Monday, June 16, 2014

Second Circuit rejects array of challenges to lengthy extension of sex offender registration requirement

For a number of years, sex offenders consistently lost in state and federal courts when challenging various sex offender registration requirements and other restrictions on various grounds.  In recent years, however, it seems at least a few registered sex offenders are having at least a little success with court challenges to new sex offender registration requirements that seem especially punitive or onerous.  But a Second Circuit panel ruling today in Doe v. Cuomo, No. 12-4288 (2d Cir. June 16, 2014) (available here), provides a useful reminder of the uphill battle registered sex offenders face in court. Here is how the opinion starts: 

John Doe appeals from the judgment of the United States District Court for the Eastern District of New York (Amon, C.J.) granting summary judgment in favor of the Governor of the State of New York and the Acting Commissioner of the State of New York Division of Criminal Justice Services on Doe’s as-applied constitutional challenges to the enforcement of certain amendments to the New York State Sex Offender Registration Act. The amendments we are asked to review were enacted after Doe pleaded guilty to misdemeanor attempted possession of a sexual performance by a child, as a result of which he was classified as a level-one sex offender required to register under SORA. The amendments extended the registration requirement for level-one sex offenders from ten years to a minimum of twenty years and also eliminated the ability of level-one sex offenders to petition for relief from registration.  Doe argues, among other things, that requiring him to comply with these post-plea amendments violates the Ex Post Facto Clause and the Fourth Amendment, and deprives him of due process and equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983.  We disagree and affirm the judgment of the District Court.

Notably, the defendant Doe in this case seems reasonably sympathetic for a registered sex offender: his offense was a misdemeanor charge stemming from possessing a few CP images back in 1999, and he fully complied with all registration requirements for a decade.  But, though the defendant presented an array of constitutional claims to argue he should not now be subject to a new extended registration requirement, the Second Circuit said he was Doe out of luck.

June 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

After two-month hiatus, will Georgia and Florida get US machineries of death back on line this week?

A few days after the ugly execution in Oklahoma at the end of April, I wondered in this post whether all the attention and controversy that one execution generated would impact death penalty administration outside the Sooner State.  Now, with nearly two months having gone by without any subsequent executions completed anywhere in the United States (and it seems only a handful of executions now scheduled for the coming summer months), I am prepared to assert that Oklahoma's woes have had a national impact.  

While litigation over lethal injection protocols and various drug shortages had slowed the pace of executions down considerably, before the ugly Oklahoma execution the pace was starting again to pick back up.  Indeed, over the first 4 months of 2014, the US completed on average five executions each month and was on pace for the highest yearly total of executions in more than a decade.  But with everything seemingly slowing down after the Oklahoma mess, it now seems possible the US will have the fewest executions in 2014 than in any year in over two decades.

For those who pay very close attention to the death penalty and wonder about its future in the US, this coming week is one to watch real closely.  As detailed in local press reports here and here, both Gerogia and Florida have executions schedule for the next few days.  If these executions go forward and lethal injections proceed without a hitch, there is a greater likelihood that the US will be starting its return to execution business as usual.  But if one or both of these executions get stayed or end up being botched in some manner, I suspect US death penalty and execution realities will remain quite dyanmic and unpredictable for the months and perhaps years ahead.

Some recent related posts:

June 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

SCOTUS takes up Facebook threats prosecution to consider First Amendment issues

FbcautionIn part because most of the Justices are the age of most grandparents, the Supreme Court takes up new technology in its cases at about the same pace most grandparents take up new technology.  This Term, for example, the Court has finally got around to considering the Fourth Amendment implications of smartphones (with a ruling likely coming in the next two weeks).  And, as this AP article details, this morning the Justice decided to pay some attention to Facebook and the First Amendment in a case to be argued next Term:

The Supreme Court will consider the free speech rights of people who use violent or threatening language on Facebook and other electronic media where the speaker's intent is not always clear.  The court on Monday agreed to take up the case of an eastern Pennsylvania man sentenced to nearly four years in federal prison for posting violent online rants against his estranged wife, law enforcement officials and former co-workers.

A federal appeals court rejected Anthony Elonis' claim that his comments were protected by the First Amendment.  He says he never meant to carry out the threats.  He claims he was depressed and made the online posts in the form of rap lyrics as a way of venting his frustration after his wife left him.

At his trial, the jury was instructed that Elonis could be found guilty if an objective person could consider his posts to be threatening.  Attorneys for Elonis argue that the jury should have been told to apply a subjective standard and decide whether Elonis meant the messages to be understood as threats.

Elonis's lawyers say a subjective standard is appropriate given the impersonal nature of communication over the Internet, which can lead people to misinterpret messages. They argue that comments intended for a smaller audience can be viewed by others unfamiliar with the context and interpret the statements differently than was intended. The Obama administration says requiring proof of a subjective threat would undermine the purpose of the federal law prohibiting threats....

For more than 40 years, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment.  But the court has cautioned that laws prohibiting threats must not infringe on constitutionally protected speech.  That includes "political hyperbole" or "unpleasantly sharp attacks" that fall shy of true threats....

