Friday, October 04, 2013
Third Circuit concludes juves serving LWOP made "prima facie showing that Miller is retroactive"As reported in this AP article, headlined "3 Lifers Win Ruling in Juvenile Sentencing Case," the Third Circuit yesterday handed down an important, but nuanced, ruling concerning the retroactive application of the Supreme Court's Eighth Amendment ruling in Miller concerning mandatory LWOP sentencing for juvenile offenders. Here is a summary of the ruling and some initial reactions thereto via the AP:
Three men who have been serving life sentences since they were juveniles won a fresh chance to convince judges they deserve to be resentenced under a decision Thursday by the federal appeals court based in Philadelphia.
The 3rd U.S. Circuit Court of Appeals said there was at least some reason to think last year's U.S. Supreme Court decision in the case of Miller v. Alabama, throwing out mandatory life without parole sentences for juveniles, should be applied retroactively.
The court stressed its decision is tentative and made under a standard that means there is enough possible merit to warrant a full exploration of the matter. The defendants must still convince the district judges they should be resentenced.
Defendants Michael J. Pendleton and Franklin X. Baines are in Pennsylvania prisons, while defendant Corey Grant is serving life in New Jersey.
Baines' lawyer, David R. Fine, said the decision means the appeals court "agreed there's at least an argument that Miller is retroactive." Baines is "going to have to convince that judge that Miller applies retroactively," Fine said. "And if he convinces the judge of that, obviously, there can be appeals."
The opinion noted a split in similar decisions being made by other federal circuit courts across the country, and Tasha Jamerson, a spokeswoman for the Philadelphia district attorney's office, called it an issue "that will be finally resolved by the United States Supreme Court."
Her counterpart in Pittsburgh said the Allegheny County district attorney's office might appeal to the U.S. Supreme Court. "We're going to talk to Philadelphia," said Mike Manko, spokesman for Allegheny County District Attorney Stephen Zappala. "They had a co-filing, and we'll see what the best thing to do is at this point."
Grant's lawyer, David B. Glazer, said the next step will probably be a scheduling order by the district judge, possibly including a requirement for legal briefs. He said Grant was convicted of a drug-related murder that occurred a few days after his 16th birthday. "It's one of the hurdles along the way," Glazer said. "We're just excited about the possibility of getting him back to court."
Pendleton's lawyer, federal public defender Lisa Freeland, said she was very happy with the decision. Her client was convicted of second-degree murder for the 1997 shooting death of a Pittsburgh jitney driver during a robbery, according to a magistrate judge's report in his federal court file. "We still have a ways to go, but this is a necessary first step to getting relief for Mr. Pendleton," Freeland said.
The panel opinion from the Third Circuit in these consolidated cases is available at this link; here are key excerpts:
In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2010), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'” Corey Grant, Franklin X. Baines, and Michael J. Pendleton (collectively, “Petitioners”), each of whom claims to be serving a mandatory sentence of life without the possibility of parole for offenses committed as juveniles, seek our authorization to file successive habeas corpus petitions under 28 U.S.C. §§ 2254 (for Baines and Pendleton) and 2255 (for Grant) to raise Miller claims. Both Baines and Pendleton were convicted in state court in Pennsylvania, and Grant was convicted in federal court in New Jersey....
After extensive briefing and oral argument, we conclude that Petitioners have made a prima facie showing that Miller is retroactive. In doing so, we join several of our sister courts of appeals. See, e.g., Wang v. United States, No. 13-2426 (2d Cir. July 16, 2013) (granting motion to file a successive habeas corpus petition raising a Miller claim); In re James, No. 12-287 (4th Cir. May 10, 2013) (same); Johnson v. United States, 720 F.3d 720 (8th Cir. 2013) (per curiam) (same). But see In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (concluding that Miller is not retroactive), reh’g en banc denied, 717 F.3d 1186; Craig v. Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (same).
Because of the circuit split noted by the Third Circuit (which has a notable north/deep south quality to it), the Supreme Court is surely likely to take up this issue in some form at some point in the not too distant future.
Monday, September 30, 2013
How common are DVD submissions as mitigation evidence as part of federal sentencing?The question in the title of this post is prompted by a somewhat amusing discussion toward the end of a Ninth Circuit panel opinion released today in US v. Laurienti, No. 11-50294 (9th Cir. Sept. 30, 2013) (available here). The following passage from the opinion provides the context for the question:
Laurienti claims for the first time on appeal that the district court committed plain error when it did not read the last two pages of his sentencing memorandum or view a DVD he had submitted. We review these contentions under the same plain error standard applicable to his claim that the district court did not listen to his evidence in mitigation. We reject these contentions for two reasons.
First, the court provided Laurienti the opportunity to present the substance of those materials during sentencing. Laurienti did so, and the court listened to his position.[FN7]
Second, and more importantly, the court explained why further considering those materials would not change its decision. The court specifically stated that it had reviewed numerous letters from Laurienti’s family, friends, and business associates. The court did not, however, find these materials persuasive in light of Laurienti’s apparent attempts to avoid making restitution payments. Considering the cumulative nature of the DVD, and the fact that the court allowed Laurienti to discuss his sentencing position at length, Laurienti has failed to establish that the court’s refusal to consider the exhibits amounted to plain error requiring reversal.
[FN7] We note in passing that the time that the attorneys and this court have spent on the issue of the unread two pages and unwatched DVD was, in all likelihood, far more extensive (and, for the parties, expensive) than if the court had simply read and watched what was before it. As Benjamin Franklin astutely observed, “An ounce of prevention is worth a pound of cure.”
Under the circumstances, I am not suprised or troubled by the Ninth Circuit's resolution of this issue, though I can understand why a defendant might be both surprised and troubled that a judge at sentencing would report that he had not bothered to watch a DVD the defense team had created for the occassion. This, in turn, leads me to wonder if mitigation DVDs are common submissions by the defense in some federal courts or for some sets of defendants (and also whether judicial disregard of such DVDs submissions might also be common).
A few prior related posts:
- Interesting sign of the modern high-tech sentencing times
- "Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?"
September 30, 2013 in Booker in district courts, Booker in the Circuits, Purposes of Punishment and Sentencing, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack
Saturday, September 28, 2013
Could execution drug difficulties and switches result in real public health problems?The question in the title of this post is prompted by this AP article, headlined "Use of drug for execution might cut supply: Missouri plans on using common anesthetic in October to kill convicted murderer." Here are excerpts:
The planned use of a common anesthetic in a Missouri execution is raising concerns that the anti-death penalty European Union could limit export of the drug, endangering the supply of a vital medication used every day in thousands of American hospitals and clinics.
The execution scheduled for Oct. 23 would be the first to use propofol, which is by far the nation’s most popular anesthetic. About 50 million vials are administered annually in some 15,000 locations. That’s about four-fifths of all anesthetic procedures, according to the American Society of Anesthesiologists. Propofol is popular because it works quickly and patients wake up faster with fewer side effects such as post-operative nausea.
Roughly 85 percent of the U.S. supply of propofol is made in Europe, where capital punishment is outlawed, by the German company Fresenius Kabi. Export is controlled by the European Union, which prohibits trade in goods that could be used for executions. The EU is reviewing whether to subject propofol to that rule.
If it is added to the regulation, propofol would be subject to export controls, not a complete ban, EU spokeswoman Maja Kocijancic said. Still, any change in export practices could have a drastic effect on propofol’s availability in the U.S., said Matt Kuhn, a spokesman for Fresenius Kabi USA. “It’s a real concern,” Kuhn said Friday. “And it could have enormous public health implications.”
Fresenius Kabi has launched a website specifically to address the ramifications of using propofol in a U.S. execution, http://propofol-info.com. The Food and Drug Administration is worried about any move that could affect access to propofol. FDA spokeswoman Erica Jefferson said the agency is weighing how to reach out to European officials to ensure the drug remains readily available. “We do consider this a critical need,” Jefferson said. “Without the drug, we’re concerned that surgeries would be delayed and patients would be at risk.”
Until recently, Missouri and other states with the death penalty used virtually the same three-drug protocol. That changed in recent years as drug makers stopped selling the traditional execution drugs to prison officials because they didn’t want them used for lethal injections.
Last year, the Missouri Department of Corrections turned to propofol, which made headlines in 2009 when pop star Michael Jackson died after overdosing on the drug. So far, Missouri is the only state to adopt propofol for executions, though it has not yet put anyone to death with the drug.
At one point, the shortage of execution drugs was so concerning in the state that Attorney General Chris Koster hinted that use of the gas chamber was a possible alternative. Missouri used gas for executions in the early 1900s but no longer has a working chamber.
Friday, September 27, 2013
Judge Weinstein quickly responds to Second Circuit reversal of his below-mandatory-minimum child porn sentencingThanks to How Appealing here, I have just seen that Judge Jack Weinstein wasted little time in responding to the ruling yesterday by the Second Circuit in US v. Reingold (discussed here) that Judge Weinstein had erred when sentencing a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Judge Weinstein's response appears in this nine-page Memorandum and Order, which gets started this way:
This case exemplifies the sometimes unnecessary cruelty of our federal criminal law. The Court of Appeals for the Second Circuit has ordered — pursuant to statutes it held binding — that defendant’s prison term be increased substantially; another 30 months must now be added to the term reluctantly imposed by the district court of 30 months in a prison medical treatment center — an additional period likely to be spent in the general prison population. See United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 13, 2013) (order reversing in part as to sentencing and remanding); United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 26, 2013) (opinion of the court remanding for resentencing). Such a long sentence is unjust.
After release from prison, C.R. will be severely restricted as a convicted sex offender in where, and with whom, he can live, work and recreate for up to life. See 42 U.S.C. §§ 16911, 16915(a)(1), 16915(b); N.Y. Correct. Law § 168-h(1); Judgment of Conviction, United States v. C.R., No. 09-CR-155 (E.D.N.Y. Jun. 21, 2011), ECF No. 157; cf. Michael Schwirtz, In 2 Trailers, the Neighbors Nobody Wants, N.Y. Times, Feb. 5, 2013, at A1 (discussing the lack of permissible, housing for “sex offenders”).
The effect of harsh minimum sentences in cases such as C.R.’s is, effectively, to destroy young lives unnecessarily. The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences, was physically sacrificing them to ancient gods for the supposed benefit of society. Leviticus 18:21 (King James ed.) warns, “[T]hou shalt not let any of thy [children] pass through the fire to Molech.” See W. Gunther Plaut et al., The Torah: A Modern Commentary, 149 n.1, 883 (1981) (ancient human sacrifice of children); Maimonedes Mishneh Torah, 116 (Rabbi Eliyahu trans. with commentaries and notes, Moznaim Publ’g. Corp. 2001) (“[A] person who gives his descendants to Molech” is executed by stoning.). And a pillar of major religions is the banning of the sacrifice of children. Genesis 22:12-13; see Plaut et al., at 149 (“[R]eligion . . . rejects the sacrifice of a [mortal] son . . . .”). Yet we continue using the criminal law to unnecessarily crush the lives of our young.
An important duty of an Article III district judge is to prevent injustices by the government in individual cases. See United States v. Ingram, 2013 WL 2666281, at *14 n.9 (2d Cir. June 14, 2013) (Calabresi, J. concurring) (“[W]e judges have a right — a duty even — to express criticism of legislative judgments that require us to uphold results we think are wrong.” (footnotes and citations omitted)); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1303 (1952) (“clearly ethical in its nature”); Jack B. Weinstein, Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice, 32 Fordham Urb. L. J. 131, 155 (2004) (“The judge must decide: does this law violate the essence of my duty to . . . humanity.”). Where, as here, in the opinion of a ruling appellate court, the trial court has exceeded its power, at least the matter has been brought to the government’s and public’s attention, so that in due course, in our caring democracy, future injustices of this kind will be avoided.
Recent related post:
September 27, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (35) | TrackBack
Thursday, September 26, 2013
Second Circuit reverses below-mandatory-minimum sentence for distributing child pornographyThe Second Circuit via a lengthy panel decision today in US v. Reingold, No. 11-2826 (2d Cir. Sept. 26, 2013) (available here), reverses a decision by Judge Jack Weinstein to sentence a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Here is how the majority opinion gets started:
Corey Reingold pleaded guilty in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) to one count of distributing child pornography. See 18 U.S.C. § 2252(a)(2). The United States now appeals from that part of the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months’ incarceration. The government contends that the district court erred in refusing to impose the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual Punishment Clause. See U.S. Const. amend. VIII. The government further disputes the district court’s Sentencing Guidelines calculations. The district court explained its sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages of appendices. See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011). Having carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude that the district court erred in both respects identified by the government. We therefore remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion.
I will not have a chance to review closely the 56 pages of Reingold until late tonight, though a quick skim suggests this ruling is a must-read for any and everyone working on sentencing issues in child pornography cases in the federal courts.
