Friday, March 18, 2016

"How many times should a state be able to try to execute someone without running afoul of the Constitution?"

The question in the title of this post is the first line of this notable new commentary authored by Austin Sarat concerning the work of the Ohio Supreme Court  in Ohio v. Broom (previously discussed here).  Here is more of the commentary:

[T]he Ohio Supreme Court ruled on Wednesday that neither the federal nor the state constitution forbids Ohio from trying to execute someone more than once.  While this ruling may set up another opportunity for the U.S. Supreme Court to consider the constitutionality of capital punishment, it nonetheless allows the nightmarish possibility that the state can proceed in a negligent manner in carrying out an execution and, if it fails in the first attempt, to try, try again.  This should shock and trouble those who support capital punishment as well as those who oppose it....

On Sept. 15, 2009, Broom, who had been convicted of kidnapping, rape, and murder, was brought to Ohio's death chamber where he was to be executed by lethal injection.  His executioners repeatedly attempted to insert an intravenous line into Broom's arms and legs.  As they did so, Broom winced and grimaced with pain.  At one point, he covered his face with both hands and appeared to be sobbing, his stomach heaving.

After an hour had passed, Broom tried to help his executioners, turning onto his side, sliding the rubber tubing that served as a tourniquet up his left arm, and alternatively squeezing his fingers together and apart. Even when executioners found what they believed to be a suitable vein, it quickly collapsed as they tried to inject the saline fluid. Broom was once again brought to tears. After more than two hours of executioners sticking Broom's arms and legs with the needle, the prison director decided that the execution team should rest.  The governor of Ohio issued a reprieve stopping the execution....

It is almost certain that the Bromell case now will make its way to the U.S. Supreme Court and that it will offer that court the chance to revisit the unfortunate precedent it set more than 60 years ago [allowing Louisiana to try again after a failed electrocution in the Francis case].

One can only hope that the Court will now insist that if the government is going to carry out executions that there be no room for error. Neither simple human decency nor the 8th Amendment can tolerate a government carrying out a death penalty sentence in a shoddy manner.  If we are going to have a death penalty, we cannot allow death, as the dissenting justice in the Francis case put it, to be carried out on the installment plan.

Prior related post:

March 18, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, March 16, 2016

"The Emerging Eighth Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses"

The title of this post is the title of this article authored by Bidish Sarma and Sophie Cull recently posted on SSRN. Here is the abstract:

As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison.  Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals serving these sentences continue to face life and death in prison.  The Eighth Amendment offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court — the institution in the best position to redress these excessive sentences of a bygone era.

This Article analyzes the claim that there is a national consensus against life without parole sentences for individuals convicted of non-violent offenses.  First, it defines the problem, exploring how and why some offenders received life without parole sentences for nonviolent crime.  This entails a look at the historical development of a series of harsh sentencing policies that made nonviolent offenses punishable by life without the possibility of parole.  The historical developments are then traced through to current times to explain the seismic shift in how leaders in all three branches of government approach punishing low-level and nonviolent crimes.

This Article situates the punishment in the Eighth Amendment context.  How have the Supreme Court's previous Eighth Amendment rulings framed the relevant constitutional questions?  And how can a change in the way the Court considers the link between the nature of the offense and the challenged punishment create new possibilities?  This Article explores how treating individuals sentenced to life without parole for nonviolent offenses as a discrete category based on the nature of the crimes can alter the Eighth Amendment framework that the Court will use to determine the punishment's constitutionality.  The unfavorable "gross disproportionality" cases that have previously been considered by the Court do not need to govern the claim and, therefore, do not foreclose the possibility that the Constitution itself prohibits these sentences.

After exploring how to understand the constitutional claim in a way that brings the Supreme Court's categorical approach to bear (rather than the gross disproportionality approach), this Article assesses the factors the Court considers in its consensus-based categorical test.  It sets out, and then evaluates, the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment; the number of sentences actually imposed; and the degree of geographic isolation.  It also evaluates the various considerations that assist the Court in making an independent judgment of the punishment.  Ultimately, based on binding Eighth Amendment precedent, sufficient evidence is available now to enable the Court to strike down life without parole sentences for nonviolent offenses.  In other words, there is an emerging consensus that the Court should recognize.

March 16, 2016 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, March 15, 2016

Another disconcerting report about the failings of the Obama clemency initiative and Clemency Project 2014

USA-JUSTICE-CLEMENCYRegular readers know that, ever since Prez Obama and his Aministration started talking up efforts to get serious about using clemency powers, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored the new (and now not-so-new) clemency push has been.  Here are just a few of my prior related posts on this front:

Still more reason for concern has now emerged via this new Reuters article headlined "Obama's prisoner clemency plan faltering as cases pile up." Here are excerpts:

In April 2014, the administration of President Barack Obama announced the most ambitious clemency program in 40 years, inviting thousands of jailed drug offenders and other convicts to seek early release and urging lawyers across the country to take on their cases.

Nearly two years later the program is struggling under a deluge of unprocessed cases, sparking concern within the administration and among justice reform advocates over the fate of what was meant to be legacy-defining achievement for Obama.

More than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review, lawyers involved in the program told Reuters. That is in addition to about 9,000 cases that are still pending at the DOJ, according to the department's own figures.

Only 187 inmates have had their sentences commuted, far below the thousands expected by justice reform advocates and a tiny fraction of the 2.2 million people behind bars in the United States, which has the world's highest incarceration rate....

A senior DOJ official told Reuters it is calling on the lawyers' group -- Clemency Project 2014 -- to simply hand over the outstanding cases without further vetting, saying it is not working fast enough. So far, the group estimates it has handed over around 200 cases.

But criminal justice experts say the administration itself should bear much of the blame. The idea to tap pro-bono attorneys to help vet the cases originated with the DOJ, and critics say it should have prepared its own staff to handle the large volume of applications. “It’s unfair to criticize the volunteer group that you asked to help,” said Rachel Barkow, a criminal law professor at New York University who has studied clemency in U.S. prisons. She estimates that about 1,500 prisoners should be eligible for commutation, saying the 187 granted so far does not "fulfill the promise of the program."...

The delays have left prisoners like Linda Byrnes, 69, in limbo. “I thought clemency was for people like me,” Byrnes told Reuters through an electronic messaging system from a federal prison in Alderson, West Virginia. Byrnes, who has spent 20 years in prison for distributing marijuana and has two years left on her sentence, was recently diagnosed with mouth cancer and has yet to hear whether she has been assigned a lawyer after submitting her application to Clemency Project in August 2014....

Clemency Project 2014 said it does not comment publicly on the individuals it represents. The group vets the applications, writes the petitions and sends them to the Justice Department’s Office of the Pardon Attorney, which oversees all pardons and sentence commutations and makes recommendations for the president's approval.

So far, 25,000 of 34,000 applications received by Clemency Project have been rejected for failing to meet the basic criteria - no record of violence, no significant ties to a gang or drug cartel, good behavior in prison and completion of at least 10 years of sentence. About 10,000 inmates did not go through the Clemency Project and either applied directly to DOJ or through a paid attorney. "It really would be a sad state of affairs if individuals who had asked for a lawyer weren't considered in time because their petitions never reached the pardon attorney's office," a DOJ official told Reuters on the condition of anonymity.

A large number of mostly unqualified applications, a shortage of lawyers and the complexity of the cases have slowed progress, said Cynthia Roseberry, project manager for Clemency Project 2014. "There are a lot of gray areas," said Roseberry, who estimates it takes 30 days for one lawyer to review one case on average. "We've got to unpack each of these applicants to see specifically what factors affect them... and so that takes a little more time."

This includes finding pre-sentencing reports for each case, determining if the person would have received a shorter sentence under current law and reviewing prison behavior records. Roseberry said the group was unaware of any request from the Justice Department to hand over the pending applications. Roseberry said the group's initially slow pace has picked up in recent months....

Roseberry said about 3,000 applicants still need to be assigned to a lawyer, and that it was not certain whether the group will be able to submit all of the applications it has received before Obama leaves office. The group has more than 570 law firms and 30 law schools contributing to the effort.

Some rejected prisoners and those who have yet to hear a decision say they believe they would have had a better chance if they had sent their clemency petition directly to the government.

Josie Ledezma was sentenced to life for conspiracy to transport cocaine and applied for clemency through Clemency Project 2014. She said she did not hear from them for six months and later learned that her assigned lawyer had shut down her legal practice. In January, nearly one year after applying, she was told Clemency Project 2014 could not help her and encouraged her to apply directly. “I wrote back and asked what was it that made me not qualify, but never got a response,” Ledezma told Reuters through an electronic messaging service for federal prisoners.

March 15, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Friday, March 11, 2016

Pennsylvania struggling with what law applies to nearly 500 juve LWOPers needing resentencing after Montgomery

The local article, headlined "Juvenile lifers will get new sentences, but what law applies?," effectively reviews the many headaches that the SCOTUS rulings in Miller and Montgomery have created for folks in Pennsylvania. Here are excerpts:

In 1990, on Robert Holbrook's 16th birthday, he joined a group of men on a robbery that turned into a killing.  He received the only sentence Pennsylvania law allowed for murder: life without parole. In 2012, the U.S. Supreme Court decided that mandatory life-without-parole sentences were unconstitutional for those younger than 18.  This January, the court ruled that the ban must be applied retroactively, to people like Holbrook. Since then, Pennsylvania's high courts have vacated dozens of life sentences.

It is now clear that Holbrook — along with about 480 other juvenile lifers across the state, 300 of them from Philadelphia — will receive new sentencing hearings following the Supreme Court's ruling in Montgomery v. Louisiana. But a key question remains: What sentencing law applies?

"Nobody has any real answer," said State Sen. Stewart Greenleaf, a Montgomery County Republican who chairs the Judiciary Committee.  "We're in uncharted territory here," he said, "because we have a situation where the law these juveniles have been sentenced under has now been found to be unconstitutional, and the laws that we adopted as a legislature were adopted after they were sentenced originally" and do not apply to them.

The most straightforward resolution might be new legislation, but it's not so simple.  After the 2012 decision in Miller v. Alabama, Pennsylvania enacted new sentences for juvenile killers: 25 years to life for those younger than 15, and 35 to life for those 15 to 17.  But that law excluded anyone whose sentence was final before the Miller decision. Greenleaf said there's no changing that.  "The problem is, even if we pass something, it would be ex post facto," or retroactive, he said. "I don't think the legislature can do anything at this point, because it could be unconstitutional what we do."

Marsha Levick, chief counsel at the Juvenile Law Center, said no new law is needed.  Her solution: Resentence juveniles to 20 to 40 years in prison, the punishment for third-degree murder. "Because there is no constitutional sentencing statute that applies to these individuals, we would argue the court should apply the next-harshest sentence," she said. "That's all the court can do.  It can only apply a constitutional sentence."

But Pennsylvania courts have already gone a different route. About two dozen juvenile lifers — all sentenced, but still in the appeals process, when Miller came down - have received new sentences based on judges' discretion. The results have varied wildly.  Pennsylvania's Supreme Court, in the case of Qu'eed Batts — who at age 14 committed a gang-related murder — said the appropriate sentence for individuals such as him would carry a minimum number of years in prison and a maximum of life. So brothers Devon and Jovon Knox, who were convicted in a Pittsburgh carjacking and murder, received new sentences, of 35 years to life and 25 years to life respectively.

But in re-sentencing Ian Seagraves, who committed a brutal murder in Monroe County, a judge told him, "At this point in time, I have the option of life with parole or life without parole." The judge concluded that life without parole was still the appropriate sentence....

Pennsylvania Victim Advocate Jennifer Storm has been inundated with calls and emails from prosecutors and judges trying to figure out how to handle the cases and what sentencing laws apply. "I know some of these D.A.s are going to go back and ask for the highest minimum they can because there's a public safety question here," she said.

She said if courts are guided by the state's new sentencing law created after Miller, 189 offenders out of 480 would be immediately eligible for parole. The average time served among the 480 is 36 years, and the longest is 62 years.  "In some of these cases, you're going to see time served become the new minimum.  Obviously that needs to be very carefully negotiated with the D.A., the defender, and the surviving family members."...

Prosecutors, judges, and defense lawyers across the state, which the Pennsylvania Corrections Department says has more juvenile lifers than any other, have been tangling with this question and coming to disparate conclusions.  One Chester County judge converted the cases on his docket to "time served to life," triggering the immediate possibility of parole.

But Richard Long, executive director of the Pennsylvania District Attorneys Association, said there was some consensus among prosecutors: "We believe that the sentencing provision enacted by the legislature for those cases after June 2012 can serve as good guidance."

Bradley Bridge, who's working on the cases for the Defender Association of Philadelphia, said he had been meeting with prosecutors and judges in Philadelphia to set up a structure to resolve the cases, including what sentences could be imposed. To him, one thing is clear: Resentencing juveniles to life is not permissible. "They must be given new sentences that have both a minimum and a maximum," he said. "That is what is required under Pennsylvania law."...

Levick said, one outcome is all but certain: There will be even more legal appeals.

March 11, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Thursday, March 10, 2016

Rep Lamar Smith makes case against federal sentencing reform by questioning success of Texas reforms

One recurring theme of many advocates for federal sentencing reform is that state-level reforms, lead notably by Texas, have been successful at reducing incarceration levels without seeing an increase in crime. But at the end of this new Washington Times commentary, headlined "How weak prison terms endanger the innocent: Mandatory minimums keep the guilty behind bars to pay their debt to society," US House Representative Lamar Smith from Texas questions whether Texas reforms have truly been effective. Here are some notable excerpts from the piece:

Congress should be wary of reducing federal prison sentences. Unfortunately, much of the discussion on sentencing laws has focused on the criminals. What about the victims of their crimes? What about the dangers of putting these offenders back out on the streets where many prey again on law-abiding citizens?

The lives and property of innocent Americans are at stake.  Past experience should persuade us not to weaken penalties, which could lead to thousands of dangerous criminals being released into our communities....

Supporters of lower prison sentences also argue that judges need more discretion.  They say that a one-size-fits-all penalty does not allow for consideration of mitigating factors, which might be necessary to determine a fair sentence.

But prior experience with judicial discretion in sentencing counters this claim.  It is exactly the problem of too much discretion in the hands of activist judges that fueled the decades-long crime wave that preceded mandatory minimum sentences.  Furthermore, judicial discretion led to widespread discrepancies in sentences, even when the circumstances were similar.

The minimum sentencing structure ensures that judges apply a uniform penalty based on the crime, not on the judge’s subjective opinion.  Criminals receive equal punishment for equal crimes.  And the removal of hardened criminals from our streets for longer periods of time helps make our neighborhoods safer....

In my home state of Texas, new policies sought to reduce incarceration time and focus resources on treatment and post-release supervision.  Yet almost one-quarter of inmates released have been rearrested and sent back to prison within three years.  Early release programs don’t appear to be working.

Mandatory minimums help keep these individuals behind bars where they belong.  That’s one explanation for why crime rates remain down.  The purpose of criminal law is to punish bad behavior, deter criminal acts and protect the American people.  Releasing prisoners too soon could condemn many Americans to becoming victims of violence.  This can be avoided if prisoners are not released before their sentences have been served.

March 10, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Monday, March 07, 2016

Notable split Sixth Circuit ruling on (suspect) limits of retroactive guideline reductions

A split Sixth Circuit panel handed down today an interesting little sentencing opinion in US v. Taylor, No. 15-5930 (6th Cir. March 7, 2016) (available here). Actually, the majority opinion is, according to the dissent, more frustrating than interesting beause that opinion held that a district court, when reducing a sentence based on the retroactive reduced drug guideline, lacked any added discretion "to impose a new below-guidelines sentence based on any factor but a departure for substantial assistance."  

Notably, federal prosecutors in this Taylor case agreed with the defendant (and the dissent) that the district court should have authority to take into account during sentence modification additional mitigating factors.  But the district court concluded that it lacked this authority, and the majority opinion on Taylor affirmed this conclusion. Judge Merritt expressed his frustration with this view in a short dissent that includes these points:

The mathematical percentage estimated for “substantial assistance” almost five years ago at the original sentencing is not a scientific fact, just a guess or speculation, and a new reduction upon resentencing that is “comparably less” (using the Guideline language) does not forbid a new sentence which takes into account such intangible factors as defendant’s additional assistance after the original sentence, her rehabilitation, as well as collateral damage to her family and other similar factors.  It does not forbid a reassessment of what has happened in the last five years.  Both the prosecutor and the defendant agreed that the sentence should not be limited to a nineteen percent reduction but have agreed to a thirty-three percent reduction, and there is no indication that Judge Jordan in the court below would not agree that this would be a more just sentence.  He thought only that the law did not give him the authority to impose the lower sentence....

I do not see why we must continue to take away from the sentencing judge the authority to use his or her best judgment in determining the sentence.  For these reasons and also for the policy reasons stated by Justice Stevens in his dissenting opinion in Dillon v. United States, 130 S. Ct. 2683, 2694-2705 (2010), I would remand to the district court for resentencing with the instruction that the district court is not bound by the nineteen percent reduction used years ago.  Times change.  The law has changed.  Our culture is changing its views about how long we should put people behind bars.  There is no good reason I can see that we should not allow the district judge to use his best judgment here and err on the side of mercy while at the same time reducing the government’s costs of incarceration.

March 7, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Lots of Montgomery GVRs in latest SCOTUS order list

I am on a plane this morning on my way to the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place today and tomorrow at Georgetown University Law Center.  But conveniently, the Supreme Court released this order list just before I had to shut down my computer, and I see it has a lot of cases from a lot of states with variations on this note as part of a GVR:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Criminal Appeals of Alabama for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016).

Justice Thomas, with whom Justice Alito joins, concurring in the decision to grant, vacate, and remand in this case: The Court has held the petition in this and many other cases pending the decision in Montgomery v. Louisiana, 577 U. S. ___ (2016).  In holding this petition and now vacating and remanding the judgment below, the Court has not assessed whether petitioner’s asserted entitlement to retroactive relief “is properly presented in the case.” Id., at ___ (slip op., at 13).  On remand, courts should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.  The Court’s disposition does not, for example, address whether an adequate and independent state ground bars relief, whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioner’s sentence actually qualifies as a mandatory life without parole sentence.

I also see a notable split per curiam summary reversal finding a due process Brady problem in a Louisiana capital case. I will discuss that merits ruling and any others of criminal justice interest that may still today come down from SCOTUS in future posts.

March 7, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, March 02, 2016

Updating Delaware's struggles with the post-Hurst hydra

Download (1)As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases.  And in this post about a month ago, I reported on the notable decision in Delaware to put all pending capital murder trials and executions on hold until the state Supreme Court resolved the constitutionality of the state's death penalty law in the wake of Hurst.  

Now, thanks to this local article headlined "Public defenders: Death penalty unconstitutional," we can all read about the arguments from Delaware capital defense attorneys that the post-Hurst hydra must devour the state's existing capital sentencing scheme. Here are the basics from this press account:

Three assistant public defenders have argued to the Delaware Supreme Court that the death penalty law is unconstitutional -- and therefore needs to be fixed by lawmakers.  The attorneys from the Office of Defense Services filed a written argument Monday explaining why they believe Delaware's capital punishment policy violates the U.S. Constitution, especially in light of a recent U.S. Supreme Court decision that deemed Florida's similar scheme unconstitutional.

"The Delaware statute contains a number of unconstitutional provisions that cannot be exercised by this court in an effort to salvage the statute," the 58-page argument said.  "Because these multiple constitutional problems require Delaware’s death penalty scheme to be substantially restructured, that task is for the legislature, not the courts."...

Attorneys from the Office of Defense Services said in their argument that it is "crystal-clear that the judge is the independent and paramount capital sentencer" in Delaware.  They went on to argue that Delaware is violating the Sixth Amendment by requiring a judge to make findings regarding aggravating and mitigating circumstances, and their relative weight, before a death sentence can be imposed.

"As the opinion in Hurst makes clear, any fact-finding that is a necessary precursor to a death sentence, rather than one of imprisonment, must be performed by a jury," the argument said.  "The highest courts and legislatures of several states have likewise acknowledged that the Supreme Court’s Sixth Amendment jurisprudence requires the jury to determine the presence of aggravating and mitigating circumstances, as well as the weight of each."

The attorneys went on to say that the practice of allowing juries to be non-unanimous is also unconstitutional.  "There is a nationwide consensus against non-unanimous jury verdicts in capital cases," the attorneys wrote.  "No existing state statute currently permits a non-unanimous determination of aggravating factors, and only two, in Alabama and Delaware, permit a jury’s sentencing determination to be less than unanimous.  That only two states permit non-unanimous jury verdicts in capital cases weighs heavily against its constitutionality."

The full brief referenced above can be accessed at this link.

Prior related post:

March 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, March 01, 2016

Has DOJ decided not to appeal Judge Weinstein's recent notable decision in US v. RV to give no prison time to child porn downloaded?

The question in the title of this post is a follow-up to my speculations here about the post-Booker challenges that face federal prosecutors when a district judge gives a very leinent sentence that they dislike.  Specifically, after blogging about US District Judge Jack Weinstein's decision in US v. RV to give a waaaaaaaay-below-guideline sentence in a child porn downloading case, I suggested the Justice Department would struggle with the decision whether to appeal this lenient sentencing ruling to the Second Circuit because of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines.

When I posted about US v. RV, my pal Bill Otis seemed to think my appellate speculations here were waaaaaaaay off the mark.  Over in this lengthy post at Crime & Consequences, Bill Otis asserted that my speculation revealed that I know "almost nothing about the workings of US Attorneys' Offices."   Bill went further even in this post, stating repeatedly that he would eagerly "bet $500 here and now that Weirstein [sic] is again going to get reversed in the Second Circuit, again without garnering a single vote."

I did not take up Bill's bet for a number of reasons: (1) I wanted to read Judge Weinstein's 90+ page sentencing opinion in full before speculating on the fate of the decision in RV, (2) based on what Judge Weinstein wrote, I might be inclined to participate in an amicus effort in the Second Circuit if/when DOJ appealed, and (3) I find it a bit unsavory (and perhaps unethical) to make big cash bets on the fate of a real legal case, especially in an area of law I hope to infuence.  But now, as the title of this post hints, I think it may turn out that a lot of us should have taken Bill's bet because it seems, based on my limited research skills, that DOJ has decided not to appeal Judge Weinstein's sentencing decision in RV.

Because I am bad at researching appellate dockets, and also because the process for when and how the Justice Department makes appellate decisions is quite opaque in various ways, I do not yet want to crow about being right here that DOJ did not want to appeal this decision and risk its affirmance by the Second Circuit.  But I am hoping, perhaps with the help of readers, I can soon confirm that the Second Circuit will not be reversing RV because federal prosecutors have decided not to appeal the decision. (Needless to say, I am somewhat excited about the possibility of demonstrating that I now actually do know a lot more than Bill Otis "about the workings of US Attorneys' Offices" even though I have never worked in such an office and Bill spent most of his professional life in these offices.)  If it does turn out true that DOJ has decided not to appeal in US v. RV, I think this discretionary prosecutorial decision is itself a very interesting and important bit of evidence concerning how post-Booker reasonableness review works (and doesn't work) to iron out sentencing disparties in CP downloading cases and many others.

Prior related posts about recent notable CP cases from the EDNY:

March 1, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8)

Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision

The first official SCOTUS opinion handed down without Justice Scalia as a member of the Supreme Court in three decades just happened to be an intriguing little sentencing opinion: Lockhart v. US, No. 14-8358 (S. Ct. March 1, 2016) (available here). Justice Sotomayor wrote the opinion for the Court on behalf of six Justices, and it begins this way:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2).

The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”).  Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.”  The Eighth Circuit has reached the contrary result.  We granted certiorari to resolve that split.  575 U. S. ___ (2015).  We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.”

Justice Kagan, joined by Justice Breyer, writes an extended dissent that kicks off with pop-culture references sure to be highlighted by many in social media:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast — not an actor in, for example, the latest Zoolander.  Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.”  Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?  And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.”  Surely a person would have cause to protest if punished under that provision for violating a traffic statute.  The reason in all three cases is the same: Everyone understands that the modifying phrase — “involved with the new Star Wars movie,” “in New York,” “relating to insider trading” — applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case.  Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2).  The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list.  But properly read, the modifier applies to each of the terms — just as in the examples above.  That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children.  And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty.  I respectfully dissent.

I am going to resist the urge to speculate concerning which opinion Justice Scalia might have been likely to join were he still alive today, especially given that the late, great Justice was a fan of ordinary understanding and the rule of lenity, but not a fan of legislative history, in the interpretation of federal criminal statute.  I am also going to resist blogging a lot more about this case unless something jumps out as distinctly blogworthy when I have a chance to review the opinions more closely in the days ahead.

March 1, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Monday, February 29, 2016

"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"

The question in the title of this post is the question I have been asking again and again since the US Supreme Court decided in Heller and McDonald that the Second Amendment secured an individual right to keep and bare arms that was to be enforced in a manner comparable to other rights enumerated in the Bill of Rights. It also happened to be the question that Justice Clarence Thomas asked the federal government during oral argument today in Voisine v. United States

As highlighted by a whole bunch of press coverage spotlighted here at How Appealing, it is notable simply that Justice Thomas spoke up at oral argument after having been silent in that setting for a decade.  But I trust regular readers will not be surprised to hear that I am excited that Justice Thomas decided he had to speak up to ask what I think is the very hard question about the meaning and reach of the Second Amendment that lacks a very good answer if Heller and McDonald are serious about the need to treat the Second Amendment seriously like all other rights enumerated in the US Constitution's Bill of Rights.

Not only did Justice Thomas ask this important question toward the tail end of oral argument in Voisine, he followed up with a First Amendment analogy that I find pretty compelling:

JUSTICE THOMAS:  [L]et's say that a publisher is reckless about the use of children, and what could be considered indecent [placement in an ad] and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let's say it's a misdemeanor violation.  Could you suspend that publisher's right to ever publish again?

MS. EISENSTEIN: Your Honor, I don't think you could suspend the right to ever publish again, but I think that you could limit, for example, the manner and means by which publisher...

JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?

Critically, even though I do not believe the government here had any satisfactory answers for Justice Thomas's tough Second Amendment questions, the Justice was not even making his arguments as forcefully as he could have in the context of the federal criminal prosecution at issue in Voisine.  Critically, Voisine is not a case in which someone previously convicted of a state "reckless" misdemeanor is now seeking a legal declaration that he has Second Amendment rights.  Rather, Stephen Voisine is a schnook who was subject to a federal felony prosecution (and as much as 10 years in federal prison) simply for possessing a rifle (while apparently hunting a bald eagle!?!?) because a number of years earlier he pleaded guilty to a Maine domestic violence misdemeanor. 

For the record, I am not a big fan of Maine schnooks who in the past were involved in a domestic incident and years later go out hunting bald eagles.  But I am even less of a fan of the creation of new jurisprudential doctrines that would allow the federal government to bring a felony prosecution of an individual engaged in what might be otherwise constitutionally protected activity simply based on a long-ago misdemeanor violation of a State law.  That is the reality of what is going on in Voisine, and even folks not supportive of Second Amendment rights should be concerned that a case like Voisine could end up casting poor light on other constitutional protections if his conviction gets upheld in this case.

Some prior related posts:

February 29, 2016 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

SCOTUS taking on array of criminal justice cases this week in which Justice Scalia's absence will again be consequential

The Supreme Court this week hears oral argument in a trio of criminal justice cases this week.  Because all three cases strike me as involving relatively quirky/narrow issues, I am not expecting to get any blockbuster rulings from any of them (especially with a now short-staffed Court).  Via SCOTUSblog, here are links to the cases being heard today and tomorrow with the question presented:

Voisine v. United States (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.

Williams v. Pennsylvania: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Nichols v. United States: (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

Because Williams involves an Eighth Amendment case and involves the death penalty, I suspect it will get the most press attention and probably even most of my attention after today's oral argument. But, in part because Williams involves an Eighth Amendment case and involves the death penalty, I am already pretty confident which Justices are likely to be more or less sympathetic to the capital defendant's claims on appeal.

In contrast, both Voisine and Nichols involve questions of statutory interpretation of federal crime statutes in politically fraught settings: Voisine involves the mix of domestic violence and guns, Nichols involves the tracking of sex offenders abroad. Both the specific legal issue before the Court and the context in which it arises makes me uncertain how various justices are likely to approach the cases at oral argument and in an eventual ruling. In both cases, though, the defense side likely is quite sorry to see Justice Scalia's chair empty because he was among the most consistent and forceful voices for the rule of lenity and other principles to limit the reach of government powers in the interpretation of federal criminal justice statutes.

February 29, 2016 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, February 26, 2016

Could a new group called Public Safety Officials on the Death Penalty really impact discussions of death penalty reform?

The question in the title of this post is prompted in part by this recent piece by Ted Gest at The Crime Report headlined "Justice System Voices Question Capital Punishment."  Here are excerpts:

As support for capital punishment in the United States erodes, one viewpoint not often heard in debates on the issue is that of the people who do the work that leads to executions: officials of the criminal justice system.

A Washington, D.C., organization called The Constitution Project is moving to fill that gap, with a group called Public Safety Officials on the Death Penalty (PSODP), which it describes as "an independent group of current and former law enforcement, prosecutors and corrections officials strongly concerned about the fairness and efficacy of the death penalty in America."...

[T]he new panel of public safety officials is offering its expertise to policymakers in states that are considering whether to continue executions. The group has three co-chairs: former Virginia Attorney General Mark Earley, former Massachusetts corrections commissioner Kathleen Dennehy, and former Southern Pines, N.C., Police Chief Gerald Galloway, who formerly led the North Carolina Chiefs of Police Association. The group says it stands ready to provide information. It does not take a formal stand on whether capital punishment should be abolished, but it is clear that the co-chairs believe that the current system is not operating fairly and efficiently.

Former Police Chief Galloway declares that the capital punishment system is "dysfunctional," noting that it often takes many years to put an accused murder to death, and that more than 150 people have been removed from death rows in various states after being exonerated or having their convictions overturned for legal reasons. Noting that some convicted murders spend decades on death row amid seemingly endless legal appeals, Galloway told The Crime Report, "The system is unfair. It is too expensive. Some innocent people end up on death row, and victims' families wait for justice that never occurs."

Dennehy said her biggest concern was "the possibility of executing an innocent person -- that is too high a price to pay." S he also cited allegations of "botched executions" in Oklahoma and elsewhere, saying that corrections employees who must carry out the sometimes tricky lethal injection process can suffer psychological harm. (Oklahoma inmate Clayton Lockett died in 2014 more than an hour after he was placed on an execution gurney after an employee had difficulty inserting a needle.)

Earley, who served as Virginia’s attorney general from 1998 until mid-2001, said last year he had changed his views and now opposes capital punishment. "If you believe that the government always ‘gets it right,’ never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty," he wrote in the University of Richmond Law Review.  “I no longer have such faith in the government and, therefore, cannot and do not support the death penalty."

Some members of the new group favor capital punishment, but the entire panel agreed that, "each of us is ready to explore alternative ways to achieve a more just and effective public safety system.”  Unless the system can be fixed to insure that innocent people are not sent to death row and that the appeals of those who are convicted in capital cases are handled promptly, those found guilty of murder should serve a maximum penalty of life in prison without the possibility of parole, Galloway and Dennehy said.

Members of the new group will offer their expertise to officials in states considering whether to retain the death penalty, Galloway said. "We represent a powerful perspective" he said, referring to their years of experience working in the justice system.

One major state that faces a close public vote on the issue is California, where there may be competing propositions on the November ballot: one to speed executions and another to abolish capital punishment.... As of last year, California had by far the nation's largest death row, housing 743, inmates, and last conducted an execution in 2006. Jeanne Woodford, former California corrections director, is a member of The Constitution Project's new panel.

February 26, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, February 25, 2016

Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively

This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence.  Here are the basic details about this local case:

Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole.  At the time of the murder, Phillips was 14....

The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....

“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.

Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing.  Both motions were granted.

Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."

The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.

Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl.  Phillips was convicted a year later.

I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14.  And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.

That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure.  Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips.  Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.   

Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy. 

February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Former judges and Justice in Washington urge state's current Justices to strike down state's death penalty

This AP article from Washington reports on a notable brief filed in a capital case in the state Supreme Court.  The article is headlined "Dozens of judges ask Washington high court to ban death penalty," and here are excerpts:

Washington state's relationship with the death penalty over the past few decades has been so tenuous that even mass killers, serial killers and a cop killer have escaped it.  Only five people have been executed in the past 35 years. Gov. Jay Inslee, a one-time supporter of capital punishment, has said no executions will take place while he's in office.  And the state prosecutors association has called for a referendum on whether to bother keeping it on the books.

Now, the state's high court, which came within one vote of striking down the death penalty a decade ago, is re-examining it.  Dozens of former Washington judges have taken the unusual step of urging the court to find it unconstitutional this time — including former Justice Faith Ireland, who sided with the narrow majority in upholding capital punishment back in 2006.

Arguments are scheduled for Thursday in the case of Allen Eugene Gregory, who was convicted of raping, robbing and killing Geneine Harshfield, a 43-year-old cocktail waitress who lived near his grandmother, in 1996.

His lawyers are challenging his conviction and sentence, including procedural issues and statements made by a prosecutor during the trial.  But they also insist that the death penalty is arbitrarily applied and that it is not applied proportionally, as the state Constitution requires.  Certain counties — especially Pierce, where Gregory was convicted — have been aggressive about seeking execution, while others have said a death-penalty case would quickly bankrupt them, making the location of the crime a key factor in whether someone might be sentenced to death....

One of the newer justices, Charles Wiggins, has expressed concerns over indications blacks are statistically more likely to be sentenced to death in Washington than whites, while another, Sheryl Gordon McCloud, represented defendants who had been sentenced to death — and criticized the way the death penalty is applied — during her previous career as an appellate lawyer....

In its brief, the Pierce County Prosecutor's Office urged the court to uphold the punishment, which is allowed by the federal government and 32 states.  It argued the court has repeatedly upheld capital punishment, that those rulings should stand, and that Gregory shouldn't be allowed to make his constitutional arguments because he did not properly preserve those issues for appeal.  "Since death penalty abolitionists are unable to convince large numbers of Washingtonians to abolish the death penalty, defendant turns to this court in hopes that he can convince five of the court's members that abolishing the death penalty is reflective of current public opinion," deputy prosecutor Kathleen Proctor wrote.  "Essentially, defendant asks this court to become a legislative entity and to override the desire of the people of this state to have the death penalty as an available sanction for certain homicides."

In joining 55 other ex-judges who signed a brief filed by the American Civil Liberties Union of Washington urging an end to capital punishment, Ireland, who served a single term on the Supreme Court, was particularly concerned about geographical disparities in death sentences — an issue that the majority held was not squarely before the court in 2006.  "We can't call the death penalty anything but arbitrary when it depends on whether you kill someone in a rich county or one that can't afford such a trial," she wrote in an email to The Associated Press.  "That could be fixed in my opinion by having death penalty prosecutions and defenses funded at the state level."

February 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, February 24, 2016

"Why and How the Supreme Court Should End the Death Penalty"

The title of this post is the title of this new article by Kenneth Williams recently posted to SSRN. Here is the abstract:

In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty.  The purpose of this article is to contribute to that discussion.

The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years.  Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline.  The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty.  The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer.  Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty.

The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place.  The Court could choose to abolish the death penalty for one of several reasons.  First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application.  Second, there are several Eighth Amendment grounds upon with the Court could rely.  For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.”  The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.”  Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.

February 24, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, February 22, 2016

Highlighting that, despite lots of talk and a little action, Prez Obama remains a clemency grinch

Over at his blog Pardon Power, political scientist PS Ruckman does a terrific job tracking and placing in historical context the latest date concerning the use of presidential clemency powers.  And these three recent posts highlight effectively that, despite lots of talk from the Obama Administration about a big clemency initiative, the current President the most notable story to date concerning Obama's clemency record is how stingy it is:

As long-time readers know, I have been urging Prez Obama to live up to his hope and change rhetoric in this arena since the day he was inaugurated seven year ago, as highlighted by these two posts from January 20, 2009: Inaugural rhetoric about freedom and liberty in prison nation and Is it too early to start demanding President Obama use his clemency power?.  (The extensive comments to the second of these posts are especially interesting to review with the benefit of seven years of political hindsight.)  In addition, way back in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with this recommendation:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, my vision and goals here are meant to be fairly basic.  The idea is for President Obama to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice.

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

I have reprinted this suggestion here because, though I made the pitch in print more than half a decade ago, it still strikes me as timely and relevant to the on-going discussions about federal criminal justice reform.  Indeed, given this latest data marshalled by PS Ruckman and the seemingly limited success and limited basis for optimism as of February 2016 surrounding "Clemency Project 2014," I think Prez Obama and the rest of the federal criminal justice reform discussion might benefit now more than ever from the creation of some form of a "Clemency Commission" headed by a "clemency czar."  And, especially with US District Judge John Gleeson now only a few weeks away from stepping off the federal bench, there is an obvious candidate for the ideal first clemency czar.

As regular readers (and my students know), I could go on and on and on about this subject and especially about President Obama's unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.  But rather than repeat myself, I will just link to just a few of my prior Obama-era posts while starting to wonder in the wake of recent election results whether President Hillary Clinton or President Donald Trump might have the interest and ability to really bring hope and change to a very sorry modern federal clemency history.

Just a few of many recent and older posts concerning the modern ugly realities of federal clemency:

February 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"The Use of Federal Rule of Criminal Procedure 35(b)" to reward cooperators after initial sentencing

The quoted portion of the title of this post is the title of this notable new US Sentencing Commission research report and the second part of the title of this post is intended to highlight exactly why the first part of the title of this post is a sentencing story.  The 42-page report is data-rich, and here is the text of this USSC webpage providing background and noting some of the report's key findings:

This report examines sentence reductions for offenders who cooperate with the government in its efforts to investigate or prosecute others.  Offenders can receive credit for their “substantial assistance” in at least two ways; at the time of sentencing (USSG §5K1.1 departure motions) and after sentencing (Federal Rule of Criminal Procedure 35(b) motions).  In both instances, the government must make a motion for a lower sentence.

This publication discusses the history and current use of Fed. R. Crim. P. 35(b).  It also presents data on the number of Rule 35(b) reductions and the jurisdictions where they are granted; the effects of Rule 35(b) reductions on sentences; and the offense and demographic characteristics of offenders who receive such reductions.  The report also compares the circumstances of offenders receiving Rule 35(b) reductions with those who received USSG §5K1.1 departures. 

Key Findings

A review of the 10,811 cases in which Rule 35(b) reductions were granted over the past six years suggests the following conclusions:

  • Rule 35(b) sentencing reductions are used relatively rarely, but a few districts make frequent use of Rule 35(b) sentencing reductions.  There is no clear data-based explanation for these differences, as these districts vary substantially from one another in overall case load, offense mix, and demographic composition.

  • Most offenders receiving a Rule 35(b) reduction were originally sentenced within the guideline range.  This suggests that courts are rarely departing or varying for reasons other than substantial assistance with this group of offenders.

  • Most offenders receiving a Rule 35(b) reduction were convicted of a drug trafficking offense that carries a mandatory minimum penalty.

  • Rule 35(b) sentencing reductions generally provide less benefit than do § 5K1.1 substantial assistance departures.  This general statement holds true whether the Rule 35(b) sentencing reduction is compared to the §5K1.1 substantial assistance departure in terms of the ultimate sentence length or by the extent of the reduction from the original sentence.  The relatively high number of Rule 35(b) offenders who are convicted of drug and firearms offenses, though, as well as the relatively high number of those subject to mandatory minimum penalties, suggests that these offenders may receive a lower reduction because they are more serious offenders.

  • Although Rule 35(b) sentencing reductions are usually less beneficial to offenders than are §5K1.1 substantial assistance departures, offenders who receive both a §5K1.1 departure and a Rule 35(b) sentencing reduction receive the largest overall reduction in their sentences, regardless of how that reduction is measured.

  • Offenders sentenced in jurisdictions that primarily use Rule 35(b) sentencing reductions overall receive less of a benefit for their substantial assistance than do offenders in jurisdictions that rely primarily on §5K1.1 departures or a combination of Rule 35(b) reductions and §5K1.1 departures.

February 22, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, February 18, 2016

Compassionate release consensus and dissensus at US Sentencing Commission public hearing

As detailed in this press report, headlined "Prison-Release Program Debated in Hearing," there were both common and diverse perspectives at the US Sentencing Commission hearing yesterday concerning the federal system's approach to compassionate release:

The compassionate release system for federal prisons is "broken," a series of government witnesses, advocates and stakeholders told the U.S. Sentencing Commission at a public hearing Wednesday.  But while the panels of witnesses generally agreed the program is in need of a fix, they proposed starkly different solutions and laid the blame at the feet of a number of different organizations and agencies.

The compassionate release program is meant to release elderly inmates, those with terminal illnesses and others who meet certain conditions, though as the witnesses at Wednesday's hearing said, the program does not necessarily cover all of the inmates in federal prison it is meant to.

Wednesday's public hearing in a small conference room in the Thurgood Marshall Federal Judiciary Building in downtown Washington, D.C., was meant to evaluate a proposed set of changes to the compassionate release program, including lowering the age at which an inmate can be considered for release, reducing the amount of their prison term they must serve before qualifying for release, and adding more circumstances that would allow an inmate to go free early.  

The current program allows the director of the Bureau of Prisons (BOP) to motion for the early release of inmates deemed not a danger to their communities who are least 70 years old and have served at least 30 years of their sentence, or those who have "extraordinary and compelling reasons."  Under the current rule "extraordinary and compelling reasons" are limited to debilitating or terminal physical or mental illnesses or a death in the inmate's family that would leave a minor without care.

The proposed amendment to the program expands these circumstances further and would allow the BOP director to motion for the release of a prisoner who is 65 or older and has served at least 10 years or 75 percent of their sentence, regardless of their medical condition.  

The 10 year requirement drew some criticism from the witnesses, especially Michael Horowitz, inspector general for the U.S. Department of Justice, who suggested the 10-year requirement might have unintended consequences.  Horowitz estimated the requirement that inmates serve at least 10 years of their sentence before being considered for compassionate release cuts out half of the inmates who could benefit from the program.  This includes elderly inmates sentenced to relatively short times in prison, who are arguably the safest prisoners to release into the community, Horowitz said.

The commission seemed to agree with Horowitz and his suggestion to simply eliminate the 10-year requirement and keep the guidelines requiring inmates serve at least 75 percent of their given sentences.  "Where's the science behind the 10 years?" Judge Charles Breyer, vice chair of the commission, asked.  "I don't see it, I'm unaware of it, but is there something that the Justice Department or the Bureau of Prisons have figured out that 10 years?  Because it looks to me that all they're saying is we want to make sure that somebody receives an adequate punishment."

The involvement of the BOP director was another point of contention at Wednesday's hearing, as witnesses offered competing views of who should be in the driver's seat of the compassionate release program.  Jonathan Wroblewski, principal deputy assistant attorney general for the Justice Department, told the six-member sentencing commission that the BOP is in charge of the compassionate release program, and suggested the commission and courts take on an advisory role....

Margaret Love, a non-voting member of the Practitioners Advisory Group, stood in stark contrast to Wroblewski's executive-centric policy proposal, arguing that Congress intended the U.S. Sentencing Commission to lead the program, with the courts taking a major role and the BOP being relegated to the "gate-keeping" role of applying the guidelines to specific cases....  She urged the commission to develop a clear policy to lead the BOP and suggested an addition to the proposed amendment that would require the BOP director to make a motion for release of an inmate under the compassionate release program if they meet all qualifications, instead of the voluntary system in place now.

This agenda from the USSC hearing yesterday now has links to all the witnesses' written testimony.

February 18, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, February 16, 2016

Rounding up diverse perspectives on Justice Scalia's diverse criminal justice work and the impact of his loss

Though there is already far too much old and new media discussion of Justice Scalia's legacy and the debate over his replacement to be consumed, I am going to try to make an effort to note and link here SCOTUS/Scalia stories with a particular focus on criminal justice issues. Here are the headline from some of what I have seen around the web recently that seem worth a peek:

February 16, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Texas prisons are filling up with the old and the ill — at enormous expense"

The title of this post is the sub-headline of this lengthy new Texas Observer article. Here are excerpts:

Benito Alonzo is a short, 140-pound 80-year-old. His quiet-spoken manner, drooping jowls and gray hair, trimmed in a buzz, give him the appearance of a benevolent grandfather, and indeed, he is a grandfather.  In thick-framed black eyeglasses, he bears a resemblance to the defanged and aging Henry Kissinger.  But Alonzo is neither a celebrity nor a statesman. He’s a convict who has lately grown infirm.  He says he’s been diagnosed with prostate cancer and he’s afflicted with Hepatitis C. For several years he’s been prescribed a drug called Lactulose, which Dr. Owen Murray, chief of medical affairs for the Texas penal system, says “we use for people whose livers are at the end of their lives.”...

Alonzo has been waiting since at least March for the start of a 12-week course of a new liver drug that might keep him alive for years to come. He’s been told that the treatment will cost $94,500.  Were he back on the streets, Medicare would pick up the tab.  But because federal courts have ruled that states must guarantee the safety and health of their inmates, Texas will have to pay.  Alonzo frets that because of the expense, prison bureaucrats will stall the treatment until it’s too late.

The state of Texas operates 109 prisons holding about 148,000 inmates.  Some 27,000 of them are, like Alonzo, over the age of 50.  They account for about 18 percent of the prison population, and are the fastest-growing demographic group among prisoners.  By most estimates, they are also the most expensive to keep under lock and key. According to TDCJ spokesman Robert Hurst, the average cost of housing Texas inmates is about $20,000 a year, but medical and end-of-life expenses hike that figure to some $30,000 for elderly inmates.  In other jurisdictions, the cost is even higher.  A 2012 report from the ACLU calculates the average national expense for keeping a prisoner at $34,000 per year — and twice that much, $68,000, for inmates older than 50.

Both demographic factors and get-tough sentencing have transformed what were once mere penal institutions into hospitals, assisted living centers and nursing homes, too.  The University of Texas Medical Branch operates a freestanding hospital in Galveston for TDCJ, which also contracts with UTMB and the Texas Tech medical school to send prisoners to 146 community hospitals.  Texas prisons now boast of “respiratory isolation rooms,” “brace and limb services” and hospice facilities in which 90 Texas inmates were eased into eternity last year.  More than 300 inmates in Texas prisons use wheelchairs, Dr. Murray says....

Alonzo’s life has been one of alternating spans of heroin addiction and confinement. He served three separate stints in prison — for theft, burglary and heroin possession — from 1958 to 1974. After his parole in 1974, allegedly under the influence of two of his brothers, Pedro and Adolfo, he delivered a pair of pistols to a warden’s trustee who then smuggled them into Huntsville’s Walls Unit. San Antonio gangster Fred Carrasco used those guns in an 11-day hostage-taking and stand-off that culminated in a shootout. Alonzo is serving a life sentence for his connection to the incident....

The state of Texas does have a process for releasing old and infirm prisoners on humanitarian parole, but the record is underwhelming.  A bureaucracy dating to 1987, the Texas Correctional office on offenders with Medical or Mental Impairments, usually named by the clunky acronym TCOOMMI, was assigned to process medically recommended intensive supervision, or MRIS, paroles.  MRIS is a way to move inmates rendered harmless by their frailty or age back into the civilian world.

TCOOMMI reports to the Texas Board of Pardons and Paroles on an inmate’s health status, leaving the final parole decision to the board.  In a February 2015 biennial report, TCOOMMI reported that of the 1,133 MRIS applications that had been submitted in fiscal year 2014, 318 had been found sufficiently meritorious for presentation to the parole board. Of those, the board had granted 67 releases — a mere 6 percent approval rate.

In a 2012 statement, TDCJ admitted that “the Parole Board’s approval rates of MRIS cases remain low.” But the board’s performance hasn’t shown signs of improvement. In the 2015 fiscal year, 445 prisoners older than 60 filed for medical paroles — but only 24 paroles were granted, all of them on the basis of infirmity, none on the basis of age. The roadblock is a provision of the law allowing the parole board to conclude that a prisoner constitutes a threat despite what doctors say....

Benito Alonzo would today have a hard time exacting any revenge or harming anybody, and whether he lives or dies is of little concern except to a coterie of kin and perhaps in the circles of the Mexican Mafia. If he dies in prison, as we must currently expect, though he’d prefer to be interred in San Antonio, his corpse will be eligible for a casket and a grave at public expense, in the prison cemetery, of course.

February 16, 2016 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Monday, February 15, 2016

US Sentencing Commission to conduct hearing on compassionate release and conditions of supervision

As reported in this official notice, the US Sentencing Commission is scheduled to conduct a public hearing the morning of Wednesday, February 17, 2016.  This hearing agenda suggests that the main focus of the hearing is so-called "Compassionate Release" and that all of the leading and most important voices in this space will be speaking to the USSC.  

Some prior related posts:

February 15, 2016 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, February 14, 2016

In (sentencing) memorium: why I am already missing Justice Scalia

InmemoriamslateJustice Antonin Scalia was nominated to be a Justice just a few months after I graduated from high school, and I have never really known a Supreme Court without his voice and views being integral to the Court's work.  And Justice Scalia earned a unique and enduring place in my professional heart with his work for the Court in Blakely v. Washington.  In this 2004 Slate commentary stressing how consequential the ruling was for sentencing law and policy, I called Justice Scalia's opinion in Blakely "majestic and mysterious, historic and hysterical, stunning and stupefying," and "a great read [that] often seems more intent on teasing the dissenters than on clearly defining defendants' Sixth Amendment rights."

I could (and likely will in some future law review pages) wax even more potetic about the Blakely opinion and about how his work in the Apprendi and Booker lines of cases are likely to long persist as the most critical and consequential constitutional rulings in the modern history of sentencing jurisprudence.  But in this post, I am eager to take a few moments to note and link some highlights in the remarkable corpus of significant sentencing opinions authored by Justice Scalia during his three decades on the high court:

Mistretta v. United States, 488 U.S. 361 (1989) (dissenting)

Stanford v. Kentucky, 492 U.S. 361 (1989) (for the Court)

Harmelin v. Michigan, 501 U.S. 957 (1991) (for the Court and concurring)

Callins v. Collins, 510 U.S. 1141 (1994) (concurring)

Almendarez-Torres v. United States, 523 U.S. 224 (1998) (dissenting)

Apprendi v. New Jersey, 530 U.S. 466 (2000) (concurring)

Ring v. Arizona, 536 U.S. 584 (2002) (concurring)

Blakely v. Washington, 542 U.S. 296 (2004) (for the Court)

Johnson v. United States, 135 S. Ct. 2551 (2015) (for the Court)

By keeping this list focused only on sentencing cases, I have left off many of Justice Scalia's hugely consequential opinions on lots of other criminal law matters (see, e.g., Crawford and Heller). And, I suspect that some readers think fondly (or perhaps not so fondly) of other Scalia sentencing opinions no listed above. But even this abridged list highlights how profoundly significant Justice Scalia was in shaping modern sentencing jurisprudence.

Prior related post:

February 14, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Friday, February 12, 2016

Pennsylvania, thanks to Montgomery, now forced to struggle through Miller retroactivity

This local article, headlined "Pa. courts scramble to catch up to juvenile-lifers decision," reports on how the Keystone state is starting to deal with all its now unconstitutional mandatory juve LWOP sentences. Here is how it gets started:

Recently, Earl Rice Jr., an inmate at Graterford Prison, got unexpected news from a relative: A judge had unceremoniously changed his sentence from life without parole to life with parole. Chester County Court Judge James MacElree later explained: "That's what the Supreme Court of the United States said I had to do. I have no discretion whatsoever."

He was referencing the recent opinion in Montgomery v. Louisiana, which made retroactive the court's 2012 decision that automatic life-without-parole sentences for juveniles are unconstitutional. "If I'm wrong," he said, "an appeals court can figure it out."

It's one of many sometimes-conflicting ways that judges, public defenders, prosecutors, and prison officials are interpreting the ruling and scrambling to catch up to it. And Rice is facing one of the mind-numbing consequences: a life-with-parole sentence in a state that doesn't allow parole in life sentences.

It's an unprecedented challenge. The ruling affects nearly 500 juvenile lifers in Pennsylvania, about 300 of them from Philadelphia. The Philadelphia District Attorney's Office expects individual resentencing hearings will be required.

To buy time to accomplish that, the district attorney wrote a letter to the U.S. District Court for the Eastern District, asking it to dismiss — or at least stay — each of 218 federal petitions filed by juvenile lifers from Philadelphia. Those cases, seeking relief following the 2012 decision, Miller v. Alabama, had been in limbo until Montgomery could be decided. Now, it's likely a single judge will be appointed to oversee the process, according to the letter.

Bradley Bridge of the Defender Association of Philadelphia said he hopes to resolve a "significant number" of cases by agreement between the defendants and prosecutors.  He said agreements are most likely for inmates who have been in prison the longest, like Joe Ligon, who has served 63 years for crimes committed when he was 15.  "If it's not a significant number, it's going to be complicated, messy, and really unwieldy," he said. "To have 300 hearings . . . we simply don't have the resources."  Bridge and others have organized a series of training sessions for lawyers on presenting mitigating evidence; the first was so popular, they had to turn people away.

February 12, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Thursday, February 11, 2016

Based on Johnson, split Fifth Circuit panel finds another simlar provision of federal law is unconstitutionally vague

A helpful reader alerted me to a notable new split ruling handed down by the Fifth Circuit yesterday in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Feb. 10, 2016) (available here). Here is how the majority opinion gets started:

In this appeal, we address for the first time whether 18 U.S.C. § 16’s statutory definition of “crime of violence” is unconstitutionally vague.  We consider this question in the light of the Supreme Court’s recent holding that a similar provision of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  Johnson v. United States, 135 S.Ct. 2551 (2015).  In Johnson, the Court held that the ACCA violated the constitutional prohibition against vague criminal statutes by defining “violent felony” as any crime that “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).  Section 16 contains a similar definition: a “crime of violence” is “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  The Seventh and Ninth Circuits have both held that this language is sufficiently similar to the ACCA’s language to suffer the same unconstitutional fate.  United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). We agree, and accordingly hold § 16 unconstitutional.

And here is how the dissent gets started and sums up its differing analysis of Johnson's impact here:

It is the uncertainty that charms one. A mist makes things wonderful.” Oscar Wilde, The Picture of Dorian Gray. Perhaps true for Oscar Wilde, but not in the criminal law, where too much uncertainty denies defendants fair notice and permits arbitrary enforcement of the laws. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)....

In summary, we should not strike Congressional law, 18 U.S.C. § 16(b), because, first, the concerns raised by the Court in Johnson with respect to ACCA’s residual clause are less implicated by Section 16(b); second, because Leocal is precedent only the Supreme Court should adjust; and, third, because Section 16(b) does not involve the interplay of interpretative method and statutory text causing the double indeterminacy that was the due process muddle rejected in Johnson.  Gonzalez-Longoria was on sufficient notice that his prior crime of Assault Causing Bodily Injury with Prior Conviction of Family Violence is one society condemns as violent because it involves a substantial risk that, in the course of its commission, force will be used against another.  I dissent.

February 11, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (2)

Wednesday, February 10, 2016

Paul Cassell, the former federal judge who sentenced Weldon Angelos to 55 years, writes directly to Prez Obama to support his clemency petition

As reported in this Washington Post article, headlined "Former federal judge to President Obama: Free the man I sentenced to 55 years in prison," former US District Judge (and now Prof) Paul Cassell has now written directly to the President to urge him to "swiftly commute his sentence." Regular readers likely know a lot about the story of Weldon Angelos, whom I once helped represent as he pursued collateral appeals, and the Post article provides some of the details and context behind his current push for clemency:

Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.

“I write you as the judge who sentenced Weldon Angelos to a 55-year mandatory minimum prison term for non-violent drug offenses,” Cassell wrote to Obama. “It appears to me that Mr. Angelos meets all of the criteria for a commuted sentence.” Cassell was appointed to the bench in 2002 by former President George W. Bush.

In December, Obama granted clemency to 95 drug offenders as part of his continuing effort to give relief to drug offenders who were harshly sentenced in the nation’s war on drugs. But Angelos, who is behind bars at the Federal Correctional Institution at Mendota, was not on the president’s list. The president has commuted the sentences of 184 federal inmates, more individuals than the past five presidents combined. But sentencing reform advocates say that hundreds — and potentially thousands — of inmates who meet the Obama administration’s criteria for clemency, including Angelos, are still behind bars....

Angelos, the son of a Greek immigrant and the 36-year-old father of three, is one of the nation’s most famous nonviolent drug offenders and a symbol of the severe mandatory sentences. His case has been widely championed, including by Utah’s Republican Sen. Mike Lee, former FBI Director Bill Sessions, the group Families Against Mandatory Minimums and conservative billionaire Charles Koch. “Judge Cassell’s letter articulates well the grave injustice involved in Weldon’s prison sentence,” said Mark Holden, general counsel and senior vice president of Koch Industries,” who has urged attention to the Angelos case.

Like many inmates, Angelos has missed being with his children as they grew up. His 18-year-old son, Anthony, was six when he was sent to prison. His son, Jesse, was 4. His 13-year-old daughter, Meranda, was an infant. In an interview, Angelos said he had hoped the president would grant him clemency in time for him to see Anthony graduate from high school in June.

Angelos was sentenced to 55 years without the possibility of parole after he sold marijuana to a police informant three times in 2002, each time charging $350. Prosecutors alleged that Angelos, the founder of Utah hip-hop label Extravagant, was a gang member and a drug dealer. Angelos denied the allegations and declined a plea bargain offered by prosecutors. Angelos never used or pulled a gun, but the informant later testified in court that he saw one in Angelos’s car during the first buy. He said that during the second buy, Angelos was wearing an ankle holster holding a firearm. Officers later searched his home and found a gun.

The sentence Angelos received as a nonviolent first-time offender fell under a law called 924(c). Federal drug laws require 5- to 30-year mandatory minimum sentences for possessing, brandishing or discharging a gun during a drug-trafficking crime. For each subsequent gun conviction, there is a mandatory sentence of 25 years that must be served consecutively. This is often referred to as “gun stacking,” which is why Angelos received 55 years without parole. He received five years for the gun in the car; 25 years for the second gun charge, having one in an ankle strap; and another 25 years for a third firearms charge, the gun police found in his home. He got one day for the marijuana.

In 2004, when Cassell sentenced Angelos, he wrote a lengthy opinion, comparing Angelos’s sentence (738 months) with the guideline sentences for the kingpin of three major drug trafficking rings that caused three deaths (465 months), a three-time aircraft hijacker (405 months), a second-degree murderer of three victims (235 months) and the rapist of three 10-year-olds (188 months).

Related prior posts providing some Angelos case history:

February 10, 2016 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Gun policy and sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015

23992166449_9ff10a5a94As reported previously in this post and now again via this new piece from The Hill, a number of Senators are in the midst of a robust conversation about the merits of and concerns about the Sentencing Reform and Corrections Act (which I have called SRCA 2015 since its introduction last fall).  Of particular note and importance (and as noted in this prior post), Arkansas Senator Tom Cotton seems to be taking a leading role raising concerns about the current version of the SRCA, and I am now pleased and impressed that Senator Cotton has provide a thorough articulation of his concerns through this new Medium commentary titled "The Current Sentencing Reform and Corrections Act is Dangerous for America," and also through this extended speech delivered yesterday on the Senate Floor.

The Medium commentary, which is relatively short, does not do much more than emphasizethe anti-federal-sentencing-reform points already forcefully and repeatedly expressed by the National Association of Assistant U.S. Attorneys and Bill Otis and others who have been consistent opponents of any changes to the current federal sentencing status quo.  But the Senate floor speech is much, much longer and, in my view, in spots much, much more thoughtful in discussing the SRCA and his own perspectives about federal sentencing reform.  I highly recommend all persons following federal sentencing reform to read Senator Cotton's lengthy floor speech in full, and here are some of the (many) passages that has led me to describe it as forceful (and somewhat thoughtful):

Today, I want to discuss the Sentencing Reform & Corrections Act that has been voted out of the Judiciary Committee. There is much debate about the wisdom of this bill.  That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do....

By its text, the bill will not just apply to so-called "non-violent offenders," but to thousands of violent felons and armed career criminals who have used firearms in the course of their drug felonies or crimes of violence.

By its text, the bill will reduce sentences not for those convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana.  And let's be clear: drug trafficking is not "non-violent," as the bill's proponents often claim.  It's an industry that's built on an entire edifice of violence, stretching from the narcoterrorists of South America to the drug-deal enforcers on our city streets. If you think dealing drugs on a street corner while armed with a gun is a "non-violent" offense, you probably live in a rich suburb or a gated community....

It's been reported that the bill's sponsors are preparing to release a revised bill, one that would address some of these many shortcomings.  Regarding this news, I first want to thank the sponsors for acknowledging that the bill as passed by committee does in fact apply to serious drug traffickers and other violent felons.  I look forward to evaluating the new legislative text, and I hope it addresses these problems....

The [US Sentencing] Commission first reduced sentencing guidelines in 2007.  It did so again in 2010. And again in 2014. That is three major systemic sentencing reductions in the span of seven years. The result?  46,000 federal convicts will walk from jail early.  Wendell Callahan was one among that 46,000.  There will be many more like him. And while we pray — against all odds — that none of them go on to commit a triple-murder like Wendell Callahan did, or any other heinous crime, I'm afraid our prayers will go unanswered, at least in part.

The Sentencing Commission is an independent judicial agency that provides uniform sentencing guidance to judges. Congress didn't have a hand in those sentencing reductions.  But with the Sentencing Reform & Corrections Act, the Senate would impose a fourth major sentencing reduction within eight years — one that is deeper and broader than the reductions imposed by the Sentencing Commission.

This is badly misguided.  The Senate would be launching a massive social experiment in criminal leniency without knowing the full consequences of the first three reductions imposed by the Sentencing Commissions.  This experiment threatens to undo the historic drops in crime we have seen over the past 25 years....

The Senate, and the American people, need to consider any change to our sentencing laws with full information.  We need to know if this sentencing-leniency bill will return us closer to the days of the `70s and `80s when our cities were besieged by the drug trade, and whole communities were being rotted out as a result.  We need to debate sentencing changes with all the data available to us.  We need to do this with eyes wide open.

That is why today — together with Senators Hatch, Sessions, and Perdue — I am introducing the Criminal Consequences of Early Release Act.  This is a simple, but very needed bill.  It will require the federal government to report on the recidivism rates of the 46,000 federal inmates to be released early under the Sentencing Commission's reductions.  And it will require the same reporting for any prisoners released early under any future reductions passed by Congress.

The report required by this bill will make clear how many crimes are being committed by released felons.  It will make clear what types of crimes — from drug trafficking to assault to robbery to murder — are being committed by these felons. And it will make clear in which states these crimes are occurring.

Currently, this type of data is extremely hard to compile.  It is not reported by the Bureau of Justice Statistics, and any information we do have comes through anecdotes and sporadic media reports.  Full information on the criminal consequences of early release must be published in detail.  Before voting on any bill to reduce sentences, the members of this chamber need to understand fully the criminal consequences of prior sentence reductions....

I want to be clear.  To those who support the Sentencing Reform & Corrections Act, we are not in full disagreement. Like you, I oppose jail for first-time drug users with no prior record.  It's vanishingly rare for such offenders to be prosecuted and jailed in the federal system.  But it remains true that the better option for them — particularly if they are addicts — would be drug treatment.  Like you, I believe that our prisons should not be an anarchic jungle that is a danger to both prisoners and corrections officers.  Like you, I believe that those prisoners who will someday complete their sentences and re-enter society should be given the chance to rehabilitate and redeem themselves while in prison so that they do not recommit crimes once they are released.  Like you, I do believe that there exists the possibility of an unjust sentence, one that is so out of proportion that it shocks the conscience.

So I suggest, let's work on that bill.  Let's work on a bill that identifies and addresses all first-time drug possession inmates in the federal system, but keeps drug traffickers and other violent offenders in prison to finish their sentences.  Let's improve prison conditions and give prisoners a shot at redemption and a better life.  And, if you wish, let's work on a bill to speed the consideration of commutation applications.

If we want to undo unjust sentences, we can help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences.  But what we should not do is use the blunt instrument of releasing thousands of violent felons and major drug traffickers.  The president has the constitutional power to remedy unjust sentences.  But you know what power he doesn't have?  The power to bring back to life the victims murdered by prisoners who are released early or sentenced inadequately.

There are a number of statements in the parts of this speech quoted above with which I could take serious issue. In particular, Congress always has authority to block any and every formal decision by the US Sentencing Commission, and the crack-guideline reductions of 2010 were essentially mandated by Congress in the Fair Sentencing Act of 2010. Consequenlty, it is not accurate for Senator Cotton to assert that "Congress didn't have a hand in those sentencing reductions" to drug sentences promulgated by the USSC in recent years. More generally, to assert in blanket terms that "drug trafficking is not 'non-violent'," is no better than asserting in blanket terms that "drug trafficking is non-violent." Some federal drug-traffickers in some settings are extremely violent in doing business. But I have not heard of much violence taking place in all the stores now selling a whole lot of marijuana in Colorado and other states, and I surmise that the ability to purchase this drug in a safe environment is one reason marijuana sales seem to keep going up and up in a number of states.

But, critically, even though Senator Cotton sometimes favors rhetoric over reality in this speech, the basic themes and many particulars he stresses are an important and valuable contribution to the broader debate over federal sentencing reforms. In particular, Senator Cotton is 100% right that our national data on the recidivism rates and realities of federal offenders — not only with respect to those who get sentence reductions, but also for the entire released offender population — leave a lot to be desired and raise more questions than answers. (Indeed, as some readers likely know well, the very term "recidivism" is subject to various definitions in various settings.) I could not agree more with Senator Cotton's statement that the "Senate, and the American people, need to consider any change to our sentencing laws with full information." Indeed, I have long thought that many of our worst federal sentencing laws enacted in prior decades — e.g., the 100-1 crack/powder disparity, some of our most severe gun possession mandatory minimums — were passed largely based on misinformation about their reach and likely impact.

In addition, I think Senator Cotton merits praise for urging his colleagues to "improve prison conditions and give prisoners a shot at redemption and a better life," and especially for suggesting "work on a bill to speed the consideration of commutation applications" in order to "help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences." As long-time readers know, many sentencing reform advocates (myself included) have been advocating for Presidents of both parties to make much broader and more constitent use of the "constitutional power of pardon and commutation." I think it is both quite heartening and significant that now the Senate's most vocal opponent of proposed sentencing reforms is sincerely calling for President Obama (and future presidents) to use the clemency power to remedy any and all federal sentences that appear to the President to be "manifestly unjust."

February 10, 2016 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Tuesday, February 09, 2016

Is California conducting an "unprecedented experiment in mass forgiveness"?

The question in the title of this post is prompted by the headline of this lengthy new Washington Post article, which suggests the Golden State has become a unique criminal justice laboratory.  Here are excerpts:

[Jose] Gonzalez is among thousands of felons benefiting from a grand experiment, an act of mass forgiveness unprecedented in U.S. history.  In California, once a national innovator in draconian policies to get tough on crime, voters and lawmakers are now innovating in the opposite direction, adopting laws that have released tens of thousands of inmates and are preventing even more from going to prison in the first place.

The most famous is a landmark ballot measure called Proposition 47, which in 2014 made California the first state in the nation to make possession of any drug — including cocaine and heroin — a misdemeanor.  More astonishing is the state’s decision to show leniency toward violent offenders, including murderers like Gonzalez.

For example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.

Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses — a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term.  And more reforms could be in store. Last month, Brown unveiled a ballot measure that, if approved by voters in November, would grant early release to nonviolent felons who complete rehab programs and demonstrate good behavior.

Progressives across the nation have applauded California’s U-turn. “There is a gathering sense that the public is considerably less punitive than people had thought,” said Joe Margulies, a professor of law and government at Cornell University.

But with crime in some of California’s largest cities ticking up after years of sustained decline, many law enforcement leaders and victims’ advocates say the state has gone too far. “Our hope was folks getting out of prisons are going to come out and be model citizens,” said Christine Ward, executive director of the Crime Victims Action Alliance. “Unfortunately, we’re not seeing that.”...

So far, 250 inmates have been released under the Youth Offender Parole law, most of them violent offenders.  As many as 16,000 more remain eligible.  Meanwhile, a study by Stanford Law School found that Proposition 47 had unlocked the cell doors of nearly 4,500 prisoners since taking effect in late 2014.

Sheriffs, police chiefs and prosecutors speculate that Prop 47 has contributed to a recent rise in crime and homelessness in major California cities, arguing that the law eliminated a useful billy club: the threat of a felony conviction to steer addicts into treatment.  “It’s a vicious cycle,” said Kirk Albanese, deputy chief of the Los Angeles Police Department.  “You’ve got an addiction, we are not holding you accountable, and you’re back into the cycle of using. How do you support that habit?  Stealing.  Our burglaries are up, car theft is up, break-ins are up — they are all up.”

Hilary Chittick, a veteran judge for the Superior Court of Fresno County, said Prop 47 has “decimated” her ability to force addicts into treatment. “The public had a house with a leaky roof and bad pipes,” she said. “So they blew up the house.”

Prop 47 supporters acknowledge the problem and say efforts are underway to address it.  More drug courts, for instance, are opening their doors to misdemeanants as well as felons, said Prop 47 co-author Lenore Anderson, executive director of the advocacy group Californians for Safety and Justice. “If you think that you need a stick in order to mandate treatment, that option is available with a misdemeanor,” Anderson said.  But Prop 47 supporters reject the notion that the ballot measure contributed to localized spikes in crime.  Early reports indicate that recidivism among inmates released under the full range of reforms has been low....

In general, more than half of inmates released from California prisons — 54 percent — return to prison within three years. Among lifers paroled under Brown, the Los Angeles Times found, fewer than 2 percent have committed new crimes.  Among the 2,100 inmates released after the softening of the state’s three-strikes law, only about 6 percent have returned to prison. Michael Romano, director and co-founder of the Stanford Law School Three Strikes Project, attributes the success of this cohort in part to extensive rehab, but also to a kind of forgiveness psychology.

Because I do not live in California, it is hard for me to judge whether the state is genuinely engaged in "mass forgiveness" when passing laws designed to reduce its prison population and the severity of its sentncing laws. But there is little doubt that all sorts of significant criminal justice reforms are now playing out in California, and it will be quite valuable and important for criminal justice advoates and researchers to watch and study crime and punishment developments in the state in the months and years to come.

February 9, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Sunday, February 07, 2016

"Restitution and the Excessive Fines Clause"

The title of this post is the title of this notable new paper authored by Kevin Bennardo now available via SSRN.  Here is the abstract:

Restitution is a component of many criminal sentences.  There is little agreement, however, upon whether and how the Eighth Amendment of the Constitution limits restitution orders in criminal cases.  Courts have long been divided over whether the Excessive Fines Clause applies to restitution orders at all, whether to apply the “grossly disproportional” test to restitution orders or some other causation-based test, and how to measure gross disproportionality in the restitution context.

First, the Excessive Fines Clause of the Eighth Amendment should be read as a limit on restitution orders in criminal cases.  The Eighth Amendment applies because these monetary payments are partially punitive.  And, although restitution payments are not made to the sovereign, the concept of “fines” for purposes of the Excessive Fines Clause is properly understood to encompass payments to third parties that result from government-initiated action.

Second, the same “grossly disproportional” test that has been applied to criminal fines and forfeitures should apply to restitution orders as well.  Indeed, all monetary sanctions should be pooled together for purposes of a single Excessive Fines Clause proportionality analysis.  The constitutionally-relevant question should be whether an offender’s total monetary sanction is grossly disproportional to the gravity of the offense.  Although causation between the offense conduct and the victim’s loss is generally a statutory requirement of restitution orders, it is not a constitutional one. The causation requirement furthers restitution’s remedial purpose; it is not relevant to the Eighth Amendment’s excessiveness inquiry, which functions to limit the punitive severity of monetary sanctions.

Lastly, the question of gross disproportionality is largely an exercise of judgment that should be left to the judiciary. Some courts have inappropriately wholly relied on analyzing whether the monetary sanction was authorized by the legislature in assessing the constitutionality of the penalty.  This approach inappropriately collapses the constitutional inquiry into the statutory one. Although the statutory restitution or fine range may be a useful input in the constitutional analysis, it cannot be the sole component.  In the end, the judiciary's independent judgment must be trusted to weigh proportionality and detect unconstitutionally excessive monetary sanctions.

February 7, 2016 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered | Permalink | Comments (3)

A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP

BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender.  The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:

Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old.  Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place.  Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.

More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence.  Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.

The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder.  Over the past decade, the court has taken up several cases addressing juvenile justice issues.  The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.

Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences.  The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....

Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.”  While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.

Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases.  During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...

On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller.  In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it.  As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.

If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question.  (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)

February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, February 03, 2016

DOJ announces appointment of new Acting Pardon Attorney

This DOJ press release reports that the "Justice Department announced today that Robert A. Zauzmer will become the new Acting Pardon Attorney effective immediately."  Here is more about this important new person in an important new DOJ position:

Zauzmer, the Chief of Appeals in the U.S. Attorney’s Office of the Eastern District of Pennsylvania, has been a key player in the department’s implementation of both the 2013 Smart on Crime initiative and the U.S. Sentencing Commission’s retroactive sentence reductions.

“Bob’s long-standing commitment to criminal justice reform and his knack for devising and implementing the department’s sentencing reduction policies made him a natural choice to serve as Pardon Attorney,” said Deputy Attorney General Sally Q. Yates. “Bob also shares my unwavering dedication to the president’s clemency initiative. Given his experience and dedication, I am confident that Bob will hit the ground running.”

“As someone who has been part of the criminal justice system for more than 25 years, I have long been troubled by the imposition of disproportionately lengthy sentences, even as long as life imprisonment, that were imposed on low-level drug offenders on the basis of laws and policies that have since been changed,” said Zauzmer. “I have dedicated much of the past decade to assisting in the efforts to right some of those unfairly long sentences, and it is my profound honor to aid the president in using his clemency power to continue to restore the sense of proportionality and fairness that is at the heart of our justice system.”

As part of his efforts on behalf of the department, Zauzmer has testified multiple times before the U.S. Sentencing Commission on sentencing guideline issues, including the retroactive application of reductions in drug sentences. He also trained federal prosecutors nationwide on how to apply retroactivity in a way that provides relief to all eligible inmates in the most efficient manner possible. From 2012 to 2014, Zauzmer served as a member of the Attorney General’s Advisory Committee (AGAC), working closely with Attorney General Loretta E. Lynch and Deputy Attorney General Yates at a time that they served as chair and vice-chair, respectively, of the AGAC....

In December 2013, President Obama directed the department to prioritize applications for clemency from inmates who were sentenced under outdated policies and would have received a lesser sentence under current policies and laws. Since the clemency initiative was announced in April 2014, the president has granted 187 commutations, more than the last five presidents combined.

UPDATE: This new NPR piece, headlined "New Pardon Chief In Obama Justice Department Inherits A Huge Backlog," has some interesting quotes from the new Acting Pardon Attorney:

Robert Zauzmer, 55, has worked since 1990 at the U.S. attorney's office in the Eastern District of Pennsylvania. Justice Department leaders said Zauzmer represented a "natural choice" for the pardon job, in part because of his experience training prosecutors all over the country in how to evaluate prisoners' requests for early release.  "There were many occasions over the years where I saw these sentences of 20, 30 years, life imprisonment imposed on low-level offenders based on mandatory sentencing laws that troubled me," Zauzmer told NPR in an interview this week.

"Prosecutors are very knowledgeable about these cases and about the laws and about the need to do justice," he added.  "They are passionate about this, and they are dedicated to doing the right thing and correcting any erroneous sentences that need to be corrected, and I am equally passionate about it."

His first task?  Making sure that thousands of prisoner petitions are reviewed and worthy candidates are forwarded to the White House for action before the end of the Obama presidency, whether the applications come from trained lawyers or from inmates themselves.  "We're going to consider every petition," he said.  Zauzmer declined to offer a deadline but said stacks of petitions are "not going to be left on my table."

"I need to make sure that every system is in place that's necessary to review every case and make sure everybody gets a fair shake," Zauzmer said.  "There's a lot to do, but we have an excellent staff there, and I'm going to give it everything I have."...

But in the interview, the new acting pardon attorney cast some doubt on the idea of a mass clemency. "So I don't think we will ever get to a point where we will say, let's just take this basket of people and do mass clemency," Zauzmer said.  "We will look at these cases individually to make sure that we're not creating an undue risk to public safety, and that requires an individual assessment."

And Zauzmer pointed out that he is quite familiar with those case-by-case looks. He said the White House had already shortened the prison terms of six inmates from his district in Pennsylvania, including the case of David Padilla, who had been serving life behind bars.  "He was a classic example of someone who committed crimes, did bad things, admits it, has served almost 20 years in prison and should not be serving a life sentence," he said. "A life sentence does not possibly match the kind of criminal conduct that he was involved in."

February 3, 2016 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, February 02, 2016

Second Circuit panel laments the "Statement of Reasons" form used by sentencing judges

A helpful reader made sure I did not miss the interesting sentencing opinion handed down by the Second Circuit yesterday in US v. Pruitt, No. 14‐1921 (2d Cir. Feb. 1, 2016) (available here).  Authored by District Judge John Gleeson sitting by designation, here is how the Pruitt opinion gets started:

Kaylon Pruitt appeals from the May 29, 2014 judgment of conviction entered against him in the United States District Court for the Northern District of New York (Suddaby, J.).  Pruitt was sentenced principally to a 46‐month term of imprisonment on his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).  He contends that the district court committed procedural error during his sentencing by failing to explain the reasons for the sentence, as required by 18 U.S.C. § 3553(c).

We affirm but write to suggest to the United States Sentencing Commission and the Judicial Conference of the United States that the Statement of Reasons form included within the statutorily‐required form for the entry of criminal judgments ‐‐ Form AO 245B ‐‐ be amended to bring it into conformity with § 3553(c) and Supreme Court precedent.  Specifically, a check‐a‐box section of the form, which was checked by the district court in this case, invites sentencing judges to impose a sentence within the applicable Guidelines range simply because the judge finds no reason to depart.   Because that both undermines the statutory obligation to state the reasons for every sentence and unlawfully presumes the reasonableness of the advisory Guidelines range, the form should be amended.

In a final notable footnote, the Pruitt opinion takes a notable shot at the US Sentencing Commission:

The form as a whole seems designed to encourage judges to sentence within the range.  A path of least resistance is clearly marked, and it is consistent with the Commission’s overall approach to sentencing in the post‐Booker era.  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory guidelines system was incompatible with the Sixth Amendment right to trial by jury, and it accordingly severed the provision of the Act that made the Guidelines mandatory.  The Sentencing Commission has since repeatedly asked Congress to enact legislation requiring sentencing courts to give greater weight to the Guidelines range than Booker and its progeny permit.  The specific proposals include laws that would require sentencing judges give “substantial weight” to the advisory Guidelines range and require appellate courts to accord a presumption of reasonableness to within‐range sentences.  Thus, the objectionable part of Statement of Reasons form may reflect the law as the Commission wants it to be.

February 2, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Saturday, January 30, 2016

Judge Jack Weinstein disregards severe federal child porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23)

Friday, January 29, 2016

Forces in Oklahoma talking about criminal justice reform via ballot initiative ... prompting question "is direct democracy the best way to approach criminal justice reform?"

This local article, headlined "Coalition wants to give voters a choice on criminal justice reform in Oklahoma," highlights that a number of prominent advocates for criminal justice reform in the Sooner State want to soon have citizens voting directly on these reforms. Here are the basics:

A politically diverse group of state officials, policy advocates, and members of the business community came together Wednesday to announce they were joining forces to stop a problem the state can no longer ignore: Oklahoma's high incarceration rates. “We're running a factory to create future felons,” said Bancfirst Corp. Chairman Gene Rainbolt.  “It's ridiculous.”

Addressing the media at the state Capitol, Rainbolt was among about one dozen other prominent Oklahomans who said they had formed a coalition, known as Oklahomans for Criminal Justice Reform, and they plan to take the issue straight to the voters through two ballot initiatives.

“We need to correct corrections, and if we're going to call it the Department of Corrections we need to do some correcting. If not now, when? We are at 119 percent capacity,” said Rep. Pam Peterson, R-Tulsa, referencing the state's swelling prison population. More than 28,000 inmates — the highest prison population the state has ever seen — sit behind bars in Oklahoma today.

If successful, the coalition will place two ballot measures before voters, said former state House Speaker Kris Steele. The first will lower several nonviolent felonies that would warrant prison time, such as simple drug possession and writing fraudulent checks, to misdemeanors that would call for community-based treatment....

The second initiative would task the Office of Management and Enterprise Services with tracking the number of offenders who would be diverted to treatment rather than prison and calculate the savings.  Those funds would be held in a lock box, to be distributed to county governments for substance abuse treatment, mental health care, and offender supervision. This money could be going to schools, health care, and “the other building blocks for a good state,” said David Blatt, president of the Oklahoma Policy Institute....

In order to get both questions on a state ballot, the coalition will have to gather almost 68,000 signatures for each initiative. Several bills have been filed for the upcoming Legislative session that will address many of the same solutions proposed in the ballot measures, said Rep. Peterson, and their hope is to complement those efforts.

Peterson noted Steele's work years before with the Justice Reinvestment Initiative, a sweeping criminal justice reform bill passed by the state Legislature in 2011. JRI would have moved Oklahoma's justice system in a similar direction, but it was never fully funded and eventually stymied. Peterson said reform of this level doesn't happen overnight. “Speaker Steele really started in 2011, but it's taken this long to get to this point,” she said when asked if the political climate is right for sentencing reform. “So, it takes a while.”

I find this story of taking reform efforts directly to the voters in Oklahoma especially in the wake of California Gov Jerry Brown earlier this week (as blogged here) proposing a state ballot initiative to expand parole and make other reforms that I would usually expect to be pursued via traditional legislative action. And, of course, as often highlighted in posts at my other blog, Marijuana Law, Policy and Reform, ballot initiatives have been the primary driver of major marijuana reforms in the states over the last decade.

I tend to be a huge fan of so-called "direct democracy" for a wide number of legal process reasons, but these latest developments in California and now Oklahoma leave me to wonder a lot if criminal justice reform by plebiscite ought to be seen as a truly welcome development.

January 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, January 27, 2016

Florida trial judge refuses to allow capital case to proceed in wake of SCOTUS Hurst ruling

A helpful reader altered me to this notable local article reporting on a notable local ruling concerning the administration of the death penalty in Florida in the wake of the Supreme Court's ruling in Hurst earlier this month.  Here are the basic details:

Days after the Supreme Court struck down the way Florida sentences people to die, a Pinellas County circuit judge has ruled that the death penalty cannot be pursued in a first-degree murder case scheduled for trial next month.

In an order filed Friday, judge Michael Andrews rejected prosecutors' notice that they intend to seek the death penalty in the case of a Pinellas Park father, Steven Dykes, accused of fatally shaking and striking his 3-month-old daughter in February of last year. "This court concludes that there currently exists no death penalty in the State of Florida in that there is no procedure in place," Andrews wrote.

The order is the first of its kind in the state following the Hurst vs. Florida decision on Jan. 12, said Pinellas-Pasco public defender Bob Dillinger. In an 8-1 opinion, the Supreme Court found Florida's death penalty procedures unconstitutional because juries play only an advisory role in recommending life or death. Judges make the ultimate decision after giving "great weight" to jurors' recommendations....

Dillinger, whose office is representing Dykes, said he agreed with Andrews' ruling. "What the judge has done is absolutely correct," Dillinger said, adding Andrews is "right on point."

Prosecutors could file an appeal in the case. Another hearing is scheduled on Feb. 16, court records show, with the trial slated to begin Feb. 29. Chief Assistant State Attorney Bruce Bartlett said his office "respectfully" disagrees with judge Andrews, adding that the Hurst decision is not final yet. That will happen after the state asks for a rehearing. Bartlett also said the Legislature still has to create new sentencing guidelines in response to the court's decision.

"They issue an opinion and they don't issue any guidelines on how to fix it, and what to do next," Bartlett said of the Hurst opinion. "It's just a dilemma that faces us because the question is how exactly do you fix it? And they didn't really lay out how they thought it should be fixed, so it kind of lends you to, you know, potentially all kinds of challenges."

Lawmakers have previously said that they are making fixes to the death penalty sentencing system a priority this session. "It's not the Supreme Court's job to lay out the procedural guidelines," said Charles Rose, a Stetson University law professor and the director of the Center for Excellence in Advocacy. "That's an issue for every legislature in every state to deal with independently."

The fate of other murder cases remains in flux until new sentencing guidelines are signed into law, said St. Petersburg criminal defense lawyer Marc Pelletier. "Until the Legislature does its part," he said, "we're still going to be in a situation where everything's unclear."...

[L]aw experts across the state agreed with Andrews' order. "The judge has it absolutely right," said Teresa Reid, a University of Florida Levin College of Law professor and assistant director of the Criminal Justice Center. "You need to have a statute in place regarding sentencing, and we don't have that right now."

She said that the judge's responsibility is to make sure the trial is fair and is conducted under law. "It seems to me the appropriate thing to do is wait," she said. "We can't proceed when we don't have the procedure in place."

Rose, the Stetson law professor, said the decision "makes perfect sense." "Judge Andrews should be commended for doing what the law requires," he said. "It's not only sound, it's courageous because he's the first to step out on the ledge on this issue."

Rose predicted that judges across the state would and should follow suit. "My expectation is that there won't be any new death penalty cases tried," he said.

Prior related posts on Hurst and its aftermath:

January 27, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

What should we expect after Montgomery from states that had resisted Miller retroactivity?

The question in the title of this post is prompted by this extended and effective Intercept article headlined "Supreme Court Gives New Hope to Juvenile Lifers, But Will States Deliver?".  Here are excerpts:

[I]t took three-and-a-half years and much litigation for the Supreme Court to force the states to apply Miller retroactively. Even now, the Montgomery ruling is no guarantee for release. “Today’s decision simply provides an opportunity for review,” Mark Plaisance, the Louisiana attorney who argued the case before the Court last fall, reminded reporters on Monday. The ruling is “just the first step in a long process for Mr. Montgomery.”

At 69, Henry Montgomery does not have the luxury of time. Yet he is among the lucky ones — at least he has representation. For other prisoners, finding a lawyer to challenge their continued incarceration is the first in a daunting series of hurdles. According to [Sister Alison] McCrary, word at Angola is that local attorneys will soon be visiting the prison to instruct “offender counsel substitutes” — jailhouse lawyers — on how to begin filing petitions on behalf of fellow inmates. But juvenile lifers must also wait for the state to decide on the legal venue for such a challenge. Then, ultimately, they must convince the state’s chosen decision-makers that they are worthy of early release.

From state to state, the question of who will make these decisions is still up in the air. After Miller, several states simply abolished juvenile life without parole, restoring parole eligibility or imposing lesser determinate sentences on those already imprisoned. Other states opted for resentencing hearings, putting individual prisoners’ fates in the hands of a judge. For those recalcitrant states that refused to do either, Justice Kennedy sought to provide reassurance in Montgomery that the 6-3 ruling “does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole.” Instead, he suggested, writing for the majority, states can give a chance for such prisoners “to be considered for parole.”

In New Orleans, the Louisiana Center for Children’s Rights was quick to embrace this suggestion. The state “has a choice to make,” the legal nonprofit explained on its website following Monday’s ruling. It can offer prisoners “costly, lengthy, substantive hearings” to the tune of $3 million to fund the first year of defense attorneys alone, according to an estimate by the Louisiana Public Defender Board. Or it can grant juvenile lifers some shot at release by allowing them to go before a parole board — an option the group’s director argues saves money, preserves public safety (“by ensuring that nobody is released without review”), and is “fairer for victims, because it will mean that they do not have to go through the difficulties of a new court hearing.”...

Still, as in most states, winning parole in Louisiana is exceedingly difficult. Last summer, following a thorough review of the state of parole across the country, the Marshall Project found parole boards nationwide to be secretive, driven by politics, and “vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.”...

As lawyers and scholars continue to parse the ruling in Montgomery, the broader implications are yet to be seen. For now, although it continues to chip away at the harshest sentences for youth, with Montgomery, the Supreme Court has decided once more to preserve the option of juvenile life without parole, meaning that defendants will continue to be sent to die behind bars for crimes they committed as children. There is good reason to think such sentences will be rare — existing data after Miller shows a large drop in new sentences of life without parole for juvenile crimes across the country. And some legal experts have interpreted Montgomery to mean that a prosecutor pursuing such a punishment will now have to somehow “prove to a judge that a particular youth is beyond saving as a reformed person” — a dubious proposition that should be burdensome in theory.

Yet, it is not hard to imagine that in such cases, the “nature of the crime” will continue to have the final say. After all, even as it seeks to narrow life without parole sentences for youth offenders, Montgomery keeps intact the same assumption that set the stage for them in the first place. “Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption,” Kennedy wrote in Montgomery. It remains possible that a court “might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”

It was this image of irredeemably bad youth — applied along starkly racist lines — that created the superpredator myth, fueling the very sentences states are now being forced to reconsider. After all, while it may be easy to accept that, as an old man, Henry Montgomery is not the same person he was in 1963, it is difficult to imagine such sober perspective governing the fate of a 17-year-old who today committed the same crime — the fatal shooting of a police officer. These are the very crimes for which mandatory sentencing was invented — and for which parole will be routinely denied.

It is this enduring idea — that a crime tells us everything we need to know about the person who committed it — that must be overcome, by parole boards, by judges, and by the legions of people who now claim the broader mantle of criminal justice reform. The Supreme Court has taken another important step in recognizing that people in prison can change. It is up to the states to give juvenile lifers a meaningful chance to go home — before prison becomes the only home they know.

Prior related post on Montgomery:

January 27, 2016 in Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, January 25, 2016

Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?

The question in the title of this post is prompted by this new article from The Hill reporting on the Supreme Court's denial of cert in a Pennsylvania case involving a blanket Eighth Amendment attack on the death penalty.  Here is the article's discussion of the matter:

The Supreme Court announced [today] that it would not hear a case challenging the constitutionality of the death penalty.  The appeal was filed on behalf of Shonda Walters, who was sentenced to death in May 2006 for murdering her next door neighbor with a hatchet and stealing his car.

The U.S. Supreme Court of Pennsylvania for the Eastern District upheld the lower court’s death sentence, saying the court found the evidence sufficient to support her conviction for first-degree murder.  In appealing the decision to the Supreme Court, Walters asked the justices to weigh in on whether the imposition of the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  The court did not give any statement supporting or dissenting from its decision to reject the case.

Court watchers have been expecting the justices to take up the constitutionality of the death penalty in light of a dissent by Justice Stephen Breyer last year.  Experts said Breyer’s dissent provided a blueprint for a broad challenge to capital punishment....  The court appears to be waiting for the right case to weigh in.  The case that was declined on Monday is Walter v. Pennsylvania.

I know that a lot of folks eager to have the death penalty completely abolished in the United States are ever hopeful, especially in the wake of Justice Breyer's Glossip dissent, that the Supreme Court will consider anew a wholesale Eighth Amendment challenge to any and every death sentence.  But I have always considered quite significant the fact that Justice Breyer's dissent in Glossip was joined by only one other Justice; moreover, just last week every member of the Court except Justice Sotomayor voted to reinstate a number of Kansas death sentences as consistent with the Eighth Amendment (as blogged here). 

I fully understand why Justice Breyer's dissent in Glossip is now prompting many capital defense attorneys to raise and seek to preserve an Eighth Amendment broadside attack on the death sentence given to his or her client.  But, especially after the Supreme Court's most recent capital case work from Kansas and elsewhere, I am one "court watcher" who does not expect this kind of claim to be taken up by the Justices anytime soon.

January 25, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Does SCOTUS ruling in Montgomery actually minimize likelihood of full constitutional ban on juve LWOP sentences?

The question in the title of this post is my first "now what" thought concerning the Supreme Court's ruling today in Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (available here), and the future of Eighth Amendment jurisprudence.  It was prompted in part by the first post-Montgomery e-mail I received:  it stressed that juvenile justice advocates have "urged the Court to rule that JLWOP is unconstitutional in all cases [and now] two cases with petitions for certiorari currently pending, Houston v. Utah and Jacobs v. Louisiana, ask the Court to invalidate JLWOP in all cases."

For a host of reasons, I am pleased that a majority of Justices in Montgomery concluded that the Eight Amendment rule announced in Miller precluding the mandatory imposition of life without parole to juvenile murderers is to be applied retroactively to all cases.  But the fact that the Justices reached this result by calling Miller substantive, and especially the fact that Chief Justice Roberts joined the Court's opinion in Montgomery, leads me to think we might not see the Justices show interest in even considering a categorical ban on all juve LWOP sentences for some time.

Of course, I am just reading broad Eighth Amendment tea leaves here (and doing so even before I have had a chance to read Montgomery closely).  Of course, the five Justices who made up the Graham and Miller majorities could on their own, without the Chief Justice along for the ride, decide to extend their Eighth Amendment jurisprudence to create a categorical bar on all juve LWOP sentences.  But this five-some of Justices had their chance to reach such a result in the original Miller case and amici urged the Court to use Montgomery as another chance to do the same.  The fact that the Supreme Court has now twice resisted extending Graham to all juvenile crimes, and especially now that the Justices have ensured (with the help of the Chief Justice) that no juve offenders will ever be subject to LWOP without a sentencing judge deciding such a sentence was truly justified, leads me to predict that it may now be quite a while before the Justices consider seriously a categorical ban on all juve LWOP sentences as a constitutional mandate.

Prior related post on Montgomery:

January 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana

Via a 6-3 ruling authored by Justice Kennedy, the Supreme Court this morning decided via Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (avaialable here), that "Miller announced a substantive rule that is retroactive in cases on collateral review."  This is huge news for lots of reasons, and I will likely have a series of posts on this ruling and its reasoning in the hours and days and weeks ahead.

Intriguingly, the majority opinion for the Court spent relatively more energy justifying jurisdiction in the case than the declaration that Miller is a substantive rule under Teague's framework for retroactive applicaton of new constitutional rules.  In any event, here are a few key passages from the tail end of the Court's Montgomery opinion explaining its ruling:

The Court now holds that Miller announced a substantive rule of constitutional law.  The conclusion that Miller states a substantive rule comports with the principles that informed Teague.  Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convic­tions, in every case where a juvenile offender received mandatory life without parole.  A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.  See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years).  Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions.  Those prisoners who have shown an inability to reform will continue to serve life sentences.  The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinous crimes are capable of change.

January 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Sunday, January 24, 2016

Making a pitch for judicial second looks while asking "Did I Sentence a Murderer or a Cooperative Witness?"

The question in the second half of the title of this post is the headline of this New York Times commentary authored by Stefan Underhill, a federal district judge in Connecticut.  But the headline does not reflect what thus commentary is really about: it makes a pitch for creating a significant new judicial second-look mechanism in federal sentencing.  I recommend this commentary in full, and here are excerpts:

In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since. As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.

He was the enforcer for a brutal gang of drug dealers in Bridgeport, Conn., known as the Terminators, and had sold heroin, assaulted rival dealers and murdered a potential witness.  But after a falling-­out with the head of the gang, he turned over a stash house to the police and fled the state.  When captured in 2001, he immediately confessed to the murder and later testified as a star witness for the prosecution.

Thus arose my problem: He had committed horrible crimes, but he also seemed to be making an unusually sincere effort to atone for them.  So which man was I sentencing?  The murderer or the remorseful cooperator?

The prosecutor rewarded his cooperation by filing a so­called 5K motion, which allowed me to ignore the mandatory life sentence he otherwise would have faced.  Still, after weighing the seriousness of his crimes, I sentenced him to 18 years, which was more time than even the prosecutor wanted....

In the years that followed, I often wondered whether his remorse was strong enough to overcome his past.  In 2012, I had the chance to find out.  While attending a conference on sentencing issues, I learned that he was serving time in a prison nearby.  I wanted to know whether he had become a better citizen or a better criminal.  So I asked a prison staffer if I could meet with him in private.

That the warden felt no need to post a guard was my first clue that he had changed for the better.  He was working in his first real job at the prison industries factory and had been promoted to supervisor.  He showed me recommendations from prison employees for good jobs on the outside.  He brought a folder full of certificates he had earned for attending classes.  He talked lovingly about his girlfriend and daughter, with whom he planned to live as a family after his release.

The meeting made me proud of his accomplishments, but sad that I had not been more confident in him.  He still had several years left on his sentence, but it was clear that he had served enough time.  After I returned to my office, I contacted the prosecutor and his lawyer and encouraged them to find a way to get him released early.  But they told me there was no straightforward way to shorten a federal inmate’s sentence, even if prison officials acknowledge that more jail time is a waste of time and money.  So he had to stay in prison, at an annual cost of $30,000 to taxpayers.

The tragedy of mass incarceration has recently focused much attention on the need to reform three-­strikes laws, mandatory minimums and the federal sentencing guidelines, which often direct judges to impose excessive sentences. We also need a mechanism for judges to re­evaluate the sentences they’ve imposed.  It’s true that federal prisoners can earn up to 15 percent off the length of their sentences if they stay out of trouble.  But this doesn’t incentivize prisoners to take advantage of work or study opportunities.

Instead, Congress should enact legislation that would allow every sentenced defendant one opportunity to petition his sentencing court for a reduction based on extraordinarily good conduct and rehabilitation in prison.

This “second-­look review” should be available only to prisoners who are supported by their wardens.  To minimize the increased workload on busy federal judges, each prisoner should be allowed only a single opportunity to seek early release and do so only after serving at least half of the sentence imposed (or two­-thirds of a mandatory minimum sentence).

Factors in support of an early release should include more than just clean disciplinary records in prison.  Job readiness, success with drug treatment, completion of vocational and educational training and extraordinary family or health circumstances should count as well....

I don’t advocate for a return to the flawed federal parole system that was essentially abolished in the 1980s.  In that system, a judge who believed that a defendant should spend three years locked up would impose a nine­year sentence because parole was likely to be granted after he served one­-third of it.  But if that defendant’s parole was delayed or denied, the judge’s original intent was impeded.  In contrast, my proposal would give the sentencing judge control. This makes sense because judges know whether a particular defendant got a break at sentencing or not and can best gauge the extent of positive change in a person....

A “second look” to adjust sentences would give inmates an incentive to prepare themselves for productive lives on the outside, and allow judges like me to correct sentences that turn out, in hindsight, to be unnecessarily long. This would improve the fairness of our criminal justice system and increase the public’s confidence in our courts.

UPDATE: Intriguingly, since I posted this piece, the New York Times changed its on-line headline to "Did the Man I Sentenced to 18 Years Deserve It?". And, echoing my own gut instincts, it seems that more than a few commentors think that someone who murdered a potential witness deserves at least 18 years in prison. In light of that view, I think the most notable aspect of this sentencing story is fact that the initial 18-year prison sentence "was more time than even the prosecutor wanted."

January 24, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Friday, January 22, 2016

Over dissent of Justice Breyer, Alabama goes forward with its first execution in years

As reported in this lengthy local article, headlined "Alabama executes Christopher Eugene Brooks for 1992 murder of Jo Deann Campbell," Alabama got its capital punishment tide rolling again last night. Here are some of the details:

Alabama death row inmate Christopher Eugene Brooks was executed Thursday night for the 1992 slaying of a Homewood woman after the U.S. Supreme Court denied his request for a stay of execution.

Brooks was pronounced dead at 6:38 p.m. in the execution chamber at the Holman Correctional Facility in Atmore.  He was the 57th death row inmate executed in Alabama since executions resumed in 1983 after an unofficial more than decade-long nationwide moratorium ended. He was the first person executed in Alabama since 2013....

After the execution Alabama Prison Commissioner Jeff Dunn said the execution with the controversial sedative drug midazolam "went exactly as planned."  Brooks did not appear to struggle during the administration of the drugs.  His attorneys and other inmates had claimed the first drug in the cocktail does not put the condemned inmate in deep enough sleep to prevent pain when the other two drugs are administered.  Dunn said that there are no other executions currently planned, but the prison system does have the drugs available to conduct more. He said the same drug combination has been used in other states.

Dunn also read letters from victim Jo Deann Campbell's two sisters and mother, all of whom witnessed the execution. Mona Campbell, her mother, said the execution does not give her closure and will not bring back her youngest daughter.  She said she hoped Brooks had "made peace with God."  Jo Deann's sister, Fran Romano and Corinne Campbell also issued statements. "Just as God forgives me for my sins I pray for mercy for this man's soul," Corinne wrote....

Minutes before he was to die, word spread that the U.S. Supreme Court had denied Brook's request to stay the execution. Justice Stephen Breyer dissented from the ruling. Dunn said prison officials were notified of the justices' decision at 5:55 p.m., five minutes before the execution was scheduled to begin....  The request for the stay was made to Justice Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred with Thomas' decision to deny the stay.

Brooks, 43, was convicted in the December 1992 rape and murder of 23-year-old Jo Deann Campbell. Investigators linked Brooks to the crime through DNA, fingerprints, and Campbell's car and other items taken from her Homewood apartment, including a credit card he had used.  Her partially clothed body had been found under her bed and she had been beaten with a barbell.

Brooks was one of 187 inmates on Alabama Death Row.  Twenty-two have served longer than Brooks on death row. Alabama changed its drug combination for executions in 2014 after it and other states reported they could no longer find supplies of the drugs it had used in the past, mainly because manufacturers did not want their drugs used in executions.

The SCOTUS order denying a stay in this case is available at this link, and here is the text of the concurrence and dissent:

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the denial of certiorari.

This Court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U. S. 447 (1984), two decisions we recently overruled in Hurst v. Florida, 577 U. S. ___ (2016).  See Harris v. Alabama, 513 U. S. 504 (1995).  I nonetheless vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.

JUSTICE BREYER, dissenting from denial of application for stay of execution and petition for certiorari.

Christopher Eugene Brooks was sentenced to death in accordance with Alabama’s procedures, which allow a jury to render an “advisory verdict” that “is not binding on the court.”  Ala. Code §13A–5–47(e) (2006).  For the reasons explained in my opinions concurring in the judgment in Hurst v. Florida, ante, at 1, and Ring v. Arizona, 536 U. S. 584, 613–619 (2002), and my dissenting opinion in Schriro v. Summerlin, 542 U. S. 348, 358–366 (2004), I dissent from the order of the Court to deny the application for stay of execution and the petition for a writ of certiorari.  Moreover, we have recognized that Alabama’s sentencing scheme is “much like” and “based on Florida’s sentencing scheme.” Harris v. Alabama, 513 U. S. 504, 508 (1995).  Florida’s scheme is unconstitutional.  See Hurst, ante, at 1 (BREYER, J., concurring in judgment). The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment.  See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 1–2).  I respectfully dissent.

January 22, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, January 21, 2016

"Why hasn’t President Obama granted clemency to a single Latina inmate?"

The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:

Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation.  Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....

On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime.  In total, I spent 17 years behind bars for a crime committed at age 21.  I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.

But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina.  Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population.  They are three times more likely to go to prison than white women.  And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007.  There’s no shortage of worthy Latina candidates for a presidential clemency.

Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston.  Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.

Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing.  Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years.  And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.

President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing.  One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well.  To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.

The War on Drugs should be called the War on Minorities.  Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children.  Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color.  Brown lives matter, too.

January 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, January 20, 2016

Disconcerting backstory apparently explains quick departure of DOJ's Pardon Attorney

I had seen news late last week that the Justice Department’s relatively new pardon attorney had announced she was resigning her post, and this new Washington Post article about the departure provides some of the backstory. The piece is headlined "Attorney overseeing clemency initiative leaving in frustration," and here are excerpts:

The Justice Department’s pardon attorney — charged with overseeing the review of clemency petitions from federal inmates — is stepping down at the end of January because she is frustrated by a lack of resources for one of the president’s centerpiece criminal-justice initiatives, according to people close to her.

The departure of Deborah Leff, who has been in her role since 2014, comes as the Obama administration struggles to process a backlog of more than 9,000 pending clemency petitions. As the president approaches the end of his second term, time is running out for his high-profile effort to offer clemency to certain nonviolent federal drug offenders harshly sentenced in the nation’s war on drugs.  

The Justice Department said it is confident that Leff’s departure will not delay the administration’s clemency initiative, and it hopes to find a replacement quickly.  Justice spokeswoman Emily Pierce also said the department is asking Congress to more than double the number of lawyers assigned to the pardon office, from 22 to 46.

Leff could not be reached for comment but released a statement saying that she has known President Obama for more than 20 years and that she thinks “his commitment to reinvigorating the clemency process — and the promise that holds for justice — can change the lives of a great many deserving people.” But Leff added: “It is essential that this groundbreaking effort move ahead expeditiously and expand.”

A former trial lawyer, senior television producer and president of the Public Welfare Foundation, Leff was highly respected by sentencing reform advocates. “She never got the staffing she needed,” said one friend. “She was very frustrated.” Other people close to Leff said that she was passionate about making the clemency initiative work but had been unhappy for quite some time about not having enough resources.

Obama has commuted the sentences of 184 federal inmates. White House Counsel Neil Eg­gleston said in December that Obama has commuted the sentences of more individuals than the past five presidents combined and that the president will grant more commutations and pardons this year. But advocates of sentencing reform are disappointed that the clemency process has not moved more quickly and that more of the thousands who have submitted clemency petitions have not had their sentences commuted....

A senior Justice Department official said that the clemency initiative is of the highest priority for the department and that those involved have been working tirelessly to move petitions along as quickly as they can with a limited budget and legal restrictions....

“To lose the head of the office that’s running the clemency initiative is concerning,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We hope she is replaced by someone who is as dedicated, smart, passionate and committed as she was to getting these petitions through.”

Pierce said the department has been constrained by law in terms of how many resources and how much of its budget it can devote to the clemency initiative. Pierce said the department has “provided additional funds to the pardon office within the confines of our budget and has detailed dozens of additional full- and part-time attorneys over the course of the clemency initiative.” Despite the constraints, a Justice official said that lawyers are reading each of the thousands of clemency petitions that have been submitted and have prioritized the ones that best meet the new criteria set out by the administration....

Justice officials said that they expect to name a replacement before Leff leaves Jan. 31. “A new pardon attorney will be named in the near future and we expect the work of the pardon attorney’s office to continue apace as we identify and vet potential candidates for the president’s clemency priorities,” Pierce said. “The Justice Department is dedicated to the goals of the clemency initiative and is steadfastly committed to doing all it can to ensure fairness in the criminal-justice system.”

I find this story disconcerting because it seems to me just another manifestation of the problems Prez Obama has himself created by having ignored his clemency powers during his first six years in office and then deciding he should try to make up for lost time on his way out of the Oval Office.  I had (foolishly?) hoped Prez Obama would have been a lot smarter in this important space in the wake of the ugly last-day clemency doings of Prez Clinton back in 2001 and especially with out-going Prez Bush telling in-coming Prez Obama on Inauguration Day 2009 that clemency matters should garner his attention.  But here we are seeing, yet again, that by ignoring these matters until essentially the last minute, Prez Obama's record in this space will be marked by various missteps and frustrations (although I remain hopeful that even his "last-minute" efforts will still result in a notable improvement on the work of many of his recent predecessors in the clemency arena).

January 20, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, January 19, 2016

Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida

In this post last week not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various Florida courts as both state and federal judges try to make sense of just what Hurst must mean for past, present and future capital cases.

Not surprisingly, as reported in these two new local articles, courts, lawyers and experts are already puzzled by the situation that SCOTUS has now handed them:

As these capital cases are sure to unfold in hard-to-predict ways in the weeks and months ahead, I cannot help but be especially sympathetic to the difficult position in which Florida's prosecutors and the families of victims of capital murderers now find themselves in.  Until the Florida legislature enacts a Hurst fix, and likely long thereafter, so many of the worst-of-the-worst murder cases are going to be in a legal limbo that will make hard cases for prosecutors and hard times for families only that much harder.  

Prior related posts:

January 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5)

SCOTUS grants cert on two more criminal cases (and on Obama's immigration policies)

Big news this morning from the Supreme Court is reported in this new SCOTUSblog post from Lyle Denniston: 

The Obama administration’s sweeping change of deportation policy for undocumented immigrants will get a thorough review by the Supreme Court, including the question of whether it violates the Constitution, the Court announced Monday.  The case will be set for argument in April, making it almost certain that there will be a final ruling by the end of June — in the midst of a presidential election campaign in which immigration is a major issue.

I suppose sentencing fans can and should be interested in the range of (quasi-?)criminal justice aspects of the law and policy involving immigration. But I am more revved up by this new SCOTUS order list because cert review was also granted on two new federal criminal cases, one of which appears to involve insider trading, the other another ACCA dispute. I hope to have more information on these grants this afternoon after I deal with some morning off-line commitments.

UPDATE:  The SCOTUSblog post linked above now has this additional brief descriptions of the other cert grants this morning, together with helpful links to the SCOTUS pages on each case:

Besides the immigration case, the Court on Tuesday accepted review of three other cases: a significant new case on insider trading in securities (Salman v. United States, grant limited to Question 1 in the case); a plea for further clarification of the enhanced sentences available under the federal Armed Career Criminal Act (Mathis v. United States), and the power of a judge, after dismissing jurors in a case, to recall the jury for further deliberation (Dietz v. Bouldin). 

As always, I would be grateful for early reader perspectives on which of these cases ought to garner extra attention in future weeks (and posts).

January 19, 2016 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, January 16, 2016

"The End of the Death Penalty Isn't Near"

The title of this post is the title of this recent column by Noah Feldman for Bloomberg View, which is actually mostly focused on various votes by various Justices in this past week's ruling in Hurst v. Florida.  Here are excerpts:

The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again.  The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter.  The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific.  The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.

This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines.  According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt.  The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion....

In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate.  Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay — a decision that requires five justices.

The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing.  Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.

And what about Breyer?  He still hasn’t given up on the constitutionality of the sentencing guidelines.  He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury.  He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.

The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.

Prior related postson Hurst:

January 16, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, January 15, 2016

Intriguing new poll on 2016 Californian perspectives on the death penalty

This local article, headlined "Poll: California death penalty is toss-up for voters," reports on a notable new poll of a notable group of state voters on an issue that often garners national attention. Here are the basics:

Opposition to capital punishment continues to rise in California, a new Field Poll released Friday shows, with state voters now equally divided between scrapping the death penalty altogether and speeding up the path to executing inmates on the nation's largest death row.

The poll found that 47 percent of voters favor replacing the death penalty with life in prison without the possibility of parole in California, up from 40 percent in 2014.  But at the same time, the poll shows that 48 percent of registered voters would support proposals to accelerate the state's notoriously slow system of resolving death penalty appeals to pick up the pace of executions.

California voters are likely to be confronted with those two issues on the November ballot. Death penalty opponents are preparing a measure that would abolish California executions, while advocates of capital punishment are proposing a conflicting measure to reform and speed up the death penalty system....

Voters in 2012 rejected the last effort to abolish California's death penalty by a 52 to 48 percent margin.  If voters were to approve both measures in November, the one with the most votes would settle the death penalty question in California for now, according to both campaigns.

"I think the public really wants some action," said San Bernardino County District Attorney Michael Ramos, among the leaders of the measure to speed up the process. "We are either going to fix the death penalty or it's going away in California."

Support for such a measure, which includes shortening the timetable for the California Supreme Court to resolve death penalty appeals, has dropped since 2014, according to the Field Poll. At that time, 52 percent of state voters backed efforts to accelerate death penalty cases, four percent above the most recent poll.

California has not executed an inmate in nearly ten years as a result of legal challenges to the state's lethal injection method, leaving 750 inmates on death row whose state and federal appeals now take decades to resolve. National polls have also shown dropping support for the death penalty, which remains on the books in 30 other states.

January 15, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 14, 2016

Florida Supreme Court wasting no time trying to figure impact of Hurst

This new article by Chris Geidner for BuzzFeed News reports that the top court in the Sunshine State is asking lawyers to sort out ASAP the dark death penalty clouds that the Supreme Court created with its ruling earlier this week in Hurst finding unconstitutional the process Florida uses for imposing death sentences.  The article is headlined "Florida Supreme Court Orders State To Address Death Sentencing Ruling’s Effect By Friday," and here are excerpts:

The Florida Supreme Court on Wednesday ordered state officials there to address questions by Friday about the effect of the U.S. Supreme Court’s decision striking down the state’s death sentencing law on a man due to be executed in less than a month. The brief order from the Florida high court came in the case of Cary Michael Lambrix, who currently is scheduled to be executed on Feb. 11. On Jan. 11, his lawyers had filed a petition for relief based on a similar argument to that made by Timothy Hurst at the U.S. Supreme Court.

After the U.S. Supreme Court ruled on Jan. 12 in Hurst’s case that Florida’s death sentencing law was unconstitutional under the Sixth Amendment because it violated the right to a jury by making the imposition of a death sentence the responsibility of a judge and not a jury, the Florida Supreme Court amended its order in Lambrix’s case. Lambrix was convicted and sentenced to death in 1984 for the murders of Clarence Moore and Aleisha Bryant....

Specifically, the state is ordered to address whether the U.S. Supreme Court’s decision should apply retroactively to past death sentences in Florida, how Hurst applies given the specific facts of Lambrix’s sentencing, and whether any error in Lambrix’s case should be viewed as harmless.

January 14, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Tuesday, January 12, 2016

"Could One of These Cases Spell the End of the Death Penalty?"

The question in the title of this post is the headline of this new Marshall Project piece.  Here is how it starts, with links from the original:

Last June, Supreme Court Justice Stephen Breyer suggested that the death penalty might be close to its ultimate demise. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote in a dissent toGlossip v. Gross, to which Justice Ruth Bader Ginsburg added her name, “I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.”

Attorneys for death-row inmates, generally a tight-knit group, immediately started talking about what to do next. While some urged caution — arguing that if the court upholds capital punishment it could set their cause back indefinitely — others sensed a rare opportunity. The most outspoken advocates for a more aggressive strategy have been the 8th Amendment Project, a group of lawyers who oppose the death penalty and are tracking cases that might allow the court to strike it down for good.

On Friday, the high court will discuss whether to hear a challenge to the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one of several posed as direct responses to Breyer’s invitation to attack the death penalty head-on.

There is no way to know whether the justices will take any of these cases; for the court to take a case, four justices must agree, and aside from Breyer and Ginsburg, no other justices have indicated their views on whether to take such a challenge. If they do take a case, there is also no way of knowing which one they will position as the next potential landmark, the next Brownor Miranda or Roe. But each of those historic cases was preceded by numerous appeals of the sort that are now reaching the court. Death penalty abolitionists are braiding the details of these cases to the legal arguments they believe have the best shot at swaying the court.

January 12, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, January 11, 2016

Plain and Prejudice and Zombie Guideline Errors

51clhdJZUyL._SY344_BO1,204,203,200_The title of this post is the cheeky title I suggested for this SCOTUSblog argument preview I wrote up concerning Molina-Martinez v. United States, a case to be argued before the Justices tomorrow morning.  Perhaps unsurprisingly, the sensible SCOTUSblog folks went with a more descriptive title: "Argument preview: Justices take on 'plain error' review and guideline-range mistakes.  But I could not resist using my silly title in this space because it has literary/theatrical flair and Molina-Martinez concerns whether appellate courts conducting Plain error review should presume Prejudice upon discovery of a guideline calculation mistake that was buried until appeal (a Zombie Guideline Error).  Though I recommend heading over to SCOTUSblog for all the gory details on this case, here is how my SCOTUSblog argument preview starts and ends:

Before modern reforms, federal sentences were essentially unreviewable on appeal. This reality resulted largely from the absence of substantive federal directives for district judges in exercising their sentencing discretion. A defendant — or a prosecutor, for that matter — was hard pressed to complain on appeal that a sentence was premised on a legal error when no sentencing laws structured what sentences district judges were to impose within wide statutory sentencing ranges.

Through passage of the Sentencing Reform Act of 1984, Congress brought law to federal sentencing. The SRA created the U.S. Sentencing Commission to promulgate sentencing guidelines directing how federal judges impose sentences. The Guidelines Manual now runs more than 500 pages and requires district judges to parse intricate provisions to calculate an “offense level” and a “criminal history score” to determine a defendant’s recommended guidelines sentencing range. Federal sentencing is now so chock full of so much law, it is inevitable that federal judges sometimes make technical mistakes in calculating a defendant’s proper guideline range. On January 12, the Supreme Court in Molina-Martinez v. United States will hear argument concerning how the courts of appeals should approach “plain error” review of guideline calculation errors not noticed until appeal....

The Supreme Court has not always broken into traditional conservative and liberal blocks in recent and older cases addressing the intersection of guideline-calculation issues and the application of the federal rules of criminal procedures.  However, in part because Molina-Martinez is not the most sympathetic of defendants, and because a number of current Justices may have deep reservations about adopting any doctrine that might be seen to water down the traditionally tough standards of plain-error review, it seems likely Molina-Martinez’s counsel will have an uphill battle convincing the Court to adopt the prejudice presumption he is seeking.

January 11, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)