Elonis' estranged wife testified at his trial the postings made her fear for her life. One post about his wife said, "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

FBI agents visited Elonis at home after the amusement park that fired him contacted law enforcement officials about his posts.  After the agents left, Elonis wrote: "Little agent lady stood so close, took all the strength I had not to turn the (woman) ghost. Pull my knife, flick my wrist and slit her throat."

I am not sure a ruling in this interesting case is likely to have huge sentencing consequences, but I am hopeful it might at least encourage ever more civility in the comments to this blog and throughout the rest of the (often too ugly) on-line world.

June 16, 2014 in Offense Characteristics, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Saturday, June 14, 2014

Notable indication that "smart on crime" sentencing reform in West Virginia is paying dividends

StsealAs highlighted by this local article, headlined "Governor: Justice Reinvestment Act drops W.Va. jail population by 5%," it appears that another state is having significant success with data-driven "smart-on-crime" sentencing and corrections reforms. Here are the encouraging details:

Although in effect for slightly more than a year, legislation to reduce prison overcrowding by reducing recidivism and substance abuse is having a positive impact, Gov. Earl Ray Tomblin said during an event Thursday in Washington, D.C.

“Since I signed West Virginia’s Justice Reinvestment Act, we have had a 5 percent reduction in our prison population,” Tomblin said. “In April 2013, we had nearly 7,100 prisoners in our state. Last Thursday, that figure was down to 6,743. We have reduced overcrowding at our regional jail facilities by nearly 50 percent.”

The legislation was enacted in May 2013, after a yearlong study coordinated by the Council of State Governments’ Justice Center, which recommended reducing prison overcrowding with accelerated probation and parole for nonviolent offenders, and better community-based resources for parolees, including substance-abuse treatment programs.

Tomblin told the Washington CSG event that, in April 2013, West Virginia’s corrections system was 1,746 inmates over capacity, a figure that has now dropped to 885. “Today, we have more than 1,000 fewer people in our prisons than what was projected just a few years ago,” Tomblin said. “Without these changes, we expected to have more than 7,800 inmates in West Virginia prisons, compared to today’s total of 6,743.”

Since the passage of the legislation, Tomblin said, the state has continued efforts to reduce re-offense rates with new workforce training programs, assistance in helping parolees find appropriate housing and efforts to ensure access to community-based substance-abuse treatment for those released from prison, funded through Medicaid expansion....

The West Virginia Democrat was joined at the event by Republican Pennsylvania Gov. Tom Corbett, who has overseen similar successes with prison-reform programs in the Keystone State. Corbett noted that, in the 1990s, Pennsylvania was building a new prison nearly every year, as mandatory sentencing laws were causing the state’s inmate population to soar.

Michael Thompson, director of the CSG Justice Center, noted that the national dialogue has changed from a partisan debate over which party could be tougher on crime to a bipartisan effort to be smart on crime, a theme echoed by Tomblin. “I hope other states will consider the justice reinvestment model to take a “smart on crime” approach to prison overcrowding and public safety,” he said.

June 14, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 12, 2014

Florida Supreme Court upholds state law to speed up capital appeals

As reported in this local article, headlined "‘Timely justice’ death-penalty law upheld," the Florida Supreme Court had a notable state capital appeals ruling today. Here are the basics:

The Florida Supreme Court on Thursday upheld the constitutionality of a 2013 law that legislative supporters said would reduce delays in carrying out the death penalty. Justices, in a unanimous decision, rejected arguments that the so-called “Timely Justice Act” would be an unconstitutional infringement on the court system’s authority and separation of powers, and violate due-process and equal-protection rights.

In a concurring opinion, Justice Barbara Pariente emphasized that the law would not affect the Supreme Court’s “solemn responsibility” to block executions if necessary to ensure that defendants’ rights are protected.

“[This] court is still constitutionally entrusted with the duty to issue a stay of execution if there is a meritorious post-conviction claim pending or, if at the time the warrant is signed, the defendant brings a successive post-conviction challenge that casts doubt on his or her guilt, the integrity of the judicial process, or the validity of the death sentence imposed. . . . In my view, that remains the essential fail-safe mechanism this court may utilize when necessary to ensure that the ultimate punishment of the death penalty is inflicted in a manner that fully comports with the constitution,” wrote Pariente, who was joined in the concurring opinion by justices Jorge Labarga and James E.C. Perry.

With some convicted murderers on Death Row for 30 years or longer, lawmakers in 2013 said the changes would help carry out justice more quickly. After Gov. Rick Scott signed the bill, for example, House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach, posted a Twitter message that said, “Several on death row need to start picking out their last meals.”

But the details of the law, which touched on issues such as death warrants, the clemency process and legal representation for Death Row inmates, have proved to be far more complex than the legislative debate. Scott also pushed back against characterizations that the law would “fast-track” death-penalty cases through the court system.

Attorneys for dozens of Death Row inmates filed the constitutional challenge last year, with the case focusing on four disputed parts of the law, according to Thursday’s opinion, which was written by Justice R. Fred Lewis. A key issue focused on a requirement that the Supreme Court clerk notify the governor when Death Row inmates have exhausted initial state and federal appeals. The law orders the governor to sign death warrants for such inmates within 30 days and to direct the warden to schedule their executions within 180 days — but only after the executive clemency process has been completed.

The full ruling can be accessed at this link.

June 12, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sixth Circuit declares unreasonable way-above-guideline sentence for repeat bank robber

It remains rare for federal defendants to prevail on reasonableness appeals absent a mis-calculation of the guidelines, and thus today's Sixth Circuit panel decision in US v. Payton, No. 13-1242 (6th Cir. June 12, 2014) (available here) is a noteworthy ruling for this reason alone. But the decision's reference and incorporation of recidivism data and brain science makes the ruling extra interesting. Here are some excerpts from the start and heart of the opinion for context:

This is a direct appeal from Arthur Payton’s sentence to serve 45 years in prison for organizing a series of bank robberies in Michigan.  Payton argues that his sentence is unreasonable.  We agree, vacate his sentence, and remand....

Payton turned 46 years old before his sentencing hearing.  Taking into account Payton’s criminal record, the seriousness of his crime, and penchant for recidivism, the presentence report recommended a sentence within the Guidelines range of 210 to 262 months, or between 17 and a half to 22 years.... The government urged the sentencing court to impose a more serious sentence of “at least” 300 months, or 25 years.  Payton’s counsel requested a sentence within the Guidelines range, arguing that even with a Guidelines sentence Payton would be released as an elderly man — somewhere between 63 to 68 years old — who would present little threat to the public.

After hearing each side, the judge sentenced Payton to 540 months, or 45 years in prison. The judge discussed a number of the sentencing factors listed in 18 U.S.C. § 3553(a), focusing on Payton’s brazen recidivism and the threat he posed to the public. The court concluded that the 45 year sentence was “the minimum sentence” that was “reasonable and sufficient but not greater than necessary to accomplish the goals of sentencing for this defendant.”...

Payton’s 45 year sentence is a “major departure,” “unusually harsh,” and one that demands a “significant explanation.”  Gall, 552 U.S. at 51.  A sentence that more than doubles the Guidelines recommendation, stacks twenty years on to the government’s request, and keeps the defendant in prison until he is ninety one years old requires explanation about why such a sentence is “sufficient, but not greater than necessary” to achieve the goals of sentencing. 18 U.S.C. § 3553(a).

We find the district court’s explanation lacking in Payton’s case.  At minimum, the court failed to adequately respond to Payton’s argument that his advanced age diminishes the public safety benefit of keeping Payton in prison an extra twenty years beyond the recommendation of the Guidelines.  Even presuming Payton’s desire to rob banks is insatiable, as the government argues, Payton contends that age will diminish his very ability to rob banks.  This argument attacks the foundations of the government’s support for the imposed sentence, and the court’s reasoning that the threat posed by a sixty-eight-year-old Payton makes a longer sentence not simply prudent but necessary.

The court's discussion to this point is notable, but the opinion then takes an especially interesting turn with this paragraph (in which I have eliminated footnote references):

The Sentencing Commission has observed that “[r]ecidivism rates decline relatively consistently as age increases.” Recent analysis from the Bureau of Justice Statistics considering the recidivism rates of released prisoners in 30 states (including Michigan) from 2005 to 2010 supported the Commission’s conclusion, finding decreased recidivism rates as prisoners age. These statistics suggest that past fifty years old there is a significantly lower rate of recidivism. Both the Guidelines and our Circuit’s cases explicitly acknowledge that a defendant’s age, and specifically old age, is a relevant consideration in sentencing. U.S.S.G. § 5H1.1; United States v. Berry, 565 F.3d 332, 341 (6th Cir. 2009); United States v. Davis, 537 F.3d 611, 616-17 (6th Cir. 2008). And observers of the criminal justice system have long acknowledged the “key” argument “that elderly offenders pose so low a risk to the public that long or otherwise harsh sentences have little to no utilitarian benefit.”  Indeed, they observe that “because of health or other reasons, elderly offenders have the lowest rate of recidivism of all types of offenders; in fact, only about one percent of elderly offenders ever face a second conviction.”   Studies indicate that neurotransmitters affecting aggression supplied at the synapses of brain neurons vary based on age, and may explain the observed decline in recidivism among older prisoners. Such evidence, together with statistical support, suffices to require a sentencing judge to explain carefully why a criminal defendant like Payton remains likely to engage in violent robberies between the age of seventy and ninety.  The district court did not address Payton’s argument on this issue, and therefore did not provide an adequate explanation for imposing such a harsh sentence.

Kudos to the Sixth Circuit for giving some real teeth to reasonable review, and especially for its willingness to bring some empirical research into an analysis of means for a sentence to be "sufficient but not greater than necessary."

June 12, 2014 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines

As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.

Federal public defender Sarah Gannett had this to say:

I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal.  Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.

There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety.  At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions).  Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation.  Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal.  Similar arguments can be made about the enhancements the DOJ proposes as limiting.

Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday.  You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website.  Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).

Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized.  In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns.  The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases.  This approach is more principled than the limitations suggested by the Department.  It is discussed in the CLC's statement, which also was posted.  (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload.  See our statement at pp. 9-13, 14-15.)

Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.

Former US Pardon Attorney Margaret Colgate Love had this to say:

I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it.  I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.

Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise".  Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above.  Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.

It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them.  Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies.  Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.

Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum.  It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.

If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more.  It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.

I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts’ “burden to bear.”  Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.

I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive.  I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.

Some recent related posts:

June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, June 11, 2014

Fascinating account of post-Miller realities for juve killers with new chance for eventual freedom

At Slate, Beth Schwartzapfel has this terrific new essay about what might be called "life after Miller" for juvenile murderers who now have a possible chance for release from a life prison sentence as a result of the Supreme Court's modern Eighth Amendment jurisprudence. The piece merits a full read, and it carries the headline, "'Where Do You Think That Rage Came From?' To get parole, people sentenced to life as juveniles must reckon with their pasts." Here is how the piece gets started:

Last week, the Massachusetts Parole Board announced that Frederick Christian might go home.  He would be one of the first people to be released based on the Supreme Court’s 2012 ruling, in Miller v. Alabama, finding mandatory life sentences for juveniles unconstitutional.

Christian was 17 when he was involved in a drug robbery that ended with the shooting deaths of two men.  Now he is 37.  In prison, he got his GED, enrolled in violence prevention programs, and converted to Islam.  The five-times-a-day prayers, he said, “taught me discipline.”  He has maintained a steady job cleaning the prison, gone regularly to Narcotics Anonymous and Alcoholics Anonymous meetings, and helped to grow vegetables for the homeless.

Across the country, some 2,500 people are serving life without parole sentences for crimes they committed as juveniles.  Some have already served 30 years or more.  Yet it’s likely few of them will get out.  Before he can be paroled, Christian still has to complete a behavior modification program and live for a year in a minimum security prison. And his hearing is one of only a handful like it around the country since Miller.  The Supreme Court said that the young people’s capacity to mature and change entitle them to a second chance.  But lower courts, legislatures, and parole boards have more incentive to maintain the status quo than to show mercy — to follow the letter of Miller but not its spirit.

That’s because letting more prisoners like Christian go free requires a return to an idea that the country largely abandoned a generation ago: that criminals can be rehabilitated, and there is a limit to just retribution.  As costs rise for the growing prison population, legislators from every corner of the political map are now calling for a softening of sentencing laws.  But legislation about the future is one thing.  Giving a second chance to people who have already been sentenced for doing terrible things is another.

June 11, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Eleventh Circuit holds USSC report criticizing CP guideline does not make within-guideline CP sentences unreasonable

Though not especially surprising or really ground-breaking, the Evelenth Circuit's ruling today in US v. Cubero, No. 12-16337 (11th Cir. June 11, 2014) (available here), rejecting an attack on a lengthy within-guideline child porn sentence still seems noteworthy and blog-worthy.

As detailed in the lengthy Cubero opinion, the defendant not only made much of mitigating personal factors, but also stressed in support of a below guideline sentence the US Sentencing Commission's recent report to Congress detailing problems with its own guidelines and a letter from a DOJ official criticizing the current child porn guidelines.  But the district judge opted to impose a within-guideline sentence of 12.5 years, and the Eleventh Circuit panel saw this decision as a permissible exercise of the district court's sentencing discretion.

 Here is the heart of some of the panel's discussion of the limited impact and import of the USSC's criticism of its own guidelines (with cites mostly removed):

[The Sentencing Commission's Child Porn to Congress] (1) does not alter the district court’s duties to calculate the advisory guidelines range and to impose a sentence after considering the § 3553(a) factors, (2) does not limit the district court’s discretion to determine what weight to give to each § 3553(a) factor, and (3) does not require the district court to vary from the § 2G2.2-based guidelines range. See 18 U.S.C. § 3553(a)–(b).  The district court was empowered with discretion to consider Cubero’s downward-variance arguments, many of which are now captured by and reflected in the 2013 [USSC CP] report, but the court was not compelled to vary downward....

Contrary to Cubero’s arguments, the 2013 report does not heighten the district court’s statutory duty to state the reasons for imposing a particular sentence. See 18 U.S.C. § 3553(c). And, the 2013 report does not alter the U.S. Supreme Court’s or this Circuit’s precedent regarding the district court’s obligations under 18 U.S.C. § 3553(c); namely, that a district court’s decision to apply the guidelines to a particular case does “not necessarily require lengthy explanation.”  Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007).

Based on current reasonableness jurisprudence, this Eleventh Circuit ruling is not out of the mainstream. If circuits were inclined, as I think they should be, to conduct reasonableness review in a more substantive and rigorous manner, then perhaps defendants might have a chance to prevail with claims that the 2013 USSC report assailing the existing child porn guidelines renders within-guideline CP sentences inherently suspect. But because reasonableness review has tended to be so very deferential, even when all agree that certain guidelines are so very flawed, I was not too surprised by this ruling.