Wednesday, September 25, 2013
Federal judges give California officials a little more time to unpack overcrowded prisionsAs reported in this local piece, headlined "California prisons: Judges give state more time to deal with inmate release order," Governor Jerry Brown and other California officials have succeeded in getting the court-ordered deadline for prison reform pushed back a bit. Here are the basics:
Giving California prison officials a temporary reprieve to deal with the state's overcrowding crisis, a federal court on Tuesday ordered the Brown administration and inmates' lawyers to discuss whether the latest legislative plan will solve the long-running prison problem.
In the order, a special three-judge panel gave the state until the end of January to report back to the court, for now dissolving a December deadline to rid California's prisons of nearly 10,000 more inmates. The judges indicated that the state and inmates' lawyers could ask for further extensions, suggesting the court may be willing to give California more time to end a decades-long legal battle. At the same time, the judges ordered California to stop transferring inmates to private or out-of-state prisons while the latest proposal is considered....
Gov. Jerry Brown and the Legislature agreed recently to address the court's overcrowding orders by trying to use mental health and drug treatment programs to limit the number of inmates being sent to the state's prisons for new crimes, asking the judges to give the state three more years to meet the latest goals. State officials have said they would otherwise spend more than $300 million to ship inmates to private prisons and prisons in other states if the judges would not agree to that solution.
In Tuesday's order, the judges did not indicate whether they would accept the proposal, but instructed state officials and inmates' advocates to focus on several categories, including elderly and juvenile inmates, immigration violators, the seriously ill and those serving three-strikes sentences.
The order calls for the two sides to meet in the coming months with San Francisco state appeals court Justice Peter Siggins, formerly a top lawyer in the Brown administration. Siggins is expected to report to the judges on the progress of the negotiations in late October....
The federal judges previously found that the state's prisons are so overcrowded that they fail to give inmates adequate medical and mental health care. The court determined there are still enough problems to require the release of more inmates.
Sunday, September 22, 2013
Will SCOTUS take up Warren Hill's (final?) plea to avoid a Georgia execution?The question in the title of this post is prompted by this new editorial commentary by Jesse Wegman for the New York Times. The piece is headlined "A Rare Plea to the Court," and here are excerpts:
The Supreme Court’s next term is full of big-ticket issues — from campaign finance to affirmative action to the separation of powers — but a largely overlooked death-penalty appeal the court hasn’t agreed to hear yet could clarify how broadly it views its ultimate power to stop unjust executions.
In 1990 Warren Lee Hill beat a man to death with a nail-studded board, and the state of Georgia sentenced him to die. Mr. Hill is intellectually disabled, according to all seven mental health experts who have examined him. The Supreme Court banned the execution of intellectually disabled people in 2002, but Mr. Hill remains on death row, trapped by a welter of state and federal laws that prevent him from proving his condition in court....
One hurdle for Mr. Hill is that while four of the seven mental health experts originally found that he met the criteria for mild mental retardation, three did not. Georgia requires intellectual disability to be proved beyond a reasonable doubt — an arguably unconstitutional standard no other state uses. Presumably it is possible to meet this standard. Either way, Georgia courts said a four-three split was not enough. But last year the three experts against Mr. Hill recanted. Seven to zero sounds like a winner, but it didn’t matter, a federal appeals court said, since Mr. Hill was blocked by another law that strictly limits multiple appeals on the same claim.
So Mr. Hill filed a direct appeal to the Supreme Court — a rare request the court even more rarely grants — asking it to order the lower courts to weigh the new evidence. On Sept. 30, the court will consider whether to hear Mr. Hill’s petition. It has been reluctant in the past to exercise this power, but this case is exceptional. At stake is not only a man’s life, but the court’s own authority....
Mr. Hill’s case is as simple as it is unusual: there is compelling evidence that he is categorically ineligible to be executed, and he has nowhere else to turn.
Saturday, September 21, 2013
What are enduring lessons from "The Death and Resurrection of Capital Punishment in America"?The question in the title of this post is drawn from the title of Evan Mandery's notable new book titled "A Wild Justice: The Death and Resurrection of Capital Punishment in America." Here is the description of the book from the publisher's website:
Drawing on never-before-published original source detail, the epic story of two of the most consequential, and largely forgotten, moments in Supreme Court history.
For two hundred years, the constitutionality of capital punishment had been axiomatic. But in 1962, Justice Arthur Goldberg and his clerk Alan Dershowitz dared to suggest otherwise, launching an underfunded band of civil rights attorneys on a quixotic crusade. In 1972, in a most unlikely victory, the Supreme Court struck down Georgia’s death penalty law in Furman v. Georgia. Though the decision had sharply divided the justices, nearly everyone, including the justices themselves, believed Furman would mean the end of executions in America.
Instead, states responded with a swift and decisive showing of support for capital punishment. As anxiety about crime rose and public approval of the Supreme Court declined, the stage was set in 1976 for Gregg v. Georgia, in which the Court dramatically reversed direction.
A Wild Justice is an extraordinary behind-the-scenes look at the Court, the justices, and the political complexities of one of the most racially charged and morally vexing issues of our time.
I suspect I will not be able to find time to read this book until the end of classes this semester, but this recent NPR's Fresh Air interview of the author provides an effective and efficient glimpse into the stories therein. Here is how NPR sets up the interview:
In the mid-1970s, Arkansas' electric chair was being used by the prison barber to cut hair, and the execution chamber in New Hampshire was being used to store vegetables. That's because in 1972, the U.S. Supreme Court shocked the nation by striking down Georgia's death penalty law, effectively ending executions in the United States. But the decision provoked a strong backlash among those who favored the death penalty, and within four years the high court reversed course and issued a set of rulings that would permit the resumption of executions.
Evan Mandery, a professor at the John Jay College of Criminal Justice and a former capital defense attorney, has written a new account of the tumultuous legal and political battles over the death penalty. Mandery is sympathetic to those who tried to outlaw capital punishment, but his account focuses on attorneys for both sides in the battle, as well as the views and deliberations of the justices who decided the cases. His book is called A Wild Justice: The Death and Resurrection of Capital Punishment in America.
He tells Fresh Air's Dave Davies about how the Supreme Court decisions of the '70s changed capital punishment.
Friday, September 20, 2013
NY Times debates "Reconsidering Young Lifers’ Sentences"
The Room for Debate section of the New York Times has this new set of pieces discussing whether all juve murderers should get the retroactive benefit of the Supreme Court's Miller Eighth Amendment ruling. Here is the section's set up:
In the wake of last year’s Supreme Court ruling in Miller v. Alabama that juveniles may never receive a mandatory sentence of life without parole, The Times editorial board has called for courts and legislators to apply this principle regardless of the date of conviction.
Courts in some states agree. Earlier this month, the Louisiana Supreme Court took on this question in the case of Darryl Tate, who was 17 when he robbed two men and killed one of them in 1981.
Should all people in prison for life without parole who committed their crimes before their 18th birthday be eligible for a new sentencing hearing?
Here are the contributions, with links via the commentary titles:
"Give Them Another Chance" by Jody Kent Lavy, Campaign for the Fair Sentencing of Youth
"Judgments Should Remain Intact" by Kent Scheidegger, Criminal Justice Legal Foundation
"The Problem With Retroactivity Rules" by William Baude, Volokh Conspiracy
"It Won’t Be Easy, But It Must Be Done" by R. Daniel Okonkwo, D.C. Lawyers for Youth
"Time to Affirm What We Mean by ‘Juvenile’" by Annie Salsich, Vera Institute of Justice
September 20, 2013 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
Thursday, September 19, 2013
"Holder directs attorneys to seek reduced sentences in pending drug cases"The title of this post is the headline of this Washington Post report on the latest announcement from AG Eric Holder concerning federal drug prosecution policies. Here is how the article starts:
Attorney General Eric H. Holder Jr. said Thursday that he has directed U.S. attorneys across the country to apply new sentencing guidelines to ongoing drug cases so that low-level, nonviolent offenders will not face severe mandatory sentences.
The new guidelines will be applied to suspects who have been charged but not yet put on trial, as well as to individuals who have been convicted but not yet sentenced. The directive does not affect offenders already sentenced or serving time in prison.
Holder announced last month that low-level, nonviolent drug offenders would no longer be charged with offenses that impose severe mandatory sentences. The new directive marked an expansion of that effort.
“I am pleased to announce today that the department has issued new guidance to apply our updated charging policy not only to new matters, but also to pending cases where the defendant was charged before the policy was issued but is still awaiting adjudication of guilt,” Holder said in a speech to the Congressional Black Caucus.
AG Holder's full speech to the Congressional Black Caucus Foundation Criminal Justice Issues Forum is now available at this link, and here are some additional excerpts:
America’s criminal justice system is in need of targeted reform. Throughout this country, too many Americans are trapped – and too many communities are weakened – by a vicious cycle of poverty, criminality, and incarceration. Too many people go to too many prisons for far too long – and for no truly good law enforcement reason. The U.S. prison population has grown at an astonishing rate over the last three decades – by almost 800 percent since 1980, despite the fact that America’s overall population has increased by only about a third. As we speak, more than 219,000 federal inmates are currently behind bars. Almost half are serving time for drug-related crimes. And many have substance use disorders.
Outside of the federal system, an additional nine to 10 million people cycle through local jails each year. And roughly 40 percent of former federal prisoners – along with more than 60 percent of former state prisoners – are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers.
It’s clear, in a broad sense, that 20th-century criminal justice solutions are just not adequate to address the 21st century challenges we face. There’s no question that incarceration will always have a role to play in our criminal justice system. But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes significant human and moral costs – as well as a tremendous economic burden, totaling $80 billion in 2010 alone.
Especially in times of widespread budgetary difficulties and federal sequestration – when leaders at every level of government have been asked to do more with less – we must resolve, as a country and as a people, to do much better....
It’s time – in fact, it’s well past time – to take a fundamentally new approach. And today, I am proud to join you in working to ensure that – in this area and many others – the scales of justice find a more appropriate balance....
In addition – in recent months – the Justice Department also has updated its framework for considering compassionate release for some inmates who face extraordinary or compelling circumstances, and who pose no threat to the public. Of course, as our primary responsibility, we must ensure public safety. But considering the applications of certain people with convictions for nonviolent offenses – such as individuals seeking release on medical grounds, or elderly inmates who did not commit violent crimes and have served significant portions of their sentences – is the right thing to do. It is the smart thing to do. And it will allow the Bureau of Prisons to evaluate compassionate release applications through a careful review process before each case comes before a judge – who will make a final determination on whether release is warranted.
Linda Greenhouse reflects on changing crime culture changing SCOTUS jurisprudenceLinda Greenhouse's new commentary piece at the New York Times "Opinionator" blog is focused on crime and punishment issues. The lengthy piece, headlined "Winds of Change," is worth a full read and here are excerpts:
Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine. The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record. The police found the drugs when they stopped him for running a red light. Since simple possession was enough to trigger Michigan’s mandatory life-without-parole sentence, the prosecution didn’t even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine.
In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment. The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) — Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter — voted with the 5-to-4 majority.
In “Five Chiefs,” the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented. Those three justices were all relatively new to the court at the time, he wrote. The justices they had replaced — Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. — were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence. It may be, he added, that “the views of individual justices become more civilized after 20 years of service on the court.”
That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more. He said he still thought about the case “a lot.” He was “quite sure” that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court. Nonetheless, he added, “the precedent is still there, and it’s really a very unfortunate case.”
I’ve been thinking a lot myself about the Harmelin decision in light of recent events. First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses. That was followed by the announcement that the federal government wouldn’t sue to block state laws that have legalized marijuana for medical or recreational use. Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss....
Something is clearly in the wind. I’ve also been thinking about the New York City mayoral primary. It’s impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration’s law-enforcement policies, particularly the administration’s embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin’s ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an “ideologically driven” judicial activist.
Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction. Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign. An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum — a fascinating development. People so often separated by race and class, seemed to unite around the conclusion that enough was enough.
The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular. The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund....
In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.” Can that prediction apply not only to individual members of the court, but also to the court as a whole? As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.
The recent SCOTUS Eighth Amendment rulings in Graham and Miller reflect, in my view, the impact of these "winds of change." But it remains to see whether and when these winds will blow hard enough to knock over the problematic precedent set by the Harmelin decision 22 years ago.
September 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack
Wednesday, September 18, 2013
Florida Supreme Court considers important issues concerning Graham's meaning and reachAs reported in this local piece, headlined "Supreme Court hears juvenile sentencing arguments," the top court in Florida heard oral argument on a very important issues concerning the reach of the Supreme Court's recent Eighth Amendment jurisprudence concerning juvenile sentencing. Here are the details:
In the wake of a 2010 U.S. Supreme Court ruling that upended sentencing guidelines for juveniles, the Florida Supreme Court on Tuesday heard oral arguments in a case involving Shimeeka Gridine, who was sentenced to 70 years in prison for crimes committed when he was 14 years old.
The case is one of several that have surfaced in Florida courts since the U.S. Supreme Court ruled that life sentences without parole for juveniles in non-homicide cases violate the Eighth Amendment, which bans cruel and unusual punishment.
Gridine, now 18, pleaded guilty to attempted first-degree murder, attempted armed robbery and aggravated battery after he shot a man in 2009 while trying to rob a Jacksonville gas station. He was sentenced to 70 years for the attempted murder and 25 years for the armed robbery, with the sentences to run concurrently.
Assistant Public Defender Gail Anderson argued Tuesday that amounts to a life sentence. A mandatory minimum sentencing requirement makes Gridine ineligible for gain time for good behavior on the 25-year sentence. And under Florida’s “truth-in-sentencing” law requiring offenders to serve at least 85 percent of their prison sentences, he must then serve at least 85 percent of the remaining 45 years of the 70-year sentence. “Assuming he got all the gain time he was eligible for on the remainder of the sentence, he would be 77 years old before he was released,” Anderson said. “And I think that, under any reasonable construction, is a life sentence.”...
But Assistant Attorney General Kellie Nielan said the Graham ruling provided no time limits. “(The) Graham (decision) has said that someone needs review sometime within their life,” she told the court. “They need an opportunity for release within their life. It doesn’t say when.”
“Aren’t we condemning him from the outset?” asked Justice James E.C. Perry. “I thought he had to have a meaningful review at the outset.”
“No, Graham does not require that,” Nielan replied. “And Graham only applies to the life sentences — or, if you want to extend that to de facto life sentences, which are going to be sentences of at least 50 years. So a juvenile who is sentenced to 40 years is not entitled to any review.”
Justice Charles Canady said that was hypothetical. “We’ve got cases here where it seems like by just about any reasonable understanding of what a life sentence is, this case falls into the equivalent of a life sentence,” he said.
In Gridine’s 2009 trial, Judge Adrian G. Soud of the 4th Judicial Circuit in Duval County ruled that the teen was not protected by the Graham decision “because he had a clear and premeditated intent to kill. … Just because this juvenile defendant failed in his criminal and deadly endeavor does not preclude this court from sentencing the defendant commensurate with the defendant’s intent — the same intent possessed by a juvenile murderer.”
After the hearing, Anderson said she was hoping the justices would find unconstitutional the 85-percent law that abolished parole as it applies to Gridine and make him eligible for parole after 25 years. She said another possibility is that the high court could order that Gridine be resentenced. “That’s what the district courts have been doing — just ordering a resentencing,” she said. “But that just leaves everybody in the same limbo they’ve been in up to now.”
Since the Graham decision, the Florida Legislature has taken up bills that would have allowed life sentences for juveniles with the possibility of release after 20 years if they show signs of rehabilitation. So far, however, none has passed.
This report suggests that the Florida Supreme Court could find two ways to avoid declaring the long juvenile sentence here unconstitutional, but it also suggests that at least some of the Florida Justices may not be so eager to do so.
While praising modern reforms, ABA still (unsurprisingly) critical of Texas capital punishment systemAs detailed in this Texas Tribune report, "a new study the American Bar Association will release Wednesday finds that the death penalty system here still falls far short when it comes to fairness and eliminating the risk of executing the innocent." Here is more:
“In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty and provides the public with inadequate information to understand and evaluate capital punishment in the state,” the report says.
The report, which outlines a host of recommendations to improve the criminal justice system, is part of the bar association’s national project examining the implementation of the death penalty in states. While it praises Texas for recent improvements intended to increase fairness, the report says much work remains. The organization says its recommendations would restore public confidence in the system and help to ensure that Texans aren't wrongfully convicted and sentenced to death. Those include requiring the indefinite preservation of biological evidence in violent crimes, abandoning the evaluation of "future dangerousness," banning the execution of those with mental retardation and mental illness and establishing an innocence commission to examine the lessons of wrongful convictions.
“Texas has made some good policy decisions over the last couple of years,” said Royal Ferguson, the founding dean of the University of North Texas at Dallas College of Law and a former U.S. district judge who served on the association’s Texas Capital Punishment Assessment Team. “There are a lot more that need to be made.”...
A key recommendation in the report, Ferguson said, is the elimination of the use of “future dangerousness” as an element in the jury’s decision-making in death penalty cases. In Texas, juries are asked to determine whether the defendant would commit violent crimes in the future before sentencing a person to death.
In 2002, then-Attorney General John Cornyn acknowledged that Texas had made a mistake in seven cases where prosecutors used testimony from a doctor who indicated to the jury that the defendants would present a bigger risk for future violence because they were black or Hispanic. “It’s impossible for anybody to try to predict the future,” Ferguson said. “That part of the law needs to be repealed immediately.”
The report also suggests that Texas lawmakers should specifically ban the death penalty in cases where the defendant suffers from mental retardation or mental illness. And it urges the state to require the use of current scientific standards in evaluating whether a defendant is mentally retarded or mentally ill....
Finally, the report calls on Texas to create a commission to investigate each of the state’s wrongful convictions, identify the factors that contributed to them and consider ways to solve those problems through legislation or other policy changes.
Lawmakers have proposed such a commission in recent legislative sessions, but the measures have failed. State Sen. Joan Huffman, R-Southside Place and a former prosecutor and judge, was one opponent during the 2013 legislative session. "Anyone listening to this could not argue we haven't made significant reforms in criminal justice," Huffman said during a legislative hearing in May. "We do not need yet another layer to go through this again."
Jennifer Laurin, a University of Texas School of Law professor and chairwoman of the team that prepared the report, said its goal was not to call into question the use of the death penalty in Texas. Instead, she said, it was to ensure that it is implemented fairly.
Former Texas Supreme Court Justice Deborah Hankinson, who also worked on the report, said lawmakers must take steps to restore public confidence in Texas' court system. “For citizens to have confidence in the process, it requires transparency in every phase,” she said.
Gearing up for Senate hearing on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences"In just a few hours, on Tuesday September 18, 2013 at 10am, as detailed at this official webpage, there will be Hearing before the United States Senate Committee on the Judiciary on “ “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences." Here is the official agenda/hearing list:
- The Honorable Rand Paul, United States Senator, State of Kentucky
- Marc Levin, Policy Director, Right on Crime Initiative at the Texas Public Policy Foundation
- The Honorable Brett Tolman, Shareholder, Ray Quinney & Nebeker
- The Honorable Scott Burns, Executive Director, National District Attorneys Association
I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the few hours, and I am planning to watch the webcast of the hearing (and perhaps even live-blog some of it here).
Though I expect lots of interesting discussion in this hearing, I am surprised and a bit disappointed that there is no Department of Justice representative. Also, the absence of anyone from the U.S. Sentencing Commission is also significant. But perhaps these institutions, as well as others, may be submitting written testimony as the debate over federal mandatory minimum sentencing reform kicks into another gear.
Not suprisingly, the folks at FAMM are already all geared up for today's events inside the beltway, as showcased here at FAMM's website.
Just a few recent and older related posts:
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
UPDATE: Sure enough, not long after finishing this post I received an e-mail with links to this news release titled "Sentencing Commission Issues Statement For Senate Judiciary Committee Hearing On Federal Mandatory Minimum Penalties: Calls for Congressional Action Including Reduction of Mandatory Minimum Penalties for Drug Offenses." The news release references this 13-page statement from the USSC Chair, Judge Patti B. Saris, which begins this way:
Chairman Leahy, Ranking Member Grassley, and distinguished members of the Committee, thank you for providing me with the opportunity to submit this statement on behalf of the United States Sentencing Commission about mandatory minimum sentences in the federal criminal justice system.
We are particularly pleased that the Judiciary Committee is addressing this vital issue that has been a key focus for the Commission for several years. The bipartisan seven-member Commission unanimously agrees that mandatory minimum sentences in their current form have led to unintended results, caused unwarranted disparity in sentencing, and contributed to the current crisis in the federal prison population and budget. We unanimously agree that statutory changes to address these problems are appropriate.
Monday, September 16, 2013
New York Times editorial says "End Mandatory Life Sentences"The title of this post is drawn from the headline of this new New York Times editorial, which is actually focused mostly on giving Miller v. Alabama retroactive application. Here are excerpts:
Young people are different. The Supreme Court has delivered that message repeatedly over the last decade in limiting or flatly prohibiting the most severe criminal punishments for those under 18 at the time of their crime.
In 2005, the court banned the death penalty for juveniles. In 2010, it outlawed sentences of life without parole for juveniles convicted of crimes other than homicide. And, in a 2012 case, Miller v. Alabama, it said juveniles may never receive a mandatory sentence of life without parole, which prisoners refer to as “the other death penalty.”...
In each case, the court was silent on the question of whether its ruling applied retroactively to inmates who had already been convicted. The just answer would surely be yes, and courts have largely agreed, making those first two juvenile justice rulings retroactive. But some states insist that the ban on mandatory life without parole does not apply to offenders who have already been sentenced.
In the Miller case, the court required lower courts to make “individualized sentencing decisions” for juvenile defendants because juveniles are not as morally culpable as adults, and they are more capable of changing over time. If the ban on mandatory life without parole is retroactive, more than 2,000 prisoners would be eligible for a new sentencing hearing. So far, whether these individuals can get a new hearing depends on where they live.
Courts in Michigan, Iowa and Mississippi have ruled that the ban applies to previously sentenced juveniles. The Department of Justice takes that position as well. Yet the Minnesota Supreme Court and one federal appeals court have taken the opposite view....
Critics fear that allowing resentencing would increase violent crime. But courts may still impose life without parole, provided that the judge first gives proper consideration to the mitigating effects of youth. The Alabama Supreme Court set out guidelines last week that require a court to consider 14 factors, including a defendant’s age, emotional maturity, family environment and potential for rehabilitation before issuing such a sentence.
Ideally, life without parole would never be a sentencing option for juveniles. The Supreme Court’s own logic suggests this, even if it was not willing to go that far. After the Miller case, three states entirely eliminated juvenile life without parole, joining six other states that had already banned the sentence, and lawsuits on the retroactivity issue are pending in several states. As lawmakers and courts deal with this issue, they should remember — as the Supreme Court has declared — that adolescents are not adults, and that principle should apply regardless of the date of a conviction.
Saturday, September 14, 2013
Alabama Supreme Court reworks state law for juve killers after MillerAs reported in this effective local article, headlined "Alabama Supreme Court sets out how juvenile killers are to be sentenced," yesterday brought a major state court ruling on how juvenile murderers must be dealt with in the wake of the Supreme Court's Miller ruling. Here are the basics via the news report:
The unanimous 50+ page opinion from the Alabama Supreme Court is available at this link, and here is its critical closing paragraph discussing the factors that are now to be considered by Alabama sentencing judges in juve murder cases:
The Alabama Supreme Court [has] issued a ruling that says state judges can give juvenile killers sentences of life with the possibility of parole under Alabama's current capital punishment law. The court also set out 14 factors judges could use in determining whether to sentence a juvenile convicted of a capital crime to life with or without the possibility of parole.
"This is a great result for the state and its justice system," Alabama Attorney General Luther Strange said in a statement issued this afternoon. "The Court has unanimously agreed with our position that prosecutors can try juveniles for capital murder and seek sentences of life without parole in appropriate cases. This gives prosecutors and judges clarity going forward, and it eliminates the limbo that victims' families have been dealing with in recent months."
The court's ruling came in response to requests by two teens charged with capital murder in two Jefferson Count cases who sought to have their capital-murder indictments dismissed because of a ruling last year by the U.S. Supreme Court. Judges have had two options to sentence people under Alabama's capital punishment law -- death or life without the possibility of parole....
A bill had been presented this spring in the Alabama Legislature. That bill called for giving judges the option of a life sentence with one chance at parole after 40 years. Legislators, however, did not enact that bill before their session ended May 20.
Meanwhile attorneys for the two Jefferson County teens -- Rashad Stoves and Larry Henderson -- had argued before the Alabama Supreme Court to overturn circuit court judges rulings in their cases to dismiss the capital murder indictments pending against them because the courts did not yet have a new law in place....
"What they've done is legislate from the bench," Wendell Sheffield, an attorney for Stoves said this morning of the Alabama Supreme Court's ruling. "They are saying it is within their equitable powers ... They've taken an unconstitutional statute and have attempted to make it constitutional." Sheffield and law partner John Lentine said at this point they are reviewing the court's decision in depth and will decide whether to take the case further.
In its ruling, the court stated that it had the right to delete the portion of the law struck down by the U.S. Supreme Court. The Alabama justices stated that the U.S. Supreme Court did not give guidance on what factors judges should use in sentencing. "It is well settled that should a statute become invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part that is void," the court ruled....
The Alabama justices stated that with their ruling juveniles now will know that, if convicted, they face a sentence of life imprisonment without the possibility of parole as a "ceiling" and life with the possibility of parole as the "floor." To help judges decide whether the sentences should be life with or without parole, the Alabama Supreme Court set out 14 factors the judges should use based on a Pennsylvania court ruling....
Sheffield and Lentine also said that it appears from the ruling that the juvenile sentencing will be done by the trial judge, without a jury's recommendation. In capital cases involving adults in which the death penalty is an option, juries are asked to make a recommendation.
Today's ruling also will be of interest to a number of people already serving life without the possibility of parole sentences in Alabama who were considered juveniles when the crime occurred. Some of those prisoners have already filed appeals seeking to be have their sentences changed in light of last year's U.S. Supreme Court ruling.
We agree with the juveniles that the Miller Court did not delineate specifically which factors to use in sentencing a juvenile convicted of a capital offense. We find helpful Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. Ct. 2012), which ordered that a juvenile sentenced to a mandatory life-without-parole sentence must be resentenced with a consideration of the principles annunciated in Miller. We hold that a sentencing hearing for a juvenile convicted of a capital offense must now include consideration of: (1) the juvenile's chronological age at the time of the offense and the hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile's diminished culpability; (3) the circumstances of the offense; (4) the extent of the juvenile's participation in the crime; (5) the juvenile's family, home, and neighborhood environment; (6) the juvenile's emotional maturity and development; (7) whether familial and/or peer pressure affected the juvenile; (8) the juvenile's past exposure to violence; (9) the juvenile's drug and alcohol history; (10) the juvenile's ability to deal with the police; (11) the juvenile's capacity to assist his or her attorney; (12) the juvenile's mental-health history; (13) the juvenile's potential for rehabilitation; and (14) any other relevant factor related to the juvenile's youth. See generally Commonwealth v. Knox. We recognize that some of the factors may not apply to a particular juvenile's case and that some of the factors may overlap. Nevertheless, we believe that providing the trial court with guidance on individualized sentencing for juveniles charged with capital murder comports with the guidelines of Miller.
Wednesday, September 11, 2013
Will second federal death sentence stick for cop killer Ronell Wilson?The question in the title of this post is prompted by this latest news about a high-profile (and already long-running) federal capital case. The New York Times headline for this story is "For the Second Time, a Killer of Two Detectives Is Sentenced to Death," and here are the details:
They sat in silent expectation on Tuesday afternoon, scores of people on the long wooden benches in the largest and most hallowed space in the federal courthouse in Brooklyn, all to witness the rare spectacle of a man, Ronell Wilson, being sentenced to death.
There were the police officers who had known the two undercover detectives killed by Mr. Wilson on Staten Island in 2003; members of Mr. Wilson’s family and the family of one of his victims; prosecutors and observers....
The judge, Nicholas G. Garaufis of Federal District Court in Brooklyn, turned to the prosecutors and then Mr. Wilson’s defense team. They declined to speak. And then he turned to Mr. Wilson, who stood and faced those relatives of the victims who were present.
“As I said in my previous allocution, how deeply sorry I am for the pain that I caused upon you and your family,” he said haltingly, referring to statements he made at his first sentencing. “I remain with the same feeling as before. I would like to end on this note: error is human but to forgive is divine.”
He used the rest of his time to criticize his lawyers, who were sitting on either side of him. He has 14 days to file a notice of an appeal.
At the trial in July, jurors learned how Mr. Wilson, 31, killed the detectives, James V. Nemorin and Rodney J. Andrews, shooting each in the back of the head during a botched gun sting operation. Prosecutors presented evidence that Mr. Wilson, whose previous death sentence, in 2007, was struck down, seemed to escape punishment during his time in jail, where he intimidated weaker inmates and sneaked into private rooms to have sex with a correction officer, with whom he fathered a child.
The jury sent him back to death row. H e is the only person in New York to be sentenced to the federal death penalty in more than 50 years. On Tuesday, Judge Garaufis read from a lengthy statement before formally issuing the sentence. He pointed to the “viciousness with which Mr. Wilson murdered Detectives Nemorin and Andrews and Mr. Wilson’s recent behavior in prison.” He said Mr. Wilson showed a “continuing lack of remorse and disregard for authority.”...
Outside court, a lawyer for Mr. Wilson, David Stern, approached several news cameras. “This demonstrates how little we’ve evolved since biblical times,” Mr. Stern said of the sentence. “This is a really sad day for me because of my failure.”
Sounds to me like one (of surely many) arguments that will be pursued in future appeals will be the claim that Wilson's lawyers were constitutionally ineffective. I doubt such claims will prevail, but I also doubt such claims will be conclusively rejected for a decade or longer. Federal capital justice may be sure in this case, but it certainly is not swift.
Tuesday, September 10, 2013
Reformers claim California three-strikes reform is reducing excessive imprisonment without endangering publicI am very pleased to see this new story out of California following up on an important example of voters directly embracing "smart" versus "tough" sentencing reform. The piece is headlined "Prop. 36's '3 strikes' change working, lawyers say," and here are excerpts:
Ten months after Californians voted to ease the state's "three strikes" law by exempting lesser offenders from life sentences, drafters of the ballot measure said Monday it's working just as they predicted -- reducing unnecessary imprisonment without endangering the public.
In fact, the 1,000 inmates released so far under Proposition 36 are committing new crimes at a far lower rate than other newly freed inmates in California, lawyers at Stanford's Three Strikes Center and the NAACP Legal Defense Fund said at a media briefing.
Those three strikes prisoners have been free for an average of four months, and fewer than 2 percent have been charged with new crimes, mostly misdemeanors and all relatively minor offenses, the report said. By contrast, it said, 16 percent of newly freed inmates in California are charged with new crimes in the first 90 days.
Opponents' prediction of "blood in the streets was hyperbole," said David Mills, a Stanford law professor who founded the Three Strikes Center. "Millions of dollars have been saved and many lives changed, hopefully for the better." He said the state provides some support for rehabilitation and training of other released prisoners, but offers no such assistance to those released under Prop. 36.
More than 2,000 additional people with third strikes have asked a judge for release under Prop. 36, including more than 850 in Los Angeles County, which is processing the cases slower than other counties, said Mike Romano of the Three Strikes Center.
The report was released on the same day that Gov. Jerry Brown and legislative leaders announced agreement on a proposal to reduce California's prison population by nearly 10,000 inmates over three years, rather than the Dec. 31 deadline set by a federal court. The plan would cost $200 million a year for local drug treatment and other rehabilitation programs, which are designed to lower the prison population over time, if the court agreed to extend the deadline. If not, Brown plans to spend $315 million a year to lease cells in jails and private prisons where current prison inmates would be transferred....
Prop. 36, passed with a 69 percent majority in November, abolished life terms for criminals whose third strikes were neither serious nor violent and instead sentenced them to twice the normal term. Those reductions did not apply, however, to defendants who had previous convictions for sexual assaults and some other crimes or violence or drug trafficking.
Inmates serving 25 years-to-life terms for third strikes that were neither violent nor serious can seek to have their sentences reduced. Before release, a judge must decide, based on the prisoner's record and prison conduct, that he or she does not pose an unreasonable risk to the public. Prosecutors can object to release but cannot veto it.
Though not made so clear in this article, the Stanford Law School Three Stikes Project has released this effective (and short) Progress Report (which was co-published by the NAACP Legal Defense and Eduction Fund) to mark the 1,000th inmate released under the Three Strikes Reform Act of 2012 ("Proposition 36"). Here is part of the report's abstract:
Fewer than ten months after the California electorate voted overwhelmingly in favor of Proposition 36 in November 2012, over 1,000 inmates have been resentenced and released pursuant to its provisions. Although many prisoners have been resentenced, there are still more than 2,000 eligible cases outstanding, including over 800 unresolved eligible claims in Los Angeles County alone.
This Report shows that the recidivism rate of prisoners released under the Proposition 36 (2 percent) is well below California's statewide average (16 percent). The Report also presents individual success stories of some of those resentenced and released.
Finally, this report proposes recommendations to address outstanding issues regarding the proposition’s implementation, including expediting the review of over 2,000 prisoners still waiting for their cases to be resolved under Proposition 36; ensuring that prosecutors and public defenders have adequate resources to litigate those cases; and providing better housing, drug treatment, and job training opportunities for prisoners reentering the community.
Monday, September 09, 2013
California killer claiming autism supports Atkins claim to preclude executionThis article from San Jose Mercury News reports on a notable effort by a killer on death row to raise a unique argument as part of an Atkins Eighth Amendment claim to prevent his execution. This piece is headlined "California death penalty and mental retardation: Condemned killer seeks reprieve," and here are excerpts:
More than six years ago, it appeared that condemned Santa Clara County killer David Allen Raley had run out of legal options to avoid execution. After two decades of appeals, the U.S. Supreme Court had rejected Raley's seemingly final challenge to his 1988 death sentence for murdering a Peninsula teenager and attempting to murder her high school friend.
But as is often the case for California's death row inmates, Raley's legal odyssey is far from over. Armed with a new order from the California Supreme Court, Raley has revived his appeals with a claim that he was mentally retarded at the time of his 1985 crime -- a finding that would spare him from execution under a 2002 U.S. Supreme Court decision.
On Monday, Santa Clara County Superior Court Judge Linda Clark will start a special two-week hearing in Raley's case, which among other evidence has raised the unique claim that he is autistic and therefore falls under the legal protections against executing the mentally retarded. Clark will issue a recommendation to the state Supreme Court, which will make a final decision on Raley's fate.
In the meantime, Raley's legal team argues the 51-year-old death row inmate should spend the rest of his life in prison for the 1985 murder of Jeanine Grinsell and the attempted murder of her close friend, Laurie McKenna, inside a deserted Hillsborough mansion. "It is very true that David Raley is significantly developmentally disabled," said Robert Bacon, one of Raley's lawyers....
In court papers submitted to Clark, prosecutors branded Raley's argument a belated legal Hail Mary to avoid lethal injection and scoffed at the suggestion he is mentally disabled, noting his IQ tests were never below the standard threshold for mental retardation. "(Raley) acted alone in committing these horrible crimes and the facts elicited at trial show evidence of premeditation, cunning and problem solving, all characteristics inconsistent with a diagnosis of intellectual disability," prosecutors wrote.
Raley's case is part of an increasingly common legal battle unfolding in recent years in California and other death penalty states, the result of the U.S. Supreme Court's ruling that it is unconstitutional to execute the mentally retarded. The high court left it to the states to sort out which death row inmates or defendants facing capital murder charges may fall under the murky definition of mental retardation, forcing courts to grapple with evaluating whether there is clear proof of the disability before the age of 18.
The California Supreme Court has issued orders in dozens of cases like Raley's in which death row inmates have made the claim, often decades after a crime and death sentence. These include Bay Area condemned killers Walter Cook, from San Mateo County, and Robert Young and Delaney Marks, sent to death row from Alameda County. Courts have also spared some murderers from the death penalty at trial, including convicted San Jose cop killer DeShawn Campbell, who was found to be mentally retarded and sent to prison for life....
Death penalty supporters say claims such as Raley's are contributing to the legal morass. "The fuzziness in the definition of retardation" has given death row inmates another avenue to contest their sentences, "even though generally meritless" said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.
But Raley's supporters say his case is an example of the state spending too much time and money on the death penalty. The American Civil Liberties Union cites his mental disability and costly appeals as reason to abandon capital punishment. "He's not the worst of the worst," Bacon added. "The interests of public safety could be served with life in prison without the possibility of parole."
September 9, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack
"Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama"The title of this post is the title of this notable new paper by Samuel Pillsbury now available via SSRN. Here is the abstract:
After setting out the issues and approach of the U.S. Supreme Court majority in Miller v. Alabama, the article develops cruelty as a constitutional norm. Initially cruelty as a norm for Enlightenment thinkers in the late 18th century and in the creation of the American penitentiary in the early nineteenth century is considered. Then the article examines cruelty as a modern norm that condemns both sadism and indifference towards the serious suffering of others. This norm supports the Miller conclusion that mandatory life without chance of parole sentences for certain juvenile offenders are cruel, because such sentences mandate a form of culpable indifference to individual value.
The article then describes how a cruelty norm may guide courts in resolving the constitutionality of a life without chance of parole sentence for juvenile by a judge who had discretion to order a lesser sentence. The cruelty norm described would find unconstitutional a life sentence for a juvenile unless a subsequent opportunity was provided for the offender to seek release based on personal reform. Otherwise, a life sentence would disregard the basic value of the offender in the person that he or she might become.