Tuesday, March 14, 2017

Split en banc Eleventh Circuit writes at length restricting habeas authority in ACCA case

The Eleventh Circuit has a massive new en banc opinion about federal habeas law in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., No. 12-14989 (11th Cir. March 14, 2017) (available here). The start of the majority opinion in McCarthan, which was authored by Judge Willaim Pryor, should provide enough context for interested readers to figure out why this McCarthan decision engendered a bunch of concurring and dissenting opinions. Here is the start of a whole set of opinions that together runs nearly 200 pages:

This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence.  Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).  When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e).  He did not appeal that sentence.  When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus.  McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.

For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice.  See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013).  Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them.  We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner’s sentence “inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e).  We affirm the dismissal of McCarthan’s petition for a writ of habeas corpus.

March 14, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, March 08, 2017

Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay

As this AP article reports, a "paid hit man was executed Tuesday night in Texas for gunning down a San Antonio woman in a life insurance scheme nearly a quarter-century ago." Here are a few more details about this latest execution:

Rolando Ruiz was given a lethal injection for fatally shooting Theresa Rodriguez, 29, outside her home in 1992 as she was getting out of a car with her husband and brother-in-law, who both orchestrated her murder. Ruiz was paid $2,000 to carry out the killing. Ruiz, strapped to the Texas death chamber gurney, looked directly at two sisters of his victim and their husbands and apologized profusely....

As the lethal dose of pentobarbital was administered, he took several deep breaths, then began snoring quietly. All movement stopped within about 30 seconds. Ruiz, 44, was pronounced dead 29 minutes later at 11:06 p.m. His execution was the third this year in Texas and the fifth nationally.

“It’s not going to bring her back, so it really doesn’t mean very much,” Susie Sanchez, whose daughter was killed in the contract murder, said Monday. Her daughters, who were among the witnesses Tuesday night, declined to comment afterward.

The execution was delayed for nearly five hours until the U.S. Supreme Court rejected three appeals attorneys had filed for Ruiz to try to stop the punishment. His lawyers argued to the high court that lower courts improperly rejected an earlier appeal that focused on whether Ruiz earlier had deficient legal help. They also contended Ruiz’s execution would be unconstitutionally cruel because he’s been on death row since 1995, had multiple execution dates and two reprieves. Attorney Lee Kovarsky blamed the long time between a San Antonio jury’s verdict and the punishment on the state’s failure to provide Ruiz with competent lawyers earlier in his appeals.

Justice Stephen Breyer said he would have stopped the execution to further examine the question of prolonged death row confinement.

Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:

Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....

Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing.  Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty.  Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts.  Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.

If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.  That is why I would grant a stay of execution, allowing the Court to examine the record more fully.

March 8, 2017 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (16)

Tuesday, March 07, 2017

Detailing how common a very long wait on death row has become

Slate has this notable short piece on the long wait many condemned have before execution.  The piece is headlined "40 Years Awaiting Execution: For many death row inmates, the long process leading to capital punishment is itself cruel — but not unusual."  Here are excerpts:

In 1979, Arthur Lee Giles, then 19 years old, was sentenced to death in Blount County, Alabama.  Nearly 40 years later, he is still waiting to be executed.  His glacial march to execution exposes a conundrum at the heart of America’s death penalty. Condemned prisoners often spend decades on death row before being executed — if the execution ever happens at all — a fact that undermines any retributive value capital punishment might provide.

Approximately 40 percent of the 2,739 people currently on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50.  (This is according to data collected by the Fair Punishment Project and sourced from the NAACP’s Legal Defense Fund, the Federal Bureau of Prisons, and state corrections departments.)

According to a Los Angeles Times investigation, roughly two dozen men on California’s death row require walkers and wheelchairs, and one is living out his days in bed wearing diapers.  In North Carolina, nine death row prisoners have died of natural causes since 2006 — the same year the state last executed someone.  These delays suggest that executions must be sped up significantly.... 

With public support for executions at historic lows, death row delays seem likely to increase. Just 20 of the nearly 3,000 prisoners on death row nationwide were executed last year.

California is a prime example.  In 2014, a federal judge wrote that the state’s capital punishment system is actually a sentence of “life without parole with the remote possibility of death.”  The judge calculated that “just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years.”  That’s an unfathomable outcome in any state, much less in one that has not performed a single execution in more than a decade....

In an effort to combat these delays, California voters narrowly passed Proposition 66 in 2016, which promised to speed up executions by imposing more severe limitations on the death penalty appeals process. Yet Prop 66 has already faced significant constitutional challenges, and the California Supreme Court has stayed the initiative pending the outcome of a case filed by former state Attorney General John Van de Kamp and Ron Briggs, the two men who wrote the successful statewide proposition reinstating the death penalty in California 40 years ago.

March 7, 2017 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

"Booker Disparity and Data-Driven Sentencing"

The title of this post is the title of this notable new article now available via SSRN authored by Joshua Divine. Here is the abstract:

Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade.  Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case.  The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity.  The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.

This Article is the first to propose a system — data-driven appellate review — that curbs sentencing disparity without re-introducing unwarranted uniformity.  Congress should establish a rebuttable presumption that outlier sentences among similar offenders are unreasonable.  The U.S. Sentencing Commission collects data on over 70,000 criminal cases annually.  This data provides the tool for defining categories of similar offenders.  Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges and would therefore curb the increase in inter-judge disparity without resorting to unwarranted uniformity.

March 7, 2017 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 (2)

Monday, March 06, 2017

SCOTUS rules in Pena-Rodriguez that Sixth Amendment creates exception to jury impeachment rule when racial animus revealed

A split Supreme Court weighed in on the intersection of racial bias and jury decision-making via a notable Sixth Amendment ruling in Pena-Rodriguez v. Colorado, No. 15–606 (S. Ct. March 6, 2017) (available here). Here is how Justice Kennedy's opinion for the Court gets started and concludes:

The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.

In the era of our Nation’s founding, the right to a jury trial already had existed and evolved for centuries, through and alongside the common law. The jury was considered a fundamental safeguard of individual liberty.  See The Federalist No. 83, p. 451 (B. Warner ed. 1818) (A. Hamilton).  The right to a jury trial in criminal cases was part of the Constitution as first drawn, and it was restated in the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6.  By operation of the Fourteenth Amendment, it is applicable to the States. Duncan v. Louisiana, 391 U. S. 145, 149–150 (1968).

Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense.  A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.  This principle, itself centuries old, is often referred to as the no-impeachment rule. The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict....

The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.

The start of the dissenting opinion by Justice Thomas explains his concerns and the core concerns of the other dissenters (which are expressed via an opinion by Justice Alito joined by the Chief and Justice Thomas):

The Court today holds that the Sixth Amendment requires the States to provide a criminal defendant the opportunity to impeach a jury’s guilty verdict with juror testimony about a juror’s alleged racial bias, notwithstanding a state procedural rule forbidding such testimony. I agree with JUSTICE ALITO that the Court’s decision is incompatible with the text of the Amendment it purports to interpret and with our precedents. I write separately to explain that the Court’s holding also cannot be squared with the original understanding of the Sixth or Fourteenth Amendments.

March 6, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (33)

SCOTUS rules in Beckles that federal advisory guidelines are not subject to Due Process vagueness challenges

The Supreme Court this morning issued a big opinion concerning the operation of and challenges to the federal sentencing guidelines in Beckles v. United States, No. No. 15–8544 (S. Ct. March 6, 2017) (available here). Here is how the opinion authored by Justice Thomas gets started: 

At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG).   This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness.  Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.

After the oral argument tone in this case, I am not surprised to see this result. But I expect I may have more to say about the particulars of this Beckles ruling in the coming hours and days.  To begin, I think the sentiments in the closing section of the opinion of the Court best accounts for the Beckles outcome:

In addition to directing sentencing courts to consider the Guidelines, see §3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The Government concedes that “American judges have long made th[e] sorts of judgments” called for by the §3553(a) factors “in indeterminate-sentencing schemes, and this Court has never understood such discretionary determinations to raise vagueness concerns.” Brief for United States 42. Because the §3553 factors — like the Guidelines — do not mandate any specific sentences, but rather guide the exercise of a district court’s discretion within the applicable statutory range, our holding today casts no doubt on their validity.

Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as §4B1.2(a)’s residual clause. For example, courts must assess “the need for the sentence imposed” to achieve certain goals — such as to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” and “provide the defendant with needed educational or vocational training . . . in the most effective manner.” §3553(a)(2). If petitioner were correct that §4B1.2(a)’s residual clause were subject to a vagueness challenge, we would be hard pressed to find these factors sufficiently definite to provide adequate notice and prevent arbitrary enforcement.

The Government tries to have it both ways, arguing that the individualized sentencing required by the other §3553(a) factors is different in kind from that required by the Guidelines. “An inscrutably vague advisory guideline,” it contends, “injects arbitrariness into the sentencing process that is not found in the exercise of unguided discretion in a traditional sentencing system.” Reply Brief for United States 10–11. But it is far from obvious that the residual clause implicates the twin concerns of vagueness any more than the statutory command that sentencing courts impose a sentence tailored, for example, “to promote respect for the law.” §3553(a)(2)(A). And neither the Guidelines nor the other §3553 factors implicate those concerns more than the absence of any guidance at all, which the Government concedes is constitutional.

The Government also suggests that the Guidelines are not like the other §3553(a) factors “because they require a court to decide whether the facts of the case satisfy a legal standard in order to derive a specific numerical range.” Id., at 22. But that does not distinguish the other sentencing factors, which require courts to do the same thing. Section 3553(a) states that district courts “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§3553(a)(2)].” In fact, the Guidelines generally offer more concrete advice in imposing a particular sentence and make it easier to review whether a court has abused its substantial discretion. There is no sound reason to conclude that the Guidelines — but not §3553(a)’s other sentencing factors — are amenable to vagueness review.

