Monday, February 08, 2016

Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws

A helpful reader alerted me to this notable new New York Daily News report about another notable effort by a notable federal district judge in the Eastern District of New York expressing his disinclination to punish a child porn downloader as severely as federal prosecutors seem to want.  The article is headlined "Queens man charged with receiving 50,000 kiddie porn images can have unsupervised contact with his children," and here are excerpts:

A federal judge pooh-poohed the concerns of law enforcement officials, ruling that a Queens man charged with receiving nearly 50,000 kiddie porn images on the “dark Web” can have unsupervised contact with his two young children, the Daily News has learned.

“It comes down to money,” Judge Frederic Block explained in Brooklyn Federal Court last week. “It’s a financial burden on the family if they have to hire people to sit there and watch them.  I don’t see his children at risk.”

Both the Brooklyn U.S. attorney’s office and the pretrial services office of the Eastern District of New York disagreed, arguing that Naray Palaniappan, a computer consultant, should not be alone in his Jackson Heights home with his children, ages 2 and 4.  The federal Adam Walsh Child Protection and Safety Act routinely requires, as a condition of bail, that defendants in Palaniappan’s situation be accompanied by a monitor in the presence of children.

Palaniappan, 39, was nabbed last year in a nationwide FBI investigation of online pervs who troll a hidden region of the Internet, known as the dark Web, which is not accessible through conventional search engines.  Palaniappan, who investigators linked with the user name “JiminyCracket,” allegedly received a massive trove of child pornography that included videos of young girls being raped by adult men.

Assistant U.S. Attorney David Gopstein advised the judge that Palaniappan failed a lie detector test, administered by the FBI, in which he was asked if he had sexual contact with minors.  He has yet to complete a voluntary parenting program administered by the city, which could have bolstered his case that he isn’t a danger.  “There are troubling issues and we are talking about children,” Gopstein argued.

But Block, unmoved, lifted the restriction two weeks ago. On Thursday, Block brought Palaniappan and his wife into court for an update. “I assume he hasn’t molested his children since we last left,” Block said.  Palaniappan’s wife told the judge she didn’t object to leaving their kids alone with him.

The judge also blew up when a prosecutor told him that Palaniappan had been offered a plea deal that calls for a mandatory five-year sentence. “You think this man should be in jail for five years?” Block asked three times.... Block threatened to have Palaniappan’s case transferred to Federal Judge Jack Weinstein, who has openly challenged mandatory tough sentences in some child pornography cases.  It was unclear whether he was serious.

Defense lawyer Zachary Margulis-Ohnuma told The News that Block’s decision is well-reasoned and based on several reports, all positive, by the family service agencies overseeing Palaniappan’s case.

The way in which Judge Block handled this pre-trial issue of supervision leads me to think, ironically, that federal prosecutors are now almost certain to demand that this defendant plead guilty to a child porn receipt charge which carries a five-year mandatory minimum rather than to allow him only to plead to a CP possession charge which carries no mandatory minimum. Clearly, Judge Block does not view this defendant as a threat in the same way federal prosecutors do, and that suggests to me federal prosecutors will use the tools they have at their disposal to try to legally preclude Judge Block or others from showing leniency to this defendant.

Especially in the wake of Judge Jack Weinstein's recent notable sentencing ruling in US v. RV (discussed here), I am starting to sense there may be something of a sentencing turf war starting to emerge in Eastern District in these kinds of child porn cases.  For that reason and others, I would now not be surprised if the EDNY federal prosecutors are going to be even less inclined to cut any child porn defendants any kind of breaks in the plea process in all current and future cases.

February 8, 2016 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, February 07, 2016

FSR accounting of state of federal sentencing reform efforts at end of 2015

1.cover-sourceAs I try to provide here a "real-time" account of certain ups-and-downs with various federal statutory sentencing reform bills, I too rarely find the time to provide a more reflective accounting of what is afoot in this important criminal justice reform space.  Helpfully, my Federal Sentencing Reporter co-editor, Frank Bowman, has spent time recently assembling in FSR's pages some primary documents and cutting-edge commentary on this front.  Here is part of an email Franl authored providing a description of what he has put together for FSR:

For anyone interested in the details of the various pending pieces of legislation and analysis of the practical impact of the bills that have made it through the House and Senate Judiciary Committees, I commend you to the latest issue of the Federal Sentencing Reporter (Vol 28, No. 2), which contains the text or summaries of the various bills, as well as commentaries. 

In particular, for an overview and impact analysis, see my article, Good Enough to Be Getting on With? The State of Federal Sentencing Reform Legislation, December 2015.  The FSR issue also contains excellent work by Nora Demleitner of Washington & Lee and Paul Hofer, formerly of the Sentencing Commission and now with the Federal Defenders sentencing project, which can be found at this link. Here is the abstract of Frank's article linked above:

This Article addresses the current status of the push for federal sentencing and corrections reform, and describes and analyzes all of the major pieces of sentencing and corrections reform legislation pending in the United States Congress at the close of 2015.  In particular, it considers the Justice Safety Valve Act of 2015, the Smarter Sentencing Act of 2015, the SAFE Justice Act of 2015, and the most likely candidate for passage -- the Senate's Sentencing Reform and Corrections Act of 2015 (SRACA) and its counterpart in the House.  The Article discusses the merits and deficiencies of each bill, and estimates the likely effect of each on the population of current and future federal defendants and inmates.

The Article notes that the legislative proposals have become less expansive as the session has progressed, with each succeeding bill more cautious than the last.  The final section of the Article considers whether the result of Congress's efforts will be worthy of support by those who favor significant federal sentencing and corrections reform.  It concludes that, on balance, the front-end sentencing provisions of the legislation most likely to pass (SRACA) are "good enough to be getting on with," but that the back-end corrections measures with the most current legislative backing ought to be reconsidered and improved.

February 7, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP

BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender.  The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:

Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old.  Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place.  Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.

More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence.  Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.

The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder.  Over the past decade, the court has taken up several cases addressing juvenile justice issues.  The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.

Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences.  The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....

Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.”  While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.

Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases.  During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...

On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller.  In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it.  As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.

If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question.  (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)

February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, February 05, 2016

Lots of end-of-the-week notable capital punishment stories

A busy day of teaching and other work activies has prevented me from posting about a number of interesting death penalty stories and commentaries I noticed in the media recently. Here are headlines and links to serve as a kind of end-of-week round-up:

February 5, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Wednesday, February 03, 2016

DOJ announces appointment of new Acting Pardon Attorney

This DOJ press release reports that the "Justice Department announced today that Robert A. Zauzmer will become the new Acting Pardon Attorney effective immediately."  Here is more about this important new person in an important new DOJ position:

Zauzmer, the Chief of Appeals in the U.S. Attorney’s Office of the Eastern District of Pennsylvania, has been a key player in the department’s implementation of both the 2013 Smart on Crime initiative and the U.S. Sentencing Commission’s retroactive sentence reductions.

“Bob’s long-standing commitment to criminal justice reform and his knack for devising and implementing the department’s sentencing reduction policies made him a natural choice to serve as Pardon Attorney,” said Deputy Attorney General Sally Q. Yates. “Bob also shares my unwavering dedication to the president’s clemency initiative. Given his experience and dedication, I am confident that Bob will hit the ground running.”

“As someone who has been part of the criminal justice system for more than 25 years, I have long been troubled by the imposition of disproportionately lengthy sentences, even as long as life imprisonment, that were imposed on low-level drug offenders on the basis of laws and policies that have since been changed,” said Zauzmer. “I have dedicated much of the past decade to assisting in the efforts to right some of those unfairly long sentences, and it is my profound honor to aid the president in using his clemency power to continue to restore the sense of proportionality and fairness that is at the heart of our justice system.”

As part of his efforts on behalf of the department, Zauzmer has testified multiple times before the U.S. Sentencing Commission on sentencing guideline issues, including the retroactive application of reductions in drug sentences. He also trained federal prosecutors nationwide on how to apply retroactivity in a way that provides relief to all eligible inmates in the most efficient manner possible. From 2012 to 2014, Zauzmer served as a member of the Attorney General’s Advisory Committee (AGAC), working closely with Attorney General Loretta E. Lynch and Deputy Attorney General Yates at a time that they served as chair and vice-chair, respectively, of the AGAC....

In December 2013, President Obama directed the department to prioritize applications for clemency from inmates who were sentenced under outdated policies and would have received a lesser sentence under current policies and laws. Since the clemency initiative was announced in April 2014, the president has granted 187 commutations, more than the last five presidents combined.

UPDATE: This new NPR piece, headlined "New Pardon Chief In Obama Justice Department Inherits A Huge Backlog," has some interesting quotes from the new Acting Pardon Attorney:

Robert Zauzmer, 55, has worked since 1990 at the U.S. attorney's office in the Eastern District of Pennsylvania. Justice Department leaders said Zauzmer represented a "natural choice" for the pardon job, in part because of his experience training prosecutors all over the country in how to evaluate prisoners' requests for early release.  "There were many occasions over the years where I saw these sentences of 20, 30 years, life imprisonment imposed on low-level offenders based on mandatory sentencing laws that troubled me," Zauzmer told NPR in an interview this week.

"Prosecutors are very knowledgeable about these cases and about the laws and about the need to do justice," he added.  "They are passionate about this, and they are dedicated to doing the right thing and correcting any erroneous sentences that need to be corrected, and I am equally passionate about it."

His first task?  Making sure that thousands of prisoner petitions are reviewed and worthy candidates are forwarded to the White House for action before the end of the Obama presidency, whether the applications come from trained lawyers or from inmates themselves.  "We're going to consider every petition," he said.  Zauzmer declined to offer a deadline but said stacks of petitions are "not going to be left on my table."

"I need to make sure that every system is in place that's necessary to review every case and make sure everybody gets a fair shake," Zauzmer said.  "There's a lot to do, but we have an excellent staff there, and I'm going to give it everything I have."...

But in the interview, the new acting pardon attorney cast some doubt on the idea of a mass clemency. "So I don't think we will ever get to a point where we will say, let's just take this basket of people and do mass clemency," Zauzmer said.  "We will look at these cases individually to make sure that we're not creating an undue risk to public safety, and that requires an individual assessment."

And Zauzmer pointed out that he is quite familiar with those case-by-case looks. He said the White House had already shortened the prison terms of six inmates from his district in Pennsylvania, including the case of David Padilla, who had been serving life behind bars.  "He was a classic example of someone who committed crimes, did bad things, admits it, has served almost 20 years in prison and should not be serving a life sentence," he said. "A life sentence does not possibly match the kind of criminal conduct that he was involved in."

February 3, 2016 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Return of GOP jedis trying to keep sentencing reform efforts going in Congress

Last week via this post titled "GOP empire striking back against federal sentencing reform efforts in Congress," I noted this Politico article highlighting that a "cadre of conservative Republicans" were starting to line up against congressional statutory sentencing reform efforts.  The title of this post continues the galactic metaphor as a way to view these notable new press accounts of significant GOP voices trying to keep federal sentencing reform efforts moving forward:

From the New York Times here, "Senator John Cornyn Aims to Sway Fellow Republicans on Criminal Justice"

From Politico here, "Republicans press for criminal justice overhaul"

From BuzzFeed News here, "Koch Continues To Push Criminal Justice Bill As Momentum Fades On Hill"

Because lots of folks on both the left and right sometimes seem to think that the Koch brothers can use their massive wealth to "buy" legal reform, I will here highlight the first part of the BuzzFeed piece:

The momentum for criminal justice legislation is slowing down on Capitol Hill, but hundreds of miles away, Charles Koch — one of its biggest supporters — continued to aggressively make the case for it to pass this year, even as the billionaire becomes the face of one of the sticking points.  “The issue we’ve been working hard on is criminal justice reform, so if somebody makes one mistake, non-violent, it starts with this question: Do you have right to run your own life as long as you don’t violate the rights of others and you’re not bothering anybody?”  Koch said to donors on Sunday at the winter meeting of the political network affiliated with the industrialist brothers, which drew about 500 attendees.

Koch’s comments on the issue were part of an hour-long presentation on what he calls “Framework for Free Society,” which the billionaire believes will put the country back on the right track.  He views changes to the criminal justice system as a crucial component of the framework.  “You smoke a joint or violate some regulation … get arrested, put in prison and then come out, can’t get a job, so this destroys opportunities and makes the community less safe because you go in — and weren’t really criminals — and you are trying to get a job, so you steal if you can’t,” he said.

In addition to Koch himself advocating for looser sentencing laws, attendees also received a closed-door briefing on the issue Sunday morning, according to a schedule provided to donors.  BuzzFeed News was one of six news organizations to accept an invitation to cover parts of the network’s meeting after agreeing to certain ground rules. The largest-ever gathering of the Koch brothers’ political network this past weekend came as the path forward for criminal justice legislation — a high priority for the network’s donors — becomes increasingly uncertain in a presidential election year.

February 3, 2016 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Tuesday, February 02, 2016

Post-Hurst hydra develops new heads in Delaware as all capital cases get halted

In this post last month not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various courts as judges try to make sense of just what Hurst must mean for past, present and future capital cases.  Now, as reported in this local article, headlined "All Delaware executions, capital murder trials halted," a new head for this litigation hydra emerged yesterday.  Here are the basic details:  

All pending capital murder trials and executions have been halted until the Delaware Supreme Court determines the constitutionality of the state's death penalty law.  The temporary stay, issued by President Judge Jan R. Jurden on Monday, is expected to impact at least four death penalty cases that were scheduled to go to trial in the next 120 days. Likewise, a spokesperson for the Department of Correction said Monday that all executions are also on hold, even though none were scheduled for the coming months.

"I think it is a smart decision," said Delaware's Chief Defender Brendan O'Neill. "It makes sense to stay the cases until we get the Supreme Court's ruling on whether our death penalty statute is constitutional."  The stay will give the Delaware Supreme Court time to consider five questions that have arisen in light of a recent U.S. Supreme Court ruling for Florida.

Last month, the U.S. Supreme Court struck down Florida's death penalty system, saying it gives too much power to judges, instead of juries. In that case, a man was convicted of the 1998 murder of his manager at a Popeye's restaurant in Pensacola and was sentenced to death by a judge.  Delaware, Alabama and Florida are the only states that allow judges to override a jury's recommendation of life and, instead, impose a sentence of death. Judges in Delaware have not been using that power.

The top U.S. court's recent ruling left prosecutors, defense attorneys and judges in Delaware with many questions about how to proceed in the state's approximately two dozen death penalty cases and with the 14 men on death row. In light of this, Superior Court Judge Paul Wallace solicited questions from Attorney General Matt Denn's office and O'Neill's office that they would like the Delaware Supreme Court to consider.  The highest state court agreed last week to address the questions and set a timeline of mid-April for all briefs to be submitted.

The court is using as a test case that of Benjamin Rauf, the Temple University law graduate charged with gunning down classmate Shazi Uppal, 27, in the parking lot of a Hockessin nursing home last summer.  Police have said the shooting occurred during a drug deal gone awry....

Jurden wrote in the administrative directive Monday that the certified questions are directly relevant to the pending capital murder trials. "Specifically, the determination will control the procedure to be applied in all such cases," she wrote.  "A temporary stay of the pending trials, penalty hearings, and any applications asking this court to declare Delaware's capital sentencing scheme unconstitutional is warranted to ensure the application of the law consistent with the Supreme Court's determination of the certified questions."  Jurden went on to say that temporary stays have previously been entered, such as in 2003 and 1992, when questions about the validity of the procedures were being considered by the Delaware Supreme Court.

The ensuing court battle is not the only challenge to the state's death penalty law. A bill to abolish the death penalty failed 23-16 in the House of Representatives on Thursday, but some lawmakers are vowing to give it a second chance this spring.

The administrative directive referenced in this article is available at this link.

Prior related posts:

February 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Second Circuit panel laments the "Statement of Reasons" form used by sentencing judges

A helpful reader made sure I did not miss the interesting sentencing opinion handed down by the Second Circuit yesterday in US v. Pruitt, No. 14‐1921 (2d Cir. Feb. 1, 2016) (available here).  Authored by District Judge John Gleeson sitting by designation, here is how the Pruitt opinion gets started:

Kaylon Pruitt appeals from the May 29, 2014 judgment of conviction entered against him in the United States District Court for the Northern District of New York (Suddaby, J.).  Pruitt was sentenced principally to a 46‐month term of imprisonment on his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).  He contends that the district court committed procedural error during his sentencing by failing to explain the reasons for the sentence, as required by 18 U.S.C. § 3553(c).

We affirm but write to suggest to the United States Sentencing Commission and the Judicial Conference of the United States that the Statement of Reasons form included within the statutorily‐required form for the entry of criminal judgments ‐‐ Form AO 245B ‐‐ be amended to bring it into conformity with § 3553(c) and Supreme Court precedent.  Specifically, a check‐a‐box section of the form, which was checked by the district court in this case, invites sentencing judges to impose a sentence within the applicable Guidelines range simply because the judge finds no reason to depart.   Because that both undermines the statutory obligation to state the reasons for every sentence and unlawfully presumes the reasonableness of the advisory Guidelines range, the form should be amended.

In a final notable footnote, the Pruitt opinion takes a notable shot at the US Sentencing Commission:

The form as a whole seems designed to encourage judges to sentence within the range.  A path of least resistance is clearly marked, and it is consistent with the Commission’s overall approach to sentencing in the post‐Booker era.  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory guidelines system was incompatible with the Sixth Amendment right to trial by jury, and it accordingly severed the provision of the Act that made the Guidelines mandatory.  The Sentencing Commission has since repeatedly asked Congress to enact legislation requiring sentencing courts to give greater weight to the Guidelines range than Booker and its progeny permit.  The specific proposals include laws that would require sentencing judges give “substantial weight” to the advisory Guidelines range and require appellate courts to accord a presumption of reasonableness to within‐range sentences.  Thus, the objectionable part of Statement of Reasons form may reflect the law as the Commission wants it to be.

February 2, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Monday, February 01, 2016

"Accommodating Justice: Victim Impact Statements in the Sentencing Process"

The title of this post is the title of a forthcoming book by Tracey Booth, the introduction to which can be downloaded here via SSRN.  Here is the SSRN abstract:

Prominent criminologist, David Garland, has argued that VISs have led us into “unfamiliar territory where the ideological grounds are far from clear and the old assumptions an unreliable guide”.

A victim impact statement (VIS) is a highly nuanced and individual narrative that can operate as both an informational device in the sentencing process and an expressive mechanism for crime victims.  From the law perspective, VISs provide the court with details of harm caused by the offence and the consequences of the offending in order to further purposes of sentencing.  As an expressive mechanism, VISs offer victims the opportunity and space to express their feelings, tell their personal story of the aftermath of crime, and be heard by the court, the offender, and the wider community.

Though a well-established feature of contemporary sentencing hearings (at least in superior courts) VISs remain controversial in common law jurisdictions.  The ‘non-legal’ nature of VISs has generated uncertainty in relation to the functioning of the sentencing hearing and concerns have been raised that VISs are: inconsistent with established legal values, detrimental to the offender’s entitlement to a fair hearing, detrimental to victims’ wellbeing, and harmful to the integrity of the legal proceedings.

Accommodating Justice: victim impact statements in the sentencing process explores complex territory where VISs, the law and legal institutions intersect with a focus on the requirements of fairness, most particularly in the courtroom.  And it does so from multiple perspectives: courts, offenders and victims.  The book draws from a range of theoretical and doctrinal sources as well as empirical studies from Australia, Canada, the United States and the United Kingdom.  An ethnographic study of the performance of VISs in homicide sentencing hearings in the NSW Supreme Court woven through most chapters provides an innovative and evidence-based approach to the issues.

February 1, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4)

Notable new parallel studies on comparable execution patterns in two notable states

Frank Baumgartner has recently released these two (short and reader-friendly) reports providing a "review of simple statistics" concerning who has been executed in two states in the modern death penalty era:

There were no data that especially surprised me during my (too quick) review of these reports, though I always find analysis of county-level death penalty patterns especially intriguing.  For example, these documents report that "six out of Florida’s 67 counties are responsible for more than half of the state’s 89 executions" and that "four out of Ohio’s 88 counties (Lucas, Summit, Cuyahoga, and Hamilton) — or just 5% — are responsible for more than half of the state’s 53 executions."  These kinds of data serve to highlight, yet again, just how significant county-level actors — particularly district attorneys and trial judges — truly are in the actual administration of the death penalty in the United States.

February 1, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Sunday, January 31, 2016

Notable analysis of many capital defendants in Florida condemned to death by split juries

The Tampa Bay Times has this new detailed analysis of the history and impact of the Sunshine State's willingness to send persons to death row based on split jury recommendations.  The article is headlined "Only in Florida: How the nation’s lowest bar for the death penalty has shaped death row," and here is how it gets started:

Florida has more than 170 people on death row today who may not have been condemned to die in any other state — the result of its one-of-a-kind law that allows a jury to recommend capital punishment by a simple majority vote, a Tampa Bay Times analysis has found.

Unburdened by the need to reach a unanimous decision, Florida juries typically don’t.  Two-thirds of the people Florida has executed since 1995 were condemned to die on the recommendation of fewer than 12 jurors, the Times analysis found.

No other state allows juries to recommend death by a 7-5 vote.  Of the 32 states that have the death penalty, 29 require a unanimous vote of 12.  Alabama requires 10.  Delaware calls for jurors to unanimously agree on whether the defendant is eligible for the death penalty, but their sentencing recommendation can be split.

This month, the U.S. Supreme Court struck down Florida’s death penalty statute, forcing the Legislature to rewrite it. Although the court did not explicitly address the issue of non-unanimous jury votes, legal experts say this part of Florida’s law is in constitutional jeopardy.

The Times reviewed more than 450 death penalty cases dating back decades to determine how juries voted in the penalty phase of capital trials.  The juries’ sentencing recommendations are merely advisory, another unusual feature, but no Florida judge has ignored a jury’s guidance in nearly two decades.

The Times found that prisoners who were sentenced to death based on non-unanimous jury recommendations were far more likely to have their cases overturned on direct appeal, or to be ultimately acquitted.

Florida leads the nation in death row exonerations.  Of the 20 people who have been exonerated and for whom sentencing information is available, 15 were sent to death row by a divided jury.  Three others were cases in which judges imposed the death penalty over a jury’s recommendation of life in prison.

January 31, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Saturday, January 30, 2016

Judge Jack Weinstein disregards severe federal chid porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (22)

You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing

R_schmidt-262x272The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says."  Here are the basics (with my emphasis added):

Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana.  Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.

But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients.   He told police that "he was operating his business as a source of income," Distel said.

Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW.  Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants.  Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.

He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court....  Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing.  He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.

Schmidt is free on bond.  Kent County prosecutors will drop a second charge of manufacturing marijuana.

His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives.  After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party.  He had spent 16 years on a Grand Rapids City Commission on the West Side of town.

This case raises more than a few interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significantly influence what criminal sentence he receives?    

But, what really captured my attention in this case (and prompted my cross-posting over at my Marijuana Law, Policy & Reform blog) is the different ways this defendant's offense might be viewed by a sentencing judge.  His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who sold a dozen or so times to underage college students.  But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.

Thoughts, dear readers?

January 30, 2016 in Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

Friday, January 29, 2016

Forces in Oklahoma talking about criminal justice reform via ballot initiative ... prompting question "is direct democracy the best way to approach criminal justice reform?"

This local article, headlined "Coalition wants to give voters a choice on criminal justice reform in Oklahoma," highlights that a number of prominent advocates for criminal justice reform in the Sooner State want to soon have citizens voting directly on these reforms. Here are the basics:

A politically diverse group of state officials, policy advocates, and members of the business community came together Wednesday to announce they were joining forces to stop a problem the state can no longer ignore: Oklahoma's high incarceration rates. “We're running a factory to create future felons,” said Bancfirst Corp. Chairman Gene Rainbolt.  “It's ridiculous.”

Addressing the media at the state Capitol, Rainbolt was among about one dozen other prominent Oklahomans who said they had formed a coalition, known as Oklahomans for Criminal Justice Reform, and they plan to take the issue straight to the voters through two ballot initiatives.

“We need to correct corrections, and if we're going to call it the Department of Corrections we need to do some correcting. If not now, when? We are at 119 percent capacity,” said Rep. Pam Peterson, R-Tulsa, referencing the state's swelling prison population. More than 28,000 inmates — the highest prison population the state has ever seen — sit behind bars in Oklahoma today.

If successful, the coalition will place two ballot measures before voters, said former state House Speaker Kris Steele. The first will lower several nonviolent felonies that would warrant prison time, such as simple drug possession and writing fraudulent checks, to misdemeanors that would call for community-based treatment....

The second initiative would task the Office of Management and Enterprise Services with tracking the number of offenders who would be diverted to treatment rather than prison and calculate the savings.  Those funds would be held in a lock box, to be distributed to county governments for substance abuse treatment, mental health care, and offender supervision. This money could be going to schools, health care, and “the other building blocks for a good state,” said David Blatt, president of the Oklahoma Policy Institute....

In order to get both questions on a state ballot, the coalition will have to gather almost 68,000 signatures for each initiative. Several bills have been filed for the upcoming Legislative session that will address many of the same solutions proposed in the ballot measures, said Rep. Peterson, and their hope is to complement those efforts.

Peterson noted Steele's work years before with the Justice Reinvestment Initiative, a sweeping criminal justice reform bill passed by the state Legislature in 2011. JRI would have moved Oklahoma's justice system in a similar direction, but it was never fully funded and eventually stymied. Peterson said reform of this level doesn't happen overnight. “Speaker Steele really started in 2011, but it's taken this long to get to this point,” she said when asked if the political climate is right for sentencing reform. “So, it takes a while.”

I find this story of taking reform efforts directly to the voters in Oklahoma especially in the wake of California Gov Jerry Brown earlier this week (as blogged here) proposing a state ballot initiative to expand parole and make other reforms that I would usually expect to be pursued via traditional legislative action. And, of course, as often highlighted in posts at my other blog, Marijuana Law, Policy and Reform, ballot initiatives have been the primary driver of major marijuana reforms in the states over the last decade.

I tend to be a huge fan of so-called "direct democracy" for a wide number of legal process reasons, but these latest developments in California and now Oklahoma leave me to wonder a lot if criminal justice reform by plebiscite ought to be seen as a truly welcome development.

January 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 28, 2016

New poll shows that, even among younger voters, support for the death penalty remains solid

Deathpenalty3YouGov has conducted some recent polling concerning death penalty perspectives that included a number of interesting questions and interesting demographic data. This brief summary of the poll results with a focus on age divisions includes this accounting of some of the poll results:

Most Americans still favor the death penalty, but a quarter of young Americans would refuse to even consider the death penalty if they were on a jury.....

YouGov's latest research shows that most Americans still favor the death penalty for people who have been convicted of murder. Support is highest among Republicans (71%) and over-65s (67%). Under-30s are the only group where there is not majority support for the death penalty, with 45% people aged 18 to 29 saying that they favor the death penalty and 35% saying that they are opposed.

Despite the fact that only 58% of Americans actively support the death penalty 73% say that, if they were on the jury for a murder trial, they would consider all sentencing options, including the death penalty. 18% of Americans say that, regardless of their jury duty, they would never consider the death penalty. Younger Americans are the most likely to say that they could never consider condemning someone to death, with a quarter of under-30s (24%) stating that they'd never consider the death penalty.  

Full poll results can be found here and topline results and margin of error here.

I am not at all surprised that younger people, who tend to be more liberal than older people on a wide range of issues, are generally less supportive of capital punishment than their elders. Indeed, as the title of this post suggests, I am somewhat surprised that only 1 of 3 millennials voice general opposition to the death penalty and tht only 1 of 4 would be unable to return a capital verdict if on a jury.

January 28, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

California Gov Jerry Brown proposes state ballot initiative to expand parole and make other reforms

As reported in this Los Angeles Times article, headlined "Gov. Brown to seek November ballot initiative to relax mandatory prison sentences," the chief executive of the largest state in our Union is asking voters to give certain executives and judges more power to reduce state sentences after their imposition. Here are the basic details:

Almost four decades after he signed a law mandating strict sentences for the most serious crimes, Gov. Jerry Brown on Wednesday moved to ease its effect, proposing inmates convicted of nonviolent offenses be given a chance at early release.  “Let's take the basic structure of our criminal law and say, when you've served fully the primary sentence, you can be considered for parole,” Brown said in announcing a November ballot initiative to streamline the rules — one he estimated could affect thousands of current inmates.

Rather than change sentencing policy, the proposal would allow corrections officials to more easily award credits toward early release based on an inmate's good behavior, efforts to rehabilitate or participation in prison education programs. “It's well-balanced,” Brown said. “It's thoughtful.”

The effort is largely in response to the lingering effects of a 2009 federal order for California to reduce its prison population, Brown said.  But he made clear that it also is meant to improve a criminal justice system that offers too few chances at rehabilitation. “By allowing parole consideration if they do good things,” the governor said of some inmates, “they will then have an incentive … to show those who will be judging whether or not they're ready to go back into society.”

Brown had been hinting for months that he was considering a key change in criminal justice policy, and consulted with a number of academics and inmate advocates on how to proceed.  He was joined Wednesday by a handful of prominent law enforcement and religious leaders.  While it was unclear whether they were ready to fully embrace each detail of the measure, they praised Brown's focus on weeding out those serving time for nonviolent offenses. “I think this will effectively open bed space for those who richly deserve to be there,” Los Angeles Police Chief Charlie Beck said.

The initiative also would authorize the state parole board to consider early release for nonviolent inmates who complete a full sentence for their primary offense and it would require a judge to decide whether felons as young as 14 should be tried in juvenile or adult court.  That final element of the initiative would undo a system approved by voters in 2000 that handed that power to prosecutors.

Once the measure is given a formal title and summary by the attorney general's office, Brown and his political team will need to gather more than 585,000 valid voter signatures to qualify it for the Nov. 8 statewide ballot. The governor likely has the needed resources: Campaign funds left over from his 2014 reelection bid and previous successful ballot measures total some $24 million....

Patrick McGrath, district attorney of Yuba County, said Brown's plan — by offering more pathways to parole — also may send the wrong message to crime victims who believe their perpetrators received a certain punishment. “Now, down the line, they're told 10 year [sentences] are not really 10 years,” he said. “I think this is very, very corrosive to the faith that the public has ultimately in the criminal justice system.”  Loyola Law professor Laurie Levenson, a former federal prosecutor, said the proposal would make a judge's sentence only a starting point. “People could be released from prison years earlier based on what the parole board wants to do,” she said....

Of particular interest will be how Brown shapes the narrative of the political campaign in support of his parole initiative. The fall statewide ballot already is expected to be one of the longest in more than a decade, which will mean voters are deluged with a flood of advertisements, mailers and messages. The ballot also likely will feature other high-profile public safety debates, including a gun violence initiative promoted by Lt. Gov. Gavin Newsom and perhaps dueling initiatives to either eliminate or strengthen California's death penalty.

Prof David Ball, who has researched and written a lot about California sentencing realities, provides a deeper dive into what all this could really mean in this Reality-Based Community post. Here is how this post starts:

Governor Jerry Brown introduced the Public Safety and Rehabilitation Act of 2016 (link to initiative text), a sentencing reform ballot initiative slated to appear on the November ballot.  This is potentially huge news — if nothing else, it may signal that the political calculation on crime could be changing — but I have some caveats about how significant it could end up being. The PRSA expands the potential for parole release, expands good-time credits, and puts judges, not DA’s, in charge of deciding whether a given juvenile offender can be tried in adult court.

The most significant part of the PRSA, in my opinion, is the expanded role of parole. California never quite did away with indeterminate sentencing, as I have written about here, reserving X-years-to-life sentences for non-capital murder, three strikes offenses, and some sex offenses. This proposal is definitively not a return to the Indeterminate Sentencing Law of the early 1970’s, where sentences could be as vague as “one year to life.”  Instead, it makes all those who have served their primary (determinate) sentence eligible for parole. The key here is how primary sentence is defined: it “exclude[es] the imposition of an enhancement, consecutive sentence, or alternative sentence.” As I wrote about here, (see this page for a link to the article and the data on sentencing), there are many people serving very long consecutive sentences (100 years plus).  More importantly, the tail-wagging-the-dog enhancement structure of the California penal code means a lot of time actually served is from enhancements.  I expect this to be the main source of pushback, since so much of plea bargaining is, in fact, charge bargaining, and so much of charge bargaining is about enhancements.

January 28, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"Judicial Power to Regulate Plea Bargaining"

The title of this post is the title of this new article by Darryl Brown available via SSRN. Here is the abstract:

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated.  In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process.  Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements.  Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems.  Both rationales proved enormously influential.  Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.

This article challenges these longstanding rationales.  Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process.  This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures.  By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.

January 28, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, January 27, 2016

Florida trial judge refuses to allow capital case to proceed in wake of SCOTUS Hurst ruling

A helpful reader altered me to this notable local article reporting on a notable local ruling concerning the administration of the death penalty in Florida in the wake of the Supreme Court's ruling in Hurst earlier this month.  Here are the basic details:

Days after the Supreme Court struck down the way Florida sentences people to die, a Pinellas County circuit judge has ruled that the death penalty cannot be pursued in a first-degree murder case scheduled for trial next month.

In an order filed Friday, judge Michael Andrews rejected prosecutors' notice that they intend to seek the death penalty in the case of a Pinellas Park father, Steven Dykes, accused of fatally shaking and striking his 3-month-old daughter in February of last year. "This court concludes that there currently exists no death penalty in the State of Florida in that there is no procedure in place," Andrews wrote.

The order is the first of its kind in the state following the Hurst vs. Florida decision on Jan. 12, said Pinellas-Pasco public defender Bob Dillinger. In an 8-1 opinion, the Supreme Court found Florida's death penalty procedures unconstitutional because juries play only an advisory role in recommending life or death. Judges make the ultimate decision after giving "great weight" to jurors' recommendations....

Dillinger, whose office is representing Dykes, said he agreed with Andrews' ruling. "What the judge has done is absolutely correct," Dillinger said, adding Andrews is "right on point."

Prosecutors could file an appeal in the case. Another hearing is scheduled on Feb. 16, court records show, with the trial slated to begin Feb. 29. Chief Assistant State Attorney Bruce Bartlett said his office "respectfully" disagrees with judge Andrews, adding that the Hurst decision is not final yet. That will happen after the state asks for a rehearing. Bartlett also said the Legislature still has to create new sentencing guidelines in response to the court's decision.

"They issue an opinion and they don't issue any guidelines on how to fix it, and what to do next," Bartlett said of the Hurst opinion. "It's just a dilemma that faces us because the question is how exactly do you fix it? And they didn't really lay out how they thought it should be fixed, so it kind of lends you to, you know, potentially all kinds of challenges."

Lawmakers have previously said that they are making fixes to the death penalty sentencing system a priority this session. "It's not the Supreme Court's job to lay out the procedural guidelines," said Charles Rose, a Stetson University law professor and the director of the Center for Excellence in Advocacy. "That's an issue for every legislature in every state to deal with independently."

The fate of other murder cases remains in flux until new sentencing guidelines are signed into law, said St. Petersburg criminal defense lawyer Marc Pelletier. "Until the Legislature does its part," he said, "we're still going to be in a situation where everything's unclear."...

[L]aw experts across the state agreed with Andrews' order. "The judge has it absolutely right," said Teresa Reid, a University of Florida Levin College of Law professor and assistant director of the Criminal Justice Center. "You need to have a statute in place regarding sentencing, and we don't have that right now."

She said that the judge's responsibility is to make sure the trial is fair and is conducted under law. "It seems to me the appropriate thing to do is wait," she said. "We can't proceed when we don't have the procedure in place."

Rose, the Stetson law professor, said the decision "makes perfect sense." "Judge Andrews should be commended for doing what the law requires," he said. "It's not only sound, it's courageous because he's the first to step out on the ledge on this issue."

Rose predicted that judges across the state would and should follow suit. "My expectation is that there won't be any new death penalty cases tried," he said.

Prior related posts on Hurst and its aftermath:

January 27, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

New York Times editorial highlights "Mr. Obama’s Pardon Problem"

Today's New York Times includes this notable editorial about the Obama Administration's recent clemency efforts and the need to revamp the entire way in which federal clemency has been approached in modern times. Here is how it begins:

The sudden resignation of the federal pardon attorney, Deborah Leff, an Obama appointee, is the latest evidence that until the clemency process is pried from the grip of the Justice Department, it will remain broken.

The pardon attorney’s office, which operates out of the Justice Department, is responsible for reviewing thousands of petitions for pardons and sentence commutations and for making recommendations for clemency to the president. The president’s power to grant mercy in these cases is nearly unlimited, but for most of his time in office, Mr. Obama, like his recent predecessors, has exercised this power only rarely.

Since 2014, Mr. Obama has focused more attention on this issue. To overhaul the notoriously backlogged pardon office, he announced new standards encouraging tens of thousands of federal prisoners to request reductions of their inordinately long drug sentences.  And he hired Ms. Leff to replace Ronald Rodgers, whose incompetent tenure included a finding by the Justice Department’s inspector general that in 2008 he hid information from President George W. Bush in recommending the denial of a clemency petition.

Ms. Leff’s appointment was a promising sign that the dysfunctional pardon process would be repaired.  But her tenure didn’t last long.  On Jan. 15, barely one year after she was formally appointed, she abruptly announced she would step down at the end of this month, saying only that the work of the office should “move ahead expeditiously and expand.”

As she leaves, more than 10,000 clemency petitions are waiting for review. While the pardon office, which has 10 lawyers, has remained virtually the same size it was 20 years ago, the number of petitions has increased almost sevenfold. The department recently announced plans to hire 16 new lawyers, but this would still be far below the number needed to process the backlog.

The lack of resources is only part of a deeper problem, which is that the pardon office is caught in an incurable institutional conflict.  The deputy attorney general has authority to review the pardon attorney’s clemency recommendations, and federal prosecutors generally have little interest in revisiting or undoing the department’s convictions.  As one former pardon attorney put it, the prosecutors are “determinedly and irreconcilably hostile” to clemency.

January 27, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Legislation to clarify intent requirements is long overdue brake on prosecutorial excess"

The title of this post is the headline of this notable new commentary in The Hill authored by Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. Here are excerpts:

For several years now, unprecedented bipartisan support for an array of criminal justice reforms, including addressing criminal intent deficiencies, has been building.  Leaders from across the political spectrum have reached across the political divide to work together for a fairer, more rational, and more humane criminal justice system.  This emerging coalition seeks to restore a measure of restraint to a criminal justice system that is out of control.  The United States has more than 2 million people behind bars, recent FBI statistics indicate that we arrest more than 14 million annually, and we have more than 70 million adults with a criminal record.

These shocking statistics do not make the case that this is a nation of criminals; rather they reflect an unprecedented and unrestrained use of the prosecutorial power of government to regulate all manner of disfavored social and personal behavior. There are many ways to address this problem.  One modest, but critical step is to ensure that there is clarity in the criminal law, and that we do not enact vague criminal provisions and count on prosecutorial discretion to ensure that they are not misapplied.  Recently proposed legislation in the House and Senate that would provide a default intent provision where a statute is silent on the level of intent necessary to brand a person as a criminal is a responsible, measured, and incremental step to reign in governmental abuse of its prosecutorial power....

When the government brings to bear its most awesome power short of warfare, the power to prosecute an individual, it has an obligation to do so with precision and clarity, so that the average person can understand what is illegal.  A fundamental principle of law is that to establish criminal behavior it must be demonstrated that a person committed a bad act, and did so with some culpable mental state.

Unfortunately, the federal criminal code has exploded from a handful of criminal provisions a century ago to what is now estimated to be more than 4,500 criminal statutes, and hundreds of thousands of additional criminal provisions in federal regulations.  In its headlong rush to criminalize, Congress has become careless by writing laws and authorizing agencies to enact criminal provisions that can send people to jail, but do not define the required criminal mental state.  That failing opens the door to prosecutorial abuse.  Nonetheless, the Department of Justice is raising concerns about the proposed legislation.  Heaven forbid we should actually make prosecutors prove that someone actually intended to commit a crime!

What the DOJ criticism does not recognize is that criminal intent reform merely provides that if a criminal law or regulation lacks a prescribed mental state then judges and prosecutors should presume that there really is one.  It does not undo any criminal provision that already has a prescribed state of mind.  Government prosecutors can still go after people to their heart’s content, and, despite claims to the contrary, they can do so based on willful, reckless, or negligent behavior if that is what the law provides.  And they can even prosecute based on strict liability – that is without showing a guilty state of mind – provided that is what the law expressly authorizes.  But if the law is silent, rather than ceding to prosecutors unchecked authority to wield the prosecutorial power indiscriminately, this new law provides a modest brake on that power by requiring proof that the person knew that they were breaking the law.

Some recent and older related posts:

January 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Maine Gov calls for return of death penalty to state for drug dealers and others

This notable recent local article, headlined "Maine should have death penalty for drug dealers, LePage says," reports on some notable recent comments by the chief executive in the Pine Tree state. Here is how the piece starts:

Gov. Paul LePage came out Tuesday in support of reinstating capital punishment in Maine.  After starting his day with an apparent joking reference to using the guillotine to stage public executions of drug traffickers, he ended it by saying he believes in the death penalty for drug traffickers, criminals who invade homes and sexually assault the residents, and people convicted of murder.

“What we ought to do is bring the guillotine back,” LePage said during a morning interview on WVOM radio in Bangor. “We could have public executions.”  The Governor’s Office said the remark was just a joke to illustrate his support for tougher penalties for drug crimes.

On Tuesday night, LePage was asked whether he supported the death penalty, specifically using the guillotine, during a town hall meeting at Husson University in Bangor broadcast by WVII-TV.  “I talk about people dying (from drug overdoses) every day, but no one wants to hear that,” LePage told the audience.  “When I talk about the death penalty everyone wants to protect the drug traffickers. I want to protect the people of Maine.”

The death penalty was abolished in Maine by the Legislature in 1887.  His comments about the guillotine, made just a few weeks after he made national headlines with a remark about drug traffickers coming to Maine and impregnating a young white girl before they leave the state, were picked up by several national media outlets, including CNN and The Washington Post.

“The only time Maine makes the national news is when the governor says something crazy like this,” said Democratic House Majority Leader Jeff McCabe of Skowhegan.  McCabe said such remarks produce a “spectacle,” but do little to solve the issue of ending the drug epidemic.

January 27, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, January 26, 2016

"Congressionally Mandated Task Force Calls for Bold Transformation of Federal Corrections System"

CCTFThe title of this post is the headline of this press release which summarized the contents and import of a new report released this morning by the Charles Colson Task Force on Federal Corrections.  Here are excerpts from the press release (which includes a link to the report):

Today, the Charles Colson Task Force on Federal Corrections issued a set of bold recommendations to reform the federal justice system, enhance public safety, and save the government billions of dollars. In a new report, Transforming Prisons, Restoring Lives, the Congressionally mandated blue-ribbon panel released the findings of its year-long investigation into the nation’s overcrowded and costly federal prisons....

“We have laid out a detailed roadmap of ