve — for the act issued in this case is not, in fact, a reprieve — is not within the constitutional powers of the Governor, usurps judicial review of criminal judgments, and is in direct violation of his duty to faithfully execute Pennsylvania law under Article IV, § 2. It is unconstitutional, illegal, and should be declared null and void by this Court....

The alleged reprieve, which is not a reprieve at all, violates the constitutional separation of powers.  The constitution requires due process, not the Governor’s personal standard of absolute perfection; and the task of assuring that criminal judgments meet that correct standard is assigned to the judiciary, not the executive.Exercise, by another branch, of an extra-constitutional attempt to disturb settled judgments in criminal cases is an impermissible usurpation of the exclusive function of the judiciary....

In law and in reality, therefore, the Governor seeks to nullify valid, final judgments of sentence in usurpation of the judicial function, and seeks to subject the law governing capital sentencing to the test of his personal standard of satisfaction,which in this instance happens to be a test of infallibility that is impossible for mere mortals to satisfy. This is not permissible in a government that is founded on the principle that the people are to be ruled by laws enacted by their representatives in the legislative process, and not the personal whims of a king or dictator. The constitutional role of the Governor is to execute the law, not sabotage it.

February 20, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?

Long-time readers and most federal sentencing policy gurus know about the long-time discussion of the Smarter Sentencing Act.  The SSA seemingly had lots of bi-partisan support when got through the Senate Judiciary Committee in the last Congress, but the drug warriors helped ensure it did not get any further.

Now we have a new Congress with new leadership in the Senate and, as reported here, a new introduction of a new version of the SSA, the Smarter Sentencing Act of 2015.  In part because new Senate Judiciary Chair Charles Grassley has been a vocal opponent of any significant statutory drug sentencing reform, I am not especially optimistic that the new SSA has a much better chance of passage than the old SSA.  But, as the question in the title of this post highlights, the new SSA appears to have an especially prominent new advocate, as demonstrated by this press release from the office of Senator Ted Cruz tited "Sen. Cruz: Smarter Sentencing Act Is Common Sense." Here is an excerpt from Senator Cruz's remarks last week during the introduction of the new SSA:

The issue that brings us together today is fairness. What brings us together is justice. What brings us together is common sense. This is as diverse and bipartisan array of members of Congress as you will see on any topic and yet we are all unified in saying commonsense reforms need to be enacted to our criminal justice system. Right now today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system, find themselves subject to sentences of many decades for relatively minor non-violent drug infractions. We’ve seen the impact of these kind of reforms in the states, the states are laboratories of democracy. My home state of Texas implemented similar reforms and from 2005 the state of Texas has seen a 22 percent decrease in crime and a 12 percent decrease in expenditures on criminal justice....

All of us agree, if you have violent criminals, if you have criminals who are using guns, who are using violence, who are dealing drugs to children, the criminal justice system should come down on them like a ton of bricks. But at the same time we need to recognize that young people make mistakes, and we should not live in a world of Le Miserables, where a young man finds his entire future taken away by excessive mandatory minimums.

There surely are issues about which Senator Cruz and I might not always agree (even though were educated around the same time at the same two higher-education institutions). But I completely agree with his view that the Smarter Sentencing Act is a common sense reform seeking to address the real problem that "today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system [and] find themselves subject to sentences of many decades for relatively minor non-violent drug infractions."

Notably, Senator Cruz in the past has not let GOP establishment figures stop him from being an aggressive and persistent voice for legal reforms he considers important. I am hopeful that Senator Cruz will fight the good fight on the SSA and other sentencing reform measures so as not to let old establishment folks like Senator Grassley keep the SSA and other proposals from coming up for a vote in the Senate.

A few recent and older posts on the "conservative politics" of federal sentencing reform:

February 20, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 19, 2015

"Parole Release Hearings: The Fallacy of Discretion"

The title of this post is the title of this notable and timely new paper by R. Kyle Alagood now available via SSRN. Here is the abstract:

Despite nearly every U.S. state having created a parole system, incarcerated offenders do not have a constitutional right to early release on parole, and parole hearings do not automatically invoke due process.  The resultant discretion afforded to parole decision-makers, coupled with the administrative regime’s relaxed evidentiary standards, risks erroneous, vindictive, or politically motivated information tainting release decisions. Louisiana, the world’s prison capital, has recently initiated parole reforms that may provide a model for reforms nationally.  This article details the evolution of Louisiana’s parole release structures, highlights problems with discretionary parole-release decision-making, and proposes Louisiana pilot reforms that may transfer to parole release systems in the United States. 

February 19, 2015 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

The back-story of George Toca's case (and its impact on other juve LWOPers)

George TocaThis new Bloomberg article authored by by Matt Stroud provides an interesting account of the stories behind what was, until it was settled a few weeks ago, the case the Supreme Court had planned to use to resolve the retroactive application of its Miller Eighth Amendment ruling. The piece is headlined "Prisoners Sentenced to Life as Kids Just Lost Their Best Chance for Freedom: How the criminal justice system failed George Toca — and 1,500 others like him," and it is a must-read and a must-watch based on the video linked to the story. Here are excerpts:

In 1984, when Toca was 17, he was charged with accidentally shooting and killing his best friend, Eric Batiste, during a failed carjacking.  Victims picked him out of lineups, despite initial statements to police describing an older, heavier shooter who was at least five inches taller than Toca and who did not have four gleaming gold caps on his top front teeth.

Largely on the basis of eyewitness testimony, Toca was convicted of second-degree murder in 1985 and given a mandatory sentence of life in prison without the possibility of parole. He has spent most of the last 31 years in Louisiana’s notorious Angola state penitentiary....

Toca has had an interesting winter.  In addition to denying responsibility for his friend’s killing — and working with lawyers at the Innocence Project New Orleans since 2003 to prove his case — Toca appealed to be resentenced based on his age at the time of the alleged crime. The U.S. Supreme Court selects less than 2 percent of the cases presented to it. In December, it agreed to hear Toca’s appeal....

[I]n 2012, in Miller v. Alabama, the court ruled that a mandatory sentence of life without parole, handed down in 29 states’ murder cases as well as those in federal court, is unconstitutional for offenders younger than 18.  The decision left a question on the table: What about those who had already been convicted?  Should they be resentenced?

Some states have said that all juveniles sentenced to mandatory life without parole should have a new sentencing hearing. Others — Louisiana, Pennsylvania, Michigan, and Minnesota — have decided against retroactivity.  The exact numbers are in dispute, but according to figures from Human Rights Watch and estimates from the Juvenile Law Center in Philadelphia, that means about 1,500 sentences nationwide hang in the balance.  By agreeing to hear and decide Toca’s appeal, the Supreme Court planned to end the uncertainty of those cases.

But in the weeks after the court agreed to hear the case, Toca was approached by Orleans Parish District Attorney Leon Cannizzaro with a tempting offer.  Toca had long maintained his innocence in the shooting, but now the D.A. had a deal for him. If he signed a plea agreement admitting to armed robbery, Cannizzaro would drop the original conviction and Toca would be paroled immediately....

Since he agreed to a plea deal, though, the Supreme Court dismissed his case and he is no longer standing in for 1,500 juvenile lifers like him in front of the nation’s highest court.

For those who believe juveniles sentenced to life behind bars should be forced to spend their lives there, Toca’s release is actually good news.  “This shows me that the system works,” said Bobbi Jamriska, whose pregnant sister was brutally beaten and stabbed to death in 1993 by a 16-year-old in suburban Pittsburgh.  “They went back and they questioned his case and raised their concerns, and [Toca] ended up being let out of jail.”

Jamriska has fought hard to keep both the death penalty and life without parole on the table for juvenile offenders.  As Pennsylvania director of the National Organization of Victims of Juvenile Murderers, she said her organization didn’t want Toca’s case in front of the Supreme Court anyway.  His case is “an extreme,” she said. “Even the victim’s family is saying, ‘Get him out of jail,’ ” Jamriska said.  “We’d prefer to have a case that’s more representative of some of the horrific crimes juveniles commit.”...

Will the Supreme Court [take up] another [case]?  Marsha Levick, deputy director and chief counsel of the Juvenile Law Center in Philadelphia, believes it will.  At least five cases —three in Louisiana, two in Michigan — have been sent for Supreme Court review and could replace Toca’s, but not until the next term at the earliest. That's in October.

Levick doesn’t blame Toca for his decision. “First and foremost, good for him,” she said. “I don’t think anybody who has been waiting for the retroactivity issue to be ruled upon would in any way question the decision that George Toca made. How could he not walk out of prison after 30 years?” For the other juvenile lifers nationwide, “obviously it was disappointing,” she said. “They’re still waiting, just as they have been for 30, 40, 50 years. And they think it’s time for them to get out as well.”

Toca hopes they do, too. Sitting outside with the sun shining above him, he looked down and offered an apology. “I know they was really relying on my case to get the retroactivity of the Miller case resolved,” he said. “All I can say is, I’m sorry that I let ’em down. This was all I could do.”

February 19, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 18, 2015

"The Divisibility of Crime"

The title of this post is the title of this notable new article by Jessica Roth discussing some of the Supreme Court's recent Armed Career Criminal Act jurisprudence.  Here is the abstract:

Near the end of the Supreme Court’s 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies.  Descamps represents the Court’s most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction “counts” for purposes of applying the ACCA and other sentencing enhancements and for determining the immigration consequences of prior convictions. This Essay is the first scholarly work to track the immediate effects of Descamps and to explore its implications for the criminal law more broadly. It shows that the decision is indeed having a significant effect on criminal sentencing, resulting in a steady flow of sentencing reversals and prospectively narrowing the class of defendants eligible for sentencing enhancements based on prior convictions. But more broadly, Descamps has called attention to the statutory specificity that legislators are capable of and the adjudicative clarity that courts can promote, if there are incentives for doing so. Until now, the Court has done little to encourage either. Thus, the opinion may push courts and legislators to think more carefully and systematically about what facts must be established to constitute a particular criminal offense, how such facts are established and recorded in the context of an adjudicative proceeding, and the consequences that flow from greater or lesser specificity. Ultimately, this impact may be felt not only in the context of applying recidivist statutes and sentencing enhancements, but also in other contexts that require attention to the basis for a criminal conviction, including the doctrine governing what constituent facts of a crime require jury unanimity and claims under the Double Jeopardy Clause.

February 18, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable

Regular readers who follow federal sentencing in child porn cases likely recall that the Sixth Circuit and an Ohio-based federal district judge got into a sentencing tug-of-war over the sentencing of child porn downloader Richard Bistline not long ago.  And even irregular readers should know that circuits, if they stick with it, will always win these kinds wars.  More proof of that reality come from another similar Sixth Circuit case decided today, US v. Robinson, No. 13-230806 (6th Cir. Feb. 18, 2015) (available here), which starts this way: 

The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  Defendant’s previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (“Robinson I”).  On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served.  The district court also lengthened the period of supervised release and imposed additional conditions of release.  The government’s second appeal raises the question of whether this second sentence is substantively reasonable.

For the reasons set forth below, we VACATE Defendant’s sentence and REMAND the case for reassignment and resentencing. 

Prior related posts concerning similar case:

February 18, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack