Friday, May 22, 2015

Two notable voices from the (far?) right calling again for drug war and sentencing reform

Download (2)The two recent stories about recent comments by notable advocates reinforce my sense that more and more traditional (and not-so-traditional) conservative voices are feeling more and more confortable vocally criticizing the federal drug war and severe drug sentencing:

Headline: "Grover Norquist: Malloy Right On Drug Sentencing Reform"

Money Quotes:   If you told me a year ago that I [Grover Norquist] would be speaking out in favor of one of Gov. Dannel P. Malloy's top priorities, I would have said you were crazy. The governor is a tax-and-spend liberal and I have spent my entire career fighting high taxes and wasteful government spending. Yet, just as a broken clock gets it right once in a while, Gov. Malloy is right about the need to reform mandatory minimum sentencing laws.

Contrary to their original intent, mandatory minimum laws have done little to reduce crime. They have, however, been significant drivers of prison overcrowding and skyrocketing corrections budgets. That's why conservatives and liberals in Washington, D.C., and in statehouses all across the country are coming together to repeal and reform these one-size-fits-all laws. Oklahoma, Georgia, South Carolina, Texas and Florida are just a handful of the states where conservatives have not simply supported, but led, the efforts to scale back mandatory minimum sentences.

Conservatives in Connecticut should support the governor's mandatory minimum proposals for two reasons. First, the reforms are very modest — addressing only drug possession. In some states, such as Connecticut's neighbor, Rhode Island, and Delaware, lawmakers have repealed mandatory minimum sentences for all drug offenses. Still more states have enacted significant reform to their drug mandatory minimum laws so that judges have discretion to impose individualized sentences that fit the crime. In all of these states, crime rates have dropped.

Conservatives in Connecticut also should embrace sentencing reform because of the state's awful budget mess. For too long, fiscal hawks have turned a blind eye to wasteful law enforcement spending. Not wanting to appear "soft on crime," they have supported every program and policy to increase the prison population without subjecting those ideas to cost-benefit analysis.

Those days are over. After watching state spending on prisons skyrocket more than 300 percent over the last two decades, state leaders across the country seem to understand that they can no longer afford to warehouse nonviolent offenders in prison.

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Headline: "Glenn Beck Calls for the Repeal of Federal Drug Prohibition"

Money QuotesToday on Glenn Beck's radio (and TV) show, I [Jacob Sullum] debated marijuana prohibition with Robert White, co-author (with Bill Bennett) of Going to Pot: Why the Rush to Legalize Marijuana Is Harming America The conversation turned to the war on drugs in general and also touched on federalism, the Commerce Clause, the nature of addiction, and the moral justification for paternalistic interference with individual freedom.  Reading from my recent Forbes column, Beck said he is strongly attracted to the Millian principle that "the individual is sovereign" over "his own body and mind," which rules out government intervention aimed at protecting people from their own bad decisions. "I'm a libertarian in transit," he said. "I'm moving deeper into the libertarian realm.... Inconsistencies bother me." By the end of the show, Beck was declaring that the federal government should call off its war on drugs and let states decide how to deal with marijuana and other psychoactive substances.

Addendum: Marijuana Majority's Tom Angell notes that Beck indicated he favored marijuana legalization back in 2009, saying, "I think it's about time we legalize marijuana...  We either put people who are smoking marijuana behind bars or we legalize it, but this little game we are playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border...  Fifty percent of the money going to these cartels is coming just from marijuana coming across our border." As far as I know, however, this is the first time Beck has explicitly called for an end to federal prohibition of all the other currently banned drugs.

May 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 20, 2015

Nebraska legislature votes by large margin to repeal state's death penalty

As reported in this new AP article, " Nebraska lawmakers gave final approval on Wednesday to a bill abolishing the death penalty with enough votes to override a promised veto from Republican Gov. Pete Ricketts."  Here is more:

The vote was 32 to 15 in Nebraska's unicameral Legislature.  If that vote holds in a veto override, Nebraska would become the first conservative state to repeal the death penalty since North Dakota in 1973.  The Nebraska vote is notable in the national debate over capital punishment because it was bolstered by conservatives who oppose the death penalty for religious reasons and say it is a waste of taxpayer money.

Nebraska hasn't executed a prisoner since 1997, and some lawmakers have argued that constant legal challenges will prevent the state from doing so again.

Republican Gov. Pete Ricketts, a death penalty supporter, has vowed to veto the bill. Ricketts announced last week that the state has bought new lethal injection drugs to resume executions.  Ricketts, who is serving his first year in office, argued in his weekly column Tuesday that the state's inability to carry out executions was a "management problem" that he is committed to fixing.

Maryland was the last state to end capital punishment, in 2013. Three other moderate to liberal states have done so in recent years: New Mexico in 2009, Illinois in 2011, Connecticut in 2012. The death penalty is legal in 32 states, including Nebraska.

May 20, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Spotlighting who profits from "Piling on Criminal Fees"

Professors Ronald Wright and Wayne Logan have this important new Huffington Post article summarizing the important themes from their important article titled "Mercenary Criminal Justice." Here are excerpts:

Criminal courts sometime function as fee-generating machines....  The problem here is not any single criminal fee; the problem is how they stack up to create injustice.  That's why we are calling for a statewide Commission on Criminal Fees.

In a recent law review article, "Mercenary Criminal Justice," we chronicled the historically central role of fee-generation in U.S. criminal justice systems, a tendency that became even more pronounced as a result of the recent fiscal crisis.  We call this system "mercenary" because the revenues affect the enforcement decisions of actors in the justice system, who start to depend on that revenue, and put their own job security above the job of doing individual justice.  As the Justice Department's report on Ferguson noted, city officials there asked the police and courts to increase ticket collection, explicitly to increase their revenue, basically treating minor criminal offenders as ATM machines.  This mistreatment is all the more troubling when the fees and fines land most heavily on racial minorities and the poor, as they routinely do...

The beneficiaries of the revenue hail from diverse and powerful institutions. Courts, crime labs, prosecutors, and even public defenders all see the dollar signs and make their requests.  What's the harm, after all, in asking for another $100 from an arrestee, convict, or probationer?

