Wednesday, June 15, 2016

Split Second Circuit panel reverses (on procedural grounds, sort of) 60-year sentence for production and possession of child porn

A few helpful readers helped make sure I did not fail to note the interesting split Second Circuit panel decision handed down yesterday in US v. Brown, No. 13‐1706 (2d Cir. June 14, 2016) (available here).  Here area key passages from the majority opinion authored by Judge Pooler explaining its (procedural?) basis for reversal of a 60-year prison term (with most cites omitted) for the production of child pornography:

At sentencing, the district court noted “the trauma to these three children,” the fact that “three children” would have to “worry for the rest of their li[v]e[s]” about the photographs, and that Brown “destroyed the lives of three specific children.” App’x at 100‐01.  The district court’s explanation suggests that the 2 individual harm suffered by each of Brown’s three victims played a critical role in the district court’s decision to impose three consecutive 20‐year sentences.  But the sentencing transcript also suggests that the district court may have misunderstood the nature of that harm as to Brown’s third victim.  Three times the court emphasized the mental anguish that “three specific children” would suffer as a result of Brown’s abuse. App’x at 100‐01. Brown’s third victim, however, has “no knowledge of having been victimized by Brown.” PSR ¶ 35. Her mother declined to submit a victim impact statement specifically because her daughter “was unaware of the abuse” and had experienced “no negative impact.” PSR ¶ 51.  To be sure, the district court was entitled to punish Brown for that abuse regardless of whether the victim was aware of it.  But given the district court’s repeated emphasis on the fact that Brown had destroyed the lives of “three specific children,” we conclude that it is appropriate to remand for resentencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.

It is possible that, on remand, the district court will reimpose the same 60‐year sentence that it imposed at the original sentencing. Although we express no definitive view on the substantive reasonableness of that sentence at this time, we respectfully suggest that the district court consider whether an effective life sentence is warranted in this case. We understand and emphatically endorse the need to condemn Brown’s crimes in the strongest of terms.

But the Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)....

The sentencing transcript suggests that the district court may have seen no moral difference between Brown and a defendant who murders or violently rapes children, stating that Brown’s crime was “as serious a crime as federal judges confront,” App’x at 101, that Brown was “the worst kind of dangerous sex offender,” App’x at 102, and that he was “exactly like” sex offenders who rape and torture children, App’x at 100.  Punishing Brown as harshly as a murderer arguably frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior.”...

Finally, to the extent that the district court believed it necessary to incapacitate Brown for the rest of his life because of the danger he poses to the public, we note that defendants such as Brown are generally less likely to reoffend as they get older.

Judge Droney authored a lengthy dissent, which gets started this way:

The majority simply disagrees with the length of the imprisonment imposed upon the defendant by the district court, yet it cloaks that disagreement as procedural error.    There was no procedural error, and the sentence was well within the discretion of the district court.  It was also appropriate.  The defendant sexually abused at least three very young girls, recorded that abuse, installed secret cameras in public areas where children changed clothes, and possessed over 25,000 images of child pornography on his computers, including many scenes of bestiality and sadistic treatment.    No doubt this was a lengthy sentence, but it was warranted.   

I dissent.  The district judge committed no error whatsoever— procedural or substantive. 

June 15, 2016 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Tuesday, June 14, 2016

Split en banc Ninth Circuit tries its level best to sort through what Freeman means for crack guideline retroactivity eligibility

This Courthouse News Service article, headlined "Ninth Circuit Tackles Sentencing Disparities," does a nice job explaining the context and particulars of the ruling on a Ninth Circuit en banc court yesterday in US v. Davis, No. 13-301335 (9th Cir. June 13, 2016) (available here). Here are snippets from the press reporting:

Davis pleaded guilty to distributing at least 170.5 grams of crack cocaine in 2005. U.S. District Judge Ronald Leighton, a George W. Bush appointee, sentenced Davis on the higher end of the 188- to 235-month federal guidelines range a year later.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity ratios between crack and powder cocaine down to 18-to-1. The U.S. Sentencing Commission passed an amendment the following year that would allow more than 12,000 drug offenders — 85 percent of whom were black — to apply for retroactive relief. But prosecutors claimed that Davis waived his right to contest his sentence when he signed his plea agreement back in 2005.

After losing two rounds of appeals, Davis notched a small courtroom victory that may help hundreds who received disproportionate sentences. In addressing Davis's case, the San Francisco-based Ninth Circuit Court of Appeals tried to settle a controversy that has raged since the Supreme Court's uncertain conclusion five years ago in Freeman v. United States, which did not clearly define whether defendants could be eligible for retroactively reduced sentences if they pleaded guilty under guidelines that were subsequently reduced.

Although five justices agreed that the appellant in that case should receive reconsideration of his sentence, only four concurred on the lead opinion. Four judges dissented, and Justice Sonia Sotomayor wrote a special concurrence. This left lower courts to puzzle over whether Sotomayor had broken the tie. "To say that Freeman divided the court would be an understatement," U.S. Circuit Judge Richard Paez wrote for a divided 11-judge panel in Monday's majority opinion. "Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor's concurrence."...

Davis has received a fresh opportunity to reduce his sentence, but this does not guarantee that the district judge will grant him relief. Jones Day attorney Nathaniel Garrett, who represents Davis, said in a phone interview that his client's recommended sentence under the federal guidelines should drop dramatically when it returns to the lower court. Garrett noted sentencing guidelines without the 100-to-1 crack-to-powder disparity would range between 78 and 97 months in prison, and Davis already has served 143 months behind bars.

The U.S. Sentencing Commission noted two years ago that at least 71 applications for sentence reductions have been denied because of plea agreements like the one Davis signed, but Garrett believes his client's case would open the way for others to find relief. "What we don't know is how many individuals are in prison who haven't applied because the courts told them that they can't," he said.

Nancy Talner, a senior staff attorney for the American Civil Liberties Union's Washington state affiliate, said in a phone interview that the opinion underscores "how unfair the old crack-cocaine sentencing was."...

In a concurring opinion, U.S. Circuit Judge Morgan Christen agreed that Davis deserved the opportunity to reduce his sentence, but quibbled about how courts should interpret plurality decisions with no clear victors. The majority opinion leaves the possibility open to take dissenting opinions into account, but Christen thought that this could sow more confusion.

"This is not to say that dissents serve no purpose," Christen wrote. "They can and should be read to provide context and a deeper understanding of the court's decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision."

Dissenting Judge Carlos Bea would have rejected Davis's effort entirely. "The district court correctly determined that it lacked jurisdiction to resentence Davis, and the panel should affirm on that basis," he wrote.

Defense attorney Garrett predicted, however, that the majority's "reasoned and thoughtful and thorough" opinion would serve as a guide for other circuit judges who have struggled to interpret the Supreme Court's plurality decisions.

June 14, 2016 in New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, June 13, 2016

"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"

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

The U.S. punishment system is in turmoil.  We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions.  Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented.  The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.

The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means.  This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices.  Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand.  This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.

For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment.  While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender.  For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed.  Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.

June 13, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Intriguing Ninth Circuit ruling about restitution and forfeiture and the Excessive Fines Clause

The Ninth Circuit handed down an interesting new opinion dealing with various challenges to various financial sanctions in US v. Beecroft, No. 12-10175 (9th Cir. June 13, 2016) (available here). Here are snippets from the start and heart of the extended ruling:

Following her convictions for participating in an extensive mortgage-fraud conspiracy, a defendant was ordered to pay more than $2 million in restitution and to forfeit more than $100 million. We must decide whether either amount was erroneously calculated or unconstitutionally excessive....

As noted, Beecroft has not demonstrated error in the district court’s calculation of the amount of losses suffered by the banks injured by Beecroft’s actions. Without error in the loss calculation, Beecroft cannot show that requiring her to pay that amount back to the victims was somehow excessive or grossly disproportional to her crimes, which caused the loss in the first place. And we reiterate that Beecroft was not ordered to pay anything approaching the full amount of the banks’ losses. Uncontroverted evidence was presented to the district court showing that the scheme in which Beecroft participated caused losses in excess of $50 million; requiring her to pay slightly more than $2 million of that back is not an unconstitutional and excessive punishment....

The $107 million Beecroft was ordered to forfeit for the conspiracy (Count 1) stands apart. As with the other counts of conviction, for Count 1 Beecroft could be fined no more than $1 million (with a Guidelines range beginning as low as $20,000). In other words, for Count 1, Beecroft was ordered to forfeit a sum more than 100 times greater than the maximum fine allowable and more than 5,000 times greater than the lower-end of the Guidelines range. Even accounting for the fact that Beecroft faced potentially significant prison time as well, see Mackby, 339 F.3d at 1018, this is a tremendous disconnect between the forfeiture amount and Beecroft’s legally available fine. Indeed, such a disconnect stands out even among forfeiture orders which have previously been held grossly disproportional....

The government cites no case upholding a forfeiture order with a disparity similar to the one here, and it has not attempted to argue that the $107 million otherwise corresponds to injuries sustained by the government or the banks....

We have little doubt that the Eighth Amendment allows Beecroft to be ordered to forfeit a substantial sum of money for her participation in such an extensive and damaging conspiracy. But difficulty remains with the exceptional amount of forfeiture the court did impose. Without even an argument supporting the propriety of the $107 million forfeiture, we have no choice but to conclude that an order which so vastly outpaces the otherwise available penalties for Beecroft’s criminal activity runs afoul of the Excessive Fines Clause. Even on plain-error review, we must vacate the forfeiture order with respect to Count 1 and remand to the district court for reconsideration of that amount in light of the Eighth Amendment’s Excessive Fines Clause.

June 13, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (2)

Friday, June 10, 2016

Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on

This week's entry in the always amusing and informative Relist Watch SCOTUSblog posting by John Elwood has flagged two cases of note for sentencing fans, especially for those especially interested in the continued fall-out from the Supreme Court's big Johnson vagueness ruling last year.  I will reprint, with all the humor and links, Elwood's coverage of these cases:

Our next new relist is Jones v. United States, 15-8629. No, not that one.  Not that one either.  Or that.  Now you’re trying my patience.  Can we just agree it’s a pretty common case caption?  And indeed, this case has been up to the Court once before.  The petitioner in Jones was sentenced to about twenty-one years’ imprisonment under the residual clause of the U.S. Sentencing Guidelines’ career-offender provision.  During its last trip to One First Street, the Court granted cert., vacated the judgment, and remanded (“GVR”) in light of Johnson v. United States, which declared an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) unconstitutionally vague and therefore void.  On remand, the Third Circuit determined that Johnson was inapplicable because Jones’s career-offender designation relied not on the residual clause, but on its “Application Note,” which specifically lists robbery as a predicate offense.  During Jones’s stay in the Third Circuit, the Court held in Welch v. United States that Johnson announced a new substantive constitutional rule that applies retroactively to ACCA cases on collateral review.  Jones poses three questions: (1) whether Johnson applies retroactively to collateral cases challenging the residual clause of the Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the Guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.”

Jones, unsurprisingly, is not one of a kind: It has a doppelganger, Beckles v. United States, 15-8544, which is nearly identical right down to the GVR and raises the same three questions (except that Beckles’s third question presented involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions assert urgency because of the Antiterrorism and Effective Death Penalty Act’s one-year bar: “Prompt resolution of these issues is required because the one-year statute of limitations governing collateral Johnson claims will expire on June 26, 2016,” the petitioners say, adding that “a per curiam opinion on these issues without full briefing or oral argument may be appropriate.” The government opposes cert. because, among other things, the Sentencing Commission has adopted a Guidelines amendment, likely taking effect on August 1, 2016, that deletes the residual clause from the guideline in light of the Court’s concerns in Johnson: “The question of Johnson’s application to the current career offender guideline is therefore likely to be of no continuing importance.”   Both cases got something of a late boost when the Fourth Circuit deepened the split on Wednesday....



Issue: (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.

(relisted after the June 2 Conference)



Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

(relisted after the June 2 Conference)

June 10, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Thursday, June 09, 2016

Seventh Circuit affirms above-guideline child porn sentence given to former Subway pitchman Jared Fogle

A panel of the Seventh Circuit made quick work of the appeal brought by former Subway pitchman Jared Fogle. Readers may recall Fogle received a federal sentence after pleading guilty to various child porn offense of 15 years and eight months, and on appeal Fogle asserted his sentence was unreasonable based on various alleged procedural and substantive errors. Oral argument on Fogle's appeal too place just a few weeks ago, and today this panel opinion affirmed the sentence given to Fogle and winds up this way:

Fogle attacks the district court’s overall reasoning in imposing his sentence. He characterizes the district court’s discussion as “puzzling” and claims that the various factors that the court relied upon cannot reasonably support an enhanced sentence.  For instance, he alleges that an enhanced sentence is not warranted because he only engaged in “[o]ne single act” of distribution. He tries to downplay this conduct by claiming that it was a mere “technical” violation of the statute because he only showed the video to “one individual with whom [he] was then involved with romantically and it occurred in the confines of a locked hotel room.”

Fogle’s arguments regarding substantive error are unpersuasive in light of the deference “we must give … to the district court’s determination that the § 3553(a) factors, taken as a whole, justified the extent of the variance” from the guidelines range.  Scott, 555 F.3d at 610.  The district court provided a thorough explanation for its imposition of an above-guidelines sentence, which is all that was required.  And contrary to Fogle’s allegation of double-counting, the district court properly invoked the § 3553(a) factors and explained why the aggravated nature and circumstances of Fogle’s offenses warranted a higher sentence for both counts.  Specifically, the district court noted that Fogle knew that his employee was secretly videotaping minors yet never reported this to law enforcement, as well as the fact that Fogle repeatedly acted on his attraction to minors rather than limiting himself to fantasies.  The court also discussed how Fogle’s lack of a difficult upbringing failed to mitigate the circumstances of his conviction, and how his celebrity status could be viewed as both a mitigating and aggravating factor.

In light of the district court’s sound exercise of discretion under the disturbing facts of this case, we uphold the aboveguidelines sentence as substantively reasonable.

Prior related posts:

June 9, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

SCOTUS overturns Pennsylvania death sentence because involved DA who became state justice did not recuse

A death row defendant in the Keystone State got a key win on a judicial bias claim from SCOTUS this morning in Williams v. Pennsylvania, No. 15-5040 (S. Ct. June 9, 2016) (available here). Justice Kennedy authored the opinion for the Court, while Chief Justice Roberts dissented in an opinion Justice Alito joined and Justice Thomas authored his own dissenting opinion. Here is how the Court's opinion gets started: 

In this case, the Supreme Court of Pennsylvania vacated the decision of a postconviction court, which had granted relief to a prisoner convicted of first-degree murder and sentenced to death.  One of the justices on the State Supreme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case.  The justice in question denied the prisoner’s motion for recusal and participated in the decision to deny relief.  The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment.

This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “‘is too high to be constitutionally tolerable.’” Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).  Applying this standard, the Court concludes that due process compelled the justice’s recusal.

June 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"

The Room for Debate section of the New York Times has this new set of notable commentaries discussing whether the judicial recall effort in the controversial Standford sexual assault sentencing case is a good idea.  Here is the section's set up:

A California judge sentenced Brock Allen Turner to only six months in jail for raping an unconscious woman after a Stanford University fraternity party, despite her angry, eloquent, courtroom denunciation of the way she and other rape survivors are treated.  In response, a petition was started to hold a recall election to throw him off the bench.

But should judges be subject to recall because of an unpopular sentence or would that impede their independence?

Here are the contributions, with links via the commentary titles:

June 9, 2016 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Wednesday, June 08, 2016

Sixth Circuit on the drug war, immigrant crime, ineffective assistance, jury nullification, Alexander Hamilton and a circuit split all in seven pages

Long-time readers likely realize I do not cover federal circuit court rulings in this space nearly as much as I did in the early days after Blakely and Booker, largely because many of the federal sentencing issues that now occupy circuit have become of late much more settled (or, at times, just much more borring).  But a great little  new Sixth Circuit panel ruling today in Lee v. US, No. 14-5369 (6th Cir. June 8, 2016) (available here), reminded me of why I still make a regular habit of, and can sometime be greatly rewarded by, taking the time to see what the circuit courts are saying in criminal appeals.  As the title of this post highlights, there is a lot of "there there" in the short panel opinion in Lee, and I hope these snippets (with some cites omitted) will encourage everyone to check out the full opinion:

The case against him was very strong.  A government witness was prepared to testify that he had purchased ecstasy from Lee on a number of occasions, dozens of pills were discovered during a lawful search of Lee’s home, and Lee himself admitted not only that he had possessed ecstasy, but also that he had distributed the drug to his friends. In light of this, Lee’s trial attorney advised him to plead guilty in exchange for a lighter sentence.

Here’s the wrinkle: even though he has lived in the United States for decades, Lee, unlike his parents, never became an American citizen, and though he did eventually plead guilty, he did so only after his lawyer assured him that he would not be subject to deportation — “removal,” in the argot of contemporary immigration law.  This advice was wrong: possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable.  Lee understandably does not want to be deported, and he filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255, contending that he received ineffective assistance of counsel....

[T]he district court’s conclusion that the evidence of guilt was “overwhelming” is not clearly erroneous, and deportation would have followed just as readily from a jury conviction as from a guilty plea. Thus, aside from the off chance of jury nullification or the like, Lee stood to gain nothing from going to trial but more prison time. On the other hand, for those such as Lee who have made this country their home for decades, deportation is a very severe consequence, “the equivalent of banishment or exile,” as the Supreme Court memorably put it.  As a factual matter, we do not doubt Lee’s contention that many defendants in his position, had they received accurate advice from counsel, would have decided to risk a longer prison sentence in order to take their chances at trial, slim though they were.

But would such a decision be “rational”? Several courts, including this circuit, have said “no”: being denied the chance to throw “a Hail Mary” at trial does not by itself amount to prejudice.... Others have reached the opposite conclusion....  We have no ability, of course, as a panel, to change camps. A nd in that sense, this is a straightforward case. In Pilla we held that no rational defendant charged with a deportable offense and facing “overwhelming evidence” of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.   Lee finds himself in precisely this position, and he must therefore lose. But given the growing circuit split (which, as best we can tell, has gone unacknowledged), we think it worthwhile to explain why we are convinced that our approach is the right one and to set out the role that we believe deportation consequences should play in evaluating prejudice under Strickland.

We begin, however, by giving the other side its due. As the Seventh Circuit noted in DeBartolo, strong evidence of guilt does not strip a defendant of his right to a jury trial, nor does it guarantee a guilty verdict.  The second point is especially true for defendants such as Lee, since it is well documented that many jurors are willing to acquit those charged with a first-time, non-violent drug offense, despite evidence of guilt. See id. (quoting Lawrence D. Bobo & Victor Thompson, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment, in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010)).

This possibility, at least according to many of this nation’s founders, is not a defect, but a feature of the jury system.  See, e.g., 2 John Adams, The Works of John Adams 254–55 (1850) (“It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Diary Entry, February 12, 1771)).  Indeed, the unreviewable power of juries to acquit, despite strong evidence of guilt, was perhaps the central reason why the right to a jury trial in criminal cases was enshrined in the Constitution.  See Rachel E. Barkow, Criminal Trials, in The Heritage Guide to the Constitution 340, 340–41 (David F. Forte & Matthew Spalding, eds. 2nd ed. 2014).  For the framers and ratifiers, the memory of how King George III had prevented colonial juries from nullifying unpopular English laws by “expand[ing] the jurisdiction of nonjury courts” was still fresh. Id. at 340.  And one of the grievances listed in the Declaration of Independence was that the King had “depriv[ed] us in many cases, of the benefits of Trial by Jury.”  Declaration of Independence para. 20 (U.S. 1776).  It is thus not surprising that nearly all commentators active during the time of the founding favored the inclusion in the new Constitution of the right to a jury trial. See, e.g., The Federalist No. 83, at 432–33 (Alexander Hamilton) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001) (“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.”).

June 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Florida Supreme Court grapples with post-Hurst hydra and state's new capital punishment procedures

Download (1)As reported in this local article, headlined "Justices Try To Sort Out Death Penalty Law," the top judges in the Sunshine State yesterday heard oral argument in a case that requires them to find some clarity in the dark uncertainty concerning the constitutional requirements for death sentencing in the wake of the Supreme Court's Hurst ruling. Here are the details:

The Florida Supreme Court on Tuesday heard arguments in a case focused on whether the state’s new death penalty law is constitutional, and, if so, whether it applies to cases already in the pipeline when the law passed in March.

Tuesday’s hearing was the latest in the court’s months-long scrutiny prompted by a U.S. Supreme Court decision in January that struck down Florida’s death-penalty sentencing process because it unconstitutionally gave too much power to judges, instead of juries.

But the arguments Tuesday in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son, did little to clear up the murky situation surrounding the January ruling, in a case known as Hurst v. Florida, or the new law, hurriedly crafted by lawmakers and signed by Gov. Rick Scott in response to the decision.

“Clearly at this stage in our jurisprudence, we want to make sure that the statute is construed in a constitutional manner so that we don’t have another 15 years of death penalty — if the state wants the death penalty, which apparently it does — in flux,” Justice Barbara Pariente said.

Under Florida’s old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed. That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.

Florida’s new law requires juries to unanimously determine “the existence of at least one aggravating factor” before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed.

Of nearly three dozen states that have the death penalty, Florida is one of just three — including Alabama and Delaware — that do not require unanimous recommendations for a sentence of death. The lack of a unanimous recommendation — a flashpoint for lawmakers, prosecutors and defense lawyers during debate on the new law — was the focus of much of Tuesday’s hearing in the Perry case.

Because Florida’s Constitution requires that jury verdicts be unanimous for convictions, defense lawyers have argued that the death penalty should require a unanimous jury recommendation. Prosecutors, including Attorney General Pam Bondi’s office, disagree.

Chief Justice Jorge Labarga honed in on the issue Tuesday morning. “As you know, 32 states in our country have the death penalty. There are three states who are outliers in this country, Alabama, Delaware and Florida that only require something less than unanimous. … What is the history of Florida in requiring a unanimous verdict?” Labarga asked Martin McClain, a lawyer who has represented more than 250 defendants condemned to death and who made arguments Tuesday as a “friend of the court.” “It’s always been that way in Florida. Since before it was a state, Florida required unanimity in criminal cases for convictions,” McClain replied.

Since the Jan. 12 Hurst ruling, Florida’s high court indefinitely put on hold two executions and heard arguments in more than a dozen death penalty cases, repeatedly asking lawyers on both sides about the impact of the U.S. Supreme Court decision. The Florida court has yet to rule on whether the Hurst decision should be applied retroactively to all, or even some, of Florida’s 390 Death Row inmates.

Perry’s case, meanwhile, hinges on whether the new law should apply to defendants whose prosecutions were underway when the new law went into effect.  While Perry’s lawyer, J. Edwin Mills, argued that the new law should not apply in his client’s case, other defense lawyers are split on the issue. Mills contends his client should receive a life sentence.

Adding more pressure to the justices — who spend much of their time considering appeals in capital cases — lower courts have delayed hearings or decisions in death penalty cases while waiting for Florida Supreme Court to rule, both on the impact of the Hurst decision and on the Perry case.  “Until we get moving forward again, and get a determination from this court as to what Hurst actually means, everything is just sort of up in the air, which is not a good solution for anybody,” Assistant Attorney General Carol Dittmar told the justices Tuesday.

June 8, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 07, 2016

New York Times editorial calls for "federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights"

This new New York Times editorial, headlined "To Stop Bad Prosecutors, Call the Feds," call for improving state criminal justice systems by having more federal oversight of those system. Here is the full editorial, concerning which I am eager to hear reactions:

Prosecutors are the most powerful players in the American criminal justice system.  Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.  So why is it so hard to keep them from breaking the law or violating the Constitution?

The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions.  It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights.  There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.

Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.”  Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence.  Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases.  

Nowhere is this situation worse than in Louisiana, where prosecutors seem to believe they are unconstrained by the Constitution.  This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard.  Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway.  Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.  This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing.  But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.

David Brown’s case is a good example of how every part of the justice system bears some responsibility for not fighting prosecutorial misconduct.  State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear.  Professional ethics boards rarely discipline them.  And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of.  Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.

This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.

The department has used this power to monitor police departments in Los Angeles, New Orleans, Detroit and Seattle, among other municipalities with a history of brutality, wrongful arrests, shootings of unarmed civilians and other illegal or unconstitutional practices.  For the most part, the results have been positive.  Since prosecutors are also “law enforcement officers,” there is no reason they and their offices should be immune from federal oversight.

Of course, many district attorneys’ offices will balk at being put under a federal microscope.  But nothing else has worked to prevent misconduct by prosecutors, and the Justice Department is uniquely equipped to ferret out the worst actors and expose their repeated disregard for the law and the Constitution.

Because I do not closely follow local police practices or federal oversight of local police departments, I am not in a position to question (or concur with) the editorial's assertion that "for the most part, the results have been positive" from DOJ's monitoring of some big-city police departments. But even if DOJ has been generally successful at supervising problematic police practices, I am not certain that this means that it could or would be successful at supervising problematic prosecutorial practices. At the same time, there is good reason to be concerned that, at least in some local jurisdictions, it does seem that "nothing else has worked to prevent misconduct by prosecutors."

Personally, I would generally favor a "sunlight is the best disenfectant" approach to dealing with forms of significant lawyer misconduct: how about the feds calling for states to maintain public on-line registries of all public lawyers (both prosecutors and defense attorneys) who clearly have been found guilty of unconstitutional/unethical behavior. I suspect all criminal lawyers now know just how troublesome it can be to have an "on-line record," and so maybe the threat of such a record of misconduct will help deter such behavior in the first instance.

June 7, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Is SCOTUS essentially telling Alabama its capital punishment process in unconstitutional through Hurst GVRs?

The question in the title of this post is prompted by this notable new local article headlined "For third time in 5 weeks, Supreme Court tells Alabama to reconsider death row case." Here are excerpts:

For the third time in five weeks, the U.S. Supreme Court has told an Alabama appeals court to reconsider an Alabama death row inmate's appeal in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.

Two Alabama attorneys said Monday that the moves by the high court indicate justices may be looking at striking down Alabama's death sentencing scheme as unconstitutional. "Personally, I think its crystal clear the Supreme Court has real concerns about the constitutionality of our current death penalty and is clearly putting us on notice of that fact," said Birmingham attorney John Lentine.

Bryan Stevenson, executive director and founder of the Equal Justice Initiative in Montgomery, also stated in an email to on Monday that "we believe it's now very clear that the U.S. Supreme Court recognizes that Alabama's death penalty scheme is called into question following the Court's ruling in Hurst v. Florida earlier this year. There have been serious flaws in Alabama's process of imposing the death penalty for several years and state courts are going to have to now confront these problems."

The U.S. Supreme Court on Monday remanded the case of Alabama Death Row inmate Ronnie Kirksey back to the Alabama Court of Criminal Appeals for reconsideration of his appeal in light of the Hurst v. Florida decision in January.  The U.S. Supreme Court last month had also ordered the Alabama Court of Criminal Appeals to reconsider its decision in the appeals of Corey Wimbley and Bart Johnson in light of the Florida case....

At issue with Alabama's death penalty scheme is that Alabama permits judges to override a jury's recommendation for a life sentence and impose death. Alabama was one of only three states that allowed such an override. The others were Florida and Delaware. Legislators in Florida's legislature re-wrote its capital punishment sentencing law this spring.

Jefferson County Circuit Judge Tracie Todd in March ruled in four of her capital murder cases that Alabama's capital punishment sentencing scheme is unconstitutional based on the Hurst case. The Alabama Attorney General's Office has appealed Todd's ruling. The decision was spurred by the U.S. Supreme Court's ruling in January that Florida's sentencing scheme allowing judges to override juries in death penalty cases is unconstitutional. Alabama has a similar sentencing scheme.

A number of attorneys around the state have challenged on behalf of their clients the constitutionality of Alabama's capital murder sentencing scheme based on the Florida ruling. All but Todd, however, denied those requests.  District attorneys and Alabama Attorney General Luther Strange have said Alabama's law is not the same as Florida's.

First, Alabama's sentencing scheme was ruled constitutional in 1995 by the U.S. Supreme Court, state prosecutors say. They also have pointed out that the high court held in the Florida case that a jury must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system already requires the jury to do just that, according to an Alabama Attorney General's statement.

A few prior related posts:

June 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, June 06, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

SCOTUS grants cert two notable Texas capital cases

Those eager to see SCOTUS continue to question the operation of the death penalty in the US have some news to celebrate from the court via this new order list: the Justices this morning granted certain two capital cases from Texas, Moore v. Texas and Buck v. Stephens. Over at SCOTUSblog, Amy Howe has already provided this quick response to a question as to whether these Cases are notable:

They are both reasonably interesting.  Moore v. Texas includes both a question about the standard for determining whether an inmate is intellectually disabled and the question whether executing an inmate after a long stay on death row violates the Eighth Amendment's prohibition on cruel and unusual punishment.

The Buck case is about an expert witness for the defense (!) testifying that Buck was likely to be more dangerous and thus more a candidate for death sentence because he is black.

In other words, high-salience issues concerning race, mental disabilities and delays before execution are all before the Court in these cases. Among other likely echo effects from these grants, I suspect this means there will be lots and lots of (mostly abolitionist) commentary about these cases in the weeks and months to come, and also that hearings for the next SCOTUS nominee (whenever they might occur) will include some significant focus on the constitutionality of capital punishment.

UPDATE:  This revised version of the SCOTUS order list indicates that in Moore the Justices will only be considering the way Texas handles application of its Atkins intellectual disability limit on who can be eligible for the death penalty.  Still, as this SCOTUSblog post by Lyle Denniston details, these two cases will still provide plenty of grist for the capital case controversy mill.

June 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Sunday, June 05, 2016

Looking into the Wisconsin case looking into the use of risk-assessment tools at sentencing

The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant's challenge to the use of a risk assessment tool in the state's sentencing process.  The article's full headline notes the essentials: "Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." And here is more from the body of the article:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.  The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing.  The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.

Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.

Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders.  They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.  The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?”  Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.

Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision.  “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.

Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools.  Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.

Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women.  COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.

The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”

June 5, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Might SCOTUS soon (finally!) take up the constitutionality of solitary confinement?

Way back in March 2009, I asked via this post "Why isn't there more constitutional litigation over the 'hellhole' that is extended solitary confinement?".  And last year, as noted this post, Justice Anthony Kennedy essentially asked the same question via a remarkable (off-point) concurrence in the SCOTUS ruling in Davis v. Ayala.  Consequently, I was intrigued to see this new Mother Jones article headlined "The Supreme Court Might Finally Take On Solitary Confinement: The court could announce Monday whether it will consider the long-term solitary confinement of a death row inmate." Here is how the piece gets started:

Bobby Moore has been on death row in Texas for more than 35 years, for a murder he committed in 1980 at the age of 20.  He's come close to dying twice; once, he was hours away from execution before a court intervened.  For the past 15 years, he's been in solitary confinement nearly 23 hours a day, unable to interact with other inmates, in a type of cell described in legal filings as "virtual incubators of psychoses."

The Supreme Court is now considering Moore's claim that his solitary incarceration and the long delay between his conviction and execution are violations of the Eighth Amendment's ban on cruel and unusual punishment.  Moore's petition has been pending for nearly a month, but a decision on whether the Supreme Court will hear it could come on Monday.  If the court takes up the case, its ruling could have profound implications for the nation's nearly 3,000 death row inmates, who are often confined to solitary cells and await execution for an average of more than 15 years.  If Moore wins, not only could he get off death row, but many inmates in his position could follow.

The high court has repeatedly refused to hear cases challenging an excessive delay of an execution as unconstitutional, and it's never directly confronted solitary confinement on death row.  But there are signs that the justices are seriously considering Moore's case.  The court grants only about 70 petitions a year, out of 9,000 filings, so most cases are dismissed quickly.  But it has relisted Moore's case for its weekly review conference three times, an unusual move.

Some of the court's liberal justices have spoken out about long solitary stays on death row for a long time.  Justice John Paul Stevens, who retired in 2010, was a notable advocate for the position that extended incarceration for capital offenders was a clear constitutional violation, one he first embraced more than 20 years ago.  Stevens gained an ally in Justice Stephen Breyer, who wrote in 1999, "It is difficult to deny the suffering inherent in a prolonged wait for execution."  Breyer cited these long waits in a lengthy dissent last year, in which he declared his view that capital punishment in any form is unconstitutional — a dissent joined by Justice Ruth Bader Ginsburg.  Last month, he objected to the court's refusal to take up a California death row case raising the issue, arguing that "unconscionably long delays...undermine the death penalty’s penological purpose."

The conservative justices, though, have been less sympathetic — that is, until 2014, when almost out of the blue, Anthony Kennedy, a Ronald Reagan appointee and the court's frequent swing vote, expressed concern about solitary confinement during oral arguments in a case.  He has since shown more signs that he could eventually be a decisive vote in forcing the court to confront the issue at last.

For various reasons, I would like to see the Supreme Court take up the constitutionality of extended solitary confinement in a non-capital case. But, obviously, that has not happened yet so I suppose my perspective now is that taking up the issue in a capital case is good enough for SCOTUS work.

Some of many prior related posts:

June 5, 2016 in Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, June 03, 2016

Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence

Images (2)Regular readers likely know the name Weldon Angelos and likely recall some of the details of his 55-year mandatory minimum federal sentence based on his convictions for low-level marijuana dealing and firearm possession.  And regular readers likely will also be intrigued and heartened to read this new Washington Post story, headlined "Utah man whose long drug sentence stirred controversy is released," indicating that Weldon was released earlier this week.  Here are the (somewhat mysterious) details:

One federal inmate who was released — but not under Obama’s clemency initiative — is Weldon Angelos, 36, a father of three from Utah who was sentenced in 2004 to a 55-year mandatory minimum prison term in connection with selling marijuana.

The specific circumstances of Angelos’s release are unclear because court records in his case are sealed. But after a long campaign from his supporters, including Sen. Mike Lee (R-Utah), Angelos was quietly released Tuesday after a federal court granted him an immediate reduction in sentence. He was able to immediately go home to his family without serving three months in a halfway house, as those who receive clemency are required to do. The release allowed Angelos to see the son he left at age 7 graduate from high school Thursday.

Angelos is one of the nation’s most famous nonviolent drug offenders and became a symbol of what advocates said was the severity and unfairness of mandatory sentences. His case was championed by the group Families Against Mandatory Minimums, former FBI director Bill Sessions, conservative billionaire Charles Koch and others. Three years ago, more than 100 former judges and prosecutors, former elected and appointed government officials, and prominent authors, scholars, activists and business leaders signed a letter urging Obama to grant Angelos commutation.

In February, former federal judge Paul G. Cassell, who sentenced Angelos, wrote a letter asking Obama to swiftly grant him clemency. Cassell said that the sentence he was forced to impose was “one of the most troubling that I ever faced in my five years on the federal bench” and that it was one of the chief reasons he stepped down as a judge.

But Obama never granted clemency to Angelos. The granting of mercy instead came from the Salt Lake City prosecutor who charged him in the case, according to his lawyer. “After three and half years of inaction on Weldon’s clemency petition, he is free because of the fair and good action of a prosecutor,” attorney Mark W. Osler said. “He returns to citizenship because of the actions of one individual — just not the individual I was expecting. Weldon’s freedom is a wonderful thing but remains just one bright spot among many continuing tragedies.”

A White House spokeswoman said that the White House cannot respond with details about any individual clemency case. Julie Stewart, president of Families Against Mandatory Minimums, called the release of Angelos “fantastic news and past due.”

I am inclined to guess, absent hearing any details to the contrary, that the Utah federal prosecutor agreed to what some have come to call a Holloway motion: a motion first engineered by former Judge John Glesson in the case of Francios Holloway (discussed here) by urging prosecutors to move to undo stacked federal gun charges that had resulted in acrazy-long mandatory minimum prison term.

A few of many prior related posts on Angelos and Holloway cases:

June 3, 2016 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Prez Obama commutes 42 more federal prison sentences

Chart_060316_commutations[1]As reported in this AP piece, this afternoon "President Barack Obama is commuting the sentences of 42 people convicted of drug-related offenses." Here is more:

Obama's latest round of clemency brings to 348 the total number of sentences Obama has commuted since taking office. The pace has increased substantially as Obama approaches the end of his presidency. Roughly half of the 42 receiving commutations Friday were serving life sentences. Most are nonviolent offenders, although a few were also charged with firearms violations.

Obama's commutation shortens their sentences, with most of the inmates set to be released October 1.

White House counsel Neil Eggleston says Obama will keep using his clemency power to give deserving individuals a second chance. Obama has pushed to overhaul the criminal justice system but a bipartisan effort has struggled to maintain momentum.

Via this blog post (which provides the graphic reprinted here), Prez Obama's counsel notes that that "President Obama Has Now Commuted the Sentences of 348 Individuals" and highlights that now "the President has commuted the sentences of more individuals than the past 7 presidents combined." Here is more from the blog posting:

Today, the President announced 42 additional grants of clemency to men and women serving years in prison under outdated and unduly harsh sentencing laws. The individuals receiving a presidential commutation today have more than repaid their debt to society and earned this second chance.

To date, the President has commuted the sentences of 348 individuals -- more than the previous seven Presidents combined. He remains committed to using his clemency power throughout the remainder of the Administration to give more deserving individuals that same second chance....

Despite these important efforts, only legislation can bring about lasting change to the federal system. There remain thousands of men and women in federal prison serving sentences longer than necessary, often due to overly harsh mandatory minimum sentences. That is one reason it is critical that both the House and the Senate continue to cooperate on a bipartisan basis to get a criminal justice reform bill to the President's desk.

June 3, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Conservatives should celebrate Obama’s commutations"

Institute_for_Policy_Innovation_1313374The title of this post is the headline of this new Dallas Morning News commatary.  The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:

The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation.  This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration.  And word out of the White House is that there will be more to come during President Obama’s final months in office.

Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime.  But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.

It’s becoming clear that something has gone very wrong with the justice system in the United States.  Today, the U.S. has the highest incarceration rate in the world.  Too many crimes have been federalized, as opposed to being handled more locally by state and local courts.  Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements.  And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....

Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums.  While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict.  It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.

Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm.  Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison.  Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences.  But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.

Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption.  Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions.  They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”

Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption.  Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive.  Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities.  And libertarians — well, libertarians already get it.

There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration.  But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.

June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Appellate judges certify to Florida Supreme Court whether state sentencing scheme violates Due Process Clause or Eighth Amendment

A helpful reader alerted me to a remarkable decision handed down earlier this week by the Florida's Fourth District Court of Appeals. The reader provided this helpful summary that I could reprint here (with my emphasis added):

The Fourth District Court of Appeal wrote a decision that (in essence) asks our Supreme Court to revisit the constitutionality of our sentencing scheme, a scheme that gives judges complete discretion to sentence a defendant anywhere between a calculated "lowest permissible sentence" and the statutory maximums stacked end to end. This system of nearly unlimited sentencing discretion is everything Judge Frankel decried, and the sentence the court reviewed is a case in point: the defendant was 55 years old, he had no prior record, and his "lowest permissible sentence" was 23.7 months in prison.  For trying and failing to steal three boat motors he was sentenced to 35 years in prison (the statutory maximums stacked end to end), effectively a life sentence.

Judge Gross wrote a thoughtful and scholarly concurring opinion that begins with the history of sentencing in Florida, talks about the evils of unfettered sentencing discretion, and ends with Judge Frankel and his modest proposal that judges be required to explain their sentencing decisions (at present they need say nothing).

Here is the question the court certified to Florida Supreme Court as one of great public importance:

Does a sentence within the statutory maximum under the Criminal Punishment Code violate either the Due Process Clause or Eighth Amendment when it is significantly greater than the lowest permissible sentence on the defendant’s scoresheet or the offered plea and grossly disproportionate to the median sentence imposed for similar crimes within the jurisdiction?

Alfonso-Roche v. Florida, No. 4D13-3689 (Fla. 4th DCA June 1, 2016) (available here).

I do not know enough about Florida's appellate procedures to know if the Florida Supreme Court will now have to, or at least is now very likely to, take up these important constitutional issues.  But for anyone and everyone working in state or federal systems worried about the exercise of unfettered sentencing discretion, this Alfonso-Roche decision is today's must-read.

June 3, 2016 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Tuesday, May 31, 2016

Is "geography" really an "arbitrary feature" of a capital prosecutions?

The question in the title of this post is prompted by this passage today in Justice Breyer's dissent from the denial of certiorari in Tucker V. Louisiana (with my emphasis added):

Lamondre Tucker shot and killed his pregnant girlfriend in 2008.  At the time of the murder, Tucker was 18 years, 5 months, and 6 days old, cf. Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”), and he had an IQ of 74, cf. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (execution of the intellectually disabled violates the Eighth Amendment). Tucker was sentenced to death in a Louisiana county (Caddo Parish) that imposes almost half the death sentences in Louisiana, even though it accounts for only 5% of that State’s population and 5% of its homicides. See Pet. for Cert. 18.

Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography.  See Glossip v. Gross, 576 U. S. ___, ___–___ (2015) (BREYER, J., dissenting) (slip op., at 12–14).  One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row.

I do not dispute that Tucker might not have been sent to death row if he had committed the same murder, and had been tried and sentenced, in another county. Indeed, one can certainly assert that had Tucker committed the same murder in, say, Michigan, a state without te death penalty, he definitely would not be on death row.  But, I do not think it quite right to call this geographic reality "an arbitrary feature of his case."  Arbitrary means "not based on reason," but there are many (seemingly sound) reasons why geography often will define and influence how a capital prosecution proceeds.

Most obviously, a criminal being capitally prosecuted has generally picked where his murder took place, and he typically will be (and some times only can be) prosecuted in a particular locality due to his own homicidal choices.  Moreover, the locality where a murder is committed necessarily experiences the impact of the crime most directly, and local decision-makers ought to be most responsive to local concerns as to how best to respond to that murder.  And, a locality's prosecutors and judges and jurors have all been selected to be respresentative of local community views and judgments.  (Indeed, in his concurring opinion in Ring v. Arizona, Justice Breyer made much of a "community’s moral sensibility" in the resolution of capital cases and the importance of a jury's role in reflecting "a community’s sense of capital punishment’s appropriateness in a particular case.")

In other words, to parrot a newly popular SCOTUS term, I think it is nonsense to call geography an "arbitrary feature" of a criminal case. And while lots of abolitionists complain about the impact of geography on the adminstration of capital punishment, I have never found this complaint to be conceptually convincing or nearly as compelling as other arguments against the modern administration of the death penalty.

May 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14)

SCOTUS order list inclludes a couple notable criminal appeal summary reversals

The Supreme Court returned from the long weekend with this long order list, which includes a few long per curiam decision in an habeas case from the Ninth Circuit (Johnson v. Lee) and a capital case from Arizona (Lynch v. Arizona). In addition, the Court denied cert in Tucker v. Louisiana, a case in which the constitutionality of the death penalty was directly challened and Justice Breyer (joined by Justice Ginsburg) dissented in an opinion that calls again for taking up this question.

Notably, the Ninth Circuit (and the criminal defendant) is the loser in Lee, whereas the capital defendant prevails in Lynch.  There was not dissent from the ruling in Lee, but Justice Thomas (joined by Jusice Alito) dissented from Lynch.

May 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Friday, May 27, 2016

Split Iowa Supreme Court decides any and every "sentence of life without the possibility of parole for a juvenile offender violates article I, section 17 of the Iowa Constitution"

As noted in prior posts here and here, yesterday brought notable post-Miller juve sentencing decisions from state supreme courts in California and Florida. But today the Iowa Supreme Court has one-upped its colleagues via its post-Miller ruling in Iowa v. Sweet, No. 14–0455 (Iowa May 27, 2016) (available here).  The lengthy majority opinon in Sweet wraps up this way:

In sum, we conclude that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders’ prospects for rehabilitation because they lack adequate predictive information supporting such a decision. The parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available. See Seats, 865 N.W.2d at 557 (“Even if the judge sentences the juvenile to life in prison with parole, it does not mean the parole board will release the juvenile from prison.”); see also State v. Andrews, 329 S.W.3d 369, 379 (Mo. 2010) (Wolff, J., dissenting) (noting an offender sentenced to life with parole may nonetheless “spend the rest of his life in prison if the parole board does not determine that he is suitable for parole release”).  Steinberg has poignantly made this very point:

It’s not only adolescents’ immature judgment that demands that we treat them differently when they break the law.  If the plasticity of the adolescent brain makes juveniles more amenable to rehabilitation, this argues against mandatory life sentences that don’t allow courts to consider whether an impulsive or impressionable teenager might grow into a law-abiding adult who can control his impulses and stand up to peer pressure.  Of course, a teenager who kills another person deliberately should be punished — no one is arguing otherwise.  But should he be incarcerated for the rest of his life, with no chance to prove that he has matured?

Steinberg at 188. Thus, juvenile offenders’ prospects for rehabilitation augur forcefully against speculative, up-front determinations of opportunities for parole and leads inexorably to the categorical elimination of life-without-the-possibility-of-parole sentences for juvenile offenders.

For the above reasons, we adopt a categorical rule that juvenile offenders may not be sentenced to life without the possibility of parole under article I, section 17 of the Iowa Constitution. As a result, the sentence of the district court in this case is vacated and the matter remanded to the district court for resentencing.

Nothing in this opinion, of course, suggests that a juvenile offender is entitled to parole.  The State is not required to make such a guarantee, and those who over time show irredeemable corruption will no doubt spend their lives in prison.  The determination of irredeemable corruption, however, must be made when the information is available to make that determination and not at a time when the juvenile character is a work in progress.

A lengthy dissent authored by Justice Mansfield gets started this way:

Recognizing that our legislature and our trial courts have the primary role in determining criminal sentences, I would affirm the life-without-parole (LWOP) sentence for this seventeen year old who murdered his grandparents who had raised him.

Today, the court breaks new ground in finding that the Iowa Constitution categorically forbids such sentences.  As I will explain below, I believe the justification offered by the majority for its ruling is insufficient.  More is needed before we strike down a legislatively authorized sentence — especially one the general assembly reauthorized by large majorities in both houses just last year.

May 27, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, May 26, 2016

Split Florida Supreme Court finds technical eligibility for parole insufficient to comply with Miller Eighth Amendment requirements

The Florida Supreme Court today handed down a notable new opinion applying Miller in a case involving a juvenile offender who got a life sentence for a murder back in 1990.  Here is how the opinion in Atwell v. Florida, No. SC14-193 (Fla. May 26, 2016) (available here), gets started:

Angelo Atwell was sixteen years old when, in August 1990, he committed armed robbery and first-degree murder. Under the statute then in effect, Atwell was sentenced for the first-degree murder to a mandatory term of life imprisonment, with the possibility of parole after twenty-five years, and was sentenced to life imprisonment without the possibility of parole for the armed robbery.

As mandated by the existing statutory scheme, Florida’s parole process requires “primary weight” to be given to the “seriousness of the offender’s present offense and the offender’s past criminal record.” See § 947.002, Fla. Stat. (2015). Under this statutory scheme, twenty-five years after Atwell was sentenced, the Commission on Offender Review conducted a parole hearing and set Atwell’s presumptive parole release date, which is the earliest date he may be released from prison as determined by objective parole guidelines, for the year 2130—one hundred and forty years after the crime and far exceeding Atwell’s life expectancy. Thus, while technically Atwell is parole-eligible, it is a virtual certainty that Atwell will spend the rest of his life in prison.

The issue we consider is whether Atwell’s sentence for first-degree murder is constitutional, in light of the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), which held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” We conclude that Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional. 

May 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

This breaking news just in: the Connecticut death penalty is still dead

Download (2)I am demonstrating my age (and my affinity for Saturday Night Live) when I thought of one of the first famous SNL catch-phrases upon seeing this new local headline from Connecticut: "State Supreme Court Upholds Abolishment Of Death Penalty, Including For Death-Row Inmates."  Here are the serious details of a serious decision that prompted my not-so-serious reaction:

The Connecticut Supreme Court has upheld its decision to abolish the state's death penalty, including for inmates on death row. The 5-2 ruling, released Thursday, upholds the justices 4-3 decision last August that the death penalty was unconstitutional for all — including 11 convicts on Connecticut's death row — following the legislature's abolition three years ago of capital punishment in Connecticut. Lawmakers made the law prospective, meaning it applied only to new cases and kept in place the death sentences already imposed on those facing execution before the bill was passed.

Attorneys for those on death row challenged the law, saying it violated the condemned inmates' constitutional rights. The ruling last August came in the case of Eduardo Santiago, who had faced the death penalty for the December 2000 killing of Joseph Niwinski in West Hartford. Santiago has been resentenced to life in prison without the possibility of release.  In the August ruling, the justices in the majority wrote that executing an inmate "would violate the state constitutional prohibition against cruel and unusual punishment" and that the death penalty "no longer comports with contemporary standards of decency."

Chief Justice Chase T. Rogers, who joined with Justice Carmen E. Espinosa and Justice Peter T. Zarella in the August dissents, voted this time with the majority, saying she felt bound to the doctrine of "stare decisis," a Latin term meaning "stand by things decided."

"Just as my personal beliefs cannot drive my decision-making, I feel bound by the doctrine of stare decisis in this case for one simple reason — my respect for the rule of law," Rogers wrote. "To reverse an important constitutional issue within a period of less than one year solely because of a change in justices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court's integrity and the rule of law in the state of Connecticut."

Rogers said, "stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty."

In separate dissents, Zarella and Espinosa rejected the assertion that respect for precedent mandated Thursday's ruling, saying that doctrine should never be used to enshrine a flawed decision. And they pointedly noted that Rogers herself had blasted the original Santiago decision as "a house of cards, falling under the slightest breath of scrutiny." They also criticized Justice Richard A. Robinson, who came on the court after the Santiago decision and voted with the majority, along with justices Richard N. Palmer, Dennis G. Eveleigh and Andrew J. McDonald. Like Rogers, Robinson cited the importance of respecting precedent.

"I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error," Zarella wrote....

Gov. Dannel P. Malloy, in a statement released Thursday afternoon, said the ruling "reaffirms what the court has already said: those currently serving on death row will serve the rest of their life in prison with no possibility of ever obtaining freedom."  Malloy noted that Connecticut in the last half century has executed only two inmates, both of whom volunteered for death....

Chief State's Attorney Kevin T. Kane said his office respects the decision and would "move forward" to re-sentence the individuals currently on death row to a sentence of life in prison without the possibility of release.  "The Division of Criminal Justice and I extend our deepest sympathy and condolences to the victims of these crimes and to their families," Kane said in a statement.  "I also wish to express my appreciation to the dedicated professionals in the Division of Criminal Justice who have devoted so much of themselves throughout this process."

All the opinions in this new case can be found right now at this Connecticut Supreme Court link.

May 26, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Creating Meaningful Opportunities for Release: Graham, Miller and California's Youth Offender Parole Hearings"

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

This article presents findings from a study on the implementation of California’s new Youth Offender Parole Hearing law, which aims to provide juvenile offenders with meaningful opportunities to obtain release from adult prison.  It contributes to the debate surrounding how to apply the “meaningful opportunity to obtain release” standard that the Supreme Court deliberately left open to interpretation in Graham v. Florida and, to some extent, in Miller v. Alabama. The Supreme Court’s recent opinion in Montgomery v. Louisiana reinforces the idea that juveniles who demonstrate that they are capable of change are entitled to release.

The data contained in this Article was obtained by reviewing the transcripts of the first 107 Youth Offender Parole Hearings; this sample represents all but two of the Youth Offender Parole Hearings that took place between January 2014 and June 2014.  In the first six months of the law’s implementation, juvenile offenders were found suitable for parole at younger ages than the general population.  Further, youth offenders appeared to have a more realistic chance of being released under the new law. This reform is, at the very least, an important step towards offering juvenile offenders more meaningful opportunities to earn their release from prison.  At the same time, it does not go far enough.  After discussing some limitations of the law, this Article concludes by recommending guidelines that would provide youth offenders more meaningful opportunities for release in parole hearings. 

May 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, May 25, 2016

"Many serving sentences for marijuana offenses deserve clemency"

The title of this post is the headline of this recent San Francisco Chronicle commentary authored by Alex Contreras, a former federal inmate serving a 40-year sentence for drug and gun charges who received clemency from President Obama in December 2015.  Here is the text:

More than 10,000 clemency applicants wake up every day in a federal prison, awaiting an answer from President Obama on whether their lengthy prison sentence will come to an end. Most of them will be crushed when they are eventually denied.  There are a few, however, who will realize the unlikely and overwhelming joy of finally being released. I was one of those rare few whose name was on the list of Obama’s recent clemency grants.  And while I was excited to finally be going home — and extremely grateful to the president — I was also perplexed by those who weren’t on the list.

In speaking about criminal justice reform, Obama has highlighted the injustice of incarcerating marijuana offenders for “long stretches,” and has described marijuana as being “less harmful than alcohol” and a “vice,” not unlike cigarette smoking. He also instructed his Justice Department to not prosecute medical or recreational marijuana sellers who are operating under state law.  But his pool of clemency recipients does not reflect these views.

Out of the 306 clemency grants, less than 3 percent were marijuana offenders, and not one of them was a medical marijuana provider, despite being the most deserving given that they were following state law and the Obama administration is no longer prosecuting them. Some of them are even serving decades in prison.

One such inmate is Ricardo Montes, a Latino serving a harsh mandatory 20-year sentence for operating a medical marijuana dispensary in Modesto under California law.  Montes and his co-defendant received the longest sentences ever doled out to any medical marijuana provider, because — during the aggressive George W. Bush administration — they were charged under a fearsome mandatory minimum statue designed for drug kingpins and dangerous cartels.

Individuals like Montes are even more deserving of clemency than I was.  Yet I fear that men such as Montes will be left to serve the remainder of their lengthy prison terms, while others reap the rewards of the change in the legal landscape of our nation’s marijuana policies. I hope that Obama’s remaining clemency grants will reflect his sensible views regarding marijuana, ensuring that our criminal justice system “keeps its basic promise of equal treatment for all.”

May 25, 2016 in Clemency and Pardons, Drug Offense Sentencing, Examples of "over-punishment", Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Making a friendly pitch for SCOTUS to consider constitutional limits on extreme judicial sentencing increase based on uncharged homicide

Regular readers know that I have long been troubled by significant sentence increases by judges based on so-called acquitted conduct, and that I have filed a number of federal appellate briefs articulating my concerns. Building on some of that prior work, I recently had a chance to work on an amicus brief in support of certiorari in Hebert v. US, a case out of the Fifth Circuit involving an extreme sentence increase based on uncharged conduct. The full amicus (which the fine folks at the Jones Day in DC made so fine) can be downloaded below, and here are excerpts from its start providing context and key arguments:

It is difficult to imagine a starker violation of the Sixth Amendment and due process than what transpired below. Mr. Hebert pleaded guilty to a $16,000 fraud that carried a guidelines range topping out at 5 years.  After persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime, the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed. The Government then asked the district court to find it was more likely than not that Mr. Hebert committed this un-charged, non-admitted, never-convicted, non-federal crime. Then, on the basis of that judicial determination, the district court gave Mr. Hebert a 92-year sentence — a sentence the Government has conceded and the Fifth Circuit recognized “would have been substantively unreasonable under the post-Booker sentencing regime absent a judicial finding of murder,” Pet.App.22a — again, a crime with which Mr. Hebert has never even been charged.

Because Mr. Hebert has never been charged with — much less convicted of — murder, he remains entirely innocent of that crime. If the Government wishes to convict Mr. Hebert of murder, it is welcome to try.  But what it cannot do is use Mr. Hebert’s confession to lesser crimes as the springboard for de facto convicting him of a far more serious crime in a judicial proceeding with no jury, the civil standard of proof, and none of the criminal justice system’s fundamental rules and procedures....

There are at least two constitutional provisions that, under this Court’s well-established jurisprudence, forbid this inverted regime.  First, this Court has made clear that a criminal defendant has a Sixth Amendment “right to have a jury find the facts behind his punishment.” Hurst v. Florida, 136 S. Ct. 616, 621 (2016).  That right reflects the vital role of the jury as the “circuitbreaker in the State’s machinery of justice” — a role that cannot be “relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306–07 (2004).  The Sixth Amendment right to a jury trial is a constitutional protection of “surpassing importance,” Apprendi, 530 U.S. at 476, yet the decision below makes a mockery of it....

Second, this Court has long recognized that due process forbids grossly unfair procedures when a person’s liberty is at stake. Specifically, this Court has indicated that (1) judges are sometimes limited from imposing distinct new punishments based on “a new finding of fact that was not an ingredient of the offense charged,” Specht v. Patterson, 386 U.S. 605, 608 (1967) (citation omitted); (2) the “safeguards of due process” in criminal cases are “concerned with substance rather than [any] kind of formalism,” Mullaney v. Wilbur, 421 U.S. 684, 698–99 (1975); and (3) constitutional concerns are raised whenever sentencing findings become “a tail which wags the dog of the substantive offense,” or when the government restructures criminal prosecutions “to ‘evade’ the commands” of the Constitution. McMillan v. Pennsylvania, 477 U.S. 79, 88–89 (1986).

The simple principle that unifies these decisions is fatal to the legal rule embraced below: Due process forbids prosecutors from manipulating the criminal justice system to evade its core protections.  Applied here, that principle barred prosecutors from waylaying Mr. Hebert at sentencing with allegations of a far more serious crime for which he has never been indicted or convicted — allegations that depend, moreover, on evidence which the prosecutors were apparently unwilling to subject to the crucible of a criminal trial or test against the burden of proof they must carry there.  Due process demands more.

Download Berman Amicus in Support of Cert in Hebert

May 25, 2016 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Tuesday, May 24, 2016

Dynamic commentary on SCOTUS work in Foster and related Monday news

A number of bright folks have already had some dynamic takes the Supreme Court's rulings yesterday in the Georgia capital case, Foster v. Chapman.  Organized alphabetically by location of the commentary, here are a few early takes that caught my eye:

The pieces by Epps and Otis are extra-notable because they link into their discussions the SCOTUS Miller remands and the not guilty verdict in a Freddy Gray prosecution, respectively.

UPDATE Scott Greenfield made via Twitter the excellent point that the list above included only "commentaries on Foster from people who don't pick juries & nothing from anyone who does." So, with Scott's help, I am here rounding out my round-up of Foster takes:

May 24, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Virginia Republicans go directly to state Supreme Court to try to undo Gov's clemency order restoring vote to former felons

As first reported in this post last month, Gov Terry McAuliffe of Virginia used his executive clemency powers to restore voting rights to more than 200,000 former felons who had been permanently disenfranchised under Virginia's state election laws.  Now, as reported in this Washington Post piece, political opponents are going to court to try to undo this effort to allow more people to participate in democracy.  Here are the details:

Leaders of Virginia’s House and Senate went to the state’s highest court Monday in a bid to reverse Gov. Terry McAuliffe’s sweeping order to restore voting rights to 206,000 felons. Skipping lower courts, they filed a complaint with the Supreme Court of Virginia, contending that McAuliffe (D) exceeded his authority in April when he restored voting rights to felons en masse instead of individually.

The lawsuit — bankrolled by private donors — presents a complex constitutional question with the urgency of presidential election-year politics. Republicans are seeking an expedited review so that reinstated ex-cons who have registered to vote can be stripped from the rolls before November.

Virginia governors have restored felons’ voting rights, but none with anything close to McAuliffe’s scale and speed. “From Patrick Henry and Thomas Jefferson to Tim Kaine and Bob McDonnell, every Governor of Virginia has understood the clemency power to authorize the Governor to grant clemency on an individualized basis only,” said the lawsuit, filed on behalf of House Speaker William J. Howell (R-Stafford), Senate Majority Leader Thomas K. Norment Jr. (R-James City) and four other Virginia voters....

The governor says that his move helps former convicts to fully reenter society. Republicans call it a favor to Democratic presidential front-runner Hillary Clinton, McAuliffe’s close friend and political ally, who could benefit from higher numbers of minority voters in the crucial swing state.

McAuliffe blasted the lawsuit, suggesting that Republicans were trying to hold onto a remnant of the Jim Crow era, since African Americans have been disproportionately affected by felon disenfranchisement. One in four African Americans in Virginia had been banned from voting because of laws restricting the rights of those with convictions.

“Today Republicans filed a lawsuit to preserve a policy of disenfranchisement that has been used intentionally to suppress the voices of qualified voters, particularly African Americans, for more than a century,” McAuliffe said in a written statement. “These individuals have served their time and are now living, raising families and paying taxes in our communities — this suit is an effort to continue to treat them as second-class citizens.”...

The lawsuit, filed by Charles J. Cooper, who ran the Office of Legal Counsel under President Ronald Reagan, pushed back against the claim that felon disenfranchisement was rooted in racism. “Governor McAuliffe has falsely suggested that Virginia’s felon disenfranchisement provision was first introduced into the Constitution after the Civil War for the purpose of disenfranchising African-Americans,” the lawsuit says. “But Virginia has prohibited felons from voting since at least 1830 — decades before African-Americans could vote.”...

McAuliffe’s predecessor, Republican Robert F. McDonnell, simplified and sped up the application process for nonviolent offenders. When he was governor, Democrat Timothy M. Kaine, now a U.S. senator, considered a broader action but opted against it on the advice of his senior counsel, Mark Rubin. “A blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers,” Rubin wrote in 2010. “And, the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”

McAuliffe’s order also allows ex-felons to serve on juries, run for public office and apply for restoration of their gun rights. It applies to all ex-felons, including those guilty of violent offenses such as murder and rape — a point emphasized by Republicans. The lawsuit notes that attorneys for a man accused of killing a state police trooper in Dinwiddie County are seeking to have felons whose civil rights were restored added to the pool of eligible jurors for his trial.

The McAuliffe administration notes that felons would still need a judge’s approval before winning back their gun rights and would still be vetted by the jury selection process before being added to such a panel. McAuliffe said that nearly 80 percent of those affected by his order were convicted of nonviolent offenses. Still, Republicans say, that means McAuliffe restored rights to 40,000 violent felons.

Prior related posts:

May 24, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Monday, May 23, 2016

SCOTUS has "firm conviction" strikes in Georgia capital case were "motivated in substantial part by discriminatory intent"

The Supreme Court's one criminal justice ruling today comes in Foster v. Chatman, 14-8349 (S. Ct. May 23, 2016) (available here), a capital case out of Georgia involving a Batson claim. Chief Justice Roberts wrote the opinion for the Court, which garnered six votes, and its ruling is reasonably summarized via these passages: 

As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.” 545 U. S. 231, 241 (2005). With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 478, 485....

The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting....

The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.

Justice Alito has an interesting corcurrence about procedures that I will likely discuss in another post. Justice Thomas, in notable contrast, dissents on the merits, and his dissent starts this way:

Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing. In the decades since, Foster has sought to vacate his conviction and death sentence on the ground that prosecutors violated Batson v. Kentucky, 476 U. S. 79 (1986), when they struck all black prospective jurors before his trial.  Time and again, the state courts have rejected that claim.  The trial court twice rejected it, and the Supreme Court of Georgia unequivocally rejected it when Foster directly appealed his conviction and sentence. Foster v. State, 258 Ga. 736, 736, n. 1, 738–739, 374 S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S. 1085 (1989).  A state habeas court rejected it in 2013. App. 175–176, 192–196.  And most recently, the Supreme Court of Georgia again rejected it as lacking “arguable merit,” Ga. Sup. Ct. Rule 36 (2001). See App. 246.

Yet, today — nearly three decades removed from voir dire — the Court rules in Foster’s favor.  It does so without adequately grappling with the possibility that we lack jurisdiction. Moreover, the Court’s ruling on the merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential Batson inquiry.  I respectfully dissent.

May 23, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

SCOTUS concurrences explore what Montgomery GVRs might mean for juve murderers originally sentenced to death

Continuing its recent trend, the short-staffed Supreem Court opted in this new order list not to grant certiorari review in any new cases.  But the list still has some intrigue for sentencing fans thanks to dueling concurrences in a set of cases vacated and remanded for further consideration in light of Montgomery v. Louisiana.  The start of Justice Alito's corcurrence in Adams v. Alabama sets up what makes these cases potentially different from other post-Montgomery GVRs:

The present case differs from most of those in which the Court grants, vacates, and remands for reconsideration in light of Montgomery.  The petitioner in this case — as with a few others now before the Court — was sentenced to death prior to our decision in Roper v. Simmons, 543 U. S. 551 (2005), which held that the Eighth Amendment prohibits a death sentence for a minor. During that pre-Roper period, juries in capital cases were required at the penalty phase to consider “all relevant mitigating evidence,” including “the chronological age of a minor” and a youthful defendant’s “mental and emotional development.” Eddings v. Oklahoma, 455 U. S. 104, 116–117 (1982); see also Roper v. Simmons, supra, at 603 (O’Connor, J., dissenting) (“A defendant’s youth or immaturity is, of course, a paradigmatic example” of the type of mitigating evidence to which a “sentencer in a capital case must be permitted to give full effect”). After Roper, death sentences imposed on prisoners convicted of murders committed as minors were reduced to lesser sentences.

Justice Alito goes on to explain his view that this case history might be of constitutional consequence now:

In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed.  In these cases, the sentencer necessarily rejected the argument that the defendant’s youth and immaturity called for the lesser sentence of life imprisonment without parole.  It can therefore be argued that such a sentencer would surely have felt that the defendant’s youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future.  In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “‘child’” whose crimes reflected “‘unfortunate yet transient immaturity,’” post, at 2 (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand), but was instead one of the rare minors who deserves life without parole.

Justice Stotmayor is not so sure that Justice Alito's view on this matter should carry the day on remand, and she explains why in her concurrence:

Miller v. Alabama, 567 U. S. ___ (2012), did not merely impose an “individualized sentencing requirement”; it imposed a substantive rule that life without parole is only an appropriate punishment for “the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery, 577 U.S., at ___ (slip op., at 17) (internal quotation marks omitted). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op., at 16–17) (same).  There is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected “transient immaturity” or “irreparable corruption.” 577 U.S., at ___–___ (slip op., at 16–17).

The last factfinders to consider petitioners’ youth did so more than 10 — and in most cases more than 20 — years ago. (Petitioners’ post-Roper resentencings were generally automatic.)  Those factfinders did not have the benefit of this Court’s guidance regarding the “diminished culpability of juveniles” and the ways that “penological justifications” apply to juveniles with “lesser force than to adults.”  Roper, 543 U.S., at 571.  As importantly, they did not have the benefit of this Court’s repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption: “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Id., at 570; see also id., at 573; Miller, 567 U. S., at __ (slip op., at 17).

May 23, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, May 21, 2016

DAG Yates spotlights in commencement speech role of Georgia School of Law in clemency achievement

Today, Deputy Attorney General Sally Yates returned to her alma mater, the University of Georgia School of Law, to deliver this Commencement address. Like all good Commencement addresses, the whole piece is a lovely read. But sentencing fans should be especially interested in these closing comments:

I’d like to close by telling you about a recent intersection between the work of some students graduating here today and my work in Washington.  As some of you may know, the Obama Administration has embarked on a clemency initiative designed to address the disproportionately long sentences given to lower-level, non-violent drug offenders who were sentenced under outdated drug laws.  As Deputy Attorney General, I am charged with making a recommendation to President Obama on each petition. One such recent clemency petition was prepared by two of today’s graduates. These students participated in the representation of a man named Steven Boyd.  In 1998, Mr. Boyd was convicted of selling crack and sentenced to life in prison. He had absolutely no history of violence and other than a few small time drug deals, no other criminal history. Yet the harsh mandatory minimum statutes in effect at the time mandated a life sentence.  That’s life with no possibility of parole. The students prepared Mr. Boyd’s petition for clemency and submitted it to the Justice Department.  That petition made its way to my desk and then on to the White House. And just three weeks ago, the president granted Mr. Boyd’s clemency petition. Mr. Boyd served 18 years and paid his debt to society. As a result of your classmates’ hard work and their commitment to their duty as lawyers, Mr. Boyd will be a free man. Your classmates unlocked justice for Steven Boyd.

Each and every one of you has both the capacity and the obligation, in the words of Attorney General Kennedy, to breathe meaning and force into the pursuit of justice.  I hope that you will seize opportunities to right wrongs large and small, that you will stand up for the voiceless and that you will uphold the promise of our country. I hope that you will use the key that you are about to receive to unlock justice.

May 21, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, May 20, 2016

Does anyone think former Subway pitchman Jared Fogle has any real chance to have his long federal sentence reversed as unreasonable?

The question in the title of this post is prompted by this local story discussing the high-profile sentencing appeal being heard today by the Seventh Circuit.  Here are the basic details:

Former Subway pitchman Jared Fogle is asking a federal appeals court judge to shorten his nearly 16-year prison sentence. A hearing on Fogle's appeal, which is scheduled this morning in the U.S. 7th Circuit Court of Appeals in Chicago, comes about six months after U.S. District Judge Tanya Walton Pratt sentenced Fogle to 15 years and eight months in federal prison.

Fogle argued that his sentence was unreasonable and that Pratt abused her discretion when she went beyond the sentence that federal prosecutors had recommended as part of a plea agreement.

The one-time face of Subway sandwiches pleaded guilty to possession or distribution of child pornography and traveling across state lines to have commercial sex with a minor. Prosecutors recommended a maximum sentence of 12.5 years, while Fogle's defense attorneys asked for five years....

On appeal, Fogle argued that the sentence he received is "procedurally flawed" for three reasons. First, Fogle did not plead guilty to production of child pornography, and he played no role in producing the images and videos he received from Taylor, according to court records filed by Fogle's attorney.

Second, the punishment is "erroneously grounded in acts that Fogle didn't do and in Fogle's fantasies," neither of which should have been used to justify an enhanced sentence, court records say. "Notwithstanding any fantasies Fogle may have had, or his discussions with third parties concerning possible sexual contact with children younger than the prostituted minors, these events never ultimately culminated in any chargeable criminal activity," court records say.

Third, the sentence was erroneously based on Fogle collecting and viewing pornography of children as young as 6. Fogle argued that although he viewed pornographic images of children, he neither collected them nor asked Taylor for the images.

The district court also seemed to punish Fogle for seeking treatment after his arrest, court records say, and erroneously rejected a probation officer's recommendation for a less harsh sentence based on the additional stress and collateral damage he will endure because of his notoriety.

Fogle also argued that he never had sex with the minors whom Taylor recorded, and never shared any of the pornographic images and videos with anyone other than on one occasion, when he showed them to a woman with whom Fogle was romantically involved. Although he expressed interest in having sex with minors as young as 14, court records say, he never actually did.

In response to Fogle's arguments, federal prosecutors said Pratt "thoroughly and appropriately explored the unusual nature and circumstances of Fogle's offenses and his history and characteristics." Although Fogle was not involved in the production of child pornography, "he knew where the production took place, knew that it was going to happen, and did nothing, instead waiting for his chance to receive the material," according to court records filed by the U.S. attorney's office.

While prosecutors acknowledged the differences between Fogle and Taylor, they said Fogle rationalized and encouraged Taylor's conduct — and, for several years, benefited from it. "Fogle's fantasies were grounded in reality, in that he fantasized about and sought actively to repeat what he had already done, i.e., pay minors for sex," court records say.

Prosecutors also echoed Pratt's statements during Fogle's sentencing hearing last November. Fogle, unlike many offenders, had a relatively easy childhood, free of abuse and neglect. Although he did seek medical treatment, he did so only after he was caught.

Prior related posts:

May 20, 2016 in Booker in district courts, Booker in the Circuits, Celebrity sentencings, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Thursday, May 19, 2016

Two interesting intricate criminal justice rulings from SCOTUS (including a first-ever casebook cite in Betterman!)

The Supreme Court release three opinions this morning, two of which are criminal justice cases. Here are the most essential basics with links via How Appealing:

1. Justice Elena Kagan delivered the opinion of the Court in Luna Torres v. Lynch, No. 14-1096. Justice Sonia Sotomayor issued a dissenting opinion, in which Justices Clarence Thomas and Stephen G. Breyer joined. You can access the oral argument via this link.

2. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court in Betterman v. Montana, No. 14-1457. Justice Thomas issued a concurring opinion, in which Justice Samuel A. Alito, Jr. joined. And Justice Sotomayor also issued a concurring opinion. You can access the oral argument via this link.

Statutory interpretation fans will be most interested in the ruling, but sentencing fans will be focused on the Betterman ruling. It gets started this way:

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Does the Sixth Amendment’s speedy trial guarantee apply to the sentencing phase of a criminal prosecution?  That is the sole question this case presents.  We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.  For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.  Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim.  He did not preserve a due process challenge.  See Tr. of Oral Arg. 19.  We, therefore, confine this opinion to his Sixth Amendment challenge.

Because I would like to see the Due Process Clause play bigger role in regulating sentencing matters, I am inclined to like the Betterman ruling. And, as the title of this post highlights, I definitely linked this passage from the majority opinion for an obvious personal reason:

[A] central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U. S. C. §3552; Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b), pp. 1048–1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay.8 Indeed, many — if not most— disputes are resolved, not at the hearing itself, but rather through the presentence-report process.  See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) (“Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than . . . about the sentencing procedures of judges or juries.”); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) (“[T]oday’s sentencing hearings . . . rubber-stamp plea-bargained sentences.”).

May 19, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Implementing Graham and Miller: just what qualifies as a "meaningful opportunity to obtain release"?

This new Marshall Project piece effectively details the enduring challenges that states necessarily face in honoring both the letter and spirit of the Supreme Court's modern Eighth Amendment work limiting LWOP sentences for juveniles.  The piece's full headline highlights its themes:  "When Parole Boards Trump the Supreme Court: The high court has said most kids shouldn't be sentenced to life without parole, but some prisoners' fate are in the hands of politics."  Here is how the piece started (with links from the original):

Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home. That’s the thrust of a series of Supreme Court rulings, the fourth and most recent of which was decided this year. Taken together, the high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.

But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.

Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.

Also last month, a group of juvenile lifers in Maryland filed suit, arguing that not a single juvenile lifer had received parole in that state in the last 20 years. “Rather than affording youth a meaningful and realistic opportunity for release…grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege,” the lawsuit says.

Similar suits are proceeding in Iowa, Michigan, Florida, Virginia and North Carolina, where a judge heard oral arguments last week.

“There are just two relevant kinds of sentences: those that provide a meaningful opportunity for release and those that don’t,” says Sarah French Russell, a Quinnipiac University law professor who studies juvenile justice. “Sentences that are not technically labeled life without parole can deny a meaningful opportunity for release because of the procedures or criteria used by the parole board.”

A few of many prior related posts:

May 19, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

California voters in November to have "mend it or end it" death penalty initiative options

As reported in this new AP article, headlined "Showdown Set Over Future of California's Death Penalty," two competing ballot initiative appear poised to be before voters on the Left Coast this fall. Here are the details:

Death penalty supporters are setting the stage on Thursday for a November showdown over whether to speed up executions in California or do away with them entirely. Crime victims, prosecutors and other supporters plan to submit about 585,000 signatures for a ballot measure to streamline what both sides call a broken system.

No one has been executed in California in a decade because of ongoing legal challenges.  Nearly 750 convicted killers are on the nation's largest death row, but only 13 have been executed since 1978.  Far more condemned inmates have died of natural causes or suicide.

Supporters plan 10 news conferences statewide to promote an initiative they say would save taxpayers millions of dollars annually, retain due process protections and bring justice to murder victims and their families.  The measure would speed what is currently a lengthy appeals process by expanding the pool of appellate attorneys and appointing lawyers to the death cases at the time of sentencing.

Currently there is about a five-year wait just for condemned inmates to be assigned a lawyer.  By contrast, the ballot measure would require that the entire state appeals process be completed within five years except under extraordinary circumstances. To meet that timeline, appeals would have to be filed more quickly and there would be limits on how many appeals could be filed in each case....  Additional provisions would allow condemned inmates to be housed at any prison, not just on San Quentin's death row, and they would have to work and pay victim restitution while they wait to be executed....

Opponents say their measure, too, would save money by doing away with the death penalty and keeping currently condemned inmates imprisoned for life with no chance of parole. They submitted about 601,000 signatures on April 28 with much less fanfare, said deputy campaign manager Quintin Mecke.  Each side needs nearly 366,000 valid signatures to qualify for the ballot.  "It's unfortunate that the DAs (district attorneys) want to double down on a fundamentally broken death penalty system that simply can't be fixed," Mecke said. "You can't streamline or reform a failed policy."

A similar attempt to abolish the death penalty failed by 4 percentage points in 2012. Besides the latest initiative put forward by opponents, that failed effort spurred this year's counter-move by law enforcement and crime victims.

May 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, May 18, 2016

"Jurisdiction and Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied"

The title of this post is the title of this notable new and timely scholarship authored by Leah Litman and Luke Beasley. Here are excerpts from the start of the piece which highlights its themes and timeliness: 

This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review).  AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.

Take, for example, the recent litigation about whether prisoners with “Johnson” claims may be resentenced. Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. ACCA imposed a mandatory fifteen-year term of imprisonment on prisoners; but without ACCA, the statutory maximum term of imprisonment for these prisoners is ten years.  Johnson therefore means these prisoners could lawfully be sentenced to no more than ten years in prison.  Prisoners whose ACCA sentences depended on the residual clause are now seeking to have their 15-year sentences reduced to the lawful 10 years.  But three courts of appeal held that AEDPA bars prisoners with Johnson claims from obtaining relief if they have already filed one petition for post-conviction review, because the prisoners do not satisfy AEDPA’s conditions for filing a successive petition for postconviction review....

Part I describes AEDPA’s restrictions on post-conviction petitions that are preventing prisoners with meritorious claims from obtaining relief, and how the United States is attempting to bypass those restrictions by waiving the argument that AEDPA’s restrictions are not satisfied.  Part II argues that AEDPA’s restrictions on filing successive petitions for post-conviction review are not jurisdictional, and that courts may therefore accept the government’s waiver and allow prisoners to obtain relief on their claims even if prisoners do not satisfy AEDPA’s preconditions for filing successive petitions for post-conviction review.

May 18, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

So who would you like to see on Prez candidate Donald Trump's SCOTUS shortlist?

The question in the title of this post came to mind upon seeing this new National Review commentary by Jim Geraghty headlined "Where Is Trump’s Supreme Court Shortlist?".  Here are excerpts:

Back on March 21, Donald Trump, sensing there was some conservative anxiety about whom he would nominate to the Supreme Court, promise to compile and release a list of five to ten “great conservative judges” with “great intellects.”

“I will guarantee that those are going to be the first judges that I put up for nomination if I win,” Trump said. “And that should solve that problem.”  It’s mid-May now, Senate Republicans are holding the line against hearings or a confirmation vote on President Obama’s nominee, Merrick Garland, and there remains no sign that a list of potential Trump nominees is forthcoming.

Trump’s handling of the Supreme Court question is worrisome on three fronts. First, there is the simple failure to deliver on a public promise....

Second, he gives little indication he’s spent more than a few minutes thinking about who would make a good pick for the Court, or about the role of the judiciary in our government....

Third, there’s little sign that Trump or anyone around him grasps how important and consequential the issue of judicial appointees is, or how much good it would do him to reassure Republicans who aren’t jumping on board the bandwagon. If there were a way to be absolutely certain that Trump would appoint two, three, or four Antonin Scalia clones during his presidency, a lot of Trump-skeptic conservatives might immediately see one giant reason to vote for him.  If nothing else, they could rest easy knowing that the Second Amendment wouldn’t be effectively nullified or curtailed, that Citizens United would remain the law of the land, that voter-ID laws would be upheld, and that pro-lifers could continue to make progress in the courts....

And that’s the real tragedy of Trump’s rise: At a time when the future of the issues most vital to conservatives is more tied to the Court’s composition than ever before, the Republican party is about to nominate a man who inspires little confidence in conservatives.  There are still actions he can take to help allay conservative concerns, and there’s still time for him to take them.  But if he does, all evidence suggests it will be because they’re in his own best interests rather than the nation’s.  Though it’s less than ideal, getting the right outcomes for the wrong reasons may be the best we can hope for now.

For a number of reasons, sentencing fans should be very interested in who will become the next Supreme Court Justice, and it is seemingly becoming more and more likely that it Justice Scalia's replacement will not be Judge Garland (at least not in 2016 before Election Day).  And though I am not through this post trying to make any predictions about who is likely to be the next President, I can confidently predict that the next person nominating federal judges (both to SCOTUS and to lower courts) will have a "yuge" impact on the future of all sorts of sentencing jurisprudence.

So, dear SL&P readers, if you had The Donald's ear, what names would you whisper to him if and whenever he starts thinking seriously about judicial nominations?

UPDATE:  Seemingly only a few minutes after I put up this post, Trump did release his SCOTUS shortlist. This AP article provides these details:

Donald Trump, the presumptive Republican nominee for president, released Wednesday a list of 11 potential Supreme Court justices he plans to vet to fill the seat of late Justice Antonin Scalia if he's elected to the White House.

The list of conservative federal and state judges includes Steven Colloton of Iowa, Allison Eid of Colorado and Raymond Gruender of Missouri. Also on the list are: Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas. Trump had previously named Pryor and Sykes as examples of kind of justices he would choose....

In a statement, Trump said the list "is representative of the kind of constitutional principles I value" and said that, as president, he would use it "as a guide to nominate our next United States Supreme Court Justices." His campaign stressed the list was compiled "first and foremost, based on constitutional principles, with input from highly respected conservatives and Republican Party leadership."...

Apart from Sykes, who is 58, the others all are younger than 55 and David Stras is just 41. The eight men and three women on the list are all white.

As a commentor below has aleady suggested, I am disappointed (but not suprised) that there does not appear to be any person with a history as a criminal defense attorney on this list. But I am excited to see Judge Pryor on the list due to his thoughtful sentencing writings and his recent experiences as a member of the US Sentencing Commission (as well as my pleasant interactions with him).

May 18, 2016 in Campaign 2016 and sentencing issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Tuesday, May 17, 2016

Two notable new Colorado Supreme Court rulings concerning sex offender treatment and Fifth Amendment protections

A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment.  Here are links to the opinions and the summary that appears at the start:

People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):

This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.

The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment.  In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):

The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation.  On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination.  Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.

May 17, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, May 16, 2016

SCOTUS back to work with no new cert grants, punting, and a per curiam AEDPA summary reversal

The Supreme Court this morning issued orders and a number of opinions after returning from a few weeks off, and the lead story seems to be primarily what the Justices did not do: the Court did not grant certiorari on any new cases, did not conclusively resolve (but essentially punted issues back to lower courts) a couple high-profile argued cases, and did not split 4-4 (or even 5-3) on any merits opinions.

The one thing the Court did do that might interest criminal justice fans involves a per curiam ruling in a federal habeas case coming from the Ninth Circuit. The ruling in Kernan v. Hinojosa, No. 15-833 (S. Ct. May 16, 2016) (available here), gets started this way:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking federal habeas relief first to “exhaus[t] the remedies available in the courts of the State.” 28 U. S. C. §2254(b)(1)(A). If the state courts adjudicate the prisoner’s federal claim “on the merits,” §2254(d), then AEDPA mandates deferential, rather than de novo, review, prohibiting federal courts from granting habeas relief unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,” §2254(d)(1), or “was based on an unreasonable determination of the facts,” §2254(d)(2). The Ninth Circuit in this case decided that the Supreme Court of California’s summary denial of a habeas petition was not “on the merits,” and therefore AEDPA’s deferential-review provisions did not apply. We summarily reverse.

Notably, Justice Sotomayor issued a dissenting opinion, which Justice Ginsburg joined, to explain why she thought the Ninth Circuit was in the right when refusing to apply AEDPA’s deferential-review provisions in this case.

May 16, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery

At Jost on Justice, Ken Jost has this notable new piece, headlined "For Juvenile Lifers, Wheels of Justice Grind Slow," about the application of the Supreme Court's ruling in Montgomery v. Louisiana in state systems. Here are excerpts:

Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision.

Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles — sentences ruled unconstitutional by the Supreme Court four years ago.  The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended....

The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release.

The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases.  In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.”  Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.”

Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions.  But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom. Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards....

Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share.  In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act.  “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office.

Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up.  “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says.

For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether.  “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”

Prior related post with my scholarly take on Montgomery:

May 16, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Wednesday, May 11, 2016

Sixth Circuit panel sends Miller litigation about Michigan juve LWOPers needs review anew after Montgomery

A Sixth Circuit panel today issues an interesting (non)opinion about the state and fate of federal litigation over the fate and future of Michigan juveniles serving LWOP sentences that are unconstitutional because imposed under a mandatory sentencing system. Here is how the opinion in Hill v. Snyder, No. 13-2661 (6th Cir. May 11, 2012) (available here), gets started:

This long-running case returns us to the difficult topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one defined by the Supreme Court’s developing jurisprudence recognizing that the unique characteristics of youth matter in determining the propriety of their punishment.  This case began when Michigan charged and tried the named plaintiffs as adults for acts they committed while under the age of 18.  Each received a conviction for first-degree murder and a mandatory sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of firstdegree murder ineligible for parole, meaning that the plaintiffs in this case effectively received mandatory sentences of life in prison without the possibility of parole for acts they committed as children.

Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since that time, at least three important legal events have come to pass.  First, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012), “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 2460.  Second, Michigan amended its juvenile offender laws in light of Miller, but made some of those changes contingent upon either the Michigan Supreme Court or the United States Supreme Court announcing that Miller’s holding applied retroactively.  See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014).  And, third, the United States Supreme Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition on mandatory life without parole for juvenile offenders is indeed retroactive.

The district court wisely (and presciently) reached the conclusion that Miller should apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013.  That conclusion also drove the district court’s issuance of an injunctive order against defendants requiring compliance with Miller.  In light of the legal changes described above, however, and for the reasons that follow, we VACATE the challenged district court orders and REMAND for the district court to address these issues under the legal landscape established by Montgomery v. Louisiana, Miller v. Alabama, and this opinion.

May 11, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

How many death sentences nationwide would get overturned if juror unanimity were constitutionally required for death sentences?

The question in the title of this post came to my mind after seeing this Los Angeles Times opinion piece headlined "Florida's death penalty should require unanimous jury votes." Here are excerpts from piece:

In a criminal jury trial, a conviction requires a unanimous verdict of guilt, whether the crime is a low-level drug possession charge or capital murder. But in Florida, after all 12 members of a jury have found the accused guilty, only 10 of them have to agree that the defendant should die for the crime. It’s absurd to require a lower level of agreement to send someone to death than is required to find the person guilty in the first place.

Florida Circuit Judge Milton Hirsch reached the same conclusion in a decision Monday that declared Florida’s latest death penalty law in violation of the state’s constitution. That decision followed arguments a few days earlier before the state’s Supreme Court over whether the U.S. Supreme Court decision in Hurst v. Florida, which found the state’s sentencing-decision process unconstitutional, meant that all 390 people on Florida’s death row should have their sentences converted to life. Yes, it does. If the sentencing process is unconstitutional, then the sentences are, too....

In the Hurst case, the Supreme Court affirmed that only a jury can make a finding of fact. Florida, in an effort to save its death penalty, rewrote its law to say the jury must decide whether the death penalty was appropriate. But the U.S. Supreme Court didn’t say how many jurors must make that call, and the revised state law raised the threshold to 10 of the 12 jurors.

Hirsch’s decision on Monday said that no, under the state’s constitution, a super-majority is not enough. His logic is a bit attenuated, but sound. Florida’s constitution guarantees trial by jury but doesn’t specify that a unanimous verdict must be reached. However, decades of practice, and common law, set unanimity as the standard threshold for a verdict. And since the revised law calls the jury’s finding for the death penalty a verdict, then it must be unanimous....

The least Florida can do is require unanimity by a jury before deciding to kill someone. And it should either grant fresh sentencing trials for those on death row or — and this is the preferred, more humane solution — commute the death sentences to life sentences.

Notably, two of the four states in the US with the largest death rows (Florida and Alabama) have sentenced a significant number of murderers to death without a unamimous jury recommendation to that effect. Though it is not clear that roughly all 600 persons on those states' death rows would be sure to get relief from a constitutional rule requiring jury unanimity for death recommendations, a suspect a significant number would. And even if only half of those condemned would get relief, that could cut the size of the US death row population down by more than 10 percent.

The Supreme Court's ruling in Hurst studiously avoided weighing in on this jury unaniminty issue, but I am not sure it is point to be able to avoid it for too much longer in light of what is going on in Florida and perhaps other places in the post-Hurst world.

A few prior related post:

May 11, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, May 10, 2016

"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"

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

This article attempts to draw a picture of the incarcerated without counsel, who are separated from justice by the inhumanity of their imprisonment, the poverty of their information resources and the detriments of their cognitive life.

Part I sets the stage by describing the conditions of confinement, the confined, and the state of pro se personhood.  Part II addresses the reality of petition or perish created by Bounds and Casey.  Part III concentrates on the necessity of a right to counsel borne from the conditions of confinement and the technological, physical and psychological barriers that burden the incarcerated.  Among the most significant barriers to be considered are: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.

May 10, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Monday, May 09, 2016

Florida state judge declares unconstitutional state's post-Hurst revised death penalty procedures

As reported in this new local article, a "Miami-Dade judge has ruled that Florida’s death penalty is unconstitutional because jurors are not required to agree unanimously on execution." Here is more:

Circuit Judge Milton Hirsch on Monday issued the ruling in the case of Karon Gaiter, who is awaiting trial for first-degree murder. Hirsch wrote that Florida’s recently enacted “super majority” system – 10 of 12 juror votes are needed to impose execution as punishment for murder – goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.

“A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant,” he wrote. “And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors – every single one of them.”...

In January, in the case of Timothy Lee Hurst, the U.S. Supreme Court declared the state’s death sentencing system unconstitutional because it gave too little power to juries. For decades, jurors only issued majority recommendations, with judges ultimately imposing the death penalty. The high court, however, did not rule on the unanimity question. Except for Alabama and Florida, all other states that have the death penalty require a unanimous jury verdict to impose the death sentence....

After the Hurst case was decided in January, Florida lawmakers were forced to fix the death-penalty sentencing scheme. Florida’s new law requires juries to unanimously vote for every reason, known as aggravating factors, that a defendant might merit a death sentence. Whether to actually impose the death sentence requires 10 of 12 jurors. “All of these changes inure to the benefit of the defendant,” Assistant State Attorney Penny Brill wrote in a motion in the Gaiter case earlier this year. “These requirements render Florida’s system constitutional under the United States Supreme Court’s precedents.”

Judge Hirsch, in his order, said the fixes don’t matter. “Arithmetically the difference between twelve and ten is slight,” Hirsch wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

The full 18-page order referenced here is available at this link, and a quick scan of opinion reviews that it includes quotes from William Shakespeare, William Blackstone, Winston Churchill, Glanville Williams, the prophet Elijah, and lots of other notable sources.

May 9, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Sunday, May 08, 2016

Some critical reflections on Prez Obama's clemency efforts and some ideas about what could have been

Late last week, the Washington Post had this lengthy article reviewing the various problems encoutered during President Obama's clemency push over the last few years.  The piece is headlined "Lack of resources, bureaucratic tangles have bogged down Obama’s clemency efforts," and it effectively summarized many of the difficulties previously reported on this blog. Here are excerpts:

In the waning months of his presidency, Obama has made commutations for nonviolent drug offenders a centerpiece of his effort to reform the country’s criminal-justice system. But behind the scenes, the administration’s highly touted clemency initiative has been mired in conflict and held up by a bureaucratic process that has been slow to move prisoner petitions to the president’s desk.

Obama has granted 306 commutations to federal prisoners — more than the past six presidents combined. But as of Friday, 9,115 commutation petitions were pending with little time left to review them. Of these, fewer than 2,000 appear to be eligible for the president’s clemency program, according to a Justice Department official. Thousands more are still being reviewed by outside lawyers.

From the beginning, the program was beset by problems, including a lack of resources and a cumbersome, multilevel review system. The U.S. pardon attorney at the Justice Department makes recommendations that move to the deputy attorney general, who reviews the cases and sends them to the White House counsel, who considers them again before choosing which ones go to Obama.

The pardon attorney became so frustrated that she quit earlier this year and wrote a scathing resignation letter to Deputy Attorney General Sally Q. Yates. Deborah Leff said that despite her “intense efforts” to do her job, the Justice Department had “not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president.”...

On Thursday, Obama commuted the sentences of 58 prisoners, his second round of clemencies in three months as the program has picked up steam. Administration officials say that they are addressing obstacles that have plagued the clemency initiative. The Justice Department has added lawyers to the pardon office. And White House Counsel Neil Eggleston has promised that many more petitions will be granted in the president’s final eight months.

“The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he’s granted to date, but by his wholesale approach to revamping the way the government approaches commutations,” White House spokeswoman Brandi Hoffine said in a statement. “That change helped spark a long overdue conversation about reforming our criminal justice system, which we hope will result in Congressional action so that many more deserving individuals can benefit from a second chance.”...

An attorney who worked in the pardon office at the same time as Leff said that with petitions flooding in, it was extremely difficult with so few lawyers to sort out complicated drug cases and figure out whether they met the department’s strict criteria. To get more help, Cole reached out to the private bar to set up another layer of lawyers to read applications.

Outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers. An army of about 4,000 volunteer lawyers from across the country signed up to help in what has become one of the largest pro bono efforts in the history of the American legal profession. Seventy large law firms, more than 500 small firms and solo practitioners, and 30 law schools are involved, according to Cynthia W. Roseberry, the project’s manager. But it took nearly a year for the group to get organized and recruit and train lawyers, many of whom had no experience in criminal law.

An overwhelming 36,000 inmates — about 17 percent of the federal prison population — filled out surveys asking for help from the Clemency Project. Even though the Justice Department had its own backlog, officials there privately complained that the outside Clemency Project lawyers, with their multiple levels of review, were taking too long to send more petitions. That in turn frustrated the Clemency Project attorneys, who said they were working carefully to locate old legal documents, contact prosecutors and judges, look at prison behavior records and try to get pre-sentencing reports and sentencing transcripts. At the same time, they have been weighing risks to public safety....

Some critics say the White House could have avoided many of these headaches by modeling the process after the way President Gerald Ford handled clemencies for Americans who had deserted the Army or failed to show up for the draft during the Vietnam War.  With 600 people working on a special commission to review the cases, Ford granted 14,000 clemencies in one year. Law professor Mark Osler, co-founder of New York University’s Clemency Resource Center, said the initiative also might have gone more smoothly if Obama had moved the pardon attorney’s office into the White House rather than keeping it under career prosecutors who may find it difficult to reverse other prosecutors’ decisions.

This recent Fusion piece, headlined "The bold step President Obama could take to let thousands of federal inmates go free," provides a thorough discussion of the special clemency commission that President Ford had set up to deal with a massive number of Veitnam draft dodgers and desserters and which was able to process tens of thousands of clemency cases in just a year.  Here is how it concludes:

If Obama had appointed a Ford-style clemency board, he could have cut down the bureaucracy to three or four steps: a review by the board’s staff, a review by the board, a review by the White House counsel, a review by the president.

In the last few months, Obama’s advisers have been making the argument that he’s granted “more [clemencies] than the previous six Presidents combined.” But that calculation is false, as it incorrectly ignores the clemencies granted through Ford’s commission. (A White House spokesperson noted that Department of Justice statistics only count the 22 non-Vietnam related clemencies that Ford granted.)

For many recent presidents, clemency has been treated more like an afterthought. Until recently, Obama announced them at the end of each year, before he jets off to Hawaii with his family — a last-minute Christmas gift to a tiny handful of prisoners.

With fewer than 10 months left in office, even if Obama had a change of heart and decided to create a clemency board today, it would almost surely be too late. But [clemency advocates Nkechi] Taifa and Osler say it’s an idea that should be picked up by the next president. “This should not end with the Obama administration,” Taifa said.

“I do not want to delay another day in resolving the dilemmas of the past, so that we may all get going on the pressing problems of the present,” Ford said when he announced his clemency board. If President Obama—or the next president—wants to resolve the past failings of our criminal justice system, then they should also take lessons from one of its rare success stories.

May 8, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Saturday, May 07, 2016

An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed

Regular readers know that, after the US Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe the multi-headed, snake-like capital litigation sure to develop as judges tried to make sense of what Hurst must mean for past, present and future cases.  Of particular significance in Florida, which has second largest death row in the nation and holds roughly one of every seven condemed murderers in the US, is what will become of all those sentenced to death before Hurst.

As noted in this post a few days ago, the Florida Supreme Court took up this question this past week, and some prominent Floridians argued that all those previously sentenced to death should have their sentences changed to life without parole.  But, with this is sure to be a popular view among death penalty abolitionists, death penalty supporters are not likely to readily embrace this solution.  And, very helpfully, Kent Scheidegger at Crime & Consequences has this lengthy and thorough post providing an astute review of what existing Supreme Court retroactivity jurisprudence should mean. The post is titled "What Happens to the Florida Death Row Cases After Hurst?", and here is how it starts and ends:

In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000). Yesterday, the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida. "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.  For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure....

The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements.  Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not.  Attributing such an intended result makes no sense given the purpose of the law.

Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve.  Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.

The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves.  Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary.  Absent strong evidence the legislature intended this result, it should not be attributed to them.

The new act should apply to any cases remanded for resentencing.

May 7, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, May 06, 2016

"Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain"

The title of this post is the headline of this notable new Intercept piece, which gets started this way:

On the eve of the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill.  Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.”  His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”

A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing.  While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention.  For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted.  Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions.  Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.”  Many would like to see it repealed.

If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood.  AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism.  But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon.  After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton.  In the long term, it would help pave the way to one of the worst laws of his presidency.

May 6, 2016 in Death Penalty Reforms, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

More evidence of a failed drug war: foot soldier always high while fighting

This recent AP article, headlined "Reports: Chemist Who Worked on Drug Cases Was Usually High," provides yet another reason why I see the so-called war on drugs to be an abject failure. Here are the details:

Investigators say a former chemist who tested drugs for Massachusetts police departments was high almost every day she went to work for eight years, potentially putting thousands of criminal convictions in jeopardy.

Sonja Farak, who worked for an Amherst lab that tested drug samples for police, was high on methamphetamines, ketamine, cocaine, LSD and other drugs during most of her time there, even when she testified in court, according to a state investigative report released Tuesday. Farak worked at the lab between 2005 and 2013.

Cyndi Roy Gonzalez, a spokeswoman for Attorney General Maura Healey, said the information gathered about Farak "will no doubt have implications for many cases," but it is unclear just how many. She said it will be up to prosecutors, defense attorneys and the courts to determine the full scope of cases affected by Farak's misconduct. "We are deeply concerned whenever the integrity of the justice system is called into question or compromised," she said.

One defense attorney told the Boston Herald that Farak handled about 30,000 cases during her career. "This is a statewide scandal, and I think it's going to take an enormous toll on the system," attorney Luke Ryan said.

Farak's case is unrelated to the case of Annie Dookhan, who worked at a state drug lab in Boston. Dookhan was sentenced in November 2013 to at least three years in prison after pleading guilty to faking test results in criminal cases that jeopardized thousands of convictions.

The American Civil Liberties Union of Massachusetts said the number of criminal cases affected by Farak's misconduct could rival the approximately 40,000 cases thrown into question by Dookhan's actions. "It's now beyond doubt that the drug war in Massachusetts during the Dookhan-Farak era was built on a foundation of falsified evidence," said Matthew Segal, the ACLU's legal director.

Segal said he doesn't have an estimate of how many cases could be challenged, but said prosecutors who got convictions using drug samples she tested "have an obligation to identify and notify everyone who might have been denied due process" as a result of Farak's actions. Segal said that because Farak admitted ingesting lab "standards" — drug samples used as benchmarks to test against substances submitted by police for testing — all cases that went through the lab should be re-examined.

Last year, the Supreme Judicial Court of Massachusetts ordered an investigation into the timing and scope of Farak's misconduct. Healey's office conducted the investigation. Many of the shocking details came from Farak's own grand jury testimony, including that she once smoked crack before a 2012 state police accreditation inspection of the now-closed lab. Farak also testified that she manufactured crack cocaine for her personal use in the lab.

Farak, 37, of Northampton, pleaded guilty to tampering with evidence, stealing cocaine from the lab and unlawful possession in January 2014 and was sentenced to 18 months behind bars and five years of probation. She served her sentence and has been released from prison....

Gov. Charlie Baker said the state will likely have to allocate more money to deal with the Farak scandal. In the Dookhan case, the state Legislature authorized up to $30 million to cover costs incurred by the court system, prosecutors, public defenders and other state agencies. "We certainly believe we are going to have a big responsibility to work with the courts and with others to make sure that people who are affected by this have the appropriate opportunity to engage in that conversation," Baker said. "And we fully expect we will be doing that for the next several months."

May 6, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)