March 6, 2017 in Federal Sentencing Guidelines, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

No grants, but latest SCOTUS order list still has lots of intrigue for criminal justice fans (especially those concerned with risk-assessment sentencing)

The Supreme Court this morning released this order list, and it is extended because there is a summary per curiam GVR in a Nevada capital case (available here) and a trio of extended statements concerning the denial of cert (two of which were authored by Justice Thomas and one of which comes from Justice Sotomayor).  I would comment at length about these matters, but SCOTUS has provided bigger sentencing fish to fry by also deciding the Beckles vagueness case today (discussed here).

For hard-core sentencing fans, perhaps the most intriguing aspect of the order list is this item:

16-6387 LOOMIS, ERIC L. V. WISCONSIN

The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.  

As some may recall from some prior postings, Loomis concerns a due process challenge to the use of risk-assessment instruments at sentencing. It will be very interesting to see what the Trump Administration decides to say in this case and to see if SCOTUS ultimately takes up this timley and consequential issue. 

Prior related posts on Loomis case:

March 6, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, March 05, 2017

Five years after his SCOTUS victory, Evan Miller scheduled to be resentenced

This local article, headlined "Re-sentencing of Evan Miller ordered by US Supreme Court set for March 13," reports on the upcoming resentencing of a defendant's whose surname now represents a big part of modern "kids-are-different" Eighth Amendment jurisprudence.  Here are some of the particulars from the article, which prompts some questions for me:

A sentencing hearing has been scheduled for March 13 in Lawrence County for Evan Miller, whose original sentence on a capital murder conviction was overturned by the U.S. Supreme Court and led to sentencing laws being changed for juveniles nationwide.

The Supreme Court in 2012 ordered that Miller be re-sentenced because the state’s only sentencing option for a juvenile convicted of capital murder was life in prison without the chance of parole.  A state law adopted last year now gives a judge the option of sentencing a juvenile convicted of capital murder to life in prison with the chance of parole after serving at least 30 years in prison.

Miller, now 28, was convicted of capital murder in 2006 for the 2003 killing of Cole C. Cannon in Cannon’s home in a Five Points mobile home park. Miller, who was 14 when the beating death occurred, is an inmate at St. Clair Correctional Facility in Springville.

Cannon’s daughter, Cindy Cheatham, said she thinks next month’s sentence hearing before a jury will be the the last court proceeding for the Cannon family in the case. “Even though there is anticipation, it makes me sort of edgy and emotional,” Cheatham said. “I’m ready for it to be over.  But it will never really be over.”...

When Miller was sentenced in 2006, Circuit Court Judge Philip Reich, who is now retired, sentenced Miller to life in prison without the possibility of parole.  The only sentences allowed by state law at the time for capital murder were the death penalty or life in prison without parole.  Reich could not sentence Miller to death because the Supreme Court in 2005 declared the death penalty for defendants younger than age 18 to be unconstitutional.

The Equal Justice Initiative appealed Miller’s sentence to the Supreme Court, which voted 5-4 that the state must have another sentencing option available for juveniles in a capital case other than life without parole.  The court sent the case back to Lawrence County for re-sentencing.  The new state law that a juvenile can be eligible for parole after 30 years does not preclude a judge from sentencing a juvenile capital murder defendant to life in prison without parole.

My first question after reading this article concerned why it took nearly five years for Evan Miller to have a resentencing, but this local article from last year suggests that resentencing was delayed until the Alabama legislature created a "Miller fix" in its sentencing law.  That "fix" now gives an Alabama judge, as detailed above and more fully in this local article, in this kind of case the discretion to impose LWOP or life with a chance at parole after 30 years.

But when remains unclear to me is why Evan Miller is apparently scheduled to appear before a jury at resentencing.  I suspect this may be because technically he is being resentenced on a capital conviction, but some have suggested in this juve sentencing setting that the Supreme Court's work in  Miller and the follow-up case Montgomery, combined with the Apprendi line of cases, now requires a jury finding of "irreparable corruption" to permit  giving a juve an LWOP sentence.  I would be grateful to hear from anyone in the know about Alabama sentencing procedures about why this article talks about Miller's upcoming sentence hearing being "before a jury."

March 5, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Thursday, March 02, 2017

Washington Supreme Court rules Eighth Amendment precludes applying mandatory minimum adult sentencing scheme to juvenile offenders

The Supreme Court of Washington issued a very significant new ruling expanding the reach of the Eighth Amendment as adumbrated by the Supreme Court in Graham and Miller. The extended ruling in Washington v. Houston-Sconiers, No. 92605-1 (Wash. March 2, 2016) (available here), gets started this way:

"[C]hildren are different." Miller v. Alabama,_ U.S. _, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); U.S. CONST. amend. VIII.  The defendants in this case -- Zyion Houston-Sconiers and Treson Roberts -- are children. On Halloween night in 2012, they were 17 and 16 years old, respectively.  They robbed mainly other groups of children, and they netted mainly candy.

But they faced very adult consequences.  They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers.  They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules.  And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.

As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison.  Clerk's Papers (Houston-Sconiers) (CPHS) at 227.  Of that, 3 72 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time,"' meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e).  Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154.  Of that, 312 months (26 years) would be "'flat time"' attributable to the firearm sentence enhancements. Id.

To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.

We now hold that the sentencing judge's hands are not tied.  Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there.  We affirm all convictions but remand both cases for resentencing.

March 2, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (10)

"First, They Came for the Sex Offenders … "

The title of this post is the headline of this Slate commentary authored by Perry Grosssman that discusses Packingham v. North Carolina, the First Amendment case heard by the Supreme Court earlier this week (basics here).  The sub-headline summarizes the piece's themes: "We must speak up for the rights of those on the fringes of society. The Supreme Court’s ruling on sex offenders’ First Amendment rights will signal how much protection we can all expect."  Here are excerpts from the ends of an extended discussion of the case and its context: 

Looming in the background of the court’s consideration of this case are the Trump administration’s recent attacks on the First Amendment, minority rights, judicial independence, and the rule of law itself.  Though it’s a much different First Amendment context, President Trump’s executive order restricting travel by Muslims from seven countries is also a grossly overbroad restriction on a politically vulnerable minority that was enacted thanks to fearmongering, not evidence.  As lower federal courts enjoined the executive order, President Trump attacked the legitimacy of those judges — who then received threats to their safety — while members of his administration implied that the courts had no right to question the president’s judgment on matters of national security.  Factor in Trump’s claim that he was championing free speech when he threatened to withhold federal funds from UC–Berkeley after it canceled an event featuring Milo Yiannopoulos, and his promise to “open up our libel laws” to permit more lawsuits against the press, and it’s clear that the president’s guiding mode of constitutional interpretation is not originalism, but solipsism.  The president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t.  This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.

Go to any protest these days and you’re sure to see a sign invoking the words of Martin Niemöller, a Lutheran pastor who opposed the Nazis during the Second World War by famously stating, “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.”  The message is simple but powerful: Speak up for the rights of those on the margins of society or you might yourself on the other side.

Court battles over the First Amendment have been frequently fought on behalf of unpopular groups as a means of preventing encroachment upon the rights of the rest.  Justice Stephen Breyer recalled this heritage during argument when he pointed to criminal laws directed at prohibiting communists from advocating for the overthrow of the United States government that had been struck down 60 years ago.  It is difficult to imagine a less popular group than registered sex offenders.  But speaking up for their rights now is critical at a time when the administration has shown its eagerness to brand people with whom it disagrees as “enemies” and to strip rights from politically vulnerable groups like transgender students.  And it has the fringe benefit of being a good strategy for making sure “they” don’t come for you too.

March 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (10)

Wednesday, March 01, 2017

Is anyone tracking comprehensively data on resentencings (and release and recidivism) of those aided by Graham and Miller?

The question in the title of the post was recently posed to me, and I did not have a good answer. But this seems like a timely question now that it has been nearly a full seven years since Graham v. Florida declared LWOP unconstitutional for juvenile non-homicide offenders and five years since Miller v. Alabama declared mandatory LWOP unconstitutional for juvenile homicide offenders. (Of course, it has only been a year since SCOTUS in Montgomery v. Louisiana declared Miller fully retroactive and thereby required a number of states to start dealing with Miller's impact on prior offenders.)

I know that the Campaign for the Fair Sentencing of Youth a few months ago produced this publication about legal reforms in the wake of Graham and Miller under the title "Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children."   But that report has more stories than numbers.  Similarly, two 2015 reports from the public interest firm Phillip Black, titled "Juvenile Life Without Parole After Miller" and "No Hope: Re-examining Lifetime Sentences for Juvenile Offenders," look mainly at state litigation and legislative responses to Graham and Miller.  The Fair Punishment Project has also done some significant work on juve LWOP, including some notable locality-specific analysis of post-Miller litigation, but I do not see any comprehensive or detailed data runs on its site.  The Juvenile Law Center, which has played an integral role in a lot of post-Miller state-court litigation, helped produced this thoughtful and detailed report on the import and impact of Graham and Miller under the title "The Supreme Court and the Transformation of Juvenile Sentencing."  But that report, which is already nearly two years old, also lacks any detailed empirics.

I have seen estimates of the population of juve LWOPers with sentences impacted by Graham and Miller to be around 2500, and I am hopeful and somewhat confident that someone somewhere is at least trying to track comprehensively data on how this population is being resentenced.  But I have not yet seen such data published, and perhaps I am wrong to assume that it is being systematically collected.

March 1, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Sentences Reconsidered | Permalink | Comments (2)

Justices seem disinclined to limit federal judicial sentencing discretion in Dean

The US Supreme Court yesterday heard oral argument in Dean v. United States.  The case will resolve a circuit split over whether federal district judges, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the firearm mandates.  The oral argument transcript, available here, is a interesting read for a bunch of reasons.  And I have a little summary of the argument posted here at SCOTUSblog.  Here is how that posting starts: 

It has now been more than a year since Justice Antonin Scalia passed away, but his jurisprudential spirit seemed to fill the courtroom yesterday as the Supreme Court heard oral argument in Dean v. United States At issue in Dean is whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.  During the oral argument, several justices endorsed the government’s contention that allowing a judge to give a nominal sentence for the underlying predicate offenses in these circumstances would largely negate Congress’ purpose in enacting Section 924(c).  But, echoing statutory interpretation principles that Scalia often championed in federal criminal cases, the justices also stressed that the text of the applicable sentencing statutes did not clearly foreclose the trial judge’s exercise of judicial sentencing discretion.  This textualist point may carry the day for the defendant. 

March 1, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, February 28, 2017

"Unusual Deference"

The title of this post is the title of this notable new paper about the Supreme Court's Eighth Amendment jurisprudence authored by William Berry III and now available via SSRN.  Here is the abstract:

Three Eighth Amendment decisions — Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp — have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States.  What links these cases is the same fundamental analytical misstep — the decision to ignore core constitutional principles and instead defer to state punishment practices.  The confusion arises from the text of the Eighth Amendment where the Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices.  This is a classical analytical mistake — while the Amendment might prohibit rare punishments, it does not make the corollary true — that all commonly used punishments must be constitutional.

This “unusual deference” to state punishment practices in light of this misconstruction of the text has opened the door to a proliferation of punishments that are disproportionate, arbitrary, and discriminatory.  As such, this article argues for a restoration of the Eighth Amendment from its present impotence by reframing the concept of unusualness in terms of the Court’s stated Eighth Amendment values and unlinking it from its deferential subservience to state legislative schemes.

Part I of the article explains the genesis of the Court’s unusual deference.  Part II of the article explores the manifestations of unusual deference, examining the flaws in the evolving standards of decency, differentness deference, and three most far-reaching examples of unusual deference — Harmelin, Pulley, and McCleskey.  Finally, the article concludes in Part III by reimagining an Eighth Amendment free from the error of unusual deference and demonstrating how such an approach could begin to remedy the problem of mass incarceration.

February 28, 2017 in Examples of "over-punishment", Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, February 27, 2017

SCOTUS grants cert on (yet another) AEDPA habeas procedure case

It has now been more than two decades since the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and that law has had lots and lots of impacts on federal habeas practice and procedure.  One big impact has been lots and lots of technical habeas procedure issues needing SCOTUS attention, and another such issue is now before the Court on the merits after a certiorari grant this morning in Wilson v. Sellers.  Here is the SCOTUSblog case page for Wilson v. Sellers, and here is its description of the issue now before the Justices:

Issue: Whether the court's decision in Harrington v. Richter silently abrogates the presumption set forth in Ylst v. Nunnemaker — that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision — as a slim majority of the en banc U.S. Court of Appeals for the 11th Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply.

February 27, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Will a Justice Gorsuch be a strong SCOTUS voice against over-criminalization?

The question in the title of this post is prompted by this recent National Review commentary authored by C. Jarrett Dieterle and headlined "Gorsuch v. Over-Criminalization." Here are excerpts:

Much of the media attention to date surrounding President Trump’s Supreme Court nominee Neil Gorsuch has centered on the judge’s views of originalism, separation of powers, administrative law, and related topics. Largely overlooked has been an area where Judge Gorsuch’s track record shows a keen awareness of another issue critical to the federal courts: America’s criminal-justice system.
The importance of criminal law is underscored by the breathtaking size of the federal criminal code. Nearly 5,000 federal crimes are on the books, not including the sort of regulatory crimes that likely push the number above 300,000. Worse yet, many criminal laws are written in vague terms that fail to clearly identify what constitutes a crime, leaving Americans in the dark about whether their conduct in many cases is criminal.
In a 2013 lecture for the Federalist Society, Gorsuch confronted the problem of over-criminalization, whereby criminal laws target conduct that is not inherently wrong. Using examples of obscure crimes, such as ripping off a mattress tag, Gorsuch argued that no American can possibly comprehend all the activities prohibited by federal law. “Without written laws, we lack fair notice of the rules we must obey,” as he puts it, adding that fair notice is also lacking when we have “too many written laws.”...

Gorsuch’s expressions of concern about over-criminalization haven’t been confined to speeches.  In last year’s Caring Hearts Home Services v. Burwell decision, he had harsh words for a federal agency that forgot its own regulations and misapplied them to a home health-care provider....

Gorsuch has equally strong views on the issue of criminal intent. Under traditional common law, acting with mens rea (a guilty or criminal mind) is a core component of committing a crime. This understanding prevents individuals who inadvertently or accidently do something wrong from being branded criminals....

Gorsuch also has shown willingness to rely on another historical judicial doctrine, the “Rule of Lenity”: Courts that confront ambiguous and vague criminal statutes are urged to interpret those laws in favor of defendants. Gorsuch applied this rule — also a favorite of the late Justice Antonin Scalia — in United States v. Rentz (2015), a case involving a law that imposed heightened penalties on individuals who “use” a gun to commit a violent crime or drug offense.... “Our job is always in the first instance to follow Congress’s directions,” Gorsuch wrote. “But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor.”

Gorsuch’s principle that any “tie” should go to citizens over the government shows his wariness of the vast powers possessed by prosecutors in an over-criminalized society. His tendency to view criminal laws, especially vague ones, with a healthy measure of skepticism should give opponents of over-criminalization a much-needed ally on the nation’s highest court.

February 27, 2017 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Wednesday, February 22, 2017

Buck's notable dis of state finality interests in "flawed" capital sentence

Though there are a number of interesting procedural and substantive elements to the Supreme Court's ruling today in Buck v. Davis reversing a Texas death sentence (basics here), I am especially intrigued by the short shrift given by the Chief Justice's majority opinion to the state's claimed interest in finality.  (Regular readers know I can get fixated on finality and have written at length about why I think convictions and sentences ought to be treated differently for finality purposes.)  Here is all that Chief Justice Roberts writing for the Court had to say about finality (with my emphasis added):

In opposition, the State reminds us of the importance of preserving the finality of judgments.  Brief for Respondent 34.  But the “whole purpose” of Rule 60(b) “is to make an exception to finality.” Gonzalez, 545 U.S., at 529.  And in this case, the State’s interest in finality deserves little weight.  When Texas recognized that the infusion of race into proceedings similar to Saldano’s warranted confession of error, it effectively acknowledged that the people of Texas lack an interest in enforcing a capital sentence obtained on so flawed a basis.  In concluding that the value of finality does not demand that we leave the District Court’s judgment in place, we do no more than acknowledge what Texas itself recognized 17 years ago.

In his dissent, Justice Thomas says the majority opinion "belittles Texas’ claimed interest in finality," and I think that is a fair characterization of the passage above.  I am also inclined to turn this belittling into a broader and enduring "Buck finality principle": a state has little or no valid interest in preserving the finality of a (capital) sentence that is obviously "flawed" in some significant way.  Though I do not expect this Buck dis of state finality interests to significantly impact finality jurisprudence, I do expect to cite this Buck the next time I need to respond to any claims that flawed sentences must be preserved in the name of finality.

February 22, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32)

Supreme Court, voting 6-2, reverses Texas death sentence reached after defense attorney introduced expert who linked race and violence

The Supreme Court handed down three opinion this morning, and the big one for sentencing fans is the capital case from Texas, Buck v. Davis, No. 15-8049 (Feb. 22, 2017) (available here). The Chief Justice wrote the opinion for the Court, and here is that opinion's opening and some of its substantive analysis on the case's highest-profile issue:

A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.

Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it....

Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client....

Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race....

[W]e cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.

Justice Thomas authored a dissent in Buck, joined by Justice Alito, which gets started this way:

Having settled on a desired outcome, the Court bulldozes procedural obstacles and misapplies settled law to justify it.  But the majority’s focus on providing relief to petitioner in this particular case has at least one upside: Today’s decision has few ramifications, if any, beyond the highly unusual facts presented here.  The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.

February 22, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Tuesday, February 21, 2017

Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge

This morning, the US Supreme Court got back to work through the issuance of this lengthy order list.  The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here).  But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari  authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols.  Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):

Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).

Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad.  The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip.  Because this decision permits States to immunize their methods of execution — no matter how cruel or how unusual — from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse.  I dissent from my colleagues’ decision not to do so....

The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method.  This cannot be right....

The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates.  The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).  Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time.  Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering.  A new method of execution is devised, and the dialogue continues.  The Eighth Amendment requires this conversation.  States should not be permitted to silence it by statute....

Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same).  In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4).  We should not be proud of this history.  Nor should we rely on it to excuse our current inaction.

February 21, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Sunday, February 19, 2017

Front-line advocate's response to interview with former White House Counsel Neil Eggleston about Prez Obama clemency efforts

Regular readers know I am always eager to provide a forum for responses and respectful criticisms of sentencing-related activities and comments by public officials.  In that vein, I am pleased to provide here the sharp commentary sent my way by Beth Curtis, a prisoner advocate who runs the website Life for Pot.  Beth sent an extended commentary my way under the heading "Responding to: The Man Who Ran Obama’s Clemency Machine"; she was inspired to write by the recent Marshall Project interview with former White House Counsel Neil Eggleston about Prez Obama's clemency efforts (noted here).   

Beth's full commentary is available for download below, and here is a snippet to highlight why the full piece is worthy of time and attention:

For the first five years of Obama’s presidency the federal prison population grew by 13,000 incarcerated people. In 2013, the population was 214,149, the highest incarceration rate in history.

Criminal justice organizations, prisoner advocacy groups, criminal defense attorneys, law school clinics, prisoner’s families and various other lobbying groups started the drum beat for sentencing reform and an initiative of Presidential Clemency. Finally in 2013 Eric Holder announced that there would be a clemency initiative that could mean 10,000 or more acts of mercy for incarcerated people who would not be a threat if they were released.

Those of us with incarcerated loved ones who had sentences that would assure that they would die behind bars now had a reason for hope. We felt an overwhelming sense of gratitude to the President and all who were involved in the decision and the process that would lead to our loved ones freedom. We could hope to have our family member in our daily lives again. The hope was an ache, but we knew this President had compassion. It was not to be.

The lack of commitment became apparent almost immediately. I have the web site Life for Pot and the nonviolent marijuana offenders that I advocate for waited patiently for their evaluation by cp-14. Surprisingly some were rejected, and others accepted to the project and were told they would be assigned an attorney. Those fortunate inmates who were assigned an attorney would sometimes just receive a notification that they were represented and hear nothing more. We urged them to submit their own and wait.

This is not just a passing interest for me. I have a 69 year old brother, John Knock, who has two life sentences for a nonviolent marijuana conspiracy. He has been incarcerated for 20 years and never had an infraction. His prison resume is impeccable. He is a first time offender. On January 18, his clemency petition was denied by President Obama.

These are the numbers that tell you about the mercy and compassion of the Clemency Initiative. The promise was 10,000 or more. 1,715 Commutations granted – we could only find 39 for nonviolent marijuana only offenders. The rest were denied or left pending.

Over 18,000 petitions for commutation were denied. Over 4,000 petitions for commutation we closed without action. Over 8,000 petitions for commutation were left pending in the Pardon Attorney’s office for the next administration.

I must reject Mr. Eggleston’s assertion that he had better information and insight than the attorneys, advocates, or families about who was a good candidate for release. He asserts that he and President Obama looked over all the applicants and rejected all but 1,715.

Apparently Mr. Eggleston and President Obama based their denials on secret information. That implies that all the nonviolent marijuana offenders that I know who were denied should remain in prison till they die because Mr. Eggleston and President Obama have special information unknown to anyone else? What are the secrets that gave them confidence to make this Sophie’s Choice? They missed the point of Clemency. It is not a legal process but a Constitutional Power given to the President to be compassionate and merciful. In this endeavor they failed miserably.

These assertions made by Mr. Eggleston have tainted the character and behavior of all they left behind. I can only believe this was done in order to in order to burnish the administrations legacy of compassion at the expense of those they left behind without hope.

There is one secret that most of us know that the White House and the Pardon Attorney did not address. That secret is that most nonviolent offenders who receive sentences of life without parole were charged with conspiracy and went to trial. A conspiracy charge does not require definitive evidence, but only the testimony of those testifying for a plea or for part of the forfeiture. If you exercise your sixth amendment right to trial you receive the trial penalty. This charge allows the Prosecutor to tell the story.

In the spring of 2016 at a White House Briefing, it was obvious to many of us that the promise of clemency was waning and The Administration was pivoting to reentry as the major emphasis for time and money.

The White House would not pay attention to any effort to expedite the clemency project by granting clemency to categories of inmates. Many individuals and groups implored them to take this approach so that they would not fail the thousands who placed their trust in their concept of mercy. The White House and Justice Department did not seem to even understand the concept as it had been used in the past. Heals were dug in, and fates were sealed.

Download FEBRUARY 2017 CLEMENCY FAILURE

UPDATE:  For those unable to get download to work (which may be my fault, as I am working from the road), here is a link to Beth's site with her full commentary.

Prior related post:

February 19, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, February 15, 2017

Interesting Q&A about Prez Obama's clemency efforts with former White House counsel Neil Eggleston

DownloadThe Marshall Project has this notable new piece that reviews Prez Obama's clemency work via an interview with former White House counsel Neil Eggleston. The piece is headlined "The Man Who Ran Obama's Clemency Machine: 'He felt strongly that this was a gift, and the gift had to be earned.'" Here are excerpts:

From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to more than 1,700 federal prisoners.... But his final tally was also far below earlier expectations, given that former Attorney General Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners. Obama also received more petitions for clemency than any recent president.

Blame has been passed around, much of it centering on the bureaucracy that emerged to handle the deluge of potential cases, as well as the role federal prosecutors played in the process. In the end, attorneys who felt they had submitted strong cases to the president often wondered why they lost. “In granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it,” one of those attorneys, Sean Nuttall, wrote recently at The Marshall Project.

One key figure in the process was Neil Eggleston, who served as White House counsel from April 2014 through the end of Obama’s term. We asked him to discuss the process from the inside....

How closely did President Obama look at each of the applications for clemency he received? And what did you learn about him based on how he handled them?

I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”

Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”

He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out. He felt strongly that this was a gift, and the gift had to be earned.

One common criticism of the process was that there were arbitrary outcomes, that two people with similar cases could be granted and denied clemency.

I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew. All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, “How can this be?” So is there some arbitrariness? Humans making decisions will not always be perfect. But I reject the notion that there was arbitrariness....

Were you afraid that a single heinous crime by one of these released men or women would derail the whole program?

We never mentioned the words “Willie Horton.” But the answer is yes — very much so. The president wanted to make sure these were people who would take advantage of their second chances, but part of that was making sure they wouldn’t go back to jail. In the letter the president sent to released prisoners, he wrote to them that their choices “will also influence...the possibility that others in your circumstances get their own second chance in the future.” He was saying: “If you mess up, I may not be able to give clemency to other people.” It’s pretty explicit....

One criticism was that it was strange to have prosecutors — from the same department who got these sentences in the first place — weigh in on clemency decisions. Did you think about this?

I think that criticism was completely misguided and based on some sort of theoretical, potential problem. The fact is that Deputy Attorney General Sally Yates, a 27-year Department of Justice prosecutor out of Atlanta, was a very strong supporter of this initiative. Loretta Lynch, too. The people who criticized their involvement did so on a theoretical conflict — not an actual conflict. It’s just not true.

That suggests the Department of Justice under incoming Attorney General Jeff Sessions could rapidly go in another direction and oppose the use of clemency.

I know Sessions publicly opposed our initiative. I hope that I’m wrong, but I worry that given his comments, this will not be pursued by the new administration. It’s going to require them to decide this is something they want to continue. I hope they do.

February 15, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Saturday, February 11, 2017

Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation

As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:

The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.

The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.

"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."

Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.

Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.

The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.

Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.

February 11, 2017 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, February 07, 2017

"The Death Penalty & the Dignity Clauses"

The title of this post is the title of this notable new article by Kevin Barry, and here is its abstract:

“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide.  Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.

Now, 40 years after Gregg, the question is being asked once more.  But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes.  The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional.  No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.

Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in United States v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments — which have long shared a commitment to dignity — and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.

This Article suggests that dignity embodies three primary concerns — liberty, equality, and life.  The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law.  Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty.  If dignity means anything, it must mean this.

In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence.  It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.

February 7, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Friday, February 03, 2017

Lamenting that Henry Montgomery (and many other juve LWOPers) may not much or any benefit from Montgomery

Jody Kent Lavy, who is executive director of the Campaign for the Fair Sentencing of Children, has this notable new commentary headlined "Supreme Court's will on juvenile offenders thwarted." Here are excerpts:

A little more than a year ago, the U.S. Supreme Court ruled 6-3 in Montgomery vs. Louisiana that Henry Montgomery — and anyone else who received mandatory life without parole for a crime committed when they were younger than 18 — was serving an unconstitutional sentence and deserved relief.

The sweeping opinion augmented three earlier decisions that had scaled back the ability to impose harsh adult penalties on youth, recognizing children’s unique characteristics made such penalties cruel and unusual. The Montgomery case made clear that the Eighth Amendment bars the imposition of life without parole on youth in virtually every instance.

But, in violation of the decision, prosecutors are seeking to re-impose life without parole in hundreds of cases, and judges are imposing the sentence anew. Hundreds of people serving these unconstitutional sentences — primarily in Louisiana, Pennsylvania and Michigan — are still awaiting their opportunities for resentencing. Henry Montgomery is among them.

I recently met Montgomery, now 70, at the Louisiana State Penitentiary in Angola, notorious as a place where most of its thousands of prisoners are destined to die. Montgomery, who is African-American, was convicted of killing a white police officer as a teenager. At the time, John F. Kennedy was president. Though his resentencing has yet to be scheduled, prosecutors say they plan to again seek life without parole.

Given last year’s ruling from the nation’s highest court, it might seem surprising that Montgomery, remorseful for the crime he committed more than five decades ago, is still languishing in prison. This is indeed outrageous, and it highlights the failings of our justice system, especially as it pertains to juveniles....

Henry Montgomery is living on borrowed time. He is a frail, soft-spoken, generous man. When it was lunchtime at the prison, I noticed that he wasn’t eating. When I asked why, he said he wasn’t sure there was enough food to go around. On the anniversary of the ruling that was supposed to bring him a chance of release, we owe it to Montgomery, as well as the thousands of others sentenced as youth to die in prison, to seek mercy on his behalf. We cannot give up until the day comes when children are never sentenced to life — and death — in prison.

February 3, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, February 01, 2017

"Constitutional Liberty and the Progression of Punishment"

The title of this post is the title of this notable new article authored by Robert J. Smith and Zoe Robinson. Here is the abstract:

The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants.  This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.

This Article challenges these assumptions.  It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause.  The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.

Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment.  Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence.  Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty.  Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences, and the prolonged use of solitary confinement.

February 1, 2017 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, January 31, 2017

"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"

The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:

Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences.  This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.

Most people serving life sentences were convicted of serious crimes.  Their incarceration was intended to protect society and to provide appropriate punishment.  But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.

Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety.  Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems.  Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.

Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population.  Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%.  By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences.  Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO

January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, January 24, 2017

"Judge Gorsuch & Johnson Resentencing"

The title of this post is the title of this timely new commentary now on SSRN authored by Leah Litman about the latest "hot name" to replace Justice Scalia on the Supreme Court.  Here is the first paragraph:

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence.  The case concerns an issue on which the court of appeals disagree, and so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably susceptible to different resolution, as many of the Supreme Court’s cases are.  Prost illustrates how Judge Gorsuch will balance competing considerations of fairness and administrability in criminal law.  While there is much to like about Prost — it is well written, clearly reasoned, and adopts an administrable rule — the opinion also raises some concerns. The opinion overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts.

January 24, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, January 23, 2017

SCOTUS denies cert on handful of Alabama cases raising Hurst and other issues

This most recent Relist Watch posting by John Elwood at SCOTUSblog noted that the Supreme Court had relisted a few times a few cases from Alabama raising various challenges to how that state rolls its tide toward death sentences.  But this new Supreme Court order list, released this morning, has all of the relisted Alabama capital cases now on a certiorari denied list.

Interestingly, it appears that a few method-of-execution cases that were previously relisted are not on the latest cert denied list.  My guess would be that this is because someone is working on a dissent from denial of cert, but you never know just what SCOTUS is up to.

January 23, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 19, 2017

Prez Obama wraps up his clemency work with 330 more commutations on his final full day in office

As reported here via USA Today, "President Obama commuted the sentences of 330 more federal inmates Thursday, capping an unprecedented clemency effort that has now released 1,715 prisoners — more than any other president in history."  Here is more:

The clemency grants announced on Obama's last full day in office set a one-day record. "Proud to make this one of my final actions as President.  America is a nation of second chances, and 1,715 people deserved that shot," Obama tweeted Thursday.

The clemency initiative, which began in 2014, was targeted at drug dealers who received mandatory-minimum sentences during the War on Drugs from the 1980s to the 2000s. But the effort ultimately fell far short of the 10,000 clemency grants former attorney general Eric Holder predicted when the initiative began. And while Obama set a record for granting commutations, he also set a record for denials.  As of the end of 2016, he had denied 14,485 petitions and closed another 4,242 without action — an overall grant rate of 5.9%, a couple of percentage points higher than many of his predecessors.

"The president set out to reinvigorate clemency, and he has done just that," White House counsel Neil Eggleston said in a statement.

It's unclear how big of a backlog in clemency cases President-elect Donald Trump will inherit.  But Justice Department officials had promised to give an up-or-down determination on every clemency initiative case it received by August.  “I’m proud to say we kept that promise," Deputy Attorney General Sally Q. Yates said in a statement. "This undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception."

Obama's final list of clemency grants included no more full pardons, meaning his final pardon tally will stand at 212 — fewer than any modern president except Presidents George H.W. Bush and George W. Bush. (It was the younger Bush who gave Obama this advice in the limo ride to the Capitol on his Inauguration Day eight years ago. "Announce a pardon policy early on, and stick to it.")

The grants on Thursday also did not include any of the more high-profile political cases, like former Illinois governor Rod Blagojevich, former Detroit mayor Kwame Kilpatrick, and former congressman Chaka Fattah, all serving time on corruption charges.

With Thursday's action, the Clemency Project 2014 also closes its doors.  The coalition of defense attorneys who had agreed to help inmates with their cases says it completed work on all the applications it received. "Of course we'd be delighted to continue, but we have to wait to see whether the next president says whether he will or will not pursue this," he said.

This NBC News coverage of the final grants and the recent history of Obama's clemency initiative closes with a useful account of its ups and downs:

Obama's clemency grants came in large batches, hundreds at a time, accompanied by statements that framed his effort as a bid to become the most merciful president of all time. But his denials were even more voluminous. The effect on applicants and their lawyers was like an emotional roller coaster.

On Wednesday, sandwiched between Obama's two ballyhooed clemency announcements, the Justice Department quietly released the names of more than 2,000 applicants who'd been denied.

James Felman, a Florida defense lawyer who represents dozens of inmates who applied for clemency, celebrated Tuesday when he learned that four had received commutations. On Wednesday, he learned that a dozen others had been denied, and he mourned. On Thursday, Felman was elated again, this time for four more clients who were on Obama's list. A dozen of Felman's clients still have heard nothing. Three are serving life sentences.

And then there's the matter of reform. Advocates point out that clemency does nothing to change policies that led to mass incarceration. Efforts to ease those laws beyond the 2010 changes have stalled in Congress.

Felman, who won commutation for 44 total clients, called Obama's initiative "the single most gratifying professional experience I've ever undertaken." He added: "I have so much gratitude for the president for having the courage and fortitude for doing this. But we know this is not a substitute for reforming the laws that got us here, and we still haven't accomplished that."

January 19, 2017 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Noting that two death row inmates were among the latest batch of commutations by Prez Obama

I am intrigued and a bit surprised that there has not been more media attention surrounding the fact that two of the persons granted clemency by Prez Obama earlier this week were murderers on federal death row.   This posting at the Death Penalty Information Center reports on the basics, with also interesting links to some clemency materials:

On January 17, 2017, President Barack Obama commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th.

Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty.

In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment."

Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die.

Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

This new Marshall Project piece, headlined "How Obama Disappointed on the Death Penalty: Two commutations this week was less than many had hoped for," discusses these two clemencies while also suggesting that they provide only a little succor to the capital abolitionist community.

January 19, 2017 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, January 18, 2017

Top Massachusetts court adopts "new protocol for case-by-case adjudication" of over 20,000 drug convictions tainted by misconduct of lab chemist

The Massachusetts Supreme Judicial Court today issues a huge new ruling to try to resolve a huge old problem caused by drug lab misconduct. The start of the opinion in Bridgeman v. District Attorney for the Suffolk District, No. SJC 12157 (Mass. Jan. 18, 2017)(available here), provides the back-story and the essential:

We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab). In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan's misconduct because the time and expense of case-by-case adjudication had become "untenable."  We declined at that time to adopt their proposed "global remedy."  However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan's misconduct but who have not yet sought relief from their drug convictions.  As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial.

After such reconsideration, we decline to adopt the district attorneys' argument that we should stay the course we had previously set and take no further action to protect the rights of the "relevant Dookhan defendants."  We also decline to adopt the petitioners' request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period.

We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment.  In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.  In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.  In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.  If the number seeking counsel is so large that counsel cannot be assigned despite CPCS's best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

We recognize that the implementation of this protocol will substantially burden the district attorneys, CPCS, and the courts.  But we also recognize that Dookhan's misconduct at the Hinton lab has substantially burdened the due process rights of many thousands of defendants whose convictions rested on her tainted drug analysis and who, even if they have served their sentences, continue to suffer the collateral consequences arising from those convictions.  And we recognize as well that, more than four years after Dookhan's misconduct was revealed, more than 20,000 defendants who are entitled to a conclusive presumption that egregious government misconduct occurred in their case have yet to receive adequate notice that they may have been victimized by Dookhan's misconduct, that they may file a motion to vacate their drug conviction, and that they have a right to counsel to assist them in the preparation of such a motion.  The remedy we order, challenging as it is to implement, preserves the ability of these defendants to vindicate their rights through case-by-case adjudication, respects the exercise of prosecutorial discretion, and maintains the fairness and integrity of our criminal justice system in the wake of a laboratory scandal of unprecedented magnitude.

January 18, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Some attacks and some defenses of Prez Obama's decision to commute sentence of Chelsea Manning

Because I have not spent a lot of time reviewing the many distinctive and seemingly unique facts relating to Chelsea Manning's offenses and personal history, I really do not have strong opinions about Prez Obama's notable decision to commute her sentence from 35 years down to roughly 7.  But it does seem that a lot of other folks have strong views, and here is a mini-round up of criticisms and defenses:

January 18, 2017 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, January 17, 2017

Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant

I just notices a lengthy and blog-worthy opinion issued by the First Circuit late last week in US v. Rivera-Ruperto, No. 12-2364 (1st Cir. Jan 13, 2017) (available here).  The start and final substantive paragraphs of the majority opinion provides the factual background for the Eighth Amendment claim and its formal fate:

This case arises out of a now-familiar, large-scale FBI investigation known as "Operation Guard Shack," in which the FBI, in an effort to root out police corruption throughout Puerto Rico, orchestrated a series of staged drug deals over the course of several years.  For his participation in six of these Operation Guard Shack drug deals, Defendant- Appellant Wendell Rivera-Ruperto stood two trials and was found guilty of various federal drug and firearms-related crimes. The convictions resulted in Rivera-Ruperto receiving a combined sentence of 161-years and 10-months' imprisonment.....

At oral argument, counsel for Rivera-Ruperto argued that we should be swayed by the fact that, in this case, the crime involved fake drug deals.  A near two life-term punishment where no real drugs and no real drug dealers were involved, he contended, is a punishment that is grossly disproportionate on its face. But in coming to this sentence, the judge below was guided by and correctly employed a sentencing scheme that is written into statute -- a statute that makes no distinction between cases involving real versus sham cocaine.  At each of the six stings, in fact, Rivera-Ruperto repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers.  The crime of possessing a firearm in furtherance of such a drug trafficking offense is a grave one, and Congress has made a legislative determination that it requires harsh punishment.  Given the weight of the case law, we see no Eighth Amendment route for second-guessing that legislative judgment.

We thus cannot conclude that Rivera-Ruperto has established that his sentence, which is largely due to his consecutive sentences under § 924(c), is grossly disproportionate to the crime, so as to trigger Eighth Amendment protections.

The start and end of Judge Torruella's 35+-page dissent provides a much fuller primer on the Eighth Amendment and one judge's concerns about its application in this case:

The majority today affirms a sentence of 160 years and one month without the possibility of parole for Rivera-Ruperto. The transgression for which Rivera-Ruperto was punished in such an extreme manner was his participation as a security guard in several fake transactions, while the FBI duped Rivera-Ruperto into believing that the composite was actually illegal drugs. The FBI ensured that more than five kilograms of composite moved from one agent's hands to another at each transaction; the FBI also made sure that the rigged script included Rivera-Ruperto's possession of a pistol at each transaction. This combination -- more than five kilograms of composite, a pistol, and separate transactions -- triggered the mandatory consecutive minimums of 18 U.S.C. § 924(c), which make up 130 years of Rivera-Ruperto's sentence.

In a real drug transaction, all participants would be guilty of a crime. And, in general, the greater their knowledge of the crime would be, the harsher the law would punish them. In the fictitious transaction we are faced with today, however, only the duped participants, who had no knowledge of what truly transpired, are punished. The other participants are not only excused, but indeed rewarded for a job well done.

If Rivera-Ruperto had instead knowingly committed several real rapes, second-degree murders, and/or kidnappings, he would have received a much lower sentence; even if Rivera-Ruperto had taken a much more active role in, and brought a gun to, two much larger real drug deals, he would still have received a much lower sentence. For these and many other crimes Rivera-Ruperto would have received sentences that would see him released from prison during the natural term of his life. For the fictitious transgressions concocted by the authorities, however, Rivera- Ruperto will spend his entire life behind bars -- a sentence given to first-degree murderers, 18 U.S.C. § 1111, or those who cause death by wrecking a train carrying high-level nuclear waste. 18 U.S.C. § 1992.

From the majority's approval of the draconian sentence imposed in this case, I respectfully dissent. Rivera-Ruperto's sentence is grossly disproportionate to his offense, and therefore violates the Eighth Amendment to the Constitution. While some seemingly excessively harsh sentences have withstood Eighth Amendment challenges, such harsh sentences have been sanctioned only in the context of recidivists or those who otherwise dedicated themselves to a life of crime -- a context that explained the severity of the sentences. But Rivera-Ruperto has no criminal record, nor has he dedicated himself to a life of crime.  Not even under the infamous § 924(c) has a first-time offender like Rivera-Ruperto ever been condemned to spend his entire life in jail....

Never before has a first-time offender who has not dedicated his life to crime been condemned to spend his entire life in prison for a transgression such as Rivera-Ruperto's, not even in cases in which the transgression was real -- and Rivera's-Ruperto's transgression is fictitious.

The Government has effectively asked this court to pronounce the Eighth Amendment dead for sentences for a term of years. I respectfully refuse to join in this pronouncement. "Unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete." Graham, 560 U.S. at 85 (Stevens, Ginsburg, Sotomayor, JJ., concurring).

January 17, 2017 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Prez Obama issues clemency to 273 more individuals (209 commutation and 64 pardons) and Chelsea Manning among those getting a commuted sentence

Moments after I blogged about the New York Times criticizing Prez Obama on his pardon efforts, this news emerges from the White House:

Today, 273 individuals learned that the President has given them a second chance.  With today’s 209 grants of commutation, the President has now commuted the sentences of 1,385 individuals — the most grants of commutation issued by any President in this nation’s history.  President Obama’s 1,385 commutation grants — which includes 504 life sentences — is also more than the total number of commutations issued by the past 12 presidents combined.  And with today’s 64 pardons, the President has now granted a total of 212 pardons.

Today, 209 commutation recipients — including 109 individuals who had believed they would live out their remaining days in prison — learned that they will be rejoining their families and loved ones, and 64 pardon recipients learned that their past convictions have been forgiven.  These 273 individuals learned that our nation is a forgiving nation, where hard work and a commitment to rehabilitation can lead to a second chance, and where wrongs from the past will not deprive an individual of the opportunity to move forward.  Today, 273 individuals — like President Obama’s 1,324 clemency recipients before them — learned that our President has found them deserving of a second chance.

There is at least one high-profile recipient of a commutation today, as this FoxNews headline reveals:

"Obama commutes Chelsea Manning's sentence for leaking Army documents":

The White House said that Manning is one of 209 inmates whose sentences Obama is shortening. Obama is also pardoning 64 people, including retired Gen. James Cartwright, who was charged with making false statements during a probe into disclosure of classified information. Most of the other people receiving commutations were serving sentences for nonviolent drug offenses.

Manning is more than six years into a 35-year sentence for leaking classified government and military documents to the anti-secrecy website WikiLeaks. Her sentence is now set to expire May 17.

January 17, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25)

Monday, January 16, 2017

SCOTUS to confront implication for immigration statute of Johnson vagueness ruling

On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States.  Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:

The U.S government targets noncitizens with criminal convictions for removal from the United States.  These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history.  On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal.  In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal.  Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.

A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal.  The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense.  That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … 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.”

In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.”  The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”

Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992.  Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States.  Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed.  The Board of Immigration Appeals agreed.  In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.

January 16, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Friday, January 13, 2017

Supreme Court grants cert on four new criminal cases and a dozen others

After a seemingly long quiet period of avoiding taking on too many new cases, the Supreme Court this afternoon issued this order list which grants cert on 16(!) new cases.  I believe these four cases from the list are the only criminal ones, with links to case pages and descriptions via SCOTUSblog:

WEAVER, KENTEL M. V. MASSACHUSETTS: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

MASLENJAK, DIVNA V. UNITED STATES: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

McWILLIAMS, JAMES E. V. DUNN, COMM'R, AL DOC, ET AL.:  Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Most of these cases look intricate, and maybe Maslenjak could even be viewed as a kind of sentencing case. But, on first look, I see no brewing blockbusters.

UPDATE: Over at Crime & Consequences here, Kent Scheidegger shares some initial reactions to this quartet of new SCOTUS criminal cases.

January 13, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Thursday, January 12, 2017

"Mistakes and Justice — Using the Pardon Power to Remedy a Mistake of Law"

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

American criminal law has never recognized a mistake-of-law defense. The principal rationale for rejecting it has been that the community knows what the criminal law prohibits.  That may have been a reasonable rule when there were only a handful of crimes, and each one also violated the contemporary moral code, but that rule makes no sense today, given the use of the criminal law to enforce thousands of sometimes technical, arcane administrative regulations.  Clemency, however, may be a perfect vehicle for the implementation of a mistake- or ignorance-of-the-law defense.

Throughout Anglo-American legal history, kings, presidents, and governors have used their pardon power as a vehicle to remedy injustices in the criminal justice system.  The conviction of a person for conduct that no reasonable person would have thought to be a crime certainly qualifies as a miscarriage of justice.  Presidents and governors should consider using their clemency authority to pardon legitimate cases of mistake or ignorance, which might particularly arise in connection with strict criminal liability or regulatory crimes.

January 12, 2017 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

New Jersey Supreme Court addresses Miller's application to all serious juve sentencings

As reported in this local article, the top court in the Garden State "ruled unanimously Wednesday to overhaul the way New Jersey judges sentence juveniles convicted in violent crimes that could keep them in prison until they are elderly or dead." Here is more from the press report on the opinion:

The state's highest court ruled 7-0 that judges must consider a number of factors -- including age, family environment, and peer pressure -- before issuing lengthy sentences to youths in serious cases. Peter Verniero, a former state Supreme Court justice and state attorney general, said this is "one of the most significant sentencing decisions" the court has made in "many years."

And in a rare move, the court also urged the New Jersey Legislature to revise the state's current law on juvenile sentencing to "avoid a potential constitutional challenge in the future," according to the decision, written by Chief Justice Stuart Rabner.

The decision is the result of appeals filed by a pair of men who were convicted separately of violent crimes years ago in Essex County when they were 17 and were sentenced to decades in prison. Ricky Zuber was convicted for his role in two gang rapes in 1981 and was sentenced to 110 years in prison. He would not have been eligible for parole for 55 years -- a time when he would be 72. James Comer was convicted of four armed robberies in 2000, including one where an accomplice shot and killed a victim. He would have become eligible for parole when he was 85 -- after having served 68 years.

Rabner wrote that judges in both cases did not take "age or related circumstances" into account when issuing the sentences. But, Rabner said, the U.S. Supreme Court has since "sent a clear message" that "children are different" from adults and that "youth and its attendant characteristics" must be considered when sentencing a juvenile to life in prison without parole.

"Because of their young age at the time of their crimes, both defendants can expect to spend more than a half century in jail before they may be released -- longer than the time served by some adults convicted of first-degree murder," Rabner wrote.

Rabner cited how in a 2012 decision called Miller v. Alabama, the U.S. Supreme Court ruled that judges presiding over cases involving juveniles facing life sentences without parole must consider a number of factors before sentencing. Those include immaturity; family and home environment; family and peer pressures; an"inability to deal with police officers or prosecutors" or their own attorney; and "the possibility of rehabilitation."

But New Jersey's Supreme Court went further, saying those standards must be applied not only to sentences of life without parole but also to youths who face lengthy sentences. The court also cited a the Eighth Amendment of the U.S. Constitution, which protects defendants from "cruel and unusual punishment."

"Youth matters under the constitution," Rabner wrote.

The full opinion is available at this link, and it covers a lot of important post-Graham and post-Miller ground concerning juvenile sentencing.

January 12, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, January 11, 2017

"Is Qualified Immunity Unlawful?"

The title of this post is the title of this provocative new article authored by William Baude and now available via SSRN. Here is the abstract:

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point.  This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.

Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983.  One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.

But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons.  There was no such defense; there was no such mistake; lenity ought not apply.  And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.

The unlawfulness of qualified immunity is of particular importance now.  Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways.  In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference.  Rather than doubling down, the Court ought to be beating a retreat.

Though technically not a sentencing article, any conceptual and/or doctrinal strike against qualified immunity seems likely also to be a blow against the absolute immunity that right now protects from litigation scrutiny the sentencing decisions made by prosecutors and judges.

January 11, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, January 09, 2017

"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"

The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans.  Here is the abstract:

Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes.  This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States.  The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.

January 9, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

SCOTUS issues per curiam opinion strengthening claim of qualified immunity after police shootout

The Supreme Court's first big order list of 2017 had no cert grants, which I think provides still more evidence that the Justices are disinclined to take up much of note until they get a replacement for Justice Scalia.  But the court found one case they could resolve through a summary opinion, White v. Pauly, No. 16–67 (S. Ct. Jan. 9, 2017) (available here). In this case, the Supreme Court vacating a split Tenth Circuit ruling that had denied qualified immunity to a New Mexico police officer after deadly shooting during a confrontation with armed suspects. Here is how the opinion starts and a key passage:

This case addresses the situation of an officer who — having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers — shoots and kills an armed occupant of the house without first giving a warning....

This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White’s conduct — such as his failure to shout a warning — constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene.  814 F.3d, at 1077.  This alone should have been an important indication to the majority that White’s conduct did not violate a “clearly established” right.  Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed.  No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.

Th per curiam opinion closes with a lot of nuance as to what the Justices were not deciding, and a concurring opinion by Justice Ginsburg highlights that point.

January 9, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, January 08, 2017

SCOTUS back in action with booking fee process as first notable criminal case of 2017

The Supreme Court returns to action tomorrow morning, and the Court's January sitting only has a couple cases that should be of serious interest to criminal justice fans.  But the very first case slated for the very first 2017 oral argument is one of procedural note, Nelson v. Colorado.  The folks over at SCOTUSblog have provided this preview by Steve Vladeck, which starts and ends this way:

Every jurisdiction in the United States requires at least some criminal defendants to make certain payments to the government tied to their convictions.  And if a defendant’s conviction is subsequently vacated — whether on appeal or through collateral post-conviction proceedings — virtually every jurisdiction directly returns those funds to the acquitted individual.  Colorado does not.  Instead, according to the Colorado Supreme Court, criminal defendants seeking a return of funds paid in conjunction with a later-vacated conviction must bring a separate civil suit under a Colorado statute — the Exoneration Act — in which, among other burdens, plaintiffs apparently have to prove their actual innocence by clear and convincing evidence in order to recover.  The very first argument the justices will hear in 2017 — Nelson v. Colorado — raises the question whether this seemingly unique scheme violates the due process clause of the 14th Amendment....

Although it is often difficult to predict from an oral argument how the justices are likely to rule, the sharp distinctions in how the parties have framed the issue in this case may allow for more than the usual tea-leaf reading at next Monday’s argument.  The more the questioning focuses on distinctions between the different types of payments made by Nelson and Madden, and the state’s interest in collecting and preserving those funds, the more it may bode well for Colorado.  But the more the justices’ attention appears drawn to how poor a fit the Exoneration Act actually is for defendants like these, the more likely the court will be to reverse.  After all, as Nelson and Madden conclude in their reply brief, Colorado appears to be the first and only jurisdiction in the United States “to require successful appellants to prove their innocence by any standard to get their money back when their convictions are reversed.”  If that fact seems to trouble enough of the justices during their first argument of the new year, then a reversal may well be in the offing.

January 8, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, January 05, 2017

Marijuana reform and clemency conversations at the state and federal level

Two new lengthy pieces combining news and commentary on the clemency and marijuana fronts further reinforces my view that marijuana reform is a form of sentencing reform.  Here are the extended headlines and links to these two interesting reads:

January 5, 2017 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, January 04, 2017

Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases

This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:

A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.

And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.

But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.

According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”

The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.

Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....

In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.

Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.

Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....

“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”

January 4, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

GOP Senate Judiciary Chair Chuck Grassley says federal sentencing reform a priority after Trump nominations completed

This lengthy new Politico article, headlined in full "Senators plan to revive sentencing reform push: Senate Judiciary Chairman Chuck Grassley says he's not done yet pressing a cause with broad bipartisan support," brings some welcome new year good news for advocates of federal sentencing reform.  Here are the details, with a couple of lines emphasized for subsequent commentary:

Criminal justice reform — the great bipartisan hope of 2016 that ended in disappointment — may not be dead just yet. Senate Judiciary Committee Chuck Grassley (R-Iowa) plans to take up a bill to revamp U.S. sentencing laws and reform prisons soon after his panel clears the high-profile nominations from Donald Trump. A similar measure passed his committee overwhelmingly last year before stalling out in the face of opposition from law-and-order conservatives.

But Grassley told POLITICO he will soon try again. "The committee will begin the year working through the attorney general and Supreme Court nominees, but criminal justice reform will be one of the legislative bills I plan to bring up early on,” he said in a statement. “It cleared the committee with a broad bipartisan majority in the last Congress, and I don't expect that to change.”

The chief authors of the criminal justice overhaul, led by Grassley and Senate Minority Whip Dick Durbin (D-Ill.), will continue to try to drum up more support among senators, while “educating” the Trump administration about their bill’s merits, Grassley said.  The legislation isn’t expected to be substantially different than last year’s version.

Criminal justice reform could’ve been one of the bright, bipartisan spots in an otherwise contentious election year. But despite support from President Barack Obama, powerful congressional Republicans, and a sprawling network of groups from the left and right, the legislation never made it to the floor.  That was partly due to the determined efforts of law-and-order conservatives to steamroll it — and there's little to suggest that if the legislation heads to the Senate floor, that dynamic would change.

Nevertheless, Durbin approached Grassley after the election and pressed the chairman about whether the duo should make another run at it this year, Durbin recalled in a recent phone interview. Grassley was in. And once the chairman tees up the bill this year in his committee, its supporters expect a bipartisan vote similar to the 15-5 tally it received in October 2015.

Durbin and Grassley’s aides have been discussing a strategy to advance the bill in 2017. Aiding their cause is the fact that three opponents — GOP Sens. David Vitter of Louisiana, Jeff Sessions of Alabama and David Perdue of Georgia — are leaving the committee this year, stirring hope that the vote count in favor of the measure could be higher. Vitter no longer serves in the Senate, Sessions is expected to be confirmed as attorney general and Perdue is shifting committees. Replacing them on the influential panel are Sens. Ben Sasse of Nebraska, Mike Crapo of Idaho and John Kennedy of Louisiana. “I think the committee will be just as strong. It may be stronger,” Durbin said. “When you have people like Grassley and Durbin and [Senate Majority Whip John] Cornyn and [Sen. Patrick] Leahy for goodness sakes … it ought to be enough for us.”...

Senate Majority Leader Mitch McConnell (R-Ky.) is rarely eager to take up policy fights that divide his conference — and Democrats point a finger at him as a prime reason why criminal justice reform stalled last year. “The problem we ran into is Sen. McConnell, who didn’t want to call the bill to the floor. He was concerned about the impact on the election and also that the House wasn’t going to take it up,” Durbin said. The question remains going forward, he added, "whether McConnell will give us a chance.” McConnell aide Don Stewart responded that the majority leader spoke several times about the issue in 2016 and “doesn’t need Sen. Durbin to be his spokesman.”

The president-elect ran on a law-and-order platform, but Trump doesn't appear to have weighed in on the Senate measure during his campaign. Another wildcard factor is Sessions, Trump’s pick to become the attorney general.  As a senior member of the Senate Judiciary Committee, he was a fervent opponent of the sentencing overhaul and one of the five votes against it.

But Sen. Thom Tillis (R-N.C.), another supporter of the criminal justice reform effort, speculated that once Sessions becomes the attorney general, his chief objective will be on enforcing what Congress sends him — even if he disagrees with it — rather than slipping into the role of legislator and try to change the laws. “He’s going to be focused on being the nation’s top law enforcement official,” Tillis said. “I don’t necessarily see him weighing in heavily on public policy choices that President Trump makes.”

Durbin said he intends to press Sessions on his views of criminal justice reform and how he’ll handle the issue at the Justice Department when the two meet privately to discuss about his bid to become attorney general on Wednesday.  Though Sessions had wanted to meet earlier, Durbin said Senate Democrats decided as a caucus to not meet with any Cabinet selections until the new year. “I want to know after all of the speeches he gave on the floor against criminal justice reform, what we can expect of him as attorney general,” Durbin said. “I don’t know what he’ll say.”

Still, others speculate that after Washington endures partisan wars over repealing Obamacare and confirming polarizing presidential nominees, Trump will be looking for a bipartisan win. Criminal justice reform could deliver one. “I know we have enough votes to send this to the president’s desk,” Tillis said. Stressing his desire to avoid legislative gridlock, Tillis added: “The election was not a Republican mandate. The election was a results mandate.”

This story is both encouraging and not all that surprising given the events of the last few years surrounding the proposal, debates and modifications of the Sentencing Reform and Corrections Act. The two lines I have emphasized reflect two coming developments that I think are crucial to this developing 2017 federal sentencing reform story:

1. I think it would be a policy mistake, despite the 2015 Judiciary Committee success of the SRCA, for that bill to serve the essential template for new Senate reform legislation. In my view, there are a host of ways a new and improved federal sentencing reform bill could and should be much more streamlined AND I think a new bill could and should garner even more bipartisan support if it also were to include some modest (or even aggressive) mens rea reforms.

2. I think Senators Sessions and Durbin are really critical players here, especially over the next few weeks, as Sessions develops and articulates his priorities as Attorney General and as Durbin seeks to explain why the horrific uptick in violent crime in his own Chicago (Which Prez-Elect Trump has been tweeting about) should not be a reason to tap the brakes on any further federal sentencing reforms.

January 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, January 03, 2017

Eighth Circuit panel reverses district court findings of substantive due process problems with Minnesota's sex offender commitment program

As reported in this local article, a "federal appeals court in St. Louis has reversed a lower-court ruling that Minnesota's sex-offender treatment program is unconstitutional — a major victory for the Minnesota Department of Human Services and a decision that could delay long-awaited reforms to the state's system of indefinite detention for sex offenders."  Here is more about the ruling and its context:

In a decision Tuesday, a three-judge panel of the Eighth Circuit Court of Appeals found that a class of sex offenders who sued the state failed to prove that the Minnesota Sex Offender Program (MSOP) violated their due process rights under the U.S. Constitution. "We conclude that the class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard," the court ruled.

In response, the lead attorney for a class of offenders who sued the state said he is considering an appeal to the U.S. Supreme Court, which must be filed within 90 days. "Justice was not done today," said Dan Gustafson, the attorney for the plaintiffs. "We're still considering what we are going to do but, as Governor Dayton said the other day, we are not going quietly into the night."

Minnesota confines more offenders per capita, and has the lowest release rate, among the 20 states that use civil commitment to confine sex offenders in treatment programs. Only 14 offenders have been conditionally discharged from the program in its more than 20-year history. Of those, seven are currently living in the community. Just one offender has been unconditionally discharged, and that did not occur until August.

In June 2015, federal Judge Donovan Frank in St. Paul, ruling in a lawsuit brought by a group of sex offenders, declared the program unconstitutional for confining offenders indefinitely, after they have already completed their prison terms, without a clear path toward release. The judge ordered state officials to conduct independent evaluations of the roughly 720 offenders confined at secure treatment centers in Moose Lake and St. Peter to determine if they still pose a public safety risk. He also ordered the state to develop less restrictive options for housing offenders in the community.

The unanimous Eighth Circuit panel ruling in this case is available at this link, and it gets started this way:

Class plaintiffs, civilly committed sex offenders, bring a facial and as applied challenge under 42 U.S.C. § 1983, claiming their substantive due process rights have been violated by Minnesota’s Civil Commitment and Treatment Act and by the actions and practices of the managers of the Minnesota Sex Offender Program (MSOP).  The Minnesota state defendants in this action are managers of MSOP — Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services; Kevin Moser, MSOP Facilities Director at Moose Lake; Peter Puffer, MSOP Clinical Director; Nancy Johnston, MSOP Executive Director; Jannine Herbert, MSOP Executive Clinical Director; and Ann Zimmerman, MSOP Security Director (collectively “state defendants”).  After several months of litigation, including a six-week bench trial, the district court found for plaintiffs and entered an expansive injunctive order.  The district court applied incorrect standards of scrutiny when considering plaintiffs’ claims, thus we reverse the finding of substantive due process violations and vacate the injunctive relief order.  We remand to the district court for further proceedings to address the remaining claims.

January 3, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Friday, December 30, 2016

Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns

A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here).  Here is how the opinion starts:

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions.  The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct.  For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."

UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.

ANOTHER UPDATE on January 9, 2017:  I was again alerted by a helpful reader that, as evidenced here,  US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever.  Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.

December 30, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Thursday, December 29, 2016

"Clemency seeker to Obama: please don't forget us"

The title of this post is the headline of this new CNN commentary, authored by Alice Marie Johnson.  Here is how it gets started and concludes:

The week before Christmas, President Obama gave a second chance -- in the form of clemency -- to 231 people. I was not among them, but since many of them, like me, were incarcerated on drug-related charges, I feel I know their stories.  I am only one of thousands of first-time, non-violent offenders given a mandatory and lengthy prison terms after committing a crime under financial distress.

In 1996, I was given a death sentence without sitting on death row. I was convicted as a first-time nonviolent drug offender to life behind bars in federal prison.  Since I went to prison, the laws governing my wrong-doing have changed.  If I were convicted again today for the same crime, my life might look very different.

Last month, as I was preparing to put on a short play I wrote, entitled "The Strength To Be," a fellow inmate pulled me aside and gave me the news that the Obama Administration had just started announcing its next slate of clemencies.  My mind went racing. What if this could be my chance to be reunited with the outside world, to see my family or what is left of it?

For 20 years I have been incarcerated, and I won't lie, it's hard to keep the hope of freedom alive for that long.  But my faith in God has carried me this far.  Despite the impending announcement, I knew that the show had to go on. I channeled the uncertainty of my future into my play and danced a duet to Whitney Houston's song, "I Didn't Know My Own Strength."...

I want this part to be clear: I acknowledge that I have done wrong. I made the biggest mistake of my life to make ends meet and got involved with people selling drugs.  This was a road I never dreamed of venturing down.  I became what is called a telephone mule, passing messages between the distributors and sellers.  I participated in a drug conspiracy and I was wrong.

My trial took a toll on my family.  At the time of my conviction, I had two children in college and a senior in high school. Bryant, the senior, ended up dropping out of school because of the trial.  Tretessa had a good paying job with Motorola and was flying down to support me.  Members of the community were at my hearings encouraging me and hoping for the best.

But I was convicted on October 31, 1996 -- and sentenced to life in prison. The day after my oldest son Charles "celebrated" his 20th birthday.  It was his first birthday spent away from me. It's hard to imagine that I have now served 20 years of my life sentence for that one mistake.  The United States leads the world in incarceration rates, with five percent of the world's incarcerated population and one-quarter of the world's prisoners.  I am one of thousands of first-time, nonviolent offenders who were given mandatory lengthy prison terms.

During my two decades in here, I've become an ordained minister and a mentor to young women who are also in prison.  And if I get out -- I have a job secured, and plan to continue to help those in prison and work hard to change our justice system.  My daughter started a petition to President Obama asking him to grant me clemency, and more than 100,000 people have signed it.  It a source of strength and hope for me -- a chance to be free.

The President has made an incredible push at helping to right the wrongs of our criminal justice system.  I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes.  But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others -- so I also hope he moves quickly.  I hope his administration will process all the applications for clemency currently waiting for the President's review.

No matter what happens, I was not built to break. I will keep writing. I will continue to hold my head high and live a productive life either as a free woman or here behind bars.  God has shown me my strength.

December 29, 2016 in Clemency and Pardons, Drug Offense Sentencing, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, December 28, 2016

Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case

Last month via this Wall Street Journal commentary, two former Justice Department officials Charles Renfrew and James Reynolds advocated for clemency for Sholom Rubashkin in a piece headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony."  This week via this Washington Post commentary, LawProf and former Deputy AG Philip Heymann is making the case for Rubashkin while calling out the Justice Department's failure to address these matters.  The piece is headlined "107 former Justice officials think this case was handled unjustly.  DOJ must act."  Here are excerpts:

“You don’t just try to hammer everybody for as long as you can, because you can,” Deputy Attorney General Sally Yates told the New York Times. That is the right attitude for someone tasked with the fair administration of justice.  Unfortunately, Yates and Attorney General Loretta E. Lynch have, for the past year, rebuffed efforts by me and many other former senior Justice Department officials to even discuss another prosecution in which justice fell far short: the case of Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud.

Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years.  Worse, his sentence was based on perjured testimony and prosecutorial misconduct.

If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons.  In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served.  The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.

Meanwhile, Kevin Techau, the U.S. attorney in Iowa (where Rubashkin was prosecuted), has suggested that Rubashkin used his financial resources to buy the support of so many prominent justice officials. Not only has Rubashkin lost everything he owned in this case, his wife and children now depend heavily on the support of their community for their needs.  Moreover, all 107 of us are working on this pro bono.  Among other things, former deputy attorneys general Larry Thompson, Charles Renfrew and I have traveled to distant meetings and volunteered considerable time to this matter, all on our own nickel.

The facts are clear: Rubashkin was vice president of Agriprocessors, a kosher meatpacking plant based in Postville, Iowa.  In May 2008, more than 500 federal immigration agents raided the plant and arrested hundreds of undocumented workers.  The raid resulted in the company declaring bankruptcy.  Rubashkin was arrested a short time later and charged with bank fraud.  And this is where things went terribly wrong.  The sentence for bank fraud depends on the amount of the loss to creditors. In this case, the prosecution deliberately increased the amount of the loss — and thus the length of Rubashkin’s sentence....

I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case.  Experienced former prosecutors and career Justice Department officials view this case as a stain on an institution created to uphold the law.  If the department’s leadership refuses to act, I hope President Obama pardons Rubashkin and ends this tragedy. The alternative is a display of either blind self-righteousness or frightened defensiveness that is inconsistent with the Justice Department we all have served and respected.

December 28, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Sunday, December 25, 2016

Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts

Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours."  I recommend the full piece and here are some excerpts:

President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”

The president certainly deserves credit for making clemency a priority before leaving office....  Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.”  Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse.  Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”

With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best.  As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....

[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.

Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary.  If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars.  As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met.  To give a list of names would exclude too many people.”...

On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed.  The stories are all too familiar.  They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes.  They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime.  People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.

As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with.  What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”

One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....

Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act.  Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record.  The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....

Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”

The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited.  But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.

But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice.  And the state has not even begun to account for its own mistakes.

I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.

The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.

Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.

December 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, December 24, 2016

Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense

As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:

Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down.  He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills.  He left the computer.

As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day.  He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon.  Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.

But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice."  The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."

The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws.  The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."

The full majority ruling in Louisiana v. Johnson is available at this link.  Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision: 

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.  Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars.  He is now condemned to die in prison for that crime.

We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well.  Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract."  Solem, 463 U.S. at 296.  As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes.  And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature.  No person was harmed, nor any property damaged.  Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)