And it is not only government employees who have their hands out: private sector actors (with profit motives) have increasingly gotten a piece of the action. Courts, for instance, ask private contractors to collect fees and fines, allowing them to add their own service charges to the total bill.  Private companies, moreover, have been active in probation services. More recently, the American Legislative Exchange Council (or ALEC) started promoting a variation on this theme -- called "post-conviction bail" -- that empowers private bail bond dealers to monitor defendant compliance with post-release conditions. If the released inmate does not comply, the dealer tracks him down and collects a new financial penalty.

Any one of these fees or fines might be a reasonable part of a non-prison punishment, promoting public safety and the interests of defendants alike.  The trouble comes when nobody minds the total effects of all these fees on individuals.  Taken together, even the most modest and well-justified fees can trap the indigent in the control of criminal courts, always paying but never paying their debt down to zero.  We believe that a statewide Commission on Criminal Fees can see the big picture and prevent this piling-on effect. Before authorizing a new fee to support the state crime lab, for instance, the Commission would ask how that fee interacts with the public defender's application fee, the probation supervision fee, and all the other fees currently imposed on individuals ensnared in the justice system.

May 20, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Has death penalty administration now become a "testing ground for toxic drugs"?

The question in the title of this post is prompted by the subheadline of this lengthy new New Republic piece: "Lethal Entanglements: Lethal injection was supposed to be a cleaner, more humane version of capital punishement. Over the past five years, it has become a messy, largely unmonitored testing ground for toxic drugs."  Here are is a passage from the center of the lengthy article:

Lethal injection was first adopted in Oklahoma in 1977 as a less violent alternative to the gas chamber and the electric chair. Over the next 25 years, almost every death-penalty state copied Oklahoma’s three-drug formula: first the barbiturate sodium thiopental to knock the prisoner out, then the paralytic pancuronium bromide to immobilize him, and finally potassium chloride to stop his heart.  The second and third drugs would cause intense suffering on their own, but the Supreme Court ruled that the method was constitutional in Baze: As long as the thiopental rendered the prisoner unconscious, he would be insensate to the agonizing effects of the next two drugs.  Just one year after the Baze decision, though, in late 2009, the pharmaceutical company that sold thiopental to every death-penalty state, Hospira, reported a shortage.

As a consequence, the death penalty has undergone in the past five years its biggest transformation since states began switching to lethal injection decades ago.  As thiopental disappeared, states began executing prisoners with experimental one-, two-, or three-drug cocktails.  States have essentially been improvising what is supposed to be one of their gravest and most deliberate duties, venturing deep into the shadows to carry out executions.  They have turned to mail-order pharmaceutical suppliers and used untested drugs.  They have sidestepped federal drug laws, minimized public disclosure, and, on multiple occasions, announced changes to execution protocols just hours before prisoners were set to die.  The machinery of death in the United States has become a kluge.

In April, the Supreme Court acknowledged this when it heard oral arguments in Glossip v. Gross.  A group of prisoners from Oklahoma — including Richard Glossip, a convicted murderer — challenged the state’s use of a drug called midazolam because they feared it would not anesthetize them.  The court had hoped Baze would obviate future lethal injection lawsuits, but the thiopental shortage had stripped the decision of any practical relevance almost as soon as it was issued. Now, just seven years later, the justices were considering whether they should invalidate a specific method of execution for the first time in U.S. history.  The court’s decision won’t overturn the death penalty, but it will define the way we practice it for years to come.

Though the challenge comes from Oklahoma, it is Arizona that provides the best case study of the rapid, slipshod evolution of lethal injection since Baze. The desert state hasn’t executed the most prisoners since the thiopental shortage began — that distinction belongs, as always, to Texas — but it has used more methods than any other state, killing prisoners with four different drug combinations.  No other state has been quite so dogged in its determination to carry out executions. And no other state has left so detailed a paper trail.  Judges, lawyers, and journalists (most notably Michael Kiefer at The Arizona Republic) have brought much of the abuses to light over the years, but the story has been told in disparate pieces: a deposition here, an uncovered email there. The complete narrative is more troubling than any one of its components.

May 20, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 19, 2015

"NY Senate votes to create registry of violent felons"

The title of this post is the headline of this notable new AP article sent my way by a helpful reader.  Here are excerpts:

The New York state Senate has voted to create a public list of those convicted of violent felonies similar to the existing sex offender registry. The proposal is intended to prevent future crimes, and in particular domestic violence, by allowing people to check if a new acquaintance has a violent past.

The legislation is named Brittany's Law after Brittany Passalacqua, a 12-year-old from Geneva who was murdered in 2009 along with her mother by her mother's then boyfriend.  The boyfriend had a prior conviction for a violent felony.

Brittany’s grandmother, Dale Driscoll, remarked: “Words cannot express the gratitude my family and I have for Senator Nozzolio and his dedication and commitment to seeing ‘Brittany’s Law’ adopted into law.  The murder of my daughter and granddaughter devastated our family.  If this legislation prevents another family from suffering the loss we have experienced, then my daughter and granddaughter will not have died in vain. People should have the right to know if a person is a violent felon and I will continue to do everything I can to push this measure in the State Assembly.”...

The Senate passed the bill Monday.  Similar legislation is pending in the Assembly but no vote has been scheduled.

Critics argue a registry could stigmatize ex-offenders and make it harder for them to secure jobs and housing after they are released.

May 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Notable sentencing and clemency comments from newly-confirmed Deputy Attorney General

I just came across this recent Washington Post profile of Sally Quillian Yates, the new number two at the Department of Justice.  The piece is headlined "New deputy attorney general: ‘We’re not the Department of Prosecutions’," and here are some notable excerpts:

The odds were stacked against lawyer Sally Quillian in her first trial in rural Barrow County, Ga. Before an all-white jury, she was representing the county’s first African American landowning family against a developer over a disputed title to six acres of land. The family was so distrustful of the court system back in the 1930s that they hadn’t recorded their deed.  Instead, the family’s matriarch kept the deed, written on cloth, folded inside her dress every day while she worked the fields.  Now, a developer was trying to take their property, and Quillian was arguing the case using an arcane legal theory.

“I had no idea what I was doing,” Quillian — now Sally Quillian Yates — recalled. “I had never tried a case before.”  But the jury came back with a verdict in favor of her client. “These 12 white jurors, who knew and went to church with and socialized with everybody on the other side, did the right thing,” said Yates, who was then at a private firm.  “This court system that my client’s family had mistrusted so much that they wouldn’t even file their deed had worked for them as it’s supposed to and had given them back the property that had been so important to their family all of these years.”

That case some 30 years ago had a deep impact on Yates, who went on to become a prosecutor in Atlanta for 20 years.  In 2010, President Obama nominated Yates to be the U.S. attorney for the Northern District of Georgia.  Last week, she was confirmed to be deputy attorney general , the second-highest-ranking position at the Justice Department.  A bottle of champagne still sits in her fourth-floor corner office, which overlooks Constitution Avenue and where senior officials celebrated her ­84-to-12 Senate vote....

One of Yates’s priorities will be to follow through with the criminal justice reform efforts begun by Attorney General Eric H. Holder Jr., including the push to give clemency to “nonviolent drug ­offenders” who meet certain criteria set out by the department last year, she said in her first interview since taking the job.

Yates and other prosecutors enforced the harsh sentencing policies from the 1980s and ’90s.  “Those policies were enacted at a time of an exploding violent-crime rate and serious crack problems,” Yates said.  “They were based on the environment we were in. But things have changed now, and violent crime rates have dropped dramatically.”

More than 35,000 inmates are seeking clemency, but a complicated review process has slowed the Obama administration’s initiative.  In February, Obama commuted the sentences of 22 drug offenders, the largest batch of prisoners to be granted early release under his administration and the first group of inmates who applied after the new criteria were set.

“Certainly, there’s some growing pains at the beginning,” Yates said.  “There’s start-up time involved in this. I think all of us are frustrated that it’s taken longer than we would like for this to be operating as efficiently as possible.  But I think we are headed down that road now. There are going to be more recommendations from the department, and I would expect more commutations that the president will be issuing.”...

Yates commutes every other weekend to Atlanta to be with her husband, who is the director of a school for children with learning disabilities, and to plan the wedding of her 24-year-old daughter, the older of two children.  She said the back-and-forth is worth the opportunity to influence criminal justice issues, including civil rights and sentencing reform, at the highest level.

She plans to urge lawmakers on Capitol Hill to pass legislation to change sentencing policies. “Certainly, I don’t think I can ever be accused of being soft on crime,” Yates said. “But we need to be using the limited resources we have to ensure that we are truly doing justice and that the sentences we’re meting out are just and proportional to the crimes that we’re charging.”

“We’re not the Department of Prosecutions or even the Department of Public Safety,” Yates said. “We are the Department of Justice.”

May 19, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Some recent posts of note from Marijuana Law, Policy and Reform

I have not recently done in this space a round-up of posts of note from Marijuana Law, Policy and Reform in a few weeks. Here is an abridged listing of MLP&R posts that might be of special interest to sentencing fans: 

May 19, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences? | Permalink | Comments (0) | TrackBack

Is a former lobbyist and former federal prisoner likely to be a uniquely good sentencing reform advocate?

The question in the title of this post is prompted by this notable new CQ Roll Call article headlined "Out of Prison, Ex-Lobbyist Pushes Sentencing Overhaul." Here are excerpts:

Kevin Ring helped write a bill in the 1990s that toughened penalties for methamphetamine charges. Now, recently out of prison, the former Team Abramoff lobbyist says he wants Congress to overhaul the nation’s justice system and to undo mandatory minimum requirements altogether.

His own effort comes at a pivotal time for the issue on Capitol Hill, where bipartisan measures (S 502, HR 920) to reduce stiff sentencing requirements for drug charges appear to be gaining some traction.

Ring, a former Hill aide, is wrapping up his 20-month sentence for an honest services fraud conviction by serving home confinement that allows him to work in downtown Washington, D.C. He is drawing on his K Street and criminal justice experiences at Families Against Mandatory Minimums, an advocacy group devoted to peeling back the same sort of laws he helped push through while serving as a Senate Judiciary Committee staffer.

“We wanted to look tough on meth,” said Ring, a Republican, who recently started working full-time as FAMM’s new director of strategic initiatives. “The Hill is run by too many 20-year-olds with a lot of opinions and not enough experience, and I was part of that. I didn’t have enough experience to write criminal statutes. What did I know?”

Ring is a former colleague of ex-K Street power player Jack Abramoff, and like Abramoff he went to the federal prison camp in Cumberland, Md. Ring started working with FAMM part-time five years ago, doing grant writing. He’d already lost two jobs at K Street firms amid the unraveling Abramoff scandal, and he needed work. He had to terminate all outside employment during his prison term.

“When he first interviewed with us, he was incredibly humble, hat in hand, and said, ‘I’m about to be indicted,’” recalled Julie Stewart, FAMM’s president and founder and a self-described libertarian. “I immediately realized what an incredible gem we had in Kevin because of his conservative background. It was very clear to me that Kevin could do so much good for FAMM and for our issue and promoting it in a voice that could really be heard by the people we were trying to influence on the Hill.” FAMM, she noted, is a rare organization that gets funding from conservative David Koch and liberal George Soros.

Ring, 44, said he doesn’t expect he will meet the legal definition of a lobbyist at FAMM, but he intends to write op-eds, congressional testimony and advocacy letters. In short, he plans to influence the process largely from the background. It's not likely to be an easy sell.

Even as the White House and Republicans on the Hill, including Sen. Mike Lee of Utah and Rep. Raúl R. Labrador of Idaho, are championing sentencing overhaul legislation, such proposals are far from a fait accompli. Senate Judiciary Chairman Charles E. Grassley of Iowa has pushed back on criticism that he is blocking sentencing legislation, but he’s made clear his support would come with a price....

Grassley, in a recent speech at the Press Club, said white-collar criminals such as Ring receive "paltry sentences." He has suggested such criminals ought to be subject to mandatory minimums in exchange for reduced minimums for nonviolent drug offenders. "The last thing we need is to take away a tool that law enforcement and prosecutors use to get the bad guys," Grassley said.

His spokeswoman, Beth Levine, said Grassley’s staff and aides to the lawmakers pushing for sentencing legislation “have been sitting down to work something out.”