June 11, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, June 10, 2014

DOJ advocates for "limited retroactivity of the pending drug guideline amendment"

As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board.  And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.  

As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines.  Here are the basics of the compromise advocated by DOJ via its submitted testimony:

After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....

Assessing whether the amendment should be applied retroactively requires balancing several factors.  The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders.  While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....

Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....

Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.

With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.

Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.

Some recent related posts:

June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Noting SCOTUS continues to dodge (inevitable?) ruling on Miller retroactivity

This Philadelphia Inquirer article, headlined "U.S. Supreme Court won't hear case of Pa. juveniles serving life," reports on the only significant sentencing news that has come from the Supreme Court so far this week. Here are the details (with original paragraphs re-ordered a bit for exposition):

Pennsylvania has more inmates convicted as juveniles for murder and sentenced to life without parole than any other place in the world.  Pennsylvania has more than 500 people convicted as juveniles and given mandatory life sentences — 300 of them from Philadelphia, advocates say.  The United States is the only country that doles out mandatory life sentences to juveniles. And Pennsylvania has 25 percent of such offenders, advocates say - more than any other state or nation....

Monday [the] U.S. Supreme Court ... declined to hear an appeal by juvenile-justice advocates to revisit the sentences of those prisoners.  "We are obviously disappointed," said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, a national, nonprofit, public-interest law firm for children, based in Center City. The center had brought the appeal to the high court....

In June 2012, the Supreme Court ruled that children under 18 convicted of homicide could no longer receive mandatory sentences of life without parole.  Such automatic sentences, the court found, are unconstitutional, violating the Eighth Amendment's prohibition against cruel and unusual punishment.  Life sentences for juveniles committing murder are allowable; they just cannot be mandatory....

The ruling caused confusion, however.  While it said that juveniles committing murder could not receive mandatory sentences of life without parole in 2012 and beyond, it did not address inmates already serving such sentences.

In October 2013, the Pennsylvania Supreme Court stepped into the void. It found that the U.S. Supreme Court's ruling could not be applied retroactively. Anyone given a mandatory sentence of life without parole who had exhausted all appeals by 2012 would not fall under the federal ruling, the state court said.

Advocates were troubled by the notion that the year a person was sentenced would determine whether he or she would face life without parole.  "The vagaries of timing should not determine if a juvenile should spend the rest of his or her life in prison with no possibility of parole," according to a Juvenile Law Center statement last year.

The center, along with the Defender Association of Philadelphia, appealed the Pennsylvania decision to the U.S. Supreme Court.  Monday's nondecision was the result. "This is a surprise, and not a very good one," said Bradley Bridge, an assistant defender with the association. "It's puzzling."  Bridge said Pennsylvania had become the third state to say the U.S. Supreme Court ruling is not retroactive.  Six states have gone the other way.

Such a split cannot stand for long, said Emily Keller of the Law Center.  Bridge agreed, saying it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas [one of the six states that allows the ruling to be retroactive] gets relief.  That is not a just result." At some point, Keller and Bridge said, the U.S. Supreme Court will have to make a ruling that will stand for every state.

Hugh Burns, chief of the appeals unit of the Philadelphia District Attorney's Office, agreed that "it's not fair" that "those who take a life after a certain date get a break others do not." But, he added, "law is all about line drawing."

More important, Burns said, he takes issue with the U.S. Supreme Court's saying that a juvenile's young brain can't determine right from wrong.  "The idea that a person's brain isn't developed to understand that murdering someone is wrong and subject to serious penalty is to me very odd," he said.

As the title of this post is meant to suggest, I think it is probably only a matter of time before the Supreme Court takes up the issue of whether its 2012 Miller ruling is to be applied retroactively.  But I am not too surprised that the Justices have decided to continue to dodge this issue for the time being, especially in the context of a direct appeal from a state Supreme Court ruling as in Pennsylvania.  I expect the Justices will eventually take up this issue via a traditional habeas appeal from a federal circuit court, but only if and when a significant circuit split develops on this issue in the federal courts.

June 10, 2014 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, June 09, 2014

Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity

As reported in this official notice, a public hearing of the United States Sentencing Commission is scheduled for Tuesday, June 10, 2014, and the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Amendment 782."  That Amendment, in short form, reduces the guidelines applicable to drug trafficking offenses by two levels in most settings.  And, as set forth in this detailed USSC staff analysis, as many as "51,141 offenders sentenced between October 1, 1991 and October 31, 2014, would be eligible to seek a reduction in their current sentence if the Commission were to make the 2014 drug guidelines amendment retroactive.

The hearing agenda and the list of the 16 witnesses scheduled now to testify at this hearing is available here. I am pretty confident that most of these witnesses will advocate that the new drug guidelines be made retroactive, but I am not entirely certain about what positions will be advocated by the Department of Justice and some of the law enforcement witnesses. In addition, advocates on both sides likely will articulate in different ways with distinct emphasis why they think retroactivity for these new reduced drug guidelines would be a good or bad idea.

I am hopeful that by this time tomorrow the written testimony to be submitted by the witnesses with be linked on the USSC's website.  In the meantime, I will be re-reading  this detailed USSC staff analysis in order to have a better understanding of the 50,000+ federal prisoners whose fates could be impacted by the retroactivity decision.

June 9, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"What Is Federal Habeas Worth?"

The title of this post is the title of this interesting new piece on SSRN authored by Samuel Wiseman. Here is the abstract:

Federal habeas review of state non-capital cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is widely regarded as deeply flawed, producing a huge volume of costly litigation and very little relief.  Many scholars have called for AEDPA’s repeal and a return to more robust federal review, but recently, several prominent commentators have suggested more dramatic change — radically limiting federal habeas in exchange for more fruitful reform efforts. In an era of limited criminal justice budgets and an increasing focus on efficiency, these proposals are likely to proliferate.  This article lays out a needed empirical and theoretical foundation for the debate over habeas’s future.  To date, no one has estimated how much federal habeas actually costs (and thus the potential savings from eliminating it), a figure necessary for assessing the feasibility and desirability of any radical reform scheme.  This article fills that gap, using available budget data, public records requests, and correspondence with state officials to estimate that figure at roughly $260 million per year.

This sum, a tiny fraction of criminal justice spending and barely a blip in state and federal budgets, places recent reform proposals in a new light: it is possible that these proposals have failed to gain more traction because they would not free up sufficient funds to please either habeas proponents or opponents.  The federal habeas system is one of the only mechanisms through which federal courts may reveal state violations of defendants’ constitutional rights, and it retains both instrumental and symbolic value.  Further, getting rid of the watered-down version of individual review that remains under AEDPA would likely be difficult to reverse, making a more robust system harder to realize in the future. Any proposals to curtail this system in exchange for state reforms therefore have a high barrier to overcome with habeas proponents.  For federal habeas opponents, the current federal system is not particularly costly, either financially or otherwise, since so few petitioners obtain relief.  Given the small cost of the current system, and thus the financial savings available, radical form is probably unlikely, regardless of the desirability of any individual proposal.  The article therefore proposes more modest reforms to make the current system more functional.  One such step is ensuring that federal habeas under AEDPA, despite statutory silence, is not blind to the quality of state postconviction processes.

June 9, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, June 05, 2014

Will Canada's courts continue to strike down mandatory minimums as unconstitutional?

The question in the title of this post is prompted by this interesting recent commentary in a Canadian paper sent my way by a helpful reader.  The piece by Lisa Kerr is headlined, "Mandatory minimums for drug crimes have no future in Canada: As the B.C. Court of Appeal prepares to hear the first major challenge to mandatory minimums, there’s reason to think the policy will be rightly short-lived."  Here are excerpts:

This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.

New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.

In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S....

The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.

Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.

In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.

Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.

June 5, 2014 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Split Fourth Circuit highlights ugly mess of SCOTUS "crime of violence" jurisprudence

If you are sentencing nerdy like me, you often wonder what crimes are properly considered "crimes of violence" under federal law.  And, if you are sentencing nerdly like me, you also know the Supreme Court's work on this issue sometimes makes very hard to answer whether a particular state crime is a "crime of violence" for federal sentencing law purposes.  This reality is on stark display in a 40-page opinion handed down today by a Fourth Circuit panel in US v. Martin, No. 12-5001 (4th Cir. June 5, 2014) (available here).

At issue in Martin is the seemingly simple question of whether the defendant's prior Maryland conviction "for fourth-degree burglary constituted a crime of violence under U.S.S.G. § 2K2.1(a)(2)."  But each judge on the panel had something distinct to say on the matter: "Chief Judge Traxler wrote the majority opinion, in which Judge Diaz joined.  Judge Diaz wrote a separate concurring opinion. Judge O’Grady wrote a dissenting opinion."   Gluttons for jurisprudential punishment will want to read the entire Martin ruling, but others will get a feel for this story from portions of Judge Diaz's concurrence:

This case raises a vexing question regarding the application of the crime of violence enhancement found in the Guidelines: To what extent does Begay’s “similar in kind” test for analyzing offenses under the residual clause survive Sykes v. United States, 131 S. Ct. 2267 (2011)?  Specifically, would the Supreme Court apply that test in determining whether Martin’s fourth degree burglary conviction under Maryland law qualifies as a crime of violence? Or would the Court again change course?...

“[T]o put it mildly,” the residual clause is “not a model of clarity.” See James, 550 U.S. at 217 (Scalia, J., dissenting).  The clause “is nearly impossible to apply consistently,” and the Supreme Court’s jurisprudence “has created numerous splits among the lower federal courts.” See Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J., concurring in the judgment); cf. United States v. Vann, 660 F.3d 771, 797 (4th Cir. 2011) (en banc) (Davis, J., concurring) (“At the end of the day, it may well be that Justice Scalia is right: that the residual clause of the Armed Career Criminal Act is unconstitutionally vague.”)

The Supreme Court has struggled mightily to make sense of this sphinx-like provision, but the clause remains an elusive target.  We are told that a prior conviction triggers the sentencing enhancement when “the risk posed by [the offense at issue] is comparable to that posed by its closest analog among the enumerated offenses.”  See James, 550 U.S. at 203 (majority opinion).  But, at least in some cases, the offense must also be “roughly similar, in kind as well as in degree of risk posed, to the [enumerated] examples.”  See Begay, 553 U.S. at 143.  To be roughly similar in kind, the crime must be “purposeful, violent, and aggressive.” See id. at 145.  Fear not though, because “[i]n many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk.” See Sykes, 131 S. Ct. at 2275.  As Justice Scalia noted in dissent in Sykes, however, why the inquiry will often be redundant, and when it will not be, “are not entirely clear.” See 131 S. Ct. at 2285....

Beyond this case, however, “[t]he Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come.” Id. at 2287 (Scalia, J., dissenting).  I urge Congress or the Court to shed light on this “black hole of confusion and uncertainty.”  See Vann, 660 F.3d at 787 (Agee, J., concurring).

June 5, 2014 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

"Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause"

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

The Supreme Court long ago rejected due process challenges to the government’s use of strict liability offenses, but the Court has never considered the issue of whether imprisonment for such crimes violates the Cruel and Unusual Punishments Clause.  Being unable to persuade the Court to forbid strict liability crimes altogether, defendants incarcerated for those crimes are likely to argue that their punishment is cruel and unusual.  It therefore may not be long before the courts, including the Supreme Court, must finally address the issue.  When that day arrives, the Court should limit the penalties that can be imposed for strict liability crimes by forbidding any period of incarceration altogether or, at least, by outlawing imprisonment.  The Constitution should not allow a person to be imprisoned for committing a strict liability offense.

June 5, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Wednesday, June 04, 2014

Defendant's appeal gets his sentence increased(!) from 30+ years to LWOP

The First Circuit handed down a remarkable ruling in US v. Sevilla-Oyola, No. 12-1264 (1st Cir. June 3, 2014) (available here).  As the start and end of the 30+ page majority opinion highlights, this case provides a remarkable reminder to becareful what you ask for when pursuing an appeal:  

Sometimes it's better to quit while you're ahead. The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola ("Sevilla"), each one shorter than the last.  Still dissatisfied, Sevilla asks us for another bite at the sentencing apple before a different district judge.  To support his claim before this court, Sevilla says the district judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment.  Alternatively, he says that even if the judge's later actions were authorized, they were plagued by additional errors.

We agree that the district judge lacked statutory authority to act after he entered the original sentence and that the initial plea colloquy was flawed.  But we cannot say that the imperfections Sevilla cites justify setting aside the first judgment.  Nor can we say, based on the arguments Sevilla puts forth before us, that the first sentence was unreasonable. Accordingly, the first and most severe sentence imposed by the district judge — 327 months plus a consecutive term of life imprisonment — stands.  And Sevilla — who until today was facing a total sentence of 405 months — will likely find himself wishing he had left well enough alone....

We acknowledge that our result may seem harsh.  Where Sevilla once faced 405 months' imprisonment, now he must grapple with a life sentence.  But Sevilla chose to proceed with this appeal knowing he risked a higher sentence.

At oral argument, we explicitly asked Sevilla's counsel if Sevilla understood that this appeal could subject him to a sentence based on consideration of his alleged involvement in the Pitufo murder and longer than the 405-month term ultimately imposed by the district judge. We sought confirmation that Sevilla wished to appeal anyway.  On the spot, counsel asserted that Sevilla understood these risks, but he agreed to call Sevilla to confirm.

A few days later, counsel filed an unresponsive motion that did not address whether Sevilla understood the risks he faced by seeking vacation of the third and most favorable 405-month sentence. We then entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though "re-sentencing in this matter presented the risk to [Sevilla] of receiving a sentence greater than his current sentence of 405 months and up to life imprisonment, particularly if the district court were to consider either [Sevilla's] alleged involvement in the 'Pitufo' murder or calculate a base sentencing level and make appropriate upward departures." (Emphasis in original.) Counsel filed a second motion saying he had explained those risks to Sevilla and Sevilla still wished to proceed.

While our order focused on the risk of a life sentence upon re-sentencing before the district court, the propriety of a life sentence was clearly before us in this appeal. And because we expressly warned Sevilla that a life sentence remained on the table, though the outcome we reach is not what Sevilla hoped for, at least it should come as no surprise.

Judge Torruella authored a lengthy dissent to the majority ruling, which gets started and ends this way:

Carlos Sevilla-Oyola ("Sevilla") was sentenced by the district court to 405 months in prison. On appeal, he brings to our court's attention numerous errors. The majority, finding several of these claims meritorious, has granted a most unusual form of "relief" — life in prison. From that irrational result, I respectfully dissent....

