Wednesday, January 06, 2016

Making the case for a "20-Year Maximum for Prison Sentences"

Marc Mauer has this essay in Democracy: A Journal of Ideas which makes the case for a heavy presumption that no prison sentence should be longer than two decades.  Here are excerpts from the piece:

The excessively lengthy incarceration of offenders — yes, even for violent crimes — is counterproductive, costly, and inhumane.  To remedy this problem, Congress and state legislative bodies should establish an upper limit of 20 years in prison as a maximum penalty, except in unusual cases such as a serial rapist who has not been amenable to treatment in prison or a mass murderer.  The rationale for such a policy shift is grounded in both humanitarian and public-safety concerns.  Life sentences ruin families and tear apart communities; they deprive the person of the chance to turn his or her life around.  Moreover, it has long been known that individuals “age out” of crime, and that this occurs at a surprisingly young age.  As is true of all adults, offenders mature in prison as they age and develop a longer-term vision for their lives.  Research by leading criminologists Alfred Blumstein and Kiminori Nakamura demonstrates that an 18-year-old arrested for robbery is no more likely to be arrested for this crime by the age of 26 than anyone in the general population.  Thus, each successive year of incarceration after this decline sets in produces diminishing returns for public safety.

This impact comes at great cost as well.  Estimates are that the cost of imprisoning an elderly offender is double that of a young offender, largely due to high health-care costs. Given that public-safety resources are finite, incarcerating aging prisoners inevitably diverts resources from preschool programs, substance abuse treatments, and mental health interventions that all produce demonstrated and substantial crime-reduction benefits.

Lengthy prison terms also exacerbate the dramatic racial and ethnic disparities that have defined the phenomenon of mass incarceration.  Nationwide, nearly two-thirds of the people serving life in prison are African-American or Latino. The sight of elderly men of color in prison uniforms and bound in wheelchairs only reinforces the racialized nature of incarceration in the modern era.

Some skeptics would argue that while the public-safety argument may apply to many offenders, there are nonetheless individuals who present such a threat to the community that even 20 years in prison is not sufficient for public protection.  That’s certainly correct.  But the problem is that on the day of sentencing, no one — including the judge — can predict who those people are, or how individuals may mature over a 20-year period.

For this reason, policymakers could establish a mechanism to evaluate the public-safety risk of select prisoners as they near the end of their 20-year term.  A review board comprised of psychologists and other professionals could make recommendations either to a judge or a parole board regarding whether continued confinement is necessary for public safety.  And in such cases, they should also propose appropriate treatment interventions designed to produce behavioral change leading to eventual release.

While some might think this is unrealistic, sentences of more than 20 years are quite rare in many democratic nations. Norway, for example, limits prison terms to no more than 21 years, followed by a period of civil confinement when deemed necessary.  Even the worst mass killer in the country’s history, Anders Breivik, who killed 77 people in 2011, is serving such a prison term.  Contrast this to the current practice in the United States, where countless drug offenders are serving far lengthier terms.

January 6, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5)

Tuesday, January 05, 2016

"Reducing Crime Through Expungements"

The title of this post is the title of this timely and interesting (and perhaps controversial) new paper by Murat Mungan now available via SSRN. Here is the abstract:

Expungements reduce the visibility of a person's criminal record, and thereby reduce the informal sanctions that may be imposed on him.  This reduction is enjoyed by the ex-convict only if he does not become a repeat offender, because otherwise he re-obtains a criminal record.  Thus, the value a person attaches to having his record expunged is inversely related to his criminal tendency.  

Therefore, by making expungements costly, the criminal justice system can sort out low criminal tendency individuals — who are unlikely to recidivate — from people who have high criminal tendencies.  Moreover, the availability of expungements does not substantially affect a first time offender's incentive to commit crime, because one incurs a cost close to the reduction in informal sanctions that he enjoys by sealing his criminal record.  On the other hand, expungements increase specific deterrence, because a person who has no visible record suffers informal sanctions if he is convicted a second time.  Thus, perhaps counter-intuitively, allowing ex-convicts to seal their records at substantial costs reduces crime.

January 5, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, January 04, 2016

Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity

As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities.  The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?".  Here are a couple of paragraphs setting the table for the case-specific tale:

Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....

Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults.  Some states removed consideration of youth altogether, replacing discretion with compulsory triggers.  By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.

One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless.  Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14.  If convicted, he would automatically be sentenced to life without parole.

By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states.  In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14.  One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.

The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences.  But Louisiana has a higher number of such inmates per capita than any other state.  Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.

These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:

January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)

"Mr. Obama’s Trickle of Mercy"

The title of this post is the headline of this recent New York Times editorial.  Here is an excerpt:

After seven years in office, Mr. Obama has issued a total of 184 commutations and 66 pardons — more grants, as the White House wasted no time in pointing out, than the last six presidents combined. But that’s a pitifully low bar, since Mr. Obama’s most recent predecessors all but abandoned the practice.

Mr. Obama knows this is a far deeper problem than can be solved by a few dozen grants.  There are 9,000 applications for commutations that have not been acted on.  The administration solicited applications like these in 2014 as part of a sweeping clemency initiative aimed at federal inmates who have served at least 10 years of a sentence that would be shorter today because the law has changed.  To be eligible, prisoners must also have been convicted of a low­level, nonviolent offense, have no “significant” criminal history, and have behaved while behind bars.

At the time, the initiative seemed a big step toward reversing some of the gravest injustices of the nation’s decades­long drug war, most obviously for the thousands of inmates still serving time for crack cocaine offenses that are punished far less harshly today.

Less than two years later, however, the vast majority of applications remain in limbo.  A coalition of volunteer defense lawyers working alongside the Justice Department has struggled to get basic information on applicants.  The department itself is hopelessly mired in bureaucratic tangles and institutional conflicts of interest.

By the administration’s own estimates, as many as 10,000 people could be released under the new criteria, former Attorney General Eric Holder Jr. told The Washington Post this month.  So why is Mr. Obama continuing to make grants in the single or double digits?

One reason is the Justice Department; the clear solution is to run the process directly out of the White House.  The president may also be wary of undercutting a package of bipartisan sentencing reforms making its way through Congress.  But that legislation is far from a done deal, and may be on even shakier ground now that one of the leading Republican presidential candidates, Senator Ted Cruz, rejects reforms he previously supported.

Regardless of what Congress does, the presidential power of mercy is explicit in the Constitution, it is virtually unlimited, and presidents once used it far more freely to correct injustices. It is a “tool of public morality,” as one former federal prosecutor put it.  If Mr. Obama truly wants to reinvigorate this moribund process, he has a year left to do it. The job requires only two things: a pen and the political will.  There is no question that Mr. Obama has the pen.

A few recent related posts:

January 4, 2016 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, January 03, 2016

"Taking Another Look at Second-Look Sentencing"

The title of this post is the headline of this notable new article authored by Meghan Ryan and recently posted SSRN.  Based on the abstract alone, I am a big fan of this paper because it appears to explore rigorously a sentencing topic which I believe merits much more attention in an era marked by a record-high numbers of LWOP and other lengthy prison sentences: whether, why and how a sentence imposed long ago can and should be reconsidered anew.  Here is the abstract:

A historically unprecedented number of Americans are currently behind bars.  Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform.  For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders.

Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed.  These evolved societal views, the drafters have asserted, might justify reducing the offenders’ sentences.  The drafters of the Code have suggested that this position is based in part on retributivism — on what these particular defendants deserve as a result of committing these crimes.  

But an offender’s desert ordinarily does not change as time progresses; it is societal views of desert that change.  This raises a new question in criminal law about whether the original sentencer — the one imposing punishment at the time of trial — or a new sentencer — one imposing punishment over a decade after the offense was committed — is better positioned to determine the offender’s desert.  The drafters of the Code have proffered that a new sentencer is best because it can be more representative of modern values.  But the new sentencer does not represent the public against which the offense was committed.  And the new sentencer may not be well positioned to assess the offender’s culpability or the harm he caused.  

The new sentencer may be in a better position to know whether, as time has passed, the offender has been rehabilitated or whether he still poses a danger to society, but these factors are not based on the offender’s desert.  While these other utilitarian considerations may certainly justify second-look sentencing, and while second-look sentencing may very well be a useful innovation, this new approach to sentencing overlooks the important desert-based restraints of limiting retributivism upon which the Code is based.  Reliable assessments of an offender’s desert generally best lie with the decisionmakers in place around the time the crime was committed.

January 3, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, January 02, 2016

Local prosecutor urges Wyoming legislature to "fish or cut bait" with capital punishment

As reported in this local AP piece, headlined "Casper prosecutor says Wyoming needs to reconsider death penalty," a district attorney in the Equality State is complaining that his state legislature seems unwilling to back the state's capital laws with sufficient capital. Here is the story:

A prosecutor who secured a death sentence against Dale Wayne Eaton for the murder of a woman nearly 30 years ago says the lingering appeal in the case shows the Wyoming Legislature must decide if it's willing to provide the resources necessary to handle capital punishment.

The call came from Natrona County District Attorney Mike Blonigen, who prosecuted Eaton in 2004 for the 1988 killing of Lisa Kimmell of Billings, Montana. For years, Eaton was the only man on death row in Wyoming. His death sentence was overturned in November 2014. "You keep going, and you tell yourself that this is about what the man actually did," Blonigen said.

"But it seems the further we get removed from what he actually did, and out from his trial, the less and less that seems to matter," Blonigen said of Eaton. "Instead, we're tied up in all this other stuff that has nothing to do with the truth or untruth of any of the allegations made, but have everything to do with the procedure."

Kimmell disappeared while driving across Wyoming and fishermen later found her body in the North Platte River. In 2002, DNA evidence linked Eaton to the case while he was in prison on unrelated charges.

The Wyoming Supreme Court upheld Eaton's death sentence, but U.S. District Judge Alan B. Johnson of Cheyenne overturned it last year, ruling that ruled that Eaton hadn't received an adequate defense. Johnson said the Wyoming Public Defender's Office had tried to scrimp on expenses and failed to follow American Bar Association staffing recommendations on providing qualified lawyers, an investigator and a mitigation expert.

Johnson gave the state the choice of allowing Eaton to serve life in prison or seeking the death penalty against him at a new sentencing hearing with the requirement that the state appoint lawyers for him not associated with the Wyoming Public Defender's Office. Blonigen began pressing in state court to hold a new death penalty hearing for Eaton.

But Johnson ruled this summer that the state had failed to follow his order by not appointing new lawyers for Eaton fast enough. In his order last week, Johnson prohibited the state from holding a new death penalty hearing while Eaton appeals aspects of the order Johnson issued last year. Eaton's current legal team is asking a federal appeals court in Denver to rule that too much time has passed for Eaton to get a fair death penalty hearing.

Gov. Matt Mead's budget recommendations, released before Johnson's order, called for the Legislature to appropriate over $1 million for the coming two-year state funding cycle to pay for Eaton's defense in state court. Mead also is calling for $25,000 to study whether prosecutors and the Public Defender's Office are receiving adequate funding.

Wyoming last carried out the death penalty in 1992, when it executed convicted murderer Mark Hopkinson. Several other death sentences have been overturned on appeal since then on the grounds of ineffective legal representation from the Public Defender's Office....

Blonigen said Eaton's case underscores the need for the state to provide adequate support if it wants to keep the death penalty on the books. "You've got to have the resources and have the commitment to it to carry through with it," Blonigen said. "I think the Legislature has to decide do we really want this or not. If we really want it, then we have to change some things."

January 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Monday, December 28, 2015

"It’s Time for Obama to Go Big on Pardons"

The title of this post is the headline of this notable recent New Yorker commentary authored by Jeffrey Toobin. Here are excerpts:

The orderly mind of Barack Obama appears to recoil at the vulgar world of pardons.  The President is a consummate rationalist, a believer in systems and order.  Pardons, in contrast, rely exclusively on the whim of the grantor. This Presidential power is descended from the concept known in Great Britain as the royal prerogative of mercy — three words that seem almost guaranteed to offend this President, singularly or especially aligned together.

But President Obama is starting to come around on pardons, or at least on commutations. (A commutation allows a convict to leave prison at a designated date; a pardon can also involve an end to a prison sentence but bestows a broader restoration of rights, like the right to vote or own a firearm.)  Last week, the President announced that he had commuted the sentences of ninety-five federal prisoners and granted two pardons.  In seven years, Obama has now issued a hundred and eighty-four commutations, more than his last six predecessors combined, but only sixty-one pardons, which is far less than most recent Presidents.... Obama is moving in the right direction, but he has a long way to go.  There are roughly two hundred thousand people in federal prison in the United States.  Do they all belong there?  Should only a few dozen have their sentences shortened?

Those questions answer themselves, as Obama himself knows.  He has made the reduction of mass incarceration one of the touchstones of his final years in office. As he said, in a recent speech to the N.A.A.C.P. national convention, “Mass incarceration makes our country worse off, and we need to do something about it.” No one can stop the President from doing at least that.  Since 2011, Obama has been stymied by the Republican Congress from undertaking major legislative initiatives, but the pardon power is absolute and unfettered.  The President can pardon everyone, and anyone, he chooses.

Obama is a democrat as well as a Democrat, and surely something in him rebels at exercising absolute power on a grand scale.  One problem with pardons is that Presidents have considered them in secret, springing the decisions on the public only after they have been made.  In high-profile cases, like Gerald Ford’s pardon of Richard Nixon or Bill Clinton’s pardon of the fugitive financier Marc Rich, the political repercussions have been disastrous. But Obama could avoid this problem with some innovation — and sunshine.  Over the last year of his Presidency, his Administration should publish the names of people being considered for pardons.  In this way, members of the public can make their views known about the wisdom (or lack thereof) of letting each individual out of prison.  All Presidents and governors (who also have pardon power) are haunted by the possibility that they might release someone who goes on to commit horrible crimes. (Former Governor Mike Huckabee of Arkansas pardoned several people who did just that.)

This public airing might well save Obama from making some poor choices, but it will also guarantee him a measure of political protection.  Opponents of pardons will be able to speak now, or they’ll forever have to hold their peace.  If Republicans offer blanket objections to broad pardons, they’ll be demonstrating that they simply want more people in prison, regardless of the costs in dollars, public safety, or lost lives.

Most importantly, this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far.  Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule — that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible....

Obama should be considering action on this vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes.  He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons.  These are worthy, modest goals.  But the pardon power, with its roots in the monarchy, allows a President to go big — and that’s exactly how Obama should go.

P.S. Ruckman at Pardon Power is not especially impressed by Toobin's work here, as evidence by this recent posting about this commentary headlined "Toobin: Still the Worst of the Worst."

A few very recent related posts:

December 28, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, December 24, 2015

Is it reasonable to ask Santa Claus to bring a certiorari grant on acquitted conduct sentencing?

Download (6)The silly question in the title of this post is prompted by the terrific Christmas-week opinions authored by DC Circuit Judges Kavanaugh and Millett in concurrences to the denial of en banc rehearing in US v. Bell, No. 08-3037 (DC Cir. Dec. 22, 2015) (available here). Regular readers know that I have long been troubled by the use of so-called acquitted conduct in the calculations of an applicable guideline range, both opinions in Bell spotlight well some of the reasons why.

Interestingly, Judge Kavanaugh suggests he thinks Congress or the Sentencing Commission may need to act in order now to address problems with acquitted conduct. But Judge Millett's opinion in Bell provides, in the space of eight pages, a thoughtful and thorough accounting of why the Supreme Court should consider anew the constitutional validity of sentences enhanced dramatically on the basis of allegations that a jury considered insufficient for a lawful conviction.  I will provide here an exceprt from the start and end of Judge Millett's opinion:

This case is one in an “unbroken string of cases” encroaching on the Sixth Amendment right to a trial by jury, Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of certiorari).  The government indicted Gregory Bell for a “mélange” of crimes, “including conspiracy and crack distribution.”  Panel Op. 2.  Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.”  Panel Op. 3.  The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.

Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months.  At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison — a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.

In a constitutional system that relies upon the jury as the “great bulwark of [our] civil and political liberties,” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story, Commentaries on the Constitution of the United States 540– 541 (4th ed. 1873)), it is hard to describe Bell’s sentence as anything other than a “perverse result,” United States v. Watts, 519 U.S. 148, 164 (1997) (Stevens, J., dissenting).  The foundational role of the jury is to stand as a neutral arbiter between the defendant and a government bent on depriving him of his liberty.  But when the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing....

While I am deeply concerned about the use of acquitted conduct in this case, I concur in the denial of rehearing en banc.  That is because only the Supreme Court can resolve the contradictions in the current state of the law, by either “put[ting] an end to the unbroken string of cases disregarding the Sixth Amendment” or “eliminat[ing] the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.”  Jones, 135 S. Ct. at 9 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari).  Though I am not certain Bell’s argument is directly foreclosed by Supreme Court precedent, my colleagues on the panel have done their best to navigate existing precedent, recognizing that the Supreme Court has thus far declined to address this issue.  Going en banc would only delay affording the Supreme Court another opportunity to take up this important, frequently recurring, and troubling contradiction in sentencing law.

Despite seemingly having a number of sound vehicles for reconsidering Watts in the wake of Apprendi, Blakely, Booker et al., the Supreme Court has persistently dodged this acquitted conduct issue for well over a decade. Thus, we may need some of the holiday magic of Old Saint Nick in order to finally get the Justices to give needed attention to "this important, frequently recurring, and troubling contradiction in sentencing law."

December 24, 2015 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list

This Washington Post article, headlined "Obama’s clemency list brings joy to the lucky and anguish to the disappointed," notes the sadness felt by federal prisoners and their families when certain names fail to appear on the latest list of commutations. Here are excerpts from a lengthy piece that gives special attention to the (in)famous case of Weldon Angelos:

The president wants to use his clemency power to undo past injustices, and on Friday, in the largest single-day grant of his presidency, he signed 95 commutations.  They brought joy to families across the country.

“God be the Glory,” said Sharanda Jones, a 48-year-old Texas woman who was sentenced to life in prison without parole for a cocaine offense. She was a first-time, nonviolent offender. “I am overjoyed.”

But for thousands of other prisoners, who may also meet the president’s criteria, their exclusion was a hard blow.  “It was a great day for those who won the lottery and one more disappointment for everyone in the pipeline who should be on the list,” said Amy Povah, a former inmate and the founder of the Can-Do Foundation, a clemency advocacy group.

criminal justice reform advocates of an irrationally severe system.  He was sentenced in 2004 to a mandatory 55 years in prison without the possibility of parole after he was arrested for selling marijuana in three separate transactions with a Salt Lake City police informant, while possessing a firearm.  Angelos never used or pulled out the gun, but the informant testified that he saw a gun when he made the buys, and that triggered a statute referred to as “gun stacking,” which forced the judge to give him a long sentence.

Angelos’s case has been widely championed, including by Families Against Mandatory Minimums and conservative billionaire Charles Koch.  Former U.S. District Court judge Paul G. Cassell, who was appointed by President George W. Bush, has called the sentence he imposed on Angelos “unjust, cruel and even irrational.”  Mark Holden, general counsel and senior vice president of Koch Industries, said the failure to commute Angelos’s sentence Friday was “disappointing and devastating for Weldon and his family.”

“Think of anything in your life that you’ve waited for,” Holden said.  “Everything else pales in comparison to this. ​​ It is unclear why Angelos failed to get clemency.  A Justice Department spokeswoman said that officials do not discuss individual clemency petitions. Another official noted that the department is processing them “as thoroughly and expeditiously as we can.”

Each of the four times that the president has announced his commutations has been difficult for Angelos, but this time cut the deepest.  And it’s not because it came around the holidays. It’s because this group of inmates will be released on April 16.  “If I had been given clemency this time,” Angelos, a father of three, said in an interview at the Federal Correctional Institution at Mendota, “I would have been out for my oldest son’s graduation from high school in June.”

When he came in from the track, Angelos called his sister, Lisa.  She had heard he wasn’t on the list, and she was crying.  While talking to her, he looked up and saw Obama on the prison television set making his official announcement at his end-of-year news conference.  “I felt like someone had punched me in the stomach,” he said.

Similar scenes were playing out in other federal prisons, said Angelos’s lawyer, Mark Osler, a law professor at the University of St. Thomas in Minnesota and a co-founder of New York University’s Clemency Resource Center.  He represents nine clients who are seeking clemency. “I dreaded the phone ringing,” Osler said in a blog post he called “Sunday Reflection:  The sad call”: “I looked at the screen and it said what I feared it would: ‘Unknown,’ which is how calls from prison always come up. I let it ring once, twice, three times before pressing ‘answer.’ . . . And each time I talked to them about what had happened, how I did not know how they picked the lucky ones.  They told me, in heavy voices, what they would miss: a son’s graduation, the last days of a mother in fading health.  And each time I hung up and sat in silence.”

White House Counsel W. Neil Eggleston said last week that Obama, who has granted 184 clemencies, has already commuted the sentences of more individuals than the past five presidents combined.  “We expect that the president will grant more commutations and pardons to deserving individuals in his final year in office,” Eggleston added.

But clemency advocates say that Obama has put himself in a different position than previous presidents. Instead of granting a moment of mercy to an inmate — much like the odds of being struck by lightning — Obama’s Justice Department set out eight specific clemency criteria, including having served at least 10 years, having no significant criminal history prior to conviction and demonstrating good behavior in prison.  And he raised the hopes of thousands who believed they could qualify. “What the president announced was a categorical grant to people who met those eight criteria,” Osler said. “If it’s a categorical grant, we should be seeing consistency.”

I suspect there may well be a cruel irony to the decision not to have (my former pro bono client during his 2255 efforts) Weldon Angelos on the lastest list of commutation: I think Prez Obama and his advisors might reasonably fear that granting clemency to Angelos now could undercut some urgency in Congress to continue pressing forward with statutory sentncing reform. GOP Senator Mike Lee has often mentioned the Angelos case in his advocacy for federal sentencing reform, and the stacking of mandatory minimums that resulted in Angelos' extreme sentence would be fixed in the reform bills that have been slowly moving through Congress.

I suspect Prez Obama is especially eager to see Angelos get relief from a duly enacted law, and I remain hopeful that Angelos will appear on a clemency list before this time next year if Congress in 2016 proves unable to reform the problematic provision that led to Angelos receiving a mandatory 55 years for a few minor marijuana sales. In the meantime, I hope Weldon, his family and all those advocating on his behalf might get a glimmer of comfort from the possibility that Angelos' continued incarceration may actually foster continued congressional reform efforts which would benefit thousands of fellow federal prisoners.

December 24, 2015 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Child Pornography Sentencing in the Sixth Circuit"

The title of this post is the title of this notable new papaer by Carissa Byrne Hessick now available via SSRN. Here is the abstract:

This Symposium Essay explores and analyzes the Sixth Circuit’s approach to child pornography sentencing.  It critiques the Sixth Circuit’s decision to apply heightened scrutiny to below-Guideline sentences for child pornography possession.  In addition to presenting a critique of the Sixth Circuit’s cases, the Essay also provides guidance for defense attorneys seeking a below-Guidelines sentence.  It notes that there are particular strategies those attorneys should follow in order to secure not only a more lenient sentence from a district court judge, but also a sentence that is more likely to be upheld by the Sixth Circuit on appeal.

During the course of this discussion, the Essay identifies and criticizes three significant features of the Sixth Circuit’s cases in this area.  First, it notes that the Sixth Circuit is the only circuit to have adopted heightened appellate review of below-Guideline sentences for child pornography possession.  Second, it explains that the Sixth Circuit appears to be developing a common law of sentencing in child pornography cases; such a common law is contrary to the language and the logic of the Supreme Court’s Sixth Amendment sentencing cases.  Finally, it explains that the Sixth circuit has failed to give appropriate deference to district court decisions to sentence below the Guidelines based on facts and circumstances of particular cases.

December 24, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, December 23, 2015

Based on SCOTUS Johnson ruling, Seventh Circuit declares statutory sentence enhancement for illegal reentry offenses

A helpful reader made sure I did not miss a notable post-Johnson vagueness ruling by a Seventh Circuit panel in US v. Vivas-Ceja, No. 15-1770 (7th Cir. Dec. 22, 2015) (available here). Here is how the panel opinion gets started:

Raul Vivas-Ceja pleaded guilty to illegally reentering the United States after removal, the maximum sentence for which is raised to 20 years if the defendant has been convicted of an “aggravated felony” prior to removal.  See 8 U.S.C. § 1326(b)(2).  As relevant here, the definition of “aggravated felony” is supplied by the definition of “crime of violence” in 18 U.S.C. § 16(b), which includes “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The district court concluded that Vivas-Ceja’s Wisconsin conviction for fleeing an officer was a crime of violence under § 16(b), raising the maximum sentence to 20 years.  The court imposed a sentence of 21 months.  Vivas-Ceja appeals, arguing that § 16(b)’s definition of “crime of violence” is unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015).

The Fifth Amendment’s Due Process Clause prohibits the government from depriving a person of liberty under a statute “so vague that it fails to give ordinary people fair notice … or so standardless that it invites arbitrary enforcement.”  Id. at 2556.  In Johnson the Supreme Court held that sentencing a defendant under the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), violates this prohibition.  Section 16(b) is materially indistinguishable from the ACCA’s residual clause.  We hold that it too is unconstitutionally vague according to the reasoning of Johnson.  We therefore vacate Vivas-Ceja’s sentence and remand for resentencing.

December 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Tuesday, December 22, 2015

"To forgive prisoners is divine — or as close as government gets"

The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency."  I recommend the lengthy piece in full, and here are excerpts:

President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news.  So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states).  But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency.  Here is why and how....

At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate.  Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.

Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history.  Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value.  Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.

As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson.  But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....

So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state.  Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning.  Alas, here too the general trend has been towards greater stinginess with clemency. 

Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana.  Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century.  Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications.  Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.

The barriers to mercy are dug deeply into American politics and intellectual culture.  At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims....  (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)

But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency.  At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.”  Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...

U.S. history turns out to be generously littered with acts of mass clemency.  In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song.  In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office.  Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy.  Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.   The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster.  A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population.  There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power.  These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55.  Routinized clemency on a grand scale will be necessary to tame this beast.

To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct.  But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract.  Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy.  To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.

The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s....  How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, December 21, 2015

Pennsylvania Supreme Court upholds Gov Wolf's execution moratorium

As reported in this local press article, Pennsylvania's "Gov. Wolf acted within his constitutional authority to temporarily halt the execution of a convicted murderer from Philadelphia, the state Supreme Court ruled on Monday."  Here is more from the article about this notable ruling from the top court in the Keystone State:

In a unanimous decision, the high court said Wolf had the power to delay the death sentence for Terrance Williams until a legislative task force issued its final report on the future of capital punishment in Pennsylvania.  The ruling doesn't apply to Wolf's broader moratorium on the death penalty, but represented a victory for the governor in the broader and contentious battle over the future of executions in the commonwealth.

Wolf announced the reprieve for Williams in February, saying he would shelve all executions until after the report was issued.  That decision that was challenged by Philadelphia District Attorney Seth Williams and prosecutors from other counties, who argued, among other things, that the governor's position unlawfully meddled with the jury's decision in the case.

But in a 33-page decision written by Justice Max Baer, the court said, "we disagree with the Commonwealth's suggestion that the reprieve unconstitutionally altered a final judgment of this Court; rather, the execution of the judgment is merely delayed."

The court was careful to say it was not considering whether Wolf's overall moratorium was legal; instead, it said, it was weighing specifically whether the governor could delay the execution of Williams, a former quarterback at Germantown High School who was convicted for the 1984 killing of Amos Norwood, a 56-year-old church volunteer. "Future challenges to reprieves granted by Governor Wolf will have to await independent examination based upon our holdings herein," the court wrote....

Wolf issued a brief statement saying he was pleased by the court's ruling. When he announced the decision earlier this year, he called the death penalty "ineffective, unjust, and expensive."  A report from the task force studying if the death penalty can be legally and effectively administered in Pennsylvania was initially due two years ago. But its deadline has been extended.

Shawn Nolan, Terrance Williams' attorney, said Monday that he had not yet shared the news with his client but was pleased with the decision. "We have been saying all along that it was constitutional what the governor did," he said. "We're gratified that the Supreme Court made a unanimous decision."

Williams' case is also scheduled to go before the U.S. Supreme Court in February. In that appeal, Nolan is arguing that former Pennsylvania Supreme Court Justice Ronald D. Castille should have recused himself from hearing appeal in the case because he was Philadelphia's district attorney when Williams was sentenced to death.

Cameron Kline, spokesman for the Philadelphia District Attorney's Office, said that prosecutors respected the decision even though they had argued for another outcome.

The ruling of the Pennsylvania Supreme Court today in Pennsylvania v. Williams is comprised by  this majority opinion and this concurring opinion.

Prior related posts:

December 21, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

NY Gov Cuomo moves ahead with significant clemency effort for youthful offenders and others

635603709893412683-cuomoAs reported in this official press release, titled "Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17," the top elected official in New York today announced a major new clemency initiative.  Here are just some of the details from the press release:

Governor Cuomo announced that he will use his pardon power to alleviate the barrier of a criminal conviction for people convicted of non-violent crimes committed when they were minors, and who have since lived crime-free for 10 or more years. This action, the first of its kind in the nation, advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17 year old children do not belong in the adult court system.

The Governor’s action acknowledges that people can and do move beyond the mistakes of their youth, However, their adult criminal records can make it hard for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. The Governor chooses today to use his Constitutional pardon power to remove the bars created by state law that are associated with these convictions, and allow deserving individuals to move forward with their lives....

By pardoning New Yorkers who have reached this milestone crime-free, the Governor is helping people who present little danger to the public. Moreover, the pardon will be conditional, meaning that if a person defies the odds and is reconvicted, it will be withdrawn.

The Governor’s action will affect a significant number of lives. Of 16 and 17 year olds who committed misdemeanors and non-violent felonies since such records have been tracked by the state, approximately 10,000 have not been reconvicted after at least 10 years. Annually, approximately 350 people convicted as 16 and 17 year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years. In addition to lifting the burden on these individuals themselves, their families will also feel the positive impact of this action. Now a son or daughter, husband or wife, father or mother will be better equipped to help their loved ones as they find it easier to attain employment, go to school, find housing, and work in licensed professions....

Agency staff will make a recommendation to the Governor to grant a pardon if:

The person was 16 or 17 at the time they committed the crime for which they were convicted.

At least 10 years have passed since the person was either convicted of the crime, or released from a period of incarceration for that crime, if applicable.

The person has been conviction-free since that time.

The person was convicted of a misdemeanor or a non-violent felony.

The person was not originally convicted of a sex offense.

The person is currently a New York State resident.

The person has paid taxes on any income.

The person is a productive member of his or her community, meaning that the individual is working, looking for work, in school or legitimately unable to work.

In addition to this general invitation to apply, the Administration will do targeted outreach to candidates for the pardon, starting with the most recent cohort of potentially eligible individuals, those convicted in the year 2004. Administrative staff will review the cohort and will attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website. Once the 2004 cohort has been contacted, the process will be repeated for individuals convicted in 2003, and further back until outreach has been made to all potential candidates.

The Governor’s action reinforces his commitment to alleviating barriers for people with criminal convictions, exemplified by his creation of the Council of Community Reintegration and Reintegration in 2014, and his acceptance and implementation of 12 recommendations for executive action from that Council in September of this year. These executive actions included adopting new anti-discrimination guidance for New York-financed housing, and adopting “fair chance hiring” for New York State agencies....

With assistance from the National Association of Criminal Defense Lawyers, representatives from the Governor’s Office have developed a comprehensive training program and will begin working with these associations to train volunteer attorneys via webinar in early 2016. Although individuals may apply for clemency without the assistance of an attorney, assistance from a pro bono attorney will enhance the quality of an inmate’s application and present his or her best case to the Governor. The New York County Lawyers Association, New York State Bar Association, New York City Bar Association, the Legal Aid Society, and the New York State Association of Criminal Defense Lawyers will prepare petitions for sentence commutations and the Bronx Defenders will provide post-petition legal services with respect to benefits, housing, and employment, for successful petitioners. The trainings, delivered via webinar with accompanying materials, will walk volunteer attorneys associated with the collaborating legal organizations through each step of being assigned a case, communicating with their client, and preparing a strong petition.

Today Governor Cuomo also granted clemency relief to two individuals who have demonstrated rehabilitation and made positive strides in their lives since their criminal convictions. These individuals were granted clemency relief in the interests of justice and rehabilitation. The clemencies granted today are in addition to the four the Governor granted several weeks ago.

December 21, 2015 in Clemency and Pardons, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison

As reported in this local article, "Judge's order frees 13 held for not paying probation fees," a group of probationers got a holiday gift in the form of a significant federal judicial order preventing a locality for jailing low-level offenders for failing to pay fines or court costs. Here are the basics:

Heather Keller is looking forward to spending Christmas with her children after a federal judge's order set her free from the Rutherford County Detention Center Friday afternoon. A day earlier, a federal judge in Nashville granted an injunction that prevented officials and probation supervisors in Rutherford County from holding people in jail for certain violations or only because they could not pay fees. It also said that anyone being held for those reasons should be let go.

Keller, 35, was one of 13 inmates released from the jail in Murfreesboro who were held there because they could not pay fees to the private company contracted to oversee the Rutherford County misdemeanor probation system. The injunction that won Keller’s release was part of a lawsuit filed against Providence Community Corrections, which has changed its name to Pathways Community Corrections.

The suit was filed in October and accuses Rutherford County and PCC of working together to extort people on probation there by charging excessive fees. Many of the seven people named in the lawsuit rely on government assistance and have said in court testimony or documents that PCC's excessive fees leave them struggling to pay bills and facing extended probation terms because they cannot pay court costs.

It is a practice Alec Karakatsanis, attorney for the plaintiffs, likens to the operation of a debtors' prison. Karakatsanis said Sharp's order is only the beginning of possible probation reform in Rutherford County.

“We will fight to end permanently what we believe to be the rise of a modern debtors' prison system in which the poor and destitute are jailed and threatened with jail solely because of their inability to make monetary payments to a private company and their local government,” Karakatsanis said. “This is a very important ruling for impoverished people in Tennessee.”

The injunction was granted by Chief District Judge Kevin Sharp in Nashville. In addition to freeing these prisoners, Sharp also ordered PCC immediately stop the practice of violating probationers solely for non-payment of fees.

Keller was originally arrested for driving on a suspended license and since has been jailed twice for non-payment of probation fees, she said. “I’ve spent more time in jail for non-payment than the original charge,” Keller said.

And Sharp ordered Rutherford County Sheriff Robert Arnold to free any inmates held on violation of probation charges stemming solely from non-payment of fees and fines.

The federal district judge's 20-page injunction order in Rodriguez v. Providence Community Corrections is available for download here:  Download Opinion Granting Injunction

December 21, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, December 20, 2015

Michigan Supreme Court takes up punishing questions about lifetime sex offender registration

As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago."  Here is more about the case and context:

The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.

In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”

The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.

The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:

The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.

The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)

"'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution"

The title of this post is the headline of this intriguing paper I just came across on SSRN authored by Samuel Bray.  In addition to getting me thinking about the cool word hendiadys, this paper provides some interesting ideas for fans of Eighth Amendment.  Here is the abstract:

Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.”  Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship.  That assumption is incorrect.

This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning.  It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.”  When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual.  Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty.  If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action.  The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense.

To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland.  The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.

December 20, 2015 in Recommended reading, Sentences Reconsidered | Permalink | Comments (3)

Saturday, December 19, 2015

An early set of takes on Prez Obama's clemency work to date

As first reported in this post (with has already generated an interesting set of comments), yesterday Prez Obama granted commutations of prison sentences to 95 federal inmates.  And, as stressed in this posting from the White House blog, this development means that Prez Obama has now granted has now granted 184 commutations total -- more than the last five presidents combined."  I think it is justifiable that the Obama Administration is now inclined to crow about its clemency record with respect to commutations, although it remains notable that Prez Obama has still granted precious few pardons and is still well behind even the commutation pace set by Republican predecessors like Calvin Coolige and Herbert Hoover.

Helpfully, P.S. Ruckman over at Pardon Power is already hard at work providing lots of historical context (and other types of contexts) for assessing what Prez Obama has done in this space only 24 hours since this latest grant.  Here are his recent postings, all of which merit checking out:

December 19, 2015 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18)

Friday, December 18, 2015

Updating the bubbling lower-court vagueness mess six months after Johnson

Over at Casetext, Leah Litman has this effective and extensive new commentary (with lots of links) titled "Circuit Splits & Original Writs: What the Supreme Court must address — and now — in the wake of Johnson v. United States."  Here is how it gets started:

Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  In a previous Casetext post, I described an emerging circuit split regarding whether the Supreme Court had “made” Johnson retroactive.  The Anti-terrorism and Effective Death Penalty Act (AEDPA) — in particular title 28 section 2255(h)(2) — permits prisoners to file a second or successive petition for post-conviction review if the petition contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”  By early August, less than two months after Johnson, the U.S. Courts of Appeals for the Seventh and Eleventh Circuits had issued conflicting opinions about whether the Supreme Court has “made” Johnson retroactive.

In the last four months, that circuit split has deepened.  And, as my prior post explained, the statutory restrictions on post-conviction review mean that the Supreme Court cannot review by way of a petition for certiorari the court of appeals’ determination to allow a second or successive petition for post-conviction relief to proceed. Under title 28 section 2244(b)(3)(E), “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not … be the subject of a petition … for a writ of certiorari.”  So while the circuits disagree about whether the Supreme Court has “made” Johnson retroactive, the Supreme Court cannot resolve whether it has “made” Johnson retroactive in the traditional way, by granting certiorari to review one of the court of appeals’ decisions.

More troubling, it is has become prohibitively difficult for the Supreme Court to weigh in on the split by granting review in a case involving a first petition for post-conviction review because the United States is conceding that Johnson is retroactive.  The courts of appeals and district courts have uniformly (and rightly, in my view) agreed with the United States, granting prisoners’ “first” — that is, initial — petitions for post-conviction review in cases where prisoners were sentenced under ACCA’s residual clause.  And because no one is appealing these decisions — the government agrees Johnson is retroactive, and the decisions are favorable to prisoners — the Supreme Court will not be able to clarify whether Johnson is retroactive, or “make” Johnson retroactive, by granting certiorari in a case involving a “first” petition for post-conviction review.

In this post, I’ll highlight several circuit splits that have emerged in light of Johnson — about whether the decision is applicable to various provisions of the federal Sentencing Guidelines, and about whether the rule that Johnson announced has been made retroactive.  I’ll also argue that the Supreme Court should exercise its discretion to weigh in on whether it has made Johnson retroactive by way of one of the extraordinary writs it has the power to issue. The Court has on its docket at least two petitions seeking such non-traditional habeas relief, and it will consider the petitions some time in January.

In the six months since Johnson was decided, at least two circuit splits have emerged. One concerns whether other provisions, including the career offender Guideline of the Federal Sentencing Guidelines, are also unconstitutionally vague.  There is also some uncertainty about whether various procedural hurdles — specifically retroactivity and procedural default — bar defendants from being resentenced.  The second circuit split concerns whether the Supreme Court has “made” the rule invalidating ACCA’s residual clause retroactive.

December 18, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (5)

Prez Obama commutes 95 federal prison sentences and grants 2 pardons

As reported in this official White House press release, this afternoon "President Barack Obama granted commutations of sentence to 95 individuals and pardons to two individuals."  The release has a list of all the recipients of these clemency actions and their crimes and sentences, and I am hopeful I will have time (and help) in the days ahead to assess whether there is any unique elements to these latest clemency actions.  For now, I can just say huzzah and reprint part of this notable press release titled "Clemency Project 2014 Welcomes Commutation of 95 Federal Prison Sentences":

In his first clemency grants since July, President Barack Obama commuted the sentences of 95 prisoners today, 27 of whom were applicants whose petitions were supported by Clemency Project 2014.

"While it is my hope that President Obama will increase the use of his clemency power going forward, one can only be happy for each and every of today's grantees and their loved ones." said Cynthia W. Roseberry, project manager for Clemency Project 2014. "Clemency Project 2014's unprecedented army of volunteer lawyers has been steadfast in its efforts to meet the Project's commitment to ensure that every applicant who appears to meet the criteria has a volunteer lawyer to prepare and submit a timely clemency petition. We are determined to do our part to make clemency a cornerstone of the Obama legacy."

"We take President Obama at his word that there is no ceiling on the number of commutations he will grant before leaving office. And so while we are grateful for every single commutation, there are many hundreds more who deserve relief. We urge the President to confound the skeptics by making 2016 an historic year for clemency grants," said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, a partner organization in Clemency Project 2014.

December 18, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Thursday, December 17, 2015

"Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?"

The title of this post is the title of this notable, lengthy commentary by Steve Vladeck over at PrawfsBlawg, which gets started this way:

I've already written a pair of posts about the very significant current conflict among the circuits over the retroactive effect of the Supreme Court's June 2015 in Johnson v. United States, and the extent to which the Court may need to use an application for extraordinary relief (perhaps including an "original" writ of habeas corpus) to resolve that split — given (1) the unavailability of certiorari to review denials of second-or-successive habeas petitions; (2) government's agreement that Johnson may be retroactively enforced; and (3) the one-year statute of limitations, which likely requires all Johnson-based claims to be filed by June 26, 2016.  And in my most recent post, I noted that the Solicitor General had already recommended denial of review in one case by reference to three pending "original" applications — perhaps hinting that it would support the Court's using one or all of those cases as a vehicle for settling the circuit split (and clarifying that Johnson is indeed retroactive).

Or not.

In the past week, the government has effectively mooted one of the three original cases (by completely reversing a position it had taken earlier in different litigation involving the same prisoner), and has filed briefs opposing extraordinary relief in the other two.  As I explain in the post that follows, these actions (and the arguments in the briefs) give rise at least to the appearance that, even though the Solicitor General agrees that Johnson is retroactive on the merits and should therefore be enforceable by federal prisoners through both original and second-or-successive applications for post-conviction relief, the government is perfectly content to run out the clock — and to not support efforts to have the Supreme Court so hold before next June's deadline. 

A few prior related posts:

December 17, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Monday, December 14, 2015

SCOTUS yet again summarily reverses circuit reversal of state death sentence

The Supreme Court this morning issued what has become a notably common type of summary reversal: in White v. Wheeler, No. 14-1372 (S. Ct. Dec. 14, 2015) (available here), the Justices via a per curiam opinion determined the Sixth Circuit was wrong to overturn a death sentence based on the exclusion of a juror.  Here is part of how the opinion starts and ends:

A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit.  During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed.  The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments.  That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition....

The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire.  But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context.

The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment.  Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis....

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam).

Kent Scheidegger at Crime & Consequences has this interesting closing thought in this post about this latest SCOTUS summary reversal:

The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

December 14, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Reviewing and reflecting on persistent problems with the federal clemency process

The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks.  But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:

As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.

“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”

As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.

“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.

And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....

But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out.  Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”

“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.

Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.

Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department.  “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”

Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”

But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.

Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.

Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”

Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”

No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.

December 14, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Saturday, December 12, 2015

"The Armed Career Criminal Act: Imprecise, Indeterminate, and Unconstitutional"

The title of this post is the title of this timely new piece authored by Michael Schearer and available via SSRN. Here is the abstract:

The Armed Career Criminal Act provides a mandatory minimum fifteen-year sentence enhancement for felons possessing a firearm who have previously been convicted three times of a “violent felony” or a “serious drug offense.” Despite this seemingly clear mandate, the statute has been embroiled in controversy for decades as judges struggle to determine what predicate crimes meet this standard.  The culmination of this battle resulted in the invalidation of the ACCA’s “residual clause” when the Supreme Court found that the clause violated due process in Johnson v. United States.  Nonetheless, the remaining provisions of the ACCA are still problematic.

For example, although burglary is a specifically enumerated offense that constitutes a violent felony, burglary convictions in some states have been held to be violent felonies while burglary convictions in other states have not. Likewise, offenses involving “the use, attempted use, or threatened use of physical force against the person of another” have mired the courts in similar difficulties in determining whether the particular offensive qualifies as violent felony.  Perhaps most troublesome, a finding of juvenile delinquency can be considered a criminal conviction that subjects an individual to ACCA enhancement in a subsequent adult proceeding, despite the fact that juveniles do not have the right to a jury trial. This paper argues that the ACCA is imprecise, indeterminate, and insusceptible of principled and predictable interpretation.  Absent a wholesale modification by Congress, the substantive provisions of the ACCA examined in this paper ought to be held by the courts to be unconstitutional because they deprive defendants of due process.

December 12, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (6)

Thursday, December 10, 2015

The Sentencing Project spotlights major criminal justice reform stories of 2015

The Sentencing Project is an extraordinary public policy group that does some of the most effective and important criminal justice reform research and advocacy.  I received via e-mail this letter from The Sentencing Project about its latest publication and its impressive recent:

This year, we have seen an emerging national consensus for criminal justice reform.  At The Sentencing Project, we’ve been proud to have contributed to this shift, as we have for more than a quarter century. Our 2015 annual newsletter contains highlights of criminal justice reform activities this year, including:
  • A look at the major reform developments in Washington, including the bipartisan Sentencing Reform and Corrections Act, introduced in the Senate this fall
  • Successful reform efforts at the state level, including scaled back bans on public assistance for people with felony drug convictions in Alabama and Texas
We have had a wonderful year, and we look forward to continued success in the year ahead. 

December 10, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, December 08, 2015

Kentucky gov issues hundreds of pardons and a few commutations on way out of office

As reported in this local piece, outgoing Kentucky Governor "Steve Beshear Monday night granted 201 pardons and six commutations to people sentenced for a range of offenses, including 10 women sentenced for violent crimes they committed after suffering years of domestic violence."  Here is more:

Throughout his eight years in office, the Democratic governor said he received more than 3,400 requests for pardons that were reviewed over several months by him and his staff. “I spent many long days weighing the merits and circumstances of individual cases before making my final decisions,” Beshear said in a statement. “The pardon authority afforded me by Section 77 of the Kentucky Constitution isn’t something I take lightly. We are talking about action that impacts the lives of so many individuals.”

Beshear noted that his predecessor, Republican Ernie Fletcher, received more than 1,000 pardon requests and granted just over 100 pardons during his four years in office.

Of the commutations of sentence or full pardons to 10 women who suffered domestic violence, Beshear said, “These 10 women — some of whom are currently incarcerated and some of whom have already been released from institutions — were recommended to me for consideration for full pardons after an extensive joint review by the Department for Public Advocacy and the Kentucky Domestic Violence Association. After further review of those files, I determined that some of the pardon requests should be granted, while others merited a commutation of sentence.”...

Beshear, a former attorney general, also pardoned several individuals convicted of drug offenses. He said their requests “described with candor their mistakes with drugs and highlighted their efforts to stay sober and become productive members of their communities.”

Beshear added: “Throughout my administration, I have worked tirelessly with legislative leaders, local officials and advocates to wipe out the tragic impacts that substance abuse and addiction have had on the people of the commonwealth.

“A significant part of that strategy has been a focus on treatment to help these individuals have a fighting chance at staying clean and turning their lives around. After carefully considering the details of each of these cases, I am convinced that these individuals deserve a second chance at life with a clean record.”

December 8, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, December 06, 2015

Supreme Court takes up Montana case to resolve applicability of Sixth Amendment speedy trial right to sentencing

The major matter among the cases that the Supreme Court decided to take up on Friday concerns the authority of the Puerto Rican government to deal with its debt crisis.  But as this post from Lyle Denniston at SCOTUSblog notes, the undercard cert grants are still noteworthy:

The Court granted review in three other cases on Friday, involving: the application of the constitutional right to a speedy trial to a follow-up sentencing proceeding (Betterman v. Montana); a definition of when a government contractor has filed false reimbursement claims under the False Claims Act (questions 2 and 3 in Universal Health Services v. United States ex rel. Escobar); and a claim for attorney’s fees for an employer when the Equal Employment Opportunity Commission does not carry out its assigned duties before a lawsuit is filed (CRST Van Expedited v. EEOC). Those cases, too, are likely to be argued in March.

The cert petition in Betterman is available at this link, and here is how it presents the question:

Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case.

This question has divided lower courts, but I am not so sure having it answered either way will really impact sentencing practices much. Defendants can, and regularly do, waive and forfeit Sixth Amendment speedy trial rights so having such a right apply at sentencing may not practically lead to much more than just some more formal waiver practices. Conversely, defendants surely have some residual Fifth Amendment Due Process right not to suffer too much prejudice from excessive delays before sentencing, so defendant already have and will continue to have some procedural protections in this arena even without the Sixth Amendment getting involved.

That all said, it is always exciting and interesting when SCOTUS takes up a constitutional sentencing issue that has split both state and federal courts. And there could be some "sleeper" elements emerging in this case through briefing and argument that could make it a bigger deal. And, if nothing else, the case has the benefit of a cool party name that will keep me humming one of my (many) favorite Pearl Jam songs.

December 6, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Friday, December 04, 2015

Arkansas state judge strikes down portion of state execution law aimed at keep drug suppliers secret

As reported in this AP article, an "Arkansas judge struck down a portion of the state's execution law that keeps secret the source of drugs it uses, saying Thursday that drug suppliers do not have a constitutional right to be free from criticism." Here is more about the ruling and its context:

Pulaski County Circuit Judge Wendell Griffen sided with death row inmates who challenged a law passed by lawmakers this year that prevents disclosure about the drugs that are used in executions. The judge also ordered the state to disclose drug details, including the makers and suppliers, by noon Friday. "It is common knowledge that capital punishment is not universally popular," Griffen wrote. "That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge."

Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said late Thursday that the office had filed notice of appeal with the state Supreme Court. Rutledge also asked for an immediate stay of Griffen's order. "Attorney General Rutledge has a duty to defend the State's lethal injection statute and disagrees with Judge Griffen's order," Deere wrote in an emailed statement.

In the filing for an immediate stay, attorneys for the office noted that states with secrecy laws regarding executions have generally won challenges to those laws. They believe Arkansas' law is less stringent than many of those.

In his ruling, Griffen noted that a federal judge in Ohio last month granted a protective order to allow that state to maintain secrecy about the drugs, but he said that court erred because it accepted "what it acknowledged as no proof of 'a single known threat'" as an indicator that disclosing a state's source for drugs would pose an undue burden on that state....

The Arkansas Supreme Court put on hold executions for eight inmates until the inmates' lawsuit challenging the state's execution protocol and secrecy law could be heard.

Under the execution secrecy law, the Department of Correction has withheld the manufacturer and distributor of midazolam, vecuronium bromide and potassium chloride obtained last year, as well as other information. Midazolam, a sedative, gained notoriety after being used during executions that took longer than expected last year in Arizona, Ohio and Oklahoma. The U.S. Supreme Court upheld the drug's use in executions in June. Earlier this year, The Associated Press identified three pharmaceutical companies that likely made Arkansas' execution drugs; each company said it objects to its drugs being used that way.

The inmates argued that the secrecy law is unconstitutional. They want information on the drugs' makers and suppliers to determine whether they could lead to cruel and unusual punishment. They also argued the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said the agreement is not a binding contract.

Griffen noted in his ruling that an attorney for the state said Arkansas' suppliers "covertly sold" the drugs to the state despite directives from the pharmaceutical companies that they should not be sold for use in executions. He said the admission, "whether inadvertent of not," was important because it shows the state could abide by the contract and still obtain drugs....

Griffen noted that Arkansas has a law outlining humane euthanization practices for animals. "The court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable or prolonged pain, but that the constitutional guarantee against 'cruel or unusual punishment' found in the Arkansas Constitution allows people who commit murders to be put to death as if they have no entitlement to such right," he wrote.

Arkansas last executed an inmate in 2005.

December 4, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, December 03, 2015

Fourth Circuit to consider en banc whether it can consider new claims from federal prisoner with wrong old LWOP sentence in Surratt

In this post a few months ago, I noted the lengthy split Fourth Circuit panel ruling in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here), in which a majority of the panel decided it could not consider a challenge to a wrongful LWOP sentence for a federal drug defendant.  As the majority put it: "We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence.  However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below."

Now, thanks to a helpful reader, I have learned that yesterday the full Fourth Circuit decided via this order to now hear the Surratt case en banc.   For anyone interested in federal habeas law, this now become a must-watch case. 

December 3, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, December 01, 2015

Using SCOTUS Johnson ruling, Boston Bomber argues for vacating some convictions and death sentence

Regular readers know that I have given considerable attention to the import and potential impact of the Supreme Court's summer ruling that a key clause of the federal Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015).   But even from my ivory tower perch, I had not considered that the Johnson ruling might provide a basis for a high-profile federal capital defendant to seek to undo his death sentence.  But, as this FoxNews article details, just such an argument was made today in Boston:

Lawyers representing Boston Marathon bomber Dzhokhar Tsarnaev sought Tuesday to spare him from the death penalty, citing a Supreme Court ruling they say taints half of the charges of which he was convicted.

Tsarnaev, now 22, was sentenced to death in June after being convicted of working with his brother to plant pressure cooker bombs at the 2013 race's finish line in an attack that killed three and injured hundreds.  But his attorneys say prosecutors were able to pile on more severe charges using a 1984 federal law that was partly invalidated by the high court this summer, and that without those enhanced charges, Tsarnaev may have gotten a more lenient sentence. They are pushing for a new penalty phase trial, and want it held outside of Boston.  "The loss of those convictions would mean that a penalty trial should be held as to all counts," attorney William Fick argued.

Tsarnaev's attorneys argued some 15 of the 30 charges came under an enhanced sentencing policy they say was invalidated by a U.S. Supreme Court decision from earlier this year.  In that case, Johnson vs. United States, the court ruled 8-1 held that the term "violent felony" as it applies to a 1984 law allowing for harsher prison terms in certain cases is unconstitutionally vague.  The defense argued that the number and nature of those charges likely influenced jurors when they decided Tsarnaev deserved the death penalty....

Former Assistant U.S. Attorney Andrew McCarthy, who prosecuted the terrorists who bombed the World Trade Center in 1993, said the Tsarnaev team is off-base in trying to apply the Johnson case.  In that case, the Supreme Court had ruled "violent felony" was a vague term in certain instances, such as extortion, where violence may or may not be involved. Tsarnaev's use of a bomb left no gray area, he said. "It is a frivolous argument," McCarthy told Fox News. "There is no such thing as "passive" deployment of a bomb, which is innately a destructive device."

December 1, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

Split Ohio Supreme Court reverses death sentence based on statutory "independent evaluation"

As reported in this Reuters piece, a "man who beat a female neighbor to death with a baseball bat when he was a teenager had a troubled family background and childhood of drug and alcohol abuse and should not have been sentenced to death, the Ohio Supreme Court ruled on Tuesday.'  Here is more about the notable capital ruling and some reactions thereto:

The court in a 4-3 decision vacated the death sentence of Rayshawn Johnson, who was 19 years old when he killed Shanon Marks in 1997 in a Cincinnati neighborhood.... "The sentence of death imposed by the trial court is not appropriate in this case," Justice Paul Pfeifer wrote for the majority.

Johnson had been sentenced to death twice in the killing, most recently in 2012 after a federal court set aside the initial sentence, ruling that jurors should have been allowed to consider his difficult childhood at a sentencing hearing.

“I think the message is that courts need to give meaningful consideration to the mitigation that is presented on behalf of clients.  His life story, all of those things, the negative influences… the significant trauma … comes back later in life in unfortunate ways,” said Ohio Public Defender Timothy Young, whose office represents Johnson....

"What's kind of mindboggling about this decision is that -- I have to be careful because we have rules not to criticize judges so I'm not going to do that.  But what is frustrating, and this poor family, my god, we went through basically two trials already," Hamilton County Prosecuting Attorney Joseph Deters told reporters.

The lengthy ruling in Ohio v. Johnson, No. 2015-Ohio-4903 (Ohio Dec. 1, 2015), is available at this link, and here is a key pargraph from the start of the majority opinion:

In 2011, the state conducted a new mitigation hearing. A new judge presided over the hearing, and 12 new jurors recommended a sentence of death. The trial court again imposed a death sentence, and we now review Johnson’s direct appeal as of right from that sentence. We find that there were no significant procedural defects in the new mitigation hearing, but, pursuant to our independent evaluation of the sentence under R.C. 2929.05(A), we determine that the aggravating circumstances in this case do not outweigh beyond a reasonable doubt the mitigating factors. We accordingly vacate the sentence of death and remand the cause to the trial court for resentencing consistent with R.C. 2929.06.

December 1, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, November 30, 2015

Notable SCOTUS dissent from cert denial in habeas case from Sixth Circuit

This morning the Supreme Court came back to work after a few weeks on argument hiatus, and its first formal action was to release this order list full of cert denials and no grants of review in any new cases. There was this one notable dissent from the denial of cert in the habeas case of Rapelje v. Blackston authored by Justice Scalia and joined by Justices Thomas and Alito. Here is how the three-page dissent starts and ends:

A criminal defendant “shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const., Amdt. 6.  We have held that this right entitles the accused to cross-examine witnesses who testify at trial, and to exclude certain out-of-court statements that the defendant did not have a prior opportunity to cross-examine.  Crawford v. Washington, 541 U.S. 36, 50–51 (2004); Davis v. Alaska, 415 U. S. 308, 315–317 (1974).  We have never held — nor would the verb “to confront” support the holding—that confrontation includes the right to admit out-ofcourt statements into evidence.  Nevertheless, the Sixth Circuit held not only that the Confrontation Clause guarantees the right to admit such evidence but that our cases have “clearly established” as much.  We should grant certiorari and summarily reverse....

There may well be a plausible argument why the recantations [offered by the defendant] ought to have been admitted under state law.  See Mich. Rule Evid. 806.  But nothing in our precedents clearly establishes their admissibility as a matter of federal constitutional law.  AEDPA “provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.”  White v. Woodall, 572 U. S. ___, ___ (2014) (slip op., at 11).  By framing the confrontation right at a high level of generality (making it the right “to impeach the credibility of an adverse witness”), the Sixth Circuit in effect “transform[ed] . . . [an] imaginative extension of existing case law into ‘clearly established’” law.  Jackson, supra, at ___ (slip op., at 7). That will not do.

The Sixth Circuit seems to have acquired a taste for disregarding AEDPA.  E.g., Woods v. Donald, 575 U. S. ___ (2015) (per curiam); White v. Woodall, supra; Burt v. Titlow, 571 U. S. ___ (2013); Metrish v. Lancaster, 569 U. S. ___ (2013); Howes v. Fields, 565 U. S. ___ (2012).  We should grant certiorari to discourage this appetite.

November 30, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15)

Sunday, November 29, 2015

Hawaii Supreme Court refuses to exempt recidivist enhancement from Apprendi mandates

A helpful reader alerted me to a notable ruling last week by the Hawaii Supreme Court rejecting broad application of Apprendi's prior conviction exception. Hawaii v. Auld, No. SCWC-13-0002894 (Haw. Nov. 24, 2015) (available here), which discusses Alleyne and Almendarez-Torres at length, is a must-read for all hard-core Apprendi fans. It concludes this way:

We hold that, under article I, sections 5 and 10 of the Hawai'i Constitution, the State must allege the predicate prior conviction(s) in a charging instrument in order to sentence the defendant to a mandatory minimum sentence as a repeat offender under HRS § 706-606.5.  We further hold that, as a matter of state law, Apprendi’s “fact of prior conviction” exception does not apply to repeat offender sentencing under HRS § 706-606.5, and that a jury is required to find that the defendant’s prior conviction(s) have been proved beyond a reasonable doubt to trigger the imposition of a mandatory minimum sentence under that statute.  As these new rules result from the express overruling of prior appellate precedent holding that the Apprendi rule did not apply to mandatory minimum sentencing and that notice of repeat offender sentencing did not need to be given in a charging instrument, they are given prospective effect only.

November 29, 2015 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Pollard, parole and the possibilities for potent sentencing reform

Writing at Salon, Daniel Denvir has this interesting and useful take on the recent release of convicted spy Jonathan Pollard. Here is the full headline of this piece: "People are celebrating this spy’s release from prison. Here’s what they should be doing instead. Jonathan Pollard sold intel to Israel. 30 years later, he's free. But thousands of others have no chance of parole." Here are excerpts:

Last Friday, something extraordinary happened: Jonathan Pollard, a Naval intelligence analyst sentenced to life in prison for extensively spying for Israel, was released from federal prison on parole 30 years after his arrest. Most coverage, now and in recent decades, has focused on the campaign waged by Israeli and Jewish-American leaders to free him, and the vehement opposition mounted by American intelligence figures.

The real scandal, however, is that most federal prisoners, including drug offenders make up nearly half of a federal prison population of nearly 200,000, have no chance at parole. Pollard’s crime was incredibly serious, and many drug offenders who committed crimes orders of magnitude less harmful are serving harsh mandatory minimums of 5, 10 and 20 years, if not life — all without the possibility of parole.

Pollard’s release has been covered in the context of national security intrigue. In fact, his parole reflects a quirk in federal sentencing law: He had a shot at parole because he committed his crime before parole eligibility was abolished for all those convicted of committing a federal crime on or after November 1, 1987, amidst a wave of tough-on-crime politicking.

Pollard is a true anomaly. According to a 2014 Congressional Research Service report, roughly 3 percent of federal prisoners are eligible for parole. When Pollard finally speaks to the media—he is reportedly not allowed to under the conditions of his parole—it would be good of him to express some solidarity with the far less dangerous fellow federal inmates he left behind.

The abolition of federal parole, and its sharp limitation or elimination in many states, has, like the introduction of harsh mandatory minimum sentences, been a major driver of this country’s extraordinary prison population boom. From 1988 to 2012, the average time federal inmates served rose from 17.9 to 37.5 months, according to The Pew Charitable Trusts. The federal prison population rose during that same period from 49,928 inmates to 217,815....

Releasing Pollard was not a bad thing. Few people deserve punishment without end. We punish most every crime far too harshly in the United States, which is how we came to construct a system of human punishment unmatched by any nation on earth. But Pollard’s crimes were extremely serious. Compare his crimes to those committed by Alton Mills, who is serving a life without parole sentence after being convicted of couriering crack because of two prior, extremely minor, drug possession convictions. Mills’ family misses him too. And desperately so.

It’s not just a federal problem but also a matter for the states, where the bulk of American prisoners are incarcerated. Fourteen states joined the federal government in eliminating or severely restricting parole, according to a Marshall Project investigation.

“In the early 1990s, the New York state board voted to parole more than 60 percent of those eligible. That rate then went into a two-decade decline, dipping below 20 percent in 2010,” the investigation found. “In many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.”

Sen. Bernie Sanders, a Democratic candidate for president, has introduced legislation that would reestablish federal parole. Most media attention has been focused on bill provisions banning private prisons. But reestablishing parole would be far more consequential. (The Clinton campaign did not respond to requests for comment.)

Way back in 2009 in this Symposium article published in the Florida Law Review, I made the claim that model modern sentencing reforms should include parole mechanisms because "parole boards possess both the effective legal tools and an ideal institutional perspective to reduce incarceration rates and mitigate extreme punishments." I therefore agree wholeheartedly agree with the suggetion in Denvir's piece that reinstituting robust parole mechanisms and opportunities in many sentencing systems would provide a truly potent path for future sentencing reforms.

November 29, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, November 27, 2015

Might Prez Obama seek to do something bold on the death penalty in his final year?

The question in the title of this post is prompted by this new AP article, headlined "Obama Still Pondering Death Penalty's Role in Justice System."  Here are excerpts:

Even as President Barack Obama tries to make a hard case for overhauling sentences, rehabilitating prisoners and confronting racial bias in policing, he has been less clear about the death penalty.  Obama has hinted that his support for capital punishment is eroding, but he has refused to discuss what he might call for.

A Justice Department review has dragged on for 18 months with little mention or momentum.  The president recently repeated he is "deeply concerned" about the death penalty's implementation, though he also acknowledges the issue has not been a top priority. "I have not traditionally been opposed to the death penalty in theory, but in practice it's deeply troubling," Obama told the Marshall Project, a nonprofit journalism group, citing racial bias, wrongful convictions and questions about "gruesome and clumsy" executions.  His delay in proposing solutions, he said, was because "I got a whole lot of other things to do as well."

Obama said he plans to weigh in, and considers the issue part of his larger, legacy-minded push for an overhaul of the criminal justice system. White House officials say the president is looking for an appropriate response and wading through the legal ramifications.

Capital prosecutions are down across the United States.  A shortage of lethal injection drugs has meant de facto freezes in several states and at the federal level.  Spurred in part by encouragement from Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg, advocates are debating whether the time is right to push the court to take a fresh look at whether the death penalty is constitutional....

Obama isn't alone in struggling with the issue.  "We have a lot of evidence now that the death penalty has been too frequently applied and, very unfortunately, often times in a discriminatory way," Democratic presidential candidate Hillary Rodham Clinton said.  "So I think we have to take a hard look at it."  She also said she does "not favor abolishing" it in all cases.

For Clinton's Democratic presidential rival, Vermont Sen. Bernie Sanders, the issue is settled. "I just don't think the state itself, whether it's the state government or federal government, should be in the business of killing people," he said.  On the Republican side, candidate Jeb Bush says he's swayed by his Catholic faith and is "conflicted."...

In September, Pope Francis stood before Congress and urged that the death penalty be abolished. Obama specifically noted the comment when talking about the speech to aides. White House spokesman Josh Earnest said Obama was "influenced" by what the pope said. Such hints have death penalty opponents likening Obama's deliberations to his gradual shift toward supporting gay marriage.

Charles Ogletree, a Harvard law professor who taught the president, said: "Though not definitive, the idea that the president's views are evolving gives me hope that he — like an increasing number of prosecutors, jurors, judges, governors and state legislators — recognizes that the death penalty in America is too broken to fix."

White House officials caution that any presidential statement disputing the effectiveness or constitutionality of the death penalty would have legal consequences.  For example, would the administration then commute the sentences of the 62 people currently on federal death row to life in prison?

I suspect hard-core capital abolitionists are growing ever more eager to hear Prez Obama say ASAP that he has evolved now to believe, in the words of Prof Ogletree, that "the death penalty in America is too broken to fix."  But any statement by Prez Obama to that effect would likely trigger a significant backlash among an array of GOP leaders (including most running to be Prez), and could refocus death penalty debate away from persistently problematic state capital cases to higher-profile (and less problematic) federal capital cases like the Boston Marathon bomber.  With another White House occupant coming soon, I am not sure such a change in focus would enhance the success of the broader abolitionist effort in the long run.

This all said, I could still imagine Prez Obama and his Justice Department moving ahead on a number of lower-profile efforts that would continue to advance an abolitionist agenda.  DOJ could file SCOTUS amicus briefs in support of state capital defendants or provide additional funding for research on some of the issues Justice Breyer flagged as the basis for a broadsided constitutional attack on the death penalty.  And I would not be at all surprised if Prez Obama around this time next year, when he is a true lame duck and we all know who will be following him into the Oval Office, does something genuinely bold in this arena.

Speaking of doing something genuinely bold, the headline of this San Francisco Chronicle piece provides one possibility: "Obama considers clemency for 62 federal Death Row prisoners." Here is an excerpt from the extended piece:

The bulk of the more than 3,000 Death Row inmates nationwide, including nearly 750 in California, were sentenced under state law.  They are beyond the president’s authority.  But, by commuting federal prisoners’ sentences to life without the possibility of parole, Obama would stamp the issue as part of his legacy and take a bold action that no successor could overturn.

It is “a quantitatively small gesture that could make the point he’d want to make,” said Stanford Law Professor Robert Weisberg, co-director of the law school’s Criminal Justice Center and a veteran death penalty lawyer.  Like other commentators, he offered no prediction of what action Obama would take, but said the president would probably wait until after the November 2016 election, to avoid voter reaction against whoever the Democratic candidate is.

November 27, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, November 26, 2015

So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...

I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration.  The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment."  Here are excerpts:

Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.

Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive.  Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.

Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation.  The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.

So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....

After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time.  Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”

U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.

Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences.  Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....

In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.

Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades.  In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution.  Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....

Some federal prosecutors have declined requests by federal judges for shorter sentences.  In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy...  Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions.  The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014.  “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.

U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.

November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, November 25, 2015

Notable Ninth Circuit panel squabble over computer-search supervised release condition

Yesterday, a split Ninth Circuit panel rejected a defendant's claim that a computer-search condition in his supervised release terms was clearly unreasonable.  The majority opinion in US v. Bare, No. 14-10475 (9th Cir. Nov. 24, 2015) (available here), found adequate the government's contention that, since "Bare kept paper records of his illicit firearms pawn business," if officers were permitted to search "only paper records — but not computers — [it] might enable Bare to evade discovery of recidivist activity by switching his records into an electronic format."  Judge Kozinski dissent starts this way:

Persons on supervised release may have diminished expectations of privacy, but they have privacy rights nonetheless. Moreover, Congress has instructed us to adopt conditions of supervised release that impose “no greater deprivation of libertythan is reasonablynecessary” to achieve the goals of supervised release. 18 U.S.C. § 3583(d)(2).  The majority today disregards this command by allowing probation officers to search defendant’s computer at anytime, for any reason or no reason, even though defendant did not use a computer to carry out his crime, and (so far as we know) did not even own a computer when he committed the offense.

The majority’s rationale, that defendant’s crime could be committed with the help of a computer, is no limitation at all.  Pretty much any federal crime can be committed by using a computer in some way — to maintain records, to case the premises using Google Street View or to track down accomplices, methods and supplies necessary for committing the crime.  If a hypothesis about how the crime might have been committed is a sufficient justification for imposing a supervised release condition, then any condition can be justified by supposing that the crime could be committed in a way that’s different from the method employed by the defendant.  I cannot subscribe to such a broad and amorphous standard.

November 25, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Monday, November 23, 2015

US District Judge Bennett finds legal limit to giving retroactive effect to new lower federal drug sentencing guidelines

Regular readers know that US District Judge Mark Bennett regularly produces thoughtful and thorough opinions on an array of cutting-edge federal sentencing issues.  The latest Judge Bennett opus arrived today via US  v. Feauto, No. CR 12-3046-MWB (D. Iowa Nov. 23, 2015) (available for download below).  As this start to the Feauto opinion reveals (with lengthy footnotes left out and breaks added), Judge Bennett's latest work likely means a not-so-happy Thanksgiving week for at least on federal defendant:

Before me for consideration is defendant Randy Feauto’s eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782, the “All Drugs Minus Two Amendment,” to the United States Sentencing Guidelines.  The parties and the Federal Defender for the Northern and Southern Districts of Iowa, as invited amicus curie, argue that a defendant subject to a mandatory minimum sentence who previously received a “substantial assistance” reduction below that mandatory minimum can be resentenced pursuant to Amendment 782 without regard to the mandatory minimum.  That position was originally music to my ears, because I have consistently — and vehemently — disagreed with the harshness of most mandatory minimum sentences.  In fact, in most of the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.  I would often inform or remind defendants and their families and supporters in the courtroom that reform of mandatory minimum sentencing must come from the legislative branch of our federal government — Congress.

So it is with significant irony, but consistent with my view that only Congress has the authority to waive mandatory minimum sentences (with the exception of substantial assistance motions, pursuant to § 3553(e) and FED. R. CRIM. P. 35(b), and “safety valve” eligibility, pursuant to § 3553(f)), that I disagree with the parties’ argument that the Sentencing Commission has the authority to use Amendment 782, or any other amendment to the Sentencing Guidelines, to “nullify” a mandatory minimum sentence established by Congress.  For the reasons set forth below, my understanding is that only Congress itself, not the Sentencing Commission or the Judicial Branch, has that power.  Consequently, the proper net effect of Amendment 782, applied either retroactively or prospectively, is that it can only reduce the sentence of a defendant who originally received a reduction for substantial assistance if he had no mandatory minimum or both his original guideline sentence and his amended guideline sentence are above his mandatory minimum.  Feauto is not such a defendant.

I fully recognize that, like the vast majority of mandatory minimum sentences themselves, this construction leads to a harsh result, but fidelity to the rule of law and principles of non-delegation and separation of powers trumps any personal views on the harshness of federal sentencing.  As discussed below, the construction urged by the parties and amicus creates an Alice In Wonderland like scenario in which the retroactive application of Amendment 782 opens a rabbit hole that Feauto, instead of Alice, falls through and receives a lower sentence in Wonderland than if he were originally sentenced today for his crime with the application of post-Amendment 782.  Surely, this Mad Tea Party scenario creates the very kind of unwarranted disparity the guidelines were intended to avoid.

Download Feauto.Final Opinion.final.112315

November 23, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, November 21, 2015

Convicted spy Jonathan Pollard released as rare federal offender with parole conditions to challenge

Though parole was formally ended for all federal offenses three decades ago through the Sentencing Reform Act of 1984, offenders convicted for crimes committed before that time still are eligible for parole release.  As reported in this article, headlined "Lawyers Contest Pollard’s Parole Conditions," a controversial offender was released on parole under controversial conditions. Here are the basics:

Jonathan Pollard was released from prison Friday after 30 years behind bars for spying for Israel, and his lawyers immediately went to court to challenge tough parole conditions seemingly designed to ensure he doesn’t spill any U.S. military secrets he might have left.

The 61-year-old former Navy intelligence analyst was set free in the middle of the night from a medium-security federal prison in Butner, N.C., after being paroled from a life sentence that had turned him into a continual source of tension between the U.S. and Israel.

Under the rules of his release, he must wear a GPS unit to transmit his whereabouts at all times, allow the installation of monitoring equipment on any computers he uses at work or at home, and agree to periodic, unannounced inspections of those machines.

“The notion that, having fought for and finally obtained his release after serving 30 years in prison, Mr. Pollard will now disclose stale, 30-year-old information to anyone is preposterous,” his lawyers, Eliot Lauer and Jacques Semmelman, said in a statement....

Despite parole requirements that he not leave the U.S. without government permission for the next five years, Pollard has expressed a desire to renounce his American citizenship and move to Israel, where he is seen by some as a national hero. The White House has come out against the request.

U.S. intelligence officials have long argued that Pollard, who pleaded guilty in 1986 to conspiracy to commit espionage, did severe damage to the United States during the Cold War by giving away an enormous volume of military intelligence secrets that some suspect wound up in Soviet hands. His defenders have contended that his punishment was overly harsh for helping a close U.S. ally.

The prosecutor who handled the case, former U.S. Attorney Joseph DiGenova, said it is legitimate for the government to be concerned that Pollard might still have secrets to tell.

Pollard’s lawyers submitted a statement from former U.S. national security adviser Robert McFarlane dismissing such fears. “To the extent Mr. Pollard even recalls any classified information, it would date back 30 years or more, and would have no value to anyone today,” he said.

November 21, 2015 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (7)

Thursday, November 19, 2015

Capital defense lawyers in Utah seek to depose all county prosecutors to make constitutional case against death penalty

This local story from Utah, headlined "Murder defense to depose all of state's top prosecutors," reports on the latest defense approach to putting a bee in the state's capital punishment bonnet in the Beehive State. Here are the interesting details:

The defense in a 2010 murder case plans to schedule depositions with all of Utah’s 29 county prosecutors and other state law enforcement representatives possibly including Utah Attorney General Sean Reyes as part of its bid to overturn a death penalty ruling in the case. Attorneys Gary Pendleton and Mary Corporan announced their plans on Wednesday to seek testimonies from anyone in the state who decides whether the death penalty should be applied in a criminal case. The issue forms part of their arguments that the death penalty is unconstitutional and applied inequitably.

The pair represent Bloomington Hills resident Brandon Perry Smith, 34, who is accused of killing 20-year-old Jerrica Christensen two weeks before Christmas 2010 in a brutal downtown incident.   Pendleton told 5th District Judge G. Michael Westfall that he and Corporan have investigated how many death penalty-eligible cases since 1992 have actually ended up with a suspect being referred to death row. They determined that the prosecution seeks the death penalty in fewer than 3 percent of eligible cases, with most cases leading to a life in prison sentence instead, Pendleton said.

“Why is the death penalty not being sought in those cases but it is being sought in this case?” he asked. “I think we have to call as witnesses the charging authorities who were in positions of authority to make the charging decisions at the time the (state’s other) cases were filed either as capital cases — aggravated murder cases — or not,” Corporan said....  Pendleton’s question amounts to a challenge about whether anyone should be sentenced to death unless everyone who could legally be sentenced to death receives that ultimate penalty....

The death penalty has since been allowed on a state-by-state basis, and Utah established eight aggravating circumstances to define death penalty cases. “Over the years, we have now come to 22 or 23 aggravators,” Pendleton said, adding that at one time Utah had more than any other state.  “Even though we supposedly have a statute that narrows the class, … (in) only 3 percent of (those cases) is the state seeking the death penalty and they’re not seeking the death penalty based upon any articulable standard,” Pendleton said. “It’s completely arbitrary. … The state can’t articulate and won’t articulate on what basis they are making that selection and deciding that this is a death-worthy case. They’re not doing it based on the statute.”...

Pendleton and Corporan initially asked Westfall to schedule a three-day hearing in Smith’s case that would require the presence of all the affected prosecutors from across the state, but Westfall said he feared such a hearing would create a devastating delay for the case because of the difficulty of coordinating everyone’s schedules as well as problems for the other attorneys’ caseloads. “We’re talking about a real domino effect,” he said.

Shaum suggested deposing each affected prosecutor individually would be more practical, even though Corporan and Westfall conceded that to do so will still likely create significant delays in trial scheduling, especially with the holiday season approaching.  With the attorneys’ agreement, Westfall scheduled a review hearing for Feb. 3 to check the progress of the depositions.

Christensen’s mother, Ellen Hensley, has previously expressed concerns about the length of the court process and held a candlelight vigil at the courthouse on the last anniversary of her daughter’s death to call for swifter justice for the victims of crimes. Westfall expressed apparent awareness of her concerns, reminding the attorneys that “I also think that we need to keep in mind that we’ve got some victims’ family members in this case that I think are also entitled to try to see if we can get this case resolved. … I am still concerned about moving this case along and making sure that we get a decision as soon as possible.”

“I’m concerned about providing adequate representation on all the legal issues,” Pendleton replied, adding that the depositions will be “only the tip of the iceberg” in his motion to have the death penalty declared unconstitutional, but that they will be the only real evidence issue before moving to legal arguments.

November 19, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial

As reported in this local AP article, headlined "Fell’s lawyers challenge death penalty law," a notable killer is now making a notable argument to preclude capital punishment's application at his retrial. Here are the details:

A Vermont man facing the federal death penalty for the 2000 killing of a woman abducted from outside a Rutland supermarket is asking a judge to declare the death penalty law unconstitutional, court documents say.  In documents filed in federal court Monday, attorneys for Donald Fell argue the federal death penalty is unreliable, arbitrary and adds “unconscionably long” delays in cases.  “Most places within the United States have abandoned its use under evolving standards of decency,” the attorneys say.

They contend that U.S. Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg earlier this year “issued a clarion call for reconsideration of the constitutionality of the death penalty.”  It also noted that the Connecticut Supreme Court, relying largely on Breyer and Ginsburg’s arguments, found that state’s death penalty unconstitutional. “Mr. Fell asks this Court to (rule)... that the federal death penalty, in and of itself, constitutes a legally prohibited cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” his filing said.

Fell, 35, was convicted and sentenced to death in 2005 for the 2000 killing of Terry King, a 53-year-old North Clarendon grandmother who was abducted in Rutland and later killed.  A judge last year ordered a new trial for Fell because of juror misconduct during the original trial.  The trial is scheduled for next fall.

U.S. Attorney Eric Miller said his office would respond to the defense filings at the appropriate time. Vermont has no state death penalty; Fell was sentenced to death under federal law.  In 2002, the judge then hearing the case declared the federal death penalty unconstitutional.  But two years later, an appeals court overturned that ruling, allowing the trial to go forward.

Robert Dunham, executive director of the Death Penalty Information Center, said a decade’s worth of data has accumulated showing the legal problems with the federal death penalty since the ruling allowing Fell’s case to go forward.... “You can expect going forward that there will be constitutional challenges of this type filed in most, if not all, federal capital prosecutions,” Dunham said.

I share the view that defendants will be making this kind of categorical constitutional argument against the death penalty this will be made in most federal capital prosecutions, and I would go even further to assert that it may now be pretty close to obligatory for defense attorneys to make some form of this argument in any and every capital case. In light of the comments by Justices Breyer and Ginsburg in Glossip, and the risk of having an argument considered waived if not brought as soon as possible, I would think most capital defense attorneys would feel duty-bound to at least raise this kind of argument in order at leas to preserve it for future high court consideration.

November 19, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Wednesday, November 18, 2015

Is it appropriate for condemned's lawyers to give up capital fight at 11th hour?

The question in the title of this post is prompted by this extended Dallas Morning News article headlined "Condemned man’s lawyers stop helping, cite ‘false hope’." Here is the start and end of the story involving a murderer scheduled to be executed today in Texas:

From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.

Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.

Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying. But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.

Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.

Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say. The two contend they are exercising professional judgment and doing what’s best for their client.

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

But others say the law under which death row lawyers are appointed doesn’t allow that kind of discretion. It requires attorneys to make every possible effort to save a client’s life, if that’s what the inmate wants. “This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”

So far, appeals courts have sided with Volberding and Kretzer. Last Thursday, the 5th U.S. Circuit Court of Appeals denied a motion to have them replaced. On Monday, Sween appealed to the Supreme Court.

Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.... In decades of practicing, Bright said he had never seen a case like Holiday’s in which appointed lawyers so vociferously fought to keep a death row inmate from retaining a different attorney. In some cases, he said, new lawyers have discovered evidence others overlooked pointing to an inmate’s innocence or showing people’s intellectual disabilities made them incompetent for execution. “Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”

November 18, 2015 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, November 17, 2015

More notable criminal justice reform bills put foward by House Judiciary Committee

As detailed in this official press release, there is more notable federal criminal justice reform news via the House Judiciary Committee this week.  The press release carries this extended heading "House Judiciary Committee Unveils Bills to Address Federal Over-Criminalization: These bills are part of the Committee’s bipartisan criminal justice reform initiative." And here are some of the essential via the press release (with links from the source):

As part of the House Judiciary Committee’s criminal justice reform initiative, members of the House Judiciary Committee unveiled four bills to rein in the explosion of federal criminal law, commonly referred to as over-criminalization.  These bills, along with the Sentencing Reform Act (H.R. 3713), will be marked up by the House Judiciary Committee on Wednesday, November 18, 2015.  

The United States Code currently contains nearly 5,000 federal crimes. Recent studies estimate that approximately 60 new federal crimes are enacted each year, and over the past three decades, Congress has averaged 500 new crimes per decade.  In addition to the statutory criminal offenses, there are thousands of federal regulations that, if violated, can also result in criminal liability.  Many of these laws and regulations impose criminal penalties on people who have no idea they are violating a law.

The bills unveiled today address the underlying issues that have contributed to over-criminalization:

The Criminal Code Improvement Act of 2015, authored by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), creates a default mens rea standard that applies when federal law does not provide a state of mind requirement so that only those who actually intend to commit the crime can be criminally liable. It also creates uniform definitions for several terms that are used frequently throughout title 18 of the Criminal Code....

The Regulatory Reporting Act of 2015, sponsored by Congresswoman Mimi Walters (R-Calif.), which requires every federal agency to submit a report to Congress listing each rule of that agency that, if violated, may be punishable by criminal penalties, along with information about the rule.... 

The Clean Up the Code Act of 2015, authored by Congressman Steve Chabot (R-Ohio), eliminates several statutes in the U.S. Code that subject violators to criminal penalties, such as the unauthorized use of the 4-H emblem or the interstate transportation of dentures....

The Fix the Footnotes Act of 2015, sponsored by Congressman Ken Buck (R-Colo.), fixes the footnotes in the current version of the Criminal Code to address errors made by Congress in drafting the laws.

November 17, 2015 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, November 16, 2015

Should SCOTUS deal with Johnson retroactivity through an original habeas petition?

The question in the title of this post should get habeas and/or sentencing geeks like me really excited, and I apologize in advance to everyone else.  But the question is on my mind and has me excited after reading this terrific (and lengthy) new PrawfBlawg post by Steve Vladeck titled "How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)." The full post is today's must read for habeas and/or sentencing geeks, but the start and end of the effort should whet geeky appetites:

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term.  But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years — issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem — the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain.  Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions.  Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari — and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler.  Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling....

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction — and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives.  But there's a difference between elusive remedies and illusory ones.  For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve.  If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions.  Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority — and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

November 16, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Sunday, November 15, 2015

New York Times editorial makes case that California prison releases are working

The New York Times had this notable recent editorial, headlined "California’s Prison Experiment," highlighting why California is the most dynamic state to watch amidst the national debate over sentencing reform and mass incarceration.  Building on two recent reports, the editorial makes the case that California is finding success with decarceration reforms.  Here are excerpts:

Until recently, California locked up more people per capita than any other state. It has been under federal court order since 2009 to bring its severely overcrowded prison system below 137.5 percent of capacity, or about 114,000 inmates.

It met that modest goal in February, thanks in part to a 2014 ballot initiative that reclassified six low­level offenses as misdemeanors instead of felonies. The initiative, Proposition 47, was expected to lead to the release of thousands of inmates, and cut new admissions by about 3,300 per year.  It also required that the cost savings — estimated to be more than $150 million this year — be reinvested into anticrime services like drug rehabilitation,  antitruancy efforts and mental health treatment.  Victims’ services receive funding, too.

Proposition 47 followed two other major reforms: A 2011 law diverted low­level offenders from state prisons into county jails, and a 2012 ballot initiative scaled back a “three strikes” law. The latter led to the release of more than 2,100 people who had been sentenced to life without parole, some for a third strike as minor as shoplifting.

After each reform, law enforcement officials predicted that crime would rise, but it continued to drop around the state. Recidivism rates of those released under the three­-strikes reform are far below the state average.

Now, two new reports, by the American Civil Liberties Union and the Stanford Justice Advocacy Project, look at the effect of Proposition 47.  The most easily measurable impact is on the state’s prison and county jail population, which has fallen by about 13,000, with more than 4,400 prison inmates released by the end of September.  But the law remains controversial.  Some in law enforcement argue that they can’t arrest people for small crimes anymore, and point to crime upticks in some counties.

In fact, crime rates vary widely throughout the state. In Los Angeles County, property crime is up 8 percent, while the rate for all crime remains at record lows in San Diego County.  One sign that Proposition 47 is working is the recidivism rate. It is less than 5 percent for people released under the law; the state average is 42 percent....

It may be too soon to understand the full impact of Proposition 47, but the damage done by the indiscriminate and lengthy lockup of low­level offenders is all too clear. California’s voters, who have in the past given in to their most punitive impulses, have now opened the door to a more intelligent and humane justice system.

A few (of many) prior related posts on Prop 47 and its impact:

November 15, 2015 in Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Friday, November 13, 2015

Washington state prosecutors (wisely?) hoping for direction from a death-penalty referendum

This local AP article, headlined "Washington prosecutors want death-penalty referendum," reports that a number of notable executive branch officials are hoping a referendum vote might provide some clarity on how to approach the ultimate punishment. Here are the details:

The Washington Association of Prosecuting Attorneys issued a statement Thursday saying prosecutors “overwhelmingly believe that the people of the state should vote on the question of whether the state should retain the death penalty as an option in cases of aggravated murder.”

The death penalty has been on hold in Washington state since last year, when Gov. Jay Inslee issued a moratorium for as long as he’s in office. Nine men are now on death row in Washington state.

King County Prosecutor Dan Satterberg said a public vote would tell prosecutors “one way or the other” how Washingtonians feel about the death penalty. The impetus for the prosecutors’ action, according to an email from Tom McBride, executive secretary of the association, were the jury decisions in the murder cases involving the killings of a Carnation family in 2007 and a Seattle police officer in 2009.

In the Carnation case, Michele Anderson is accused of joining her then-boyfriend Joseph McEnroe in killing six members of her family. McEnroe was convicted of participating in the killings and sentenced in May to life in prison after the jury could not agree on the death penalty. In July, Satterberg said his office would not seek the death penalty against Anderson, an announcement made after Christopher Monfort was sentenced to life in prison for killing Officer Timothy Brenton.

The lack of pending death-penalty cases provides “a window where we don’t have to think through” immediate impacts, McBride said in his email, noting that the group’s Thursday statement had almost “unanimous support from elected prosecuting attorneys who both support and oppose the death penalty.”

Rep. Reuven Carlyle, D-Seattle, said the prosecutors’ statement is a “really important and momentous step forward” in public conversation over the law. But Carlyle, who has sponsored bills to ban the death penalty, said he believes any change should come from the Legislature. There’s a lot of complexity surrounding a change in the law, he said, and a public referendum would spur an expensive and difficult campaign....

Death-penalty cases in Washington are still being tried and continue to work through the system. Inslee’s moratorium means that if a death-penalty case comes to his desk, he will issue a reprieve, which means the inmate would stay in prison rather than face execution. In response to the prosecutors’ Thursday statement, Jaime Smith, spokeswoman for Inslee, called the death-penalty debate an important one. She added that “The governor made clear his reasons for enacting a moratorium and his support for a discussion among legislators and the people.”

Since 1981, most death-penalty sentences in Washington have been overturned and executions rare, according to the prepared remarks of Inslee’s 2014 moratorium announcement. “When the majority of death-penalty sentences lead to reversal,” Inslee said in the remarks, “the entire system itself must be called into question.”

November 13, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, November 12, 2015

Split Ohio Supreme Court rejects constitutional challenge to registration requirement for 21-year-old who had consensual sex with 15-year-old

Any and all college guys in Ohio who may still be dating younger high school girls will want to know about the new Ohio Supreme Court opinion in Ohio v. Blankenship, No. 2015-Ohio-4624 (Nov. 12, 2015) (available here). Here is how the majority opinion gets started:

Appellant, Travis Blankenship, challenges as cruel and unusual punishment the sex-offender-registration and address-verification requirements imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging in unlawful sexual conduct with M.H., a 15-year-old, when he was 21. Because we hold that the Tier II registration requirements imposed upon him are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and to the community’s sense of justice, we affirm the judgment of the court of appeals.

The chief dissent gets started this way:

The framework within which an issue is presented can unduly influence the outcome. For example, if you ask a stadium full of people whether requiring a Tier II sex offender to comply with certain reporting requirements shocks their sense of justice, you are unlikely to receive a single affirmative response.  But... but add that the offender was an adult male who had sex with a 15-year-old girl ...[and] add that the offender was a 21-year-old male, that the 15-year-old girl consented, and that the registration and address-verification requirements must be complied with every six months for 25 years, and now we are at the threshold.  Many will see the consent as a mitigating factor, many will see the relatively modest age difference as a mitigating factor, and many will see the 25-year time period as unnecessarily long.  As the majority notes, and I acknowledge, these potentially mitigating factors are not statutorily relevant, but they are nevertheless constitutionally relevant.

Assume further that the offender has been determined by a psychologist to have none of the characteristics of a sex offender and to have a low risk of reoffending. There would be many who would be shocked at the severity and length of the punishment, i.e., the reporting requirements.  Assume all of the above and add that the offender could have received a sentence of up to 18 months, see R.C. 2929.14(A)(4), that he was sentenced to six months in prison (the shortest term possible), and that a judge released him after he had served a mere 12 days.  Now the community’s sense of justice has been violated.  Few would deem it appropriate to require a person who committed a crime that warranted a 12-day sentence to comply with reporting requirements every six months for the next 25 years.

The touchstone of federal cruel-and-unusual-punishment analysis is that the punishment must be proportional to the crime. Weems v. United States, 217 U.S. 349, 367 (1910). The case before us fails this standard.

November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

Ninth Circuit panel reverses, on procedural grounds, district court ruling declaring California's capital system unconstitutional

Today via a procedural ruling in Jones v. Davis, No. 14-56373 (9th Cir. Nov. 12, 2015) (available here), a panel of the Ninth Circuit has reversed this ground-breaking ruling by US District Judge Cormac Carney that California's system of reviewing capital convictions and sentences " violates the Eighth Amendment’s prohibition against cruel and unusual punishment." The circuit panel's majority opinon in Jones, authored Judge Graber, gets started this way:

The State of California authorizes the execution of a capital prisoner only after affording a full opportunity to seek review in state and federal courts. Judicial review ensures that executions meet constitutional requirements, but it also takes time — too much time, in Petitioner Ernest DeWayne Jones’ view. He argues that California’s post-conviction system of judicial review creates such a long period of delay between sentencing and execution that only an “arbitrary” few prisoners actually are executed, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Under Teague v. Lane, 489 U.S. 288 (1989), federal courts may not consider novel constitutional theories on habeas review.  That principle “serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234 (1990). Because we conclude that Petitioner’s claim asks us to apply a novel constitutional rule, we must deny the claim as barred by Teague. Accordingly, we reverse the district court’s judgment granting relief.

A concurrence by Judge Watford in Jones gets started this way:

My colleagues conclude that relief is precluded by Teague v. Lane, 489 U.S. 288 (1989), which bars federal courts from applying “new rules of constitutional criminal procedure” to cases on collateral review.  Beard v. Banks, 542 U.S. 406, 416 (2004) (emphasis added). The Teague bar does not apply to new rules of substantive law. Schriro v. Summerlin, 542 U.S. 348, 352 n.4 (2004).
The rule announced by the district court, while undoubtedly “new” for Teague purposes, is substantive rather than procedural. The court held that the death penalty as administered in California constitutes cruel and unusual punishment and therefore violates the Eighth Amendment.  In particular, the court concluded that the long delays between imposition of sentence and execution, resulting from systemic dysfunction in the post-conviction review process, combined with the low probability that an inmate sentenced to death will actually be executed, preclude the death penalty from serving any deterrent or retributive purpose. Jones v. Chappell, 31 F. Supp. 3d 1050, 1053, 1062–65 (C.D. Cal. 2014); see Glossip v. Gross, 135 S. Ct. 2726, 2767–70 (2015) (Breyer, J., dissenting).  The Supreme Court has held that capital punishment violates the Eighth Amendment if it does not fulfill those two penological purposes.  Kennedy v. Louisiana, 554 U.S. 407, 441 (2008). Thus, the effect of the district court’s ruling is to categorically forbid death as a punishment for anyone convicted of a capital offense in California.  A rule “placing a certain class of individuals beyond the State’s power to punish by death” is as substantive as rules come.  Penry v. Lynaugh, 492 U.S. 302, 330 (1989).  
I would reverse the district court’s judgment on a different ground.  A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court.  28 U.S.C. § 2254(b)(1)(A).  Jones concedes he has not done that.  He never presented the claim at issue here to the California Supreme Court to give that court an opportunity to rule on the claim in the first instance.  Jones did present a so-called Lackey claim to the California Supreme Court, which asserted that the long post-conviction delay in Jones’ own case has rendered his death sentence cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari).  But the claim on which the district court granted relief rests on a different set of factual allegations and a different legal theory. Presenting the Lackey claim to the California Supreme Court therefore did not satisfy the exhaustion requirement.  See Gray v. Netherland, 518 U.S. 152, 162–63 (1996).  
Jones contends that exhaustion should be excused here. The federal habeas statute provides just two scenarios in which a petitioner’s failure to satisfy the exhaustion requirement may be excused: (1) when “there is an absence of available State corrective process,” or (2) when “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Jones’ case does not fit within either of these exceptions. He does not dispute that he can file another habeas petition in the California Supreme Court to exhaust the claim at issue here, so the first exception doesn’t apply.  And the second exception does not apply because Jones can’t show that filing a new habeas petition with the California Supreme Court would be ineffective to protect his rights.

I will have some commentary on this significant and interesting circuit court ruling later today in a follow-up post after I find some time to read the opinions here closely. But even without a full read, I can predict with certainty that the defense team (and their amici) are all-but-certain to seek en banc review before the full Ninth Circuit and/or certiorari review in the Supreme Court. In all likelihood, those further appeals will keep this case going (and provide an excuse for California to not set any execution dates) throughout the rest of 2015 and probably all of 2016.

November 12, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Notable new ACLU report on impact of California's Prop 47 one year later

ACLUcaCoverIn this prior post last week, I reported on this Stanford Justice Advocacy Project report providing one perspective on the impact and import of California voters' embrace of criminal justice reform last year through Proposition 47.  I have just seen that the ALCU of California has this week released its own report on this important topic.  This report, titled "Changing Gears: California’s Shift to Smart Justice," covers lots of ground about local implementation of Prop 47.  Here are excerpts from its six main findings (which has its numbering a bit off):

For this survey, the ACLU obtained and reviewed public records from sheriffs, probation chiefs, district attorneys, and behavioral health departments from around the state. The findings below are offered as a starting point for policymakers and advocates working to better understand the choices local agencies are making in responding to Prop 47 and the voter mandate behind it – and begin to evaluate whether those choices are appropriate.

1. Thousands are waiting for their Prop 47 resentencing/ reclassification petitions to be reviewed. Under Prop 47, people who may be eligible to change the felony on their record to a misdemeanor have a limited time to ask the court to make the change. The November 2017 deadline to apply is now just two years away.  As of June 2015, courts statewide had reported a total of about 160,000 applications for Prop 47 relief – both for resentencing and reclassification.29 Responding to public records requests by the ACLU, many counties were unable to provide accurate data on how many people may still be incarcerated or under supervision awaiting resentencing.  Although most counties acted quickly to establish a process for resentencing eligible incarcerated people, it is less clear how many people eligible for Prop 47 resentencing are still serving felony sentences under community supervision.  According to Californians for Safety and Justice, there may be up to one million Californians who have an old felony on their record that may be eligible for reclassification....

2. Jail populations fell after Prop 47, but they are rising again. Due to overcrowding, jail populations in California are largely determined by jail administrators’ decisions about how to manage jail capacity.  They determine who will be booked into jail and who will be released, how and under what conditions.  Following enactment of Prop 47, jail populations statewide dropped by almost 11% from October 2014 to March 2015.  During the same period, the number of people who were released early due to jail overcrowding dropped by one-third. However, jail populations soon began to increase again as administrators adjusted detention policies and practices....

3. Some in law enforcement have prioritized low-level arrests while others de-prioritized them. The ACLU obtained several county sheriff departments’ arrest numbers for low-level drug and property offenses for each month in 2014 through mid-2015. (Sheriff’s departments represent a small sample of the hundreds of law enforcement agencies in the state.)  Changes in arrests in the fi rst six months of 2014 compared to the fi rst six months of 2015 demonstrate that local agencies are applying their discretion to arrest for Prop 47 offenses very differently....

4. Some county jails are making room for people charged with low-level offenses. The facts belie the claim by some in law enforcement that people facing misdemeanor charges cannot be jailed. In 2015, people facing misdemeanor charges are taking up a growing number of jail beds....

4. A majority of counties already require supervision for some people convicted of a low-level offense. In response to ACLU inquiries, 38 county probation departments reported supervising some people for misdemeanor convictions. Other counties put misdemeanants on court probation (which does not involve active monitoring). Following Prop 47, some counties reported putting people who have been resentenced from a felony to a misdemeanor under the supervision of the probation department. Other counties have chosen not to provide formal supervision....

5. Agencies have been focused on individual agency roles, rather than collaborative planning. In records provided to the ACLU, communication among criminal justice agencies at the county level have focused on the individual roles of each agency rather than on how best to maintain the county’s overall public safety goals. Few counties appear to have made the space to discuss how various agencies and the county as a whole should adjust policies and practices to ensure that counties adhere both to the legal requirements and the voter intent behind Prop 47.

A few (of many) prior related posts on Prop 47 and its impact:

November 12, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, November 09, 2015

New research suggests overcrowding in California prisons increased post-release parole violations

Opponents of modern sentencing reform efforts are often quick and eager to highlight research showing high rates of recidivism among those released from prison to argue that public safety could be adversely affected by any and all sentencing reform.  In light of such claims, I find notable this new published empirical research suggesting that prison overcrowding in California may be in part responsible for high recidivism rates.    The published research is titled "Does Prison Crowding Predict Higher Rates of Substance Use Related Parole Violations? A Recurrent Events Multi-Level Survival Analysis," and here are excerpts from the abstract:

Objective

This administrative data-linkage cohort study examines the association between prison crowding and the rate of post-release parole violations in a random sample of prisoners released with parole conditions in California, for an observation period of two years (January 2003 through December 2004).

Background

Crowding overextends prison resources needed to adequately protect inmates and provide drug rehabilitation services. Violence and lack of access to treatment are known risk factors for drug use and substance use disorders. These and other psychosocial effects of crowding may lead to higher rates of recidivism in California parolees.

Methods

Rates of parole violation for parolees exposed to high and medium levels of prison crowding were compared to parolees with low prison crowding exposure. Hazard ratios (HRs) with 95% confidence intervals (CIs) were estimated using a Cox model for recurrent events. Our dataset included 13070 parolees in California, combining individual level parolee data with aggregate level crowding data for multilevel analysis....

Conclusions

Prison crowding predicted higher rates of parole violations after release from prison. The effect was magnitude-dependent and particularly strong for drug charges. Further research into whether adverse prison experiences, such as crowding, are associated with recidivism and drug use in particular may be warranted.

November 9, 2015 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (8)