FAMM, as well as Ring, opposes new mandatory minimum requirements for white-collar crimes. “It’s an awful, awful idea,” Ring said during an interview last week in FAMM’s offices near Metro Center. “Even without mandatory minimums, prosecutors can threaten you with such a long sentence that you want to plead guilty.”

He said the mandatory minimums have inflated sentencing guidelines across crimes, even those not subject to mandatory sentences. In Ring’s case, prosecutors asked the judge to sentence him to at least 20 years in prison. He said even his current home confinement, which includes a GPS ankle tracker to monitor his location 24 hours a day, is surprisingly restrictive and ought to be used more for nonviolent offenders — keeping them out of the prison system and allowing them to continue to work, pay taxes and care for their children.

It’s a message that resonates with budget-conscious Republicans, especially those with a libertarian stance. Stewart, who started FAMM 24 years ago, when her brother went to federal prison for growing marijuana in Washington state, said the current conversation on Capitol Hill and across the country is unprecedented. “My one fear is that talk is cheap,” she said. “It’s going to be a push.”

And Ring will be right in the middle of it. “I believed it before, and now I just feel like I’m better informed for having had the experience,” Ring said. “You know I wouldn’t wish the experience on anyone, but now that I have it, I feel compelled to say what I saw. So that goes to not only how prosecutions work, how sentencing works, but then also how prisons work or don’t work.”

May 19, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 18, 2015

Deterrence, jurisdiction and the death penalty after many murders in Waco bar brawl

The title of this post are the topics I am now thinking about inspired by this lengthy news article, headlined "Capital murder charges expected in Waco biker shootout," discussing possible charges in the aftermath of a bloody bar fight.  Here are excerpts (with my emphasis added):

The unprecedented, deadly biker gang violence on display Sunday at the Twin Peaks restaurant in Waco, Texas, has led to mass arrests, massive bail figures, the specter of numerous death penalty cases, the likely shuttering of a business, and an irate police force who said they did everything they could to stop it.

About 170 motorcycle gang members charged with engaging in organized crime are each being held on a $1 million bond in the wake of the shootout in Waco that left at least nine dead and 18 injured, and authorities say capital murder charges are expected....

While they haven't been filed yet, capital murder charges open the possibility that prosecutors will seek the death penalty for some of the suspects, in a state that puts far more inmates to death annually than all others....

Waco Police Sgt. W. Patrick Swanton said while capital murder charges are likely, it's too early to determine how many motorcycle gang members will face the charge.

The head of the Texas Department of Public Safety says the violence that unfolded in Waco when rival motorcycle gangs opened fire on each other in a restaurant parking lot is unprecedented. The shootout erupted shortly after noon at a busy shopping center where members of at least five rival gangs had gathered for a meeting. DPS Director Steve McCraw, a former FBI agent, said Monday that the shootout Sunday was the first time "we've seen this type of violence in broad daylight."...

Police and the operators of Twin Peaks - a national chain that features waitresses in revealing uniforms - were aware of the meeting in advance and at least 12 Waco officers, in addition to state troopers, were outside the restaurant when the fight began, Swanton said. As a result, the whole incident, involving an estimated 100 guns in total, "happened very fast," Swanton said. "We were there within seconds, meaning within 35 to 40 seconds," Swanton said.

So far, officials have admitted that some of the bikers were shot by police, but have not said whether or not any of those killed died as a result of police gunfire....

The interior of the restaurant was littered with bullet casings, knives, bodies and pools of blood, he said. Authorities were processing the evidence at the scene, south of Dallas. About 150 to 200 bikers were inside during the shootout. "I was amazed that we didn't have innocent civilians killed or injured," Swanton said.

Parts of downtown Waco were locked down, and officials stopped and questioned motorcycle riders. Agents from the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives were assisting local and state authorities. McLennan County Sheriff Parnell McNamara, whose office is involved in the investigation, said all nine who were killed were members of the Bandidos or Cossacks gangs.

In a 2014 gang threat assessment, the Texas Department of Public Safety classified the Bandidos as a "Tier 2" threat, the second highest. Other groups in that tier included the Bloods, Crips and Aryan Brotherhood of Texas. The Bandidos, formed in the 1960s, are involved in trafficking cocaine, marijuana and methamphetamine, according to the U.S. Department of Justice....

Swanton said the local biker gangs have little regard for law enforcement, which is why they did not hesitate to start a shootout with uniformed officers in plain sight. "They could care less whether we were here or not," Swanton said. "That's the violence we were dealing with."

I think almost everyone knows or should know that Texas is the state most likely to impose and carry out a death sentence in the United States. Thus, it sure appears that Texas's notable death penalty track record had no deterrent effect on the folks with guns and knifes involved in this carnage.

Especially with the stories of drug trafficking and gang threats on local police, I also think this case seems almost to cry out for federal intervention. Thus, I think it will be interesting to watch just which jurisdiction (state or federal) takes the lead on charges (both capital and noncapital) in this stunning crime story.

May 18, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)

I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire.  Thus, when reading the DC Circuit's recent  opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest.  Here is how the per curiam opinion gets started:

Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation.  See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995).  But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.

Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:

“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008).  I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance.  But the burden of providing a brief explanation is small and the advantages great.  “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”).  It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.

Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:

When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.

In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement.  Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.

May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

NY Times editorial astutely praises "Justice Reform in the Deep South"

Throughout too much of America's history, the term "Southern Justice" would invoke shudders and fear. (Indeed, as discussed here, Norman Rockwell used this term as the title for his historic painting depicting the deaths of three civil rights workers killed for seeking to register African American voters.) But, as effectively highlighted by this new New York Times editorial, lawmakers in the deep south are lately doing a lot to remake the image of southern justice:

It has been getting easier by the day for politicians to talk about fixing the nation’s broken criminal justice system. But when states in the Deep South, which have long had some of the country’s harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Almost all of these deep-­red states have made changes to their justice systems in the last few years, and in doing so they have run laps around Congress, which continues to dither on the passage of any meaningful reform.  Lawmakers in Alabama, for example, voted nearly unanimously early this month to approve a criminal justice bill.  Alabama prisons are stuffed to nearly double capacity, endangering the health and lives of the inmates, and the cost of mass imprisonment is crippling the state budget at no discernible benefit to public safety.

The bill would cut the state’s prison population of nearly 25,000 by about 4,500 people over the next five years. Sentences for certain nonviolent crimes would be shortened, and more parole supervisors would be hired to help ensure that people coming out of prison don’t return. Gov. Robert Bentley is expected to sign the measure as soon as Tuesday.

Before Alabama, South Carolina passed its own package of reforms in 2010.  In February, it closed its second minimum-­security prison in a year.  Georgia got on board with significant reforms to its adult and juvenile prison systems in 2012 and 2013, including giving judges more leeway to sentence below mandatory minimums and increasing oversight of prisons.  In 2014, Mississippi passed its own systemic fixes, like providing more alternatives to prison for low­level drug offenders.

Of course, all these states had abysmal conditions to start with. Mississippi imprisons more of its citizens per capita than China and Russia combined. That’s worse than any state except Louisiana, which has not yet managed reforms as broad as its neighbors. Alabama was facing the threat of federal intervention to alleviate its crushingly overcrowded prisons if it didn’t act.  And many of these state reforms are far more modest than they should be....

Nonetheless, these initiatives show important progress. Less than a decade ago, it was difficult to find any governor anywhere, of either party, who would go near this issue. Now, a Republican governor like Nathan Deal of Georgia is pointing with pride to two major reform packages, as well as the state’s “ban the box” law, which prohibits the state from asking potential employees about their criminal history until later in the hiring process.

Still, justice reform is a fragile proposition, and can be easily thwarted by more powerful political forces.  As the 2016 presidential election approaches, most of the major candidates agree that criminal­justice reform is a priority, but there remains a good deal of ambivalence on how to move forward.  There needn’t be.  The reforms in the southern states, though limited, are already paying off.  The presidential candidates — not to mention Congress — should be paying close attention.

May 18, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Six new SCOTUS opinions, but nothing too exciting for sentencing fans

The next six weeks are the SCOTUS law nerds version of March Madness: the regular SCOTUS season of hearing oral arguments and deciding relatively easy cases are over, and the last weeks of the Term are going to involve the handing down of many notable opinions on many notable topics.  The madness began today with the release of six opinions, three of which had criminal justice elements, but none of which were all that controversial nor especially consequential.

Howard at How Appealing has a great round-up of the basics of the six new opinions here, and Kent at Crime & Consequences has this helpful substantive review of the three rulings with some criminal justice consequence.

For those looking to set their (always tentative) SCOTUS calendars, I will predict now that we get the Elonis Facebook threat ruling either next Tuesday or the following Monday but will not get any other significant criminal justice ruling until the last few weeks of June.

May 18, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, May 15, 2015

"America’s Deadliest Prosecutors"

150512_JURIS_deadliestprosecutors.jpg.CROP.original-originalThe title of this post is the main headline of this notable new Slate piece, which highlights the central role that different prosecutors can and do play in the administration of the death penalty.  Here are excerpts:

“I think we need to kill more people,” Dale Cox, a prosecutor in Caddo Parish, Louisiana, said recently. He was responding to questions about the release of Glenn Ford, a man with Stage 4 lung cancer who spent nearly three decades on death row for a crime he did not commit. Cox acknowledged that the execution of an innocent person would be a “horrible injustice.” Still, he maintained of the death penalty: “We need it more now than ever.”

Cox means what he says. He has personally secured half of the death sentences in Louisiana since 2010. Cox recently secured a death sentence against a father convicted of killing his infant son, despite the medical examiner’s uncertainty that the death was a homicide. Rather than exercising caution in the face of doubt, Cox told the jury that, when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.

The nation suffered more than 10,000 homicides last year, yet only 72 people received death sentences — the lowest number in the modern era of capital punishment. The numbers have been steadily declining for the better part of a decade. Most states are abandoning the practice in droves. Even in states that continue its use, capital prosecutions are being pursued in only a few isolated counties.

What distinguishes these counties from neighbors that have mostly abolished the death penalty, in fact if not in law? Perhaps the biggest factor is the presence of a handful of disproportionately deadly prosecutors who represent the last, desperate gasps of a deeply flawed punishment regime. Most of their colleagues are wisely turning away from a practice that has revealed itself to be ineffective at deterring crime, obscenely expensive, inequitably administered, and not infrequently imposed upon the innocent. But America’s deadliest prosecutors continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned.

Cox is one of them.  Jeannette Gallagher of Maricopa County, Arizona, is another. She and two colleagues are responsible for more than one-third of the capital cases — 20 of 59 — that the Arizona Supreme Court reviewed statewide between 2007 and 2013.  Gallagher recently sent a 19-year-old with depression to death row even though he had tried to commit suicide the day before the murder, sought treatment, and was turned away. She also obtained a death sentence against a 21-year-old man with a low IQ who was sexually abused as a child, addicted to drugs and alcohol from a young age, and suffered from post-traumatic stress disorder.  She then sent a U.S. military veteran with paranoid schizophrenia to death row.  Her response to these harrowing mitigating circumstances has not been to exercise restraint, but rather to accuse each of these defendants of simply faking his symptoms.  The Arizona Supreme Court has found misconduct in three of her cases, labeling her behavior as “inappropriate,” “very troubling,” and “entirely unprofessional.”...

Meanwhile, in Duval County, Florida, Bernie de la Rionda has personally obtained 10 death sentences since 2008.  (He failed to secure the conviction of George Zimmerman, however, for chasing down and shooting teenager Trayvon Martin.)  The Florida Supreme Court reversed three of those cases; one for law enforcement misconduct and two after concluding that death was too severe a punishment.  That court also reversed an earlier death sentence because de la Rionda repeatedly harped about the defendant’s sexual preferences and views on homosexuality, despite the trial court’s warning that the evidence was irrelevant....

Not surprisingly, death sentences drop precipitously after these prosecutors leave office. Bob Macy sent 54 people to Oklahoma’s death row before retiring in 2001.  Over the past five years, Oklahoma County has had only one death sentence.  Lynne Abraham secured 45 death sentences as the Philadelphia district attorney.  Since she retired in 2010, the new district attorney has obtained only three death sentences.  Joe Freeman Britt, dubbed the deadliest prosecutor in America, secured 42 death sentences during his tenure in Robeson County, North Carolina.  Last year DNA evidence led North Carolina officials to release two intellectually disabled half brothers, Henry Lee McCollum and Leon Brown, each of whom served 30 years — with McCollum under a sentence of death — for a rape and murder they did not commit.  Britt is the prosecutor who sent McCollum, a man with the mental age of a 9-year-old, to death row.  Britt retired in the 1990s, and the county has imposed only two death sentences in the past decade.

May 15, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 14, 2015

Any predictions about how long the capital jury will need to deliberate in the Boston bombing case?

Slider_2015-04-06T174208Z_174798518_GF10000051140_RTRMADP_3_BOSTON-BOMBINGS-TRIALAs this Boston Globe article reports, "jurors began deliberating Wednesday on the sentence of Dzhokhar Tsarnaev, sorting through a complex 24-page verdict slip meant to help them decide whether the Boston Marathon bomber should be sentenced to life in prison or death." Here is more details about where matters now stand as a set-up to the question in the title of this post:

The jurors were left with only 45 minutes to meet Wednesday after receiving instructions from the judge and hearing closing arguments from both sides. Prosecutors used their time to depict the 21-year-old defendant as a remorseless terrorist who participated in the bombing to make a political statement; defense attorneys portrayed Tsarnaev as the troubled follower of an older brother who brainwashed him into joining his violent plan.

Both sides also reminded jurors — the same panel that convicted Tsarnaev last month — of the emotionally charged testimony and graphic photos presented during the 10 weeks of testimony. Yet they recommended contrasting methods of weighing whether Tsarnaev deserved to be put to death.

In her closing argument, Judy Clarke, Tsarnaev’s attorney, delivered a surprising concession, telling jurors they could quickly endorse some of the sections of the verdict slip that refer to the factors that permit, but do not require, the imposition of the death penalty for her client. “Check them off,” she said with a dismissive flick of the wrist.

Clarke acknowledged there was ample evidence presented during the trial that Tsarnaev, among other things, intended to kill, that his crime was premeditated, and that it was especially cruel and heinous — all factors that make his offenses subject to capital punishment.

But prosecutors urged a more careful review of each section of the verdict form, calling on the 12 jurors to study the long list of Tsarnaev’s actions and each question they must answer in reaching their decision. They called on jurors to remember that they promised to remain open to the death penalty if the government proved its case. “I urge you to take your time with each one,” said prosecutor William Weinreb, who gave the rebuttal closing after Clarke’s statement.

But Clarke, as has been her style since the beginning of the trial, when she startled the courtroom by conceding that Tsarnaev committed the crimes, continued to try to show jurors that she was leveling with them and that she was a high-minded attorney looking to not waste their time with legal technicalities.

In her 90-minute statement, Clarke struck a more philosophical note, saying sometimes good kids emerge out of chaotic, troubled homes to become good young adults — but sometimes not.  She went through photos and evidence suggesting that Tsarnaev’s parents were emotionally, and later physically, absent from his life, and that Tsarnaev’s older troubled and radicalized brother, Tamerlan, filled the void.  The root cause of the violence that erupted on Boylston Street on April 15, 2013, was Tsarnaev’s older brother, Clarke said. “Dzhokhar would not have done this but for Tamerlan,” she said....

Echoing themes of war, prosecutors passionately argued before jurors that Tsarnaev was his own man and chose to become a jihadist warrior.  They portrayed him as part of a disturbing number of young anti-American terrorists who seek to kill to send a political message.  While the defense has cited Tsarnaev’s age — he was 19 when he planted the bombs — as a mitigating factor against the death penalty, prosecutor Weinreb rejected the notion.

“These weren’t youthful crimes,” he said. “There was nothing immature or impulsive about them. These were political crimes, designed to punish the United States . . . by killing and mutilating innocent civilians on US soil.”

He went on to say that while the defense case focused heavily on Tamerlan as the evil force who corrupted his younger brother, no evidence to back up the theory emerged in court. “Where is the evidence of brainwashing and mind control?” Weinreb asked.

Reaching their final decision will be more art than science, both sides said, telling jurors that it will not be a simple tabulation of how many aggravating factors they endorse against the number of mitigating factors they find. Those factors, among other things, are delineated on the verdict slip.

For the jury to impose the death penalty, all 12 members would have to unanimously agree on that sentence for at least one of the 17 death-eligible counts for which Tsarnaev was convicted. Anything short of that would require the judge to impose life in prison without parole. Jurors are scheduled to resume deliberations Thursday.

I have a nagging feeling that, because I am going to be off-line during most of the work day today and tomorrow with a variety of professional commitments, we are going to get a verdict from the jury before the end of this week. But perhaps because there are multiple formal elements to the capital verdict form, and perhaps also because the jurors may want ample time to talk through all their perspectives, it certainly seems possible we will not get a verdict until next week.

A few prior related posts:

May 14, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, May 13, 2015

"What Private Prisons Companies Have Done to Diversify in the Face of Sentencing Reform"

The title of this post is this interesting Bloomberg Business article, and here are excerpts:

America’s overall prison population has increased by 500 percent over the last 40 years, and the U.S. incarcerates more people than any other country, by far.  State and federal authorities began turning to private prison companies in the 1980s to handle overflowing facilities, and today about 8 percent of prisoners in the U.S. are housed in privately run prisons. Almost all are run by the two largest providers: Corrections Corporation of America and GEO Group.

In September 2014, then-Attorney General Eric Holder announced that the federal prison population had declined for the first time since 1980.  There were nearly 5,000 fewer prisoners in federal prisons in the 2014 fiscal year, compared to the year before, he said. The latest figures for state prisons are only from 2013, which showed an increase of 6,300 prisoners from the previous year.

Both GEO Group and CCA — which last year pulled in a combined $3.3 billion in annual revenue — have taken moves in recent years to diversify into services that don't involve keeping people behind bars.  GEO Group in 2011 acquired Behavioral Interventions, the world’s largest producer of monitoring equipment for people awaiting trial or serving out probation or parole sentences.  It followed GEO’s purchase in 2009 of Just Care, a medical and mental health service provider which bolstered its GEO Care business that provides services to government agencies.

“Our commitment is to be the world’s leader in the delivery of offender rehabilitation and community reentry programs, which is in line with the increased emphasis on rehabilitation around the world,” said GEO chairman and founder George Zoley during a recent earnings call.  

For $36 million in 2013, CCA acquired Correctional Alternatives, a company that provides housing and rehabilitation services that include work furloughs, residential reentry programs, and home confinement.  “We believe we’re going to continue to see governments seeking these types of services, and we’re well positioned to offer them,” says Steve Owen, CCA’s ‎senior director of public affairs.

Brian W. Ruttenbur, a managing director at CRT Capital Group’s research division, says that neither GEO or CCA will be significantly hurt by sentencing reform in the near future. “The big growth in recent years has been with [U.S. Immigration and Customs Enforcement, or ICE] and both of these companies have historically made heavy investments there,” Ruttenbur says.  Immigration detainees are commonly held in the same private facilities that contain state and federal prisoners, and a Government

Accountability Office analysis of ICE data showed that immigration detentions more than doubled between 2005 and 2012. Alex Friedmann, associate director of the Human Rights Defense Center and managing editor of Prison Legal News, says sentencing reform will probably not affect immigration detainees. “Immigration reform might, but even under proposed reform legislation, detention will likely increase,” he says. In 2015, more than $2 billion in federal contracts are up for bid to run five or more prisons that meet the “Criminal Alien Requirements” and house non-U.S. citizens.

May 13, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Former Georgia Supreme Court Chief Justice call for absolute capital abolition

As reported in this Atlanta Journal-Constitution article, headlined "Former justice calls for end to death penalty," reports on a notable speech given by a notable former jurist.  Here are the details:

A former chief justice of Georgia’s highest court on Tuesday strongly renounced the death penalty and called for its abolition.  Norman Fletcher, who served 15 years on the Georgia Supreme Court, said the death penalty is “morally indefensible,” “makes no business sense” and is not applied fairly and consistently.

“Capital punishment must be permanently halted, without exception,” Fletcher said. “It will not be easy, but it can and will be accomplished.”

Fletcher, now a Rome lawyer, retired from the state Supreme Court in 2005.  Although considered one of the court’s more liberal members, he cast numerous votes upholding death sentences.  In more recent years, he has signed on to legal briefs urging courts to halt the executions of a number of condemned inmates.

Fletcher made his remarks Tuesday evening at the Summerour Studio near Atlantic Station, where he received the Southern Center for Human Rights’ Gideon’s Promise Award for his role in helping create a statewide public defender system.  In his acceptance speech, Fletcher said he was about to “shock” those attending the ceremony.

Lawyers who once criticized his decisions upholding death sentences were justified, he said. “With wisdom gained over the past 10 years, I am now convinced there is absolutely no justification for continuing to impose the sentence of death in this country,” Fletcher said....

Fletcher added, “There can be no doubt that actually innocent persons have been executed in this country.”  Too often, Fletcher contended, budgetary issues, race and politics factor into the decision-making of whether to seek the death penalty.

Fletcher cited the late U.S. Supreme Court Justice Harry Blackmun, who once said he could “no longer tinker with the machinery of death.”  Blackmun made this declaration before he retired from the high court in 1994. “It is time for us to quit the tinkering and totally abolish this barbaric system,” Fletcher said.

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

Senator Cornyn highlights his plan to "ensure that prisons don’t become nursing homes behind bars"

This recent post spotlighted the Washington Post's extended front-page story about the graying of America's prison populations.  Notably, Senator John Cornyn has now penned this letter to the editor to explain what he is trying to do to deal with this issue:

A bipartisan proposal working its way through Congress would offer a path home for some nonviolent, elderly prisoners.

The Corrections Act, which I have introduced with Sen. Sheldon Whitehouse (D-R.I.), includes a provision that would make prisoners age 60 and older eligible for early release after serving two-thirds of their sentences.  This reform builds on an expired pilot program from a bipartisan prison reform law known as the Second Chance Act of 2007.  That program showed good results before it was canceled last year, and our proposal would save taxpayer money by treating seriously ill and dying individuals with compassion.

It is becoming increasingly clear that we must make bipartisan efforts to reform our criminal justice system.  Many of the issues involved are complex, but reforming the system to ensure that prisons don’t become nursing homes behind bars doesn’t need to be one of them.

May 13, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 12, 2015

Is it unseemly I wish I could watch the Boston bombing closing arguments?

The question in the title of this post reflects my (perverse?) frustration with the absence of cameras in federal courtrooms, especially in cases in which the work of advocates seem so significant in the sentencing decision-making process.  From the start of the Tsarnaev trial, I have long thought that the sentencing outcome would turn on how well the prosecution  keeps the jury's focus on the horrible crime (which surely seems death-worthy) and how well the defense turns the focus to mitigating personal factors which perhaps led Tsarnaev to commit the horrible crime.  I am expecting that the closing arguments would capture and encapsulate the debate over this crime, criminal and his punishment in a fascinating way.  But, to my disappointment, I will only get to read accounts of the arguments rather than see and hear them directly.

For those eager for a bit of a preview, this new Boston Globe article, headlined "Lengthy, complex checklist awaits Tsarnaev jurors," explains the formal death sentencing process the jury will soon be facing:

In the end, the punishment of Dzhokhar Tsarnaev will come down to one question: Have federal prosecutors proved that the Boston Marathon bomber’s crimes were so heinous he deserves to be sentenced to death?

But before jurors weigh that singular decision they will first have to wade through a complex checklist in a lengthy verdict sheet to show that they have indeed weighed all the factors in the case — those identified by prosecutors, known as aggravating factors, as well as those presented by defense attorneys, called mitigating factors.

Legal analysts say the thoroughness of the process is meant to assure that jurors focus on relevant factors and ignore prejudicial and arbitrary circumstances in determining a defendant’s fate. “The jury has to consider the circumstances that the government says is relevant, that justifies a death sentence, and then the jury makes a reasoned, morally responsible response to that evidence,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases. “The idea is we want to have a system of accountability.”

Unlike typical criminal cases, the jury that determined Tsarnaev’s guilt in the first phase of his trial is also tasked with deciding his punishment during this second phase of his trial. And in deciding which sentence to bestow, the jurors will weigh the aggravating factors — or reasons why Tsarnaev’s crimes were so heinous he deserves death — against the mitigating factors, or arguments that seek to explain and soften his culpability in the crimes.

The formula of arguing aggravating vs. mitigating factors in capital crimes was upheld by the US Supreme Court in 1976, in a case originating in Georgia, and it became the basis for modern federal death penalty laws. The decision ended an unofficial moratorium on the death penalty that had begun four years earlier after the Supreme Court ruled that death penalty laws were unconstitutional because they were being applied arbitrarily.

Now, under the modern application of the death penalty, jurors must consider aggravating factors and mitigating factors for each defendant — and they must record their conclusion on each of those factors on the verdict slip. They must then repeat the process for each count.  Tsarnaev faces 17 charges that carry the possibility of the death penalty.

US District Judge George A. O’Toole Jr. has not released a copy of the verdict slip, but prosecutors have already identified aggravating factors in the case: That Tsarnaev intentionally sought to kill and inflict bodily injuries; that he targeted vulnerable victims, including children and spectators at the Marathon finish line; Tsarnaev has shown no remorse; the attacks were in the name of jihad, or terrorism; one of his victims was a police officer; and the attack was premeditated.

Jurors will have to be unanimous in finding that each of the aggravating factors was proven. They also must be unanimous if they choose to sentence Tsarnaev to death.  A split jury would result in a life sentence.

But jurors will also vote on the defense team’s mitigating factors, and they do not have to be unanimous on each one.  “The defense doesn’t have the same kind of burden, it’s the prosecutors who have the burden to prove this beyond a reasonable doubt, that death is the only appropriate sentence,” Kendall said.

Jurors will then weigh the totality of aggravating and mitigating factors before deciding on a sentence.  O’Toole has already instructed jurors that choosing a sentence isn’t a matter of simple math of how many aggravating factors were proven vs. how many mitigating factors the defense presented, but a “reasoned, moral response” to the overall case. “A single mitigating factor can outweigh several aggravating factors,” O’Toole told jurors.

The defense team has not publicly disclosed the mitigating factors it will list on the verdict sheet, but they will likely draw from the themes they have sought to crystallize in the trial: That Tsarnaev was an impressionable teenager who was manipulated by a dominating older brother; that brain science shows that teenagers do not have a fully matured brain; that he came from a troubled upbringing, and was looking for guidance in a vulnerable time in his life; and that his family held to old cultural tradition that he obey the direction of his older brother....

Kendall said jurors in Tsarnaev’s case are likely to weigh each argument seriously, having sat through 27 days of testimony in both phases of the trial, and listening to more than 150 witnesses. “It’s not just paperwork,” Kendall said. “It’s after all this evidence that the decision is being based on factors the law considers prudent and right ones.”

Jurors are scheduled to hear closing arguments Wednesday morning and could begin their deliberations Wednesday afternoon.

A few prior related posts:

May 12, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives"

The title of this post is the title of this notable new report released today from the Vera Institute of Justice. Here is how the report is described on this Vera webpage:

Segregated housing, commonly known as solitary confinement, is increasingly being recognized in the United States as a human rights issue.  While the precise number of people held in segregated housing on any given day is not known with any certainty, estimates run to more than 80,000 in state and federal prisons — which is surely an undercount as these do not include people held in solitary confinement in jails, military facilities, immigration detention centers, or juvenile justice facilities.  Evidence mounts that the practice produces many unwanted and harmful outcomes — for the mental and physical health of those placed in isolation, for the public safety of the communities to which most will return, and for the corrections budgets of jurisdictions that rely on it for facility safety.

Yet solitary confinement remains a mainstay of prison management and control in the U.S. largely because many policymakers, corrections officials, and members of the general public still subscribe to some or all of the common misconceptions and misguided justifications addressed in this report.  This publication is the first in a series on solitary confinement, its use and misuse, and ways to safely reduce it in our nation’s correctional facilities made possible in part by the Robert W. Wilson Charitable Trust.

May 12, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Ohio legislators moving forward on recommended death penalty reforms

As reported in this local article, headlined "Lawmakers want to exclude mentally ill from death penalty," a number of recommendations made by a death penalty task force on which I served here in Ohio are emerging in notable bills. Here are the basics:

Killers diagnosed as “seriously mentally ill” at the time of the crime could not be executed in Ohio under proposed legislation expected to be introduced Tuesday in the Ohio Senate.  If passed, the bill sponsored by Sens. Bill Seitz, R-Cincinnati, and Sandra Williams, D-Cleveland, would be a major change in Ohio, which now prohibits the execution of mentally disabled people but not the mentally ill.

Seitz and Williams have been jointly developing legislation based on recommendations from the Ohio Supreme Court Death Penalty Task Force, released in April 2014.  About a dozen task force recommendations are expected to be introduced in the General Assembly.

The bill would bar execution of people who, when they committed the crime, suffered from a serious mental illness that impaired their ability to “exercise rational judgment in relation to their conduct, conform their conduct to the requirements of the law, or appreciate the nature, consequences or wrongfulness of their conduct,” according to the National Alliance on Mental Illness Ohio, which supports the legislation....

Several of the 53 inmates executed in Ohio since 1999 could possibly have been excluded under the proposed change.  Wilford Berry, the first person to be executed when Ohio resumed capital punishment on Feb. 19, 1999, was considered to have mental illness with delusions.  At one point, Berry said he saw the angel of death sitting with him in his prison cell.

NAMI and the Ohio Psychiatric Physicians Association wrote a letter to lawmakers seek support for the legislation.  “We believe that those who commit violent crimes while in the grip of a psychotic delusion, hallucination or other disabling psychological condition lack judgment, understanding or self-control.  Until such time as the U.S. Supreme Court decides on this question, the responsibility for prohibiting the execution of such individuals in Ohio rests with the Ohio General Assembly.”...

Other task force proposals to be unveiled in the legislature in the future are establishing a statewide indigent death-penalty litigation fund in the Ohio Public Defender's office; requiring certification for coroner's offices and crime labs; and prohibiting convictions based solely on uncorroborated information from a jailhouse informant.

May 12, 2015 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack