Thursday, January 16, 2014
Notable new research from Pew about the success of parole in New Jersey
Too often we only hear a lot about parole policies and practices when there is a high-profile story of some parolee committing some terrible crime following parole release. And, problematically, those kinds of headline-grabbing stories can lead to changes in laws and practices that might not be wise if and when broader information and data are considered.
In light of these realities, I am very pleased to have just stumbled across a good-news story about parole practices appearing in this little research report published by The Pew Charitable Trusts’ public safety performance project and titled simply "The Impact of Parole in New Jersey." Here is the report's overview:
Nearly 700,000 offenders were released from U.S. prisons in 2011. Ensuring their successful re-entry into the community remains a critical issue for public safety. A new analysis of New Jersey data, commissioned by The Pew Charitable Trusts, shows that inmates released to parole supervision are less likely to be rearrested, reconvicted, and reincarcerated for new crimes than inmates who serve, or “max out,” their full prison sentences and are released without supervision. The two groups return to prison at nearly identical rates, however, because parolees can be sent back for technical violations—such as failing drug tests or missing meetings—that are not associated with committing new crimes.
These findings demonstrate not only that supervision can make a decisive difference in controlling criminal behavior among released offenders, but also that technical revocations unrelated to new crimes reduce the cost savings of parole. This brief discusses the findings in depth and examines their implications for states’ corrections policies.
Orange County DA hoping California high court will rescue local sex offender park ban
As reported in this local article, headlined "D.A. will take sex-offenders fight to state Supreme Court," a California prosecutor is planning to seek review in the Supreme Court of a lower state appellate court ruling that struck down local laws banning sex offenders from parks. Here are the details:
The Orange County District Attorney's Office plans to go to the California Supreme Court to defend local ordinances that ban registered sex offenders from city parks. A state appeals court on Friday struck down an Irvine law that barred registered sex offenders from city parks without written permission from police, a ruling that will become legal precedent. The court also struck down a similar Orange County law.
About a dozen other Orange County cities passed similar ordinances banning sex offenders from parks at the urging of District Attorney Tony Rackauckas. Rackauckas helped craft Orange County's law with county Supervisor Shawn Nelson. “Protecting children from dangerous sex offenders is an ongoing war, and we believe that it's one of the most important jobs we have at the D.A.'s (office),” said Susan Kang Schroeder, Rackauckas' chief of staff.
Janice Bellucci, president of California Reform Sex Offender Laws, said of the pending appeal. “I think they're foolish to do it. They're wasting taxpayer money.” Bellucci said her organization will urge Orange County cities that adopted similar legislation to pull the laws off their books or face a lawsuit.
Opponents criticize the ordinances as overly broad and an infringement on civil rights. They are “unenforceable,” Bellucci said. “These ordinances give a false sense of security to parents. They don't really protect their children from those who are most likely to assault their children,” Bellucci said....
The Orange County ordinance, which became a model for local cities, made it a misdemeanor for any registered sex offender to enter a county park, beach or other recreational area without permission from the Orange County Sheriff's Department. Those convicted would face six months in jail or a $500 fine.
In Friday's ruling, a panel of judges said state laws regulating sex offenders pre-empt any local ordinances. State law has long overseen sex-offender registration, the opinion said. State law already regulates where sex offenders may live and also identifies certain sex offenders who must be monitored by law-enforcement via GPS.
Offenders whose victims were younger than 14 may only enter parks where children gather with permission from their parole agents. The laws create a comprehensive system regulating sex offenders' daily lives, the court said. No outright ban on sex offenders in parks is included in state law, an omission that “manifests a legislative determination that such a ban is not warranted,” the court said. Any such local laws undermine the decisions of the Legislature, the court said.
Monday, January 13, 2014
A few 2014 headlines reflecting the state of, and debates over, the death penalty
I have not done too many death penalty posts lately because the subject (and the usual comments it generates) often gets tiresome for me, and lots and lots of other coverage is always provided by the MSM and new media outlet. But because I will be starting a death penalty until in my Sentencing Law course later this month, I have been reading more carefully my news feed on the topic lately. And here are a few recent reports and commentary pieces that may serve as a bit of a summary of some capital punishment topics making the papers in early 2014:
- Plan to speed Alabama death penalty appeals could mean innocent are executed, defense lawyers say
Sunday, January 12, 2014
"Kaleidoscopic Chaos: Understanding the Circuit Courts’ Various Interpretations of § 2255's Savings Clause"
The title of this post is the title of this informative and important new piece now available via SSRN and authored by Jennifer Case. Here is the abstract:
More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time — and with increasing frequency — the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.
In their attempts to understand the Savings Clause’s scope and meaning, the circuit courts have found a myriad ways to navigate the gap between § 2255 and § 2241 and find a path for a petitioner to bring her § 2241 petition. However, in undertaking their task, the circuit courts have created kaleidoscopic chaos that impairs the ability of prisoners, counsel, and the federal courts themselves to understand when and how a federal prisoner can pass through the Savings Clause and challenge his conviction and sentence in a § 2241 petition.
This article reveals the patchwork of Savings Clause jurisprudence created by the circuit courts. Then, using several realistic hypotheticals, the article explores how geography, circuit precedent, and the nature and timing of intervening interpretations of criminal statutes determine whether and when prisoners who are serving sentences for acts that the law did not criminalize can bring a federal habeas petition and get out of prison. Through the use of these hypotheticals, the reader learns how the fates of federal prisoners (who appear to be similarly-situated) vary wildly depending on such things as where they were sentenced, where they are presently confined, and how and when the court system’s understanding of the underlying criminal statute changed.
Wednesday, January 08, 2014
Seeking input on "must-teach" units as I start a new version of my Sentencing Law course
I am very excited that in a few hours I will begin teaching to a new group of bright Ohio State students my Sentencing Law course. I have taught this three-credit, upper-level course every other year since I started teaching in 1997; since 2003, I have had the added pleasure of teaching from my own co-authored casebook, Sentencing Law and Policy: Cases, Statutes, and Guidelines. Joyfully, the new Third Edition of this casebook was published this past summer, so this semester I will get to experience a new version of the text as I work my way through a new version of the course.
As regular readers can imagine, because sentencing law has changed a lot over the past 15 years, my course coverage has changed a lot over the years. Indeed, I always get a kick out of reviewing my teaching notes from the late 1990s which pressed students, inter alia, to consider why the US still allowed the execution of juvenile and mentally retarded murderers and why federal judges were required to enhance federal guideline sentences based on acquitted conduct.
Of course, many basic theoretical, policy and practical issues concerning why, who and how we sentence in the United States are enduring. But each time I teach this course, in addition to reviewing the basics of capital and federal sentencing doctrines, I often end up focusing a lot of energy on the then-most-pressing topics of current doctrinal debate. The last time I taught this class, for example, in Fall 2011, I spent lots of extra time on the Eighth Amendment's application to prison sentences in the wake of the SCOTUS ruling in Graham and its cert grant in Miller.
Because there are so many sentencing topics, both big and small, that interest me greatly and that I think students should get exposed to, I often struggle to make sure I cover all the "must-teach" sentencing topics each semester. Of course, because there has never been an established "canon" for what must be covered in a sentencing course, students do not know what are all the "must-teach" sentencing topics. But, because there has never been a established "canon" for what must be covered in sentencing course, I likewise have never been sure just what are all the "must-teach" topics for my course.
So, as I start the latest (and I hope greatest) version of my Sentencing Law course, I am eager to hear from readers of all stripes (including lawyers and non-lawyers, professors and students) concerning what they might consider "must-teach" units in a three-credit, upper-level Sentencing Law course. Perhaps stated slightly different, I am eager to hear from everyone and anyone concerning what sentencing topics they assume my students learn about when they hear they have taken a course on Sentencing Law.
Cross-posted at PrawfBlawg
Unwrapping the Eleventh Circuit's final 2013 holiday present to prisoners challenging sentencing errors
Late last year, a helpful reader alerted me to an important (and very lengthy) new Eleventh Circuit panel decision in Bryant v. Warden, FCC Coleman, No. 12-11212 (11th Cir. Dec. 24, 2013) (available here). I have waited to blog about it until now because (1) I did not want this important Christmas Eve decision to be overlooked during the holiday weeks, and (2) federal public defender Amy Baron-Evans said I could use her new summary of the 110-page ruling to highlight why Bryant is the first must-read of 2014. Here is the heart of Amy's summary of Bryant:
Eleventh Circuit Holds Savings Clause Opens the Door to a 2241 Petition Raising an Error Resulting in a Sentence Exceeding the Statutory Maximum
In Bryant v. Warden, __ F.3d __, 2013 WL 6768086 (11th Cir. Dec. 24, 2013), the Eleventh Circuit reversed the district court’s dismissal of Bryant’s 28 USC § 2241 habeas petition brought pursuant to the savings clause, 28 USC 2255(e), which permits a prisoner to file a 28 USC § 2241 petition when a § 2255 motion is “inadequate or ineffective to test the legality of his detention.”
This is an important decision for successive petitions raising claims under DesCamps or any other claim that the sentence exceeds the lawful statutory maximum. If you file a successive petition under 28 USC § 2255, and it is dismissed because it doesn’t meet the successor standard under § 2255(h), a § 2255 motion is “inadequate or ineffective to test the legality of [the prisoner’s] detention” under § 2255(e), and you can file a habeas petition under § 2241.
Leland Kynes of Holland & Knight was appointed to represent Bryant.
Bryant proved that his prior § 2255 motion was “inadequate or ineffective to test the legality of his detention” and so his 2241 petition could now proceed under § 2255(e) because: (1) throughout his sentencing, direct appeal, and first § 2255 proceeding, binding circuit precedent held that a Florida concealed-firearm offense was a “violent felony” and squarely foreclosed his 924(e) claim that he was erroneously sentenced above the 10–year statutory maximum in 924(a); (2) subsequent to Bryant’s first § 2255, the Supreme Court’s decision in Begay, as interpreted by the circuit, “busted” circuit precedent holding that the Florida concealed-firearm offense was a “violent felony”; (3) Begay’s new rule applies retroactively on collateral review; (4) as a result, Bryant’s 235–month guideline sentence exceeds the 10–year statutory maximum authorized by § 924(a); (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum.
The government raised no objection to Bryant’s attempt to proceed under the savings clause, so the court appointed amicus counsel to argue that it does not apply even when the sentence exceeds the statutory maximum. The court rejected amicus counsel’s arguments.
The Eleventh also held that procedural default (by not raising the issue on direct appeal or in his first § 2255) did not bar the claim. While futility does not constitute cause to excuse procedural default, the procedural default rule is not jurisdictional but is an affirmative defense that the government can waive, and the government waived it. In addition, the savings clause under § 2255(e) applies regardless of whether the prisoner “has failed to apply” for § 2255 relief or the sentencing court “has denied him” § 2255 relief. Whether the savings clause may open the door to a § 2241 petition is jurisdictional, and so the court had to decide it.
As noted, the government waived procedural default and any objection to Bryant proceeding under the savings clause. The docket notes that the government has conceded the savings clause issue in other cases, and I’m told the government has not raised procedural default in other cases in other districts. So this appears to be coming from the Solicitor General’s office, and its position is apparently that ACCA cases are different because a sentence above the statutory maximum is per se illegal.
The government did argue that a 1988 burglary conviction could be substituted for the concealed weapons conviction as the third ACCA predicate. The court of appeals rejected that argument because the government did not object at sentencing to the district court’s finding that there were only three predicates or suggest at sentencing that the burglary conviction could be a predicate.
The court of appeals describes a “deep and mature circuit split” on the reach of the savings clause at pages 24-26 of its decision. This part of the decision is not entirely clear and you should check your circuit caselaw. Other circuits may adopt the Eleventh Circuit's approach, and if not, file a cert petition.
Monday, January 06, 2014
Lamenting the "ghosts ... still serving time under [crack] sentences that would not have been imposed under the new law"
Linda Greenhouse has this notable new op-ed in the New York Times headlined "Crack Cocaine Limbo." Here are excerpts:
President Obama earned a rare moment of bipartisan acclaim last month when he commuted the sentences of eight long-serving federal prisoners. Their crack cocaine offenses had resulted in the harsh penalties mandated by a sentencing formula that Congress repudiated when it passed the Fair Sentencing Act of 2010. The old formula, under which possession of a quantity of crack earned the same sentence as possession of 100 times that quantity of powdered cocaine, was “now recognized as unjust,” the president said.
But there were ghosts at last month’s party: thousands of federal inmates still serving time under sentences that would not have been imposed under the new law. Most are black. As is widely recognized, crack has been the cocaine of choice for African-American users and dealers even as white offenders choose powder. The racially disparate impact of the old law, which dates from the crack-cocaine panic of the mid-1980s with its now-discredited theory that crack was many times more dangerous, made reform a civil rights priority.
These prisoners remain in drug-sentencing limbo. When Congress passed the Fair Sentencing Act, which reduced the crack-to-powder sentencing ratio from 1:100 to 1:18, it was silent on retroactivity. The Supreme Court granted limited relief two years ago, ruling that those who committed their crimes before the law took effect in August 2010 but who were not sentenced until later could retroactively get the new law’s benefit....
Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, introduced a bill last summer to authorize judges to grant relief to pre-2010 prisoners on a case-by-case basis. But the Smarter Sentencing Act, as its sponsors call it, has yet to move toward a vote....
Society made a judgment, expressed in a bipartisan political consensus, that disparities of this kind were irrational and racially inequitable. Passage of the Fair Sentencing Act was preceded by years of debate, including pleas by federal judges who hated what the law made them do. Gradually, insight emerged. Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.
Thursday, January 02, 2014
A victim's perspective from Iowa on the aftermath of Graham and Miller
This notable local article from Iowa, headlined "As juvenile re-sentencing looms, murder victim's family speaks out," provides a useful reminder of the folks other than juvenile offenders who are very concerned with how the Supreme Court's rulings in Graham and Miller are going to be implemented in the states. Here are excerpts:
34 Iowa criminals currently sit in prison cells who, once sentenced to life in prison as juveniles, can file for the possibility of parole. In 2010, the U.S. Supreme Court ruled sending a juvenile to life in prison without the possibility of parole is unconstitutional. Gov. Branstad then commuted those life sentences to 60 years in prison. 2012, however, brought the Iowa Supreme Court to rule 60 years as still unconstitutional.
“Because of the nature of the crimes that these individuals have committed, it has a very serious impact on the criminal justice system,” said Black Hawk County Attorney Tom Ferguson.
The ripple effect of these two court rulings extends past those just sitting in prison cells. Karen Salisbury was murdered in her Evansdale home in 1998. 17-year-old Matthew Payne was charged with the killing; a first-degree murder charge that, back then, sent him to spend the rest of his life in prison.
Salisbury’s three daughters — Rhonda Hoffman, Marsha DeWiese and Vicky Bolin — said they wrestled with those 1998 images of their mother’s death for years. Now — they must relive the nightmare. Payne, along with the other 33 Iowa criminals, can file to correct a now illegal sentence, hoping for parole. “I don't ever want to have to go into the grocery store or somewhere and run into him,” Hoffman said.
Attorneys said parole, however, is not guaranteed. A judge could grant the possibility of parole, or not at all. Nevertheless, these parole hearings are annual; potentially bringing families back to the court room year after year. “Every year if that comes up every year I will be there and I will make sure they hear my voice and they don't let him out,” Bolin said.
The daughters said the possibility of parole for Payne is extremely concerning for them; a thought that is nearly unbearable. “What good are they in this society when they've been in prison for so long and know nothing else,” DeWiese said.
Hoffman said if Payne is ever granted parole, she hopes she never has to see him. “Don’t come back to Waterloo, I’d go somewhere else.”
Monday, December 30, 2013
NY Times editorial talks of "Slow Demise of Capital Punishment"
The title of this new New York Times editorial, "The Slow Demise of Capital Punishment," is probably better viewed as wishful thinking rather than a sound prediction. Nevertheless, as excerpted below, the New York Times editorial board makes its most potent pitch against the death penalty in this piece:
More states are coming to recognize that the death penalty is arbitrary, racially biased and prone to catastrophic error. Even those that have not abolished capital punishment are no longer carrying it out in practice.
In 2013, Maryland became the sixth state to end capital punishment in the last six years. Eighteen states and the District of Columbia have abolished the penalty, and it is dormant in the federal system and the military. Thirty states have had no executions in the last five years.
As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.
Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly....
Of course none of this matters to, say, Troy Davis or Cameron Todd Willingham, both of whom were executed in recent years despite deep doubts about their guilt. Nor is it of much use to the 3,100 people still sitting on death row around the country.
The argument is not that all of these people are innocent, or that they deserve to be released. Most would be justly imprisoned for most if not all of their life. But the death penalty as applied in America now — so thoroughly dependent on where the defendant lives and how much money he can spend on his defense — violates the constitutional guarantees of due process and equal protection, and no longer can overcome the Eighth Amendment’s ban on cruel and unusual punishments.
The dishonor and shame of capital punishment are further highlighted by the current shortage of lethal-injection drugs, a “crisis” resulting from the refusal of European drug makers to provide them for executions. As a result, states that use lethal injection have turned to unregulated compounding pharmacies, and have even passed laws to hide the identity of those pharmacies and the chemical makeup of the drugs. This only underscores the fact that when it comes to the death penalty, the United States is virtually alone in the Western world.
Actually, all of these developments are in fact of great "use to the 3,100 people still sitting on death row around the country." Given that all these developments help explain why the US now averages less than 50 executions each year (and only a few dozen outside of Texas), the vast majority of murderers serving death sentences now should know that they are far more likely to die of old age in prison rather than in an execution chamber. (And, perhaps better yet for these murderers, their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.)
Thursday, December 26, 2013
Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
Thanks to this Christmas night post at How Appealing, I just discovered that on Christmas eve the Supreme Judicial Court of Massachusetts issued two big related rulings (available here and here) which not only held that the Supreme Court's Miller ruling is to be applied retroactively but also that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Because I am on the road today, I will not have the chance to consume this significant rulings fully, but I can here link to and quote from this lengthy report on the rulings from the Boston Globe:
The state’s highest court struck down life sentences without parole for juveniles on Tuesday, saying scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are “not fully developed.”
The Massachusetts Supreme Judicial Court decision is retroactive, meaning that, as one example, John Odgren, the suburban special needs student who stabbed 15-year-old James F. Alenson in the bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007, and received a mandatory life sentence, now could have a chance of parole one day.
“We are very hopeful that the parole board is going to examine these kids’ lives carefully and will be giving them a real meaningful opportunity for release,” said Patty Garin, Odgren’s attorney. But some district attorneys said they were concerned about the ruling and would argue against parole in some cases.
The decision is a marked reversal for Massachusetts, where juveniles found guilty of murder have faced some of the harshest laws in the nation. The decision also is notable for its reliance on the growing field of research into the juvenile brain.
“Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved,” the court wrote. “Therefore, it follows that the judge cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.”...
The ruling goes farther than the Supreme Court decision in 2012 that struck down automatic sentences of life without parole for juveniles.... Because the Massachusetts high court’s decision is retroactive, prisoners sentenced as juveniles will “at the appropriate time” be afforded a parole hearing.
Lawyers said such inmates will have to have served at least 15 years before being considered for parole. There are currently 63 inmates in Massachusetts who were sentenced when they were juveniles to life sentences without the possibility of parole for first-degree murder....
The decision drew immediate praise from Governor Deval Patrick, who in September signed legislation that raises the age of juvenile jurisdiction from 17 to 18 and has pushed to reduce the number of teenagers sentenced to life without the possibility of parole. “I applaud today’s Supreme Judicial Court’s ruling,” the governor said in a statement. “Young people, even ones who commit terrible crimes, are developmentally and now constitutionally different from adults. Our SJC has wisely held that, while violent felons will be held accountable, youthful ones deserve every opportunity for rehabilitation.”
Some district attorneys questioned the decision. Essex District Attorney Jonathan W. Blodgett said the ruling will strip away the closure that victims’ families believed they had gained. “I am concerned for families who thought they had finality about their loved ones being murdered,” said Blodgett, who is president of the Massachusetts District Attorneys Association. “Now they have to go through these parole hearings.”
Suffolk District Attorney Daniel F. Conley said in a statement, “We are mindful of the literature on young adults’ brain development, and we already exercise great discretion in charging juveniles with murder. But we’re also keenly aware of the cases at issue here. Some fact patterns demand life imprisonment. Some defendants do not deserve parole. We will argue — as often and as forcefully as necessary — against parole in those cases.”
For years, Massachusetts has had some of the most punitive penalties in the country for juvenile offenders convicted of murder. Two decades ago a series of brutal murders galvanized public demands for harsher penalties. In 1996, legislators responded with a law that mandated that juveniles 14 years and older charged with murder be tried as adults.
Because Massachusetts’ penalties for first-degree murder is mandatory life without parole juveniles found guilty of that crime faced a lifetime of incarceration. As a result, Massachusetts became a leader in the number of youths facing life sentences without parole.
As of last year, the majority of youth with such sentences were concentrated in Massachusetts and four other states: California, Louisiana, Michigan, and Pennsylvania, according to the Campaign for the Fair Sentencing of Youth. “People thought if we have an extreme response, kids would stop doing bad things, and that has not turned out to be true,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit based in Massachusetts.
Carey said the SJC ruling brings Massachusetts back to the middle — she noted that other states that have abolished life without parole for juveniles include Wyoming, Colorado, and Texas. “We’re in some conservative company,” she said.
State legislative leaders said they plan to move quickly to overhaul juvenile sentencing laws that might conflict with Tuesday’s ruling. “The legislation currently pending that require the eradication of such sentences will be fast-tracked to ensure constitutional compliance with the ruling of the SJC,” said Representative Eugene L. O’Flaherty, a Chelsea Democrat who is the House chairman of the Judiciary Committee. Carey said there are currently a number of legislative options, but that any law will have to give meaningful opportunity for parole.
The SJC’s ruling came in the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He has been in prison for more than three decades. The court ruled that he was eligible to be considered for parole immediately....
“I’m happy that Gregory Diatchenko is going to have a meaningful opportunity for release, which he deserves. He’s a living embodiment of what the [Supreme Court] case was all about. He does not deserve to die in prison. He’s not who he was when he was 17,” said Benjamin Keehn, Diatchenko’s attorney. Keehn was on his way to see his client at MCI Norfolk on Tuesday to relay the news. He said his client is 49 years old, two credits shy of a bachelors degree, and has been a Buddhist for over 10 years.
The court also ruled in the separate case of Marquise Brown, who was convicted of first-degree murder in a 2009 slaying. He has not been sentenced. The court ruled that because Brown was 17 at the time of his crime, he cannot be sentenced to life without parole.
The Diatchenko ruling was unanimous. In a concurring opinion, Justices Ralph Gants, Barbara Lenk, and Fernande R.V. Duffly, emphasized that defendants need to have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They urged that decisions on parole be informed by an attention to the “distinctive attributes of youth.
December 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Wednesday, December 18, 2013
"Plea Bargaining: Some Comparative Observations"
The title of this post is the title of this notable new (and notably short) piece providing a useful perspective on plea bargaining by Jacqueline Hodgson, a UK-affiliated author. Here is the abstract:
Plea and sentence bargaining is characterized by several general features that we might recognize as common across a range of jurisdictions and procedural traditions. It requires an admission of guilt from the accused; the accused is offered some reward, incentive or advantage, either in exchange for, or as a result of the plea; and there is some benefit to the criminal justice system -- typically the avoidance of a more lengthy and expensive contested trial. The point in the criminal process at which these negotiations are initiated, the personnel involved, and the relative incentives and benefits available will of course differ. In some instances, explicit bargains are struck between prosecutor and defense lawyer; in others, there is direct judicial involvement; and in others, the system benefit may operate as an implicit reward, without any explicit bargaining taking place.
Saturday, December 14, 2013
"Freeing Morgan Freeman: Expanding Back-End Release Authority in American Prisons"
The title of this post is the title of this notable and important new piece by Frank Bowman now available via SSRN. Here is the abstract:
This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific.
First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus.
Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on either moral or utilitarian grounds, and therefore American criminal justice systems ought to adopt mechanisms for identifying both individuals and categories of prisoners whose terms should be shortened.
Third, it is impossible, or at least unwise, to try to make “final” decisions — at least good final decisions — about how long someone should spend in prison at the beginning of the prison term, at least if that term is supposed to be very long. Thus, in cases where a long sentence is imposed, one ought not make the initial, front-end, judicial sentencing decision “final,” but should instead create mechanisms for one or more later second looks.
After exploring these contentions, I conclude that discretionary early-release mechanisms should be restored where they have been abandoned, and reinvigorated where they have languished. In particular, I propose instituting a discretionary back-end release mechanism for some categories of both federal and state long-sentence prisoners and I explore the political and institutional difficulties of doing so.
December 14, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (12) | TrackBack
Friday, December 13, 2013
"Growing acceptance of marijuana no help to pot convicts serving life in the joint"
The title of this post is the (too clever?) headline of this notable new article from FoxNews.com. Here are excerpts:
John Richard Knock realizes he’ll likely die in a 12-by-10-foot cell in federal prison. Locked behind bars on a marijuana trafficking conviction, America's growing acceptance of the drug is cold comfort to the 66-year-old who was handed two life sentences, plus 20 years — for a first-time conviction.
“I don’t think about it, I just try and stay healthy,” Knock told FoxNews.com of his sentence via phone from the Allenwood Federal Correctional Complex in Pennsylvania. “I just wish society would look at this and say, ‘Hey is this fair?’”
The sentence makes Knock one of 3,278 prisoners recently identified by the American Civil Liberties Union who are serving life without parole for nonviolent drug and property crimes. Nearly four in every five were convicted of crimes involving drugs, including marijuana.
While Knock, who prosecutors said was part of an international marijuana trafficking scheme, has been serving his time, the drug has become increasingly accepted. Recreational use of marijuana is now legal in Colorado and Washington, and 15 other states have also eased restrictions, most for medical purposes. In October, for the first time, a Gallup poll found that a majority of Americans now favor legalizing the drug after reaching 50 percent in 2011....
But Knock and most others serving life for pot convictions were typically traffickers and not simply users, some experts note. Profiting from drugs — even marijuana — is a far cry from puffing on a joint, they say.
"Those who traffic in illegal drugs, who prey on our nation’s youth with poisons that destroy bodies, minds, and futures, should find no refuge in the criminal justice system," John Walters, who was drug czar under President Bush, wrote in a 2007 report. "Long prison terms, in many cases, are the most appropriate response to these predators."
Knock’s sister, Beth Curtis, started lifeforpot.com two years ago to raise attention to her brother’s plight and other prisoners facing similar fates. She hopes that society's changing views on marijuana could prompt a review of the sentences of her brother and others. “When public opinion reaches some kind of tipping point, I think most lawmakers will jump out in front of the issue,” she said. “I don’t see why they would find any value in continuing to oppose [legalizing marijuana] if their constituents want it legalized.”
Some attorneys contacted by FoxNews.com said Knock’s case is far from unique. Randall Brown Johnston, a Missouri-based criminal defense attorney who formerly worked as a prosecutor, recalled the case of Jeff Mizanskey, who was found guilty of possession of five pounds of marijuana in 1993 and was later sentenced to life without parole. “This was a brutal sentence,” Johnston told FoxNews.com. “Unfortunately, the difference between one judge and another can make all the difference. This judge was particularly harsh and had a reputation for that.”...
But Johnston also hopes the changing opinion of pot can lead to relief for people doing life for marijuana-related crimes. “There’s been a great change in public opinions about marijuana convictions,” he said. “It may take another 10 years for lawmakers to catch up and maybe go back and revisit the severity of the laws. But these laws are on the books right now and these are nonviolent people. It costs a huge amount of money to lock them up and people can go out and commit a murder or rape somebody and be sentenced to less.”...
Knock, meanwhile, takes some comfort from what happens outside of prison, even if it leaves him little hope of being free. His son, Aaron, 22, recently graduated from Columbia University in New York with an engineering degree.
Regular readers will not be surprised to learn that I think the Eighth Amendment can and should be a basis for defendants like Knock and Mizanskey to seek relief from their seemingly extreme LWOP sentences based on the "evolving standards of decency" that is supposed to inform the application of the Cruel and Unusual Punishments clause. Especially if (when?) a majority of states legalize medical and/or recreational marijuana, I think the case for an Eighth Amendment attack on extreme sentences for first-time marijuana dealers should become pretty compelling. But, as regular readers also know, I tend to have a much more dynamic view of how the Eighth Amendment should be understood than the vast majority of judges considering Eighth Amendment claims.
A few recent related posts:
- New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
- New York Times op-ed asks "Serving Life for This?"
- "Sentenced to a Slow Death"
- What SCOTUS sentencing cases are you least thankful for?
Splitting 5-4 along party lines, SCOTUS vacates stay to allow Mizzou to complete novel execution
Distracted by other stories yesterday, I only now discovered that the US Supreme Court issued late Wednesday night this order (which, as I will explain below, strikes me as a pretty big deal):
The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on December 9, 2013, presented to Justice Alito and by him referred to the Court, is granted.
Justice Ginsburg with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.
I would deny the application to vacate the stay of execution entered by the Court of Appeals. See Bowersox v. Williams, 517 U.S. 345, 347 (1996) (GINSBURG, J., dissenting) (“At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ [stay] order. Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much.”).
The start and end of this lengthy AP article about the execution which followed this SCOTUS ruling accounts for why I think this order is a pretty big deal:
Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994.
Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20.
The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital. Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began. His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words....
Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday. But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996.
When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court. It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting. Gov. Jay Nixon refused to grant clemency.
Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.
My general sense and understanding is that it is relatively rare for the Supreme Court, especially at the last minute, to vacate a lower court's stay in a capital case, especially if and when that stay was entered by a circuit which does not have a long history of getting in the way of state executions. Moreover, in addition to the legal issues that led to the stay, I think the defendant here was also seeking a stay in order to be able to question and assail Missouri's new lethal injection drugs and method.
Given that the four more liberal Justices were obviously eager to allow the stay of this execution to remain in place, I find it notable and seemingly important that the more conservative Justices were able to get swing Justice Kennedy to vote to vacate the stay and enable the Mizzou execution to be carried out. Particularly given that, over the last few years, aggressive lower-court litigation has probably played more of a role in reducing the total number of executions than many other factors, I cannot help but wonder if this decision represents a kind of (indirect?) statement by a majority of the Supreme Court that, at least for brutal killers who've already gotten to live on death row for decades, enough is enough.
Especially because this SCOTUS order is only an order and has not generated much attention at all, I may be guilty of trying to make this decision more of a big deal than it is. Nevertheless, especially as another year filled with capital habeas litigation winds to a close, I cannot help be think this may be an interesting and telling sign of future SCOTUS capital rulings to come.
How can and should Ohio's justice system deal with merciful elderly aggravated murderer?
I suspect many folks engaged in debates over the wisdom of mandatory minimum sentencing provisions at least feel comfortable with the suggestion that persons convicted of first-degree murder ought to always be mandated to serve at least decades in prison. Indeed, many folks who advocate for the abolition of the death penalty do so by suggesting mandatory LWOP is the right alternative sentence for those deemed the worst kinds of killers under state homicide laws. Though lots of folks (myself included) are troubled by mandatory long prison terms for lower-level drug or gun offenses, lots of folks (myself included) are much less troubled by some mandatory prison requirements in the sentencing rules for how the justice system responds to the very worst intentional violent crimes.
But the provocative question in the title of this post is prompted by a sentencing story developing today in Ohio, which is explained in this AP report headlined "John Wise, attorney to seek clemency from governor in wife's hospital killing." Here are the details:
A man convicted of fatally shooting his ailing wife in her hospital bed will seek clemency from the governor after his sentencing Friday, even if the judge follows a prosecutor's recommendation for a lighter punishment because of the unique circumstances of the case.
John Wise, 68, has said he shot his debilitated wife out of love in August 2012 after she suffered an aneurysm and appeared to be in pain at an Akron hospital. Mercy is not a defense to a murder charge in Ohio. Wise, of Massillon, was convicted on charges including aggravated murder with a firearm specification, which could carry a life sentence.
Summit County Prosecutor Sherri Bevan Walsh called Wise's actions illegal and dangerous but said the case warrants sentencing leniency. She has recommended that Wise be sentenced on a lesser crime and get a six-year term. "In light of the unique facts of this case, a shorter prison sentence is just," she said in a statement.
Whatever the sentence, the defense will pursue clemency from the governor and "will be seeking public support from those who sympathize with John and this situation," defense attorney Paul Adamson said in an email.
Judge Mary Margaret Rowlands in Akron has told attorneys the sentence must fit within legal limits. Neither side found previous case law to support the prosecutor's suggestion that the judge could sentence Wise to six years behind bars for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense, Adamson said.
With charges merged for sentencing, it's also possible Wise could get a six-year term if the prosecution asks the judge to sentence him for felonious assault, one of three charges on which he was convicted. April Wiesner, a spokeswoman for the prosecutor, wouldn't say Thursday whether the office intends to pursue that option.
As my first-year Crim Law students know well, "Aggravated Murder" is Ohio's term for first-degree murder and Ohio sentencing law expressly provides that "Whoever is convicted of or pleads guilty to aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life...." Consequently, I am not aware of a sound legal basis for the prosecutor or judge in this case to recommend or impose any sentence other than an LWOP term for the aggravated murder charge. I surmise that the local prosecutor here may be asking for the judge not to sentence on that charge or to have it reduced or dismissed in some way before sentencing.
Ironically, I think the defendant and his lawyer here might want the sentencing judge to feel compelled to impose LWOP and thereby heighten the argument for some kind of clemency relief from Gov. Kasich. If the defendant here gets "only" six years in prison, I suspect it would be much easier for the Governor to leave such a sentence in place and conclude that justice for this murderer has already been tempered by mercy. Indeed, I am inclined to think that the prosecutor here has decided only to seek a six-year prison term for an aggravated murderer because she hope to bring a function end to this case at sentencing today rather than have to deal with a compelling clemency case if John Wise were to get an LWOP sentence.
UPDATE: This new AP report indicates that this aggravated murderer somehow received a sentence of only six years' imprisonment, as prosecutors had recommended:
An Ohio man convicted of fatally shooting his ailing wife in her hospital bed was sentenced Friday to six years in prison and plans to seek clemency from the governor....
The sentence issued by Summit County Court of Common Pleas Judge Mary Margaret Rowlands was in line with prosecutors' recommendation that the Massillon man receive a lighter punishment than the minimum 23 years on his most serious conviction, an aggravated murder count.
Holding a cane and wearing a striped jail outfit, Wise remained seated during the hearing. He made a brief statement, choking up as he apologized to his family and his son. He also thanked the prosecutors and the court.
Prosecutors said the case warranted leniency, but they emphasized that Wise's actions were illegal. "It is not our intention to minimize what happened. You cannot bring a loaded gun into a hospital and shoot someone," Summit County Prosecutor Sherri Bevan Walsh said in a statement after the sentencing.
In court, Assistant Prosecutor Brian LoPrinzi told the judge: "We believe that although his motive may have been pure, he was wrong."
Wise's attorney, Paul Adamson, said they will pursue clemency from the governor and create an online petition for supporters to sign. He called the shooting "an aberrational act" for Wise. "I've never represented a finer man," Adamson told the judge. The prosecutor's office said it would oppose any reduction in Wise's punishment.
Among those at the sentencing was Liz Flaker, one of the jurors who convicted Wise after he pursued an insanity defense. She said the jurors, who deliberated for several hours, took two votes. The first was 9-3 in favor of conviction; the second was unanimous. "There was really no split, per se, but I think there were a couple of people that kind of wavered on ... thinking was he insane or was he not insane," Flaker said. "I think the way the law was written for the state of Ohio is a little bit hazy."
Prosecutors had recommended that Wise be sentenced to six years for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense. After neither side found previous case law to support that unusual suggestion, the prosecution instead asked the judge to sentence Wise under his felonious assault conviction with a firearms specification, and the judge did so. Wise also was convicted of aggravated murder with a firearm specification and murder, which could have led to a life sentence.
Police say Wise calmly walked into the hospital room on Aug. 4, 2012, and shot his wife of 45 years at her bedside. She died the next day. Wise told police he intended to kill himself, too, but the weapon jammed.
December 13, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Wednesday, December 11, 2013
Unanimous win for Kansas on Fifth Amendment issue in Cheever
The Supreme Court this morning handed down its first criminal law opinion in a case that was fully briefed and argued this Term. This unanimous ruling in Kansas v. Cheever starts and ends this way:
The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The question here is whether the Fifth Amendment prohibits the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication. We hold that it does not....
We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.
The judgment of the Kansas Supreme Court is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
Tuesday, December 10, 2013
Some final squabbling over some of the final executions slated for 2013
This new Reuters piece, headlined "Oklahoma to execute inmate; Missouri execution stayed," provides a run down of some of the final aspects of some of the final executions scheduled for 2013. Here are the details:
Oklahoma on Tuesday was scheduled to execute a man convicted of raping and murdering two elderly women in the 1980s, while a federal appeals court panel has stayed a Missouri execution planned for hours later.
Missouri appealed the 2-1 ruling by the Eighth Circuit U.S. Court of Appeals panel to stay the execution of Allen Nicklasson, 41, who was found guilty of killing a stranger who offered him roadside assistance. Nicklasson has raised claims that his trial and appeals counsel were ineffective. The full Eighth Circuit was expected to hear arguments and rule Tuesday morning on the state's request to lift the stay of Nicklasson's execution, which is set for early Wednesday at a Missouri prison.
The Missouri Department of Corrections is proceeding with its plans for the execution unless instructed differently by the state attorney general, spokesman Mike O'Connell said. Oklahoma is scheduled to execute Ronald Clinton Lott, 53, by lethal injection at a state prison after 6 p.m. Central Time (0000 GMT) on Tuesday.
If carried out, the executions of Lott and Nicklasson would be the 37th and 38th in the United States this year, according to the Death Penalty Information Center.
Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City homes after DNA evidence linked him to the crimes.... Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.
Lott would be the fifth man executed in Oklahoma in 2013. The state is also scheduled to execute Johnny Dale Black, 48, on December 17 for his conviction in the 1998 stabbing death of Ringling, Oklahoma, horse trainer Bill Pogue.
In the Missouri case, Nicklasson was found guilty of murder for the August 1994 shooting of motorist Richard Drummond, who stopped on a highway to help Nicklasson and two other men whose car had broken down. The men had burglarized a home where they stole guns and ammunition before their vehicle broke down. When Drummond stopped to offer a ride, the men abducted him, took him to a wooded area and shot him in the head, according to court records. One of the men, Dennis Skillicorn, was executed in 2009. The other man, Tim DeGraffenreid, was 17 at the time. He pleaded guilty to second-degree murder and received a reduced sentence.
Nicklasson and Skillicorn were also convicted of killing an Arizona couple while they were on the run after killing Drummond. Nicklasson would be the second person executed in Missouri this year.
Nicklasson had been scheduled to die October 23, but Missouri Governor Jay Nixon halted the execution due to broad criticism over the state's planned use of the drug propofol, widely used as an anesthetic in medical procedures. The case is one of many caught up in a nationwide debate over what drugs can or should be used for executions as capital punishment opponents pressure pharmaceutical companies to cut off supplies of drugs for executions. Missouri in November used pentobarbital, a short-acting barbiturate, mixed by a compounding pharmacy to execute serial killer Joseph Paul Franklin.
Because the executions discussed in this piece are the only ones likely to be carried out this month, it appears very likely that there will be less than 40 executions in the United States in 2013. This is only the second time in nearly two decades in which there were less than two score execution throughout the nation, and the last time (in 2008) no executions had been carried out for the first three months of the year as everyone awaited a result in Baze concerning the constitutionality of lethal injection protocols.
Saturday, December 07, 2013
"How should states decide if someone convicted of a crime has an intellectual disability, when the answer means life or death?"
The title of this post is the first sentence of this lengthy USA Today article headlined "Supreme Court to revisit death penalty for mentally disabled." Here is more from an effective review of the challenging capital procedure issues now before SCOTUS:
In its 6-3 decision in Atkins v. Virginia, authored by Justice John Paul Stevens, the court prohibited states from executing anyone with "mental retardation." Mental health professionals define it as substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or "street smarts," and evidence of the condition before age 18. (Mental retardation is the term used in law, but most clinicians and The Associated Press refer to the condition as intellectual disability.)
After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior.
Freddie Lee Hall, who has been on Florida's death row for more than 30 years and scored in the mid-70s on IQ tests, is arguing the state's standard amounts to unconstitutional punishment. Most likely, the case won't result in a dramatic shift in national criminal justice policy, but will further clarify who should and should not be eligible for execution, said Ronald Tabak, an attorney who has represented multiple clients with intellectual disabilities and chairs the American Bar Association's death penalty committee....
The court's makeup has shifted since the 2002 Atkins decision. But if the justices split along ideological lines, the vote could favor Hall, assuming that swing vote Justice Anthony Kennedy sides with Hall, as he did with Atkins in 2002. Arguments are set for March 3.
Similar cases are percolating beyond Florida. In Georgia, death row inmate Warren Hill is fighting execution based on substantial evidence that he is intellectually disabled. In Texas, where the courts use an anecdotal seven-part test largely based on the characteristics of the fictional character Lennie from John Steinbeck's novel "Of Mice and Men" to determine intellectual disability, multiple prisoners have been executed in recent years even when they've scored well below 70 on IQ tests.
Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994, even though he had an IQ of 61. In 2010, Virginia executed Teresa Lewis for her role in a murder-for-hire scheme, even though she had an IQ of 72 and her co-conspirators admitted Lewis did not plan the murder....
Still, the Atkins decision has had an impact on executions. At least 98 people have had their death sentence changed since 2002 by proving that they were intellectually disabled, according to data from the Death Penalty Information Center. By their count, in the 18 years before the Atkins decision, at least 44 people who likely suffered from intellectual disabilities were executed.
Wednesday, December 04, 2013
"How Bureaucrats Stand in the Way of Releasing Elderly and Ill Prisoners"
The title of this post is the headline of this notable new ProPublica piece about (the paucity of) compassionate release in the federal criminal justice system. Here are excerpts:
The government has long been criticized for rarely granting compassionate release. This August, Attorney General Eric Holder announced the Justice Department would try to change that by expanding criteria for who can apply.
Under the new guidelines, compassionate release can be granted not just to prisoners who have terminal illnesses, but also to those with debilitating conditions. Prisoners who need to serve as caregivers for family members may now also seek reductions in sentencing. And for the first time, elderly federal inmates who aren’t necessarily dying or incapacitated can apply to be let out early.
Holder touted the compassionate release initiative as one way to cut down on the “astonishing” federal prison population, which has grown by nearly 800 percent since 1980.
But even if the changes enable more inmates to apply for compassionate release, prison officials still have almost total discretion over who is approved. A federal prison’s warden, as well as the Bureau of Prisons’ regional director and central office must sign off on an inmate’s application before it is passed on to a judge. Any of those officials can reject applications for a number of reasons, from a perceived risk of recidivism to concern for what’s best for a prisoner’s child.... There is no process for inmates to appeal those decisions in court.
Many advocates say they expect eligible inmates will remain behind bars despite the changes. “I don’t believe it’s going to change at all,” said lawyer Marc Seitles, whose client was denied release despite terminal cancer. “It’s still the same people making decisions.”
In September, Bureau of Prisons Director Charles Samuels said he predicted expanding eligibility would result in the “release of some non-violent offenders, although we estimate the impact will be modest.” (The agency declined to make Samuels available for comment to ProPublica.)
As of October 29, The Bureau of Prisons had approved and passed along 50 compassionate release requests to judges this year. That’s up from 39 in 2012 and 29 in 2011. It’s impossible to know if the overall rate of approval has increased, as the federal Bureau of Prisons hasn’t released the number of inmates who have applied.
The Bureau says it recently started to track inmate requests, after an Inspector General report earlier this year excoriated the department for failing to do so. The report also found most inmates didn't even know the program existed.
The expansion of compassionate release was motivated in part by the rising number of sick and elderly inmates incarcerated in the U.S. As of 2011, there were over 26,000 inmates over 65 in state and federal custody. And as the elderly population in prison grows, so do their medical bills. Housing an inmate in a prison medical center costs taxpayers nearly $60,000 a year — more than twice the cost of housing an inmate in general population.
Many lawyers and prisoner advocates have said the “jailers are acting as judges” by rejecting most compassionate release cases without ever passing them onto the courts for a final decision. “The Bureau of Prisons should be letting judges have the opportunity to decide every time extraordinary and compelling reasons come to their attention, and [they are] not doing that,” said federal public defender Steve Sady, who has written extensively on the issue and represented clients requesting early release. “We believe that, under the statute, the sentence is for the judge to decide.”
Prisons spokesman Edmond Ross said in an emailed statement that “Congress gave the [Bureau of Prisons] authority” to decide which inmates should be granted release. “Review includes deliberation on the most important factor, ensuring that an inmate's release would not pose a danger to the safety of any other person or the community,” he said. “This must be considered before any request is submitted to a court.”
Mary Price, general counsel for Families Against Mandatory Minimums, says prison officials are ill-equipped to make those kinds of decisions. Prison officials’ “job is to keep people locked up. Identifying people who should no longer be incarcerated is just not what they do,” she said....
Prisoner advocates at Human Rights Watch and other organizations have proposed allowing inmates to go before a judge to appeal rejections. “Unless there’s an institutional change or a criteria that they have to follow, this will never change,” Seitles said.
Interesting split DC Circuit opinions about challenging prior convictions and supervised release conditions
While I was spending all my extra time yesterday reviewing the big Blewett en banc Sixth Circuit decision (basics here and here), the DC Circuit handed down two little penal decision concerning relatively technical aspects of modern federal sentence in US v. Martinez-Cruz, No. 12-3050 (DC Cir. Dec. 3, 2013) (available here) and US v. Malenya, No. 12-3069 (DC Cir. Dec. 3, 2013) (available here).
Federal sentencing practitioners ought to check out both rulings for the merits, and others may be interested in the lengthy dissenting opinions in each case authored by Judge Kavaugh. Indeed, to provide a summary of each ruling, I will us the first paragraph of the Judge's dissents.
KAVANAUGH, Circuit Judge, dissenting: As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court opinions. This case is controlled by at least the music, if not also the words, of the Supreme Court’s decision in Parke v. Raley, 506 U.S. 20 (1992). There, the Supreme Court made clear that the defendant in a recidivist sentencing proceeding may be assigned the burden of proof when challenging the constitutionality of a prior conviction that is being used to enhance or determine the current sentence. Consistent with Parke v. Raley, every court of appeals to consider the question has reached that same conclusion. By ruling otherwise here, the majority opinion, in my view, both deviates from Supreme Court precedent and creates an unwarranted circuit split.
KAVANAUGH, Circuit Judge, dissenting: Malenya, then a 41-year-old man, attempted to have sex with someone he knew to be 14. Malenya’s attempt was thwarted only because the 14-year-old’s mother fortuitously intercepted explicit text messages Malenya sent to the 14-year-old. For his conduct, Malenya ultimately pled guilty and received a relatively short prison sentence of one year and a day in prison, followed by three years of supervised release with certain special conditions attached. On appeal, Malenya objects to the special conditions imposed by the District Court and asks that they be vacated. The majority opinion vacates the special conditions. With one exception, I would affirm the special conditions. I therefore respectfully dissent.