Sevilla's sentencing was fraught with mistakes, misstatements, and omissions on the part of the sentencing judge.  The unique posture of this case, arising from a sentencing replete with errors of the court's own making, and concerning an error that no party seeks to defend, is well fit for a simple resolution: remand for a correction of the Rule 11 error and imposition of a new sentence.  Instead, the majority now sua sponte chooses to summarily impose the first sentence, which the district court judge himself determined to be erroneous and improper, and which no party has sought to defend on appeal.  In so doing, the majority — from a cold appellate record, and in contravention of the intent and discretion of the sentencing judge — has increased Sevilla's sentence from just under thirty-four years to life in prison.  This life sentence is based in no small part upon uncharged conduct which the district court, in its discretion, ultimately deemed improper to consider in this case.

In attempting to defend this resolution, the majority states that Sevilla was put on notice of the fact that, upon remand and resentencing, his ultimate sentence might be greater than the 405 months on appeal.  That notice, however, never so much as hinted at the idea that our court might short-circuit the accepted practice of remand, which would have provided Sevilla with a chance to be heard at a new sentencing hearing, and instead simply impose a sentence significantly higher than that from which he appealed.[FN 36]

From this result, a pyrrhic victory if there ever was one, I respectfully dissent.

[FN 36] I know of no other case — and the majority cites to none — in which an appellate court undertook to put in place a higher sentence than that from which the defendant's appeal was taken.  The unusualness of this situation is surely cold comfort to Sevilla, who (as the majority suggests) will undoubtedly "wish[] he had left well enough alone."  I hope, however, that it might mitigate the chilling effect of this result, such that future defendants are not made fearful of bringing even meritorious claims on appeal. While the majority seems to chide Sevilla for not "quit[ting] while [he was] ahead," I see no humor or harm in a defendant attempting to bring to our court's attention a heavily flawed sentencing process.  If Sevilla is seeking "another bite at the sentencing apple," our court would do well to recognize that this is because his first was so thoroughly rotten.

I presume and expect that this defendant will not pursue en banc review and/or Supreme Court review. I wonder if he should worry that such further appellate efforts might risk earning him a death sentence.

June 4, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, June 03, 2014

After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?

The old saying goes, "If at first you don't succeed, try, try again."  But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again.  The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:

Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.

Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.

His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein.  Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed.  An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.

Broom's appeals in federal court are on hold while the state court hears the constitutional arguments.  Broom has been back on death row since.  No new execution date has been set.

In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work.  The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments.  A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.

Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing....  The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins. 

For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky.  In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence.   But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence.  Stay tuned.

June 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Michigan Supreme Court holds that Gov cannot revoke a valid sentence commutation

Today in Makowski v Governor, No. 146867 (Mich. June 3, 2014) (available here), the Michigan Supreme Court declared unanimously that "the Michigan Constitution does not grant the Governor the power to revoke a valid commutation."  Here is an excerpt from the start of the syllabus to the decision which provides context for and summarizes the context of the ruling:

Matthew Makowski filed an action in the Court of Claims against the Governor and the Secretary of State, seeking a declaratory judgment and injunctive relief to reverse then Governor Jennifer Granholm’s decision to revoke her commutation of plaintiff’s nonparolable life sentence that had been imposed for his first-degree murder and armed robbery convictions.  The Governor had signed the commutation on December 22, 2010, after which it was signed by the Secretary of State and affixed with the Great Seal; however, four days later, the Governor decided to revoke the commutation order, and all copies of the commutation certificate were destroyed.  Plaintiff alleged that the commutation was final when it was signed, sealed, and delivered to the Department of Corrections, and argued that the Governor lacked the authority to revoke a completed commutation.  The court, Richard D. Ball, J., granted defendants’ motion for summary disposition, concluding that it lacked jurisdiction to review the governor’s exercise of discretion over commutation decisions.  Plaintiff appealed.  The Court of Appeals, O’CONNELL, P.J., and CAVANAGH and DONOFRIO, JJ., affirmed, holding that the Governor’s exercise of the commutation power presented a nonjusticiable political question.  299 Mich App 166 (2012).  The Supreme Court granted plaintiff’s application for leave to appeal. 494 Mich 876 (2013).

In an opinion by Justice CAVANAGH, joined by Chief Justice YOUNG and Justices MARKMAN, KELLY, AND VIVIANO, the Supreme Court held:

The interpretation and exercise of the Governor’s powers under Const 1963, art 5, § 14 were justiciable questions properly before this Court.  The Constitution did not give the Governor the power to revoke a validly granted commutation.  A commutation is complete when it is signed by the Governor and the Secretary of State and affixed with the Great Seal. Because the Governor signed plaintiff’s commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence.

June 3, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"

This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:

In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent.  As of now, the change will apply only to defendants who are sentenced after November 1, 2014.  But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.

Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences.  That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes.  But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels.  We incarcerated approximately 25,000 people in federal prisons in 1980.  By 2013, that number had risen to over 219,000.  As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....

Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation.  Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....

Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years.  In the universe of criminal justice, 38 is old.  Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..."  These older offenders should have a low risk of recidivism generally.  And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.

Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas.  True, Texas is big and populous, but it's also punitive.  The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent.  Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.

The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction.  But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.

I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.

That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.

My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors.  Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined.  These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war.  Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.

Some various somewhat recent related posts:

June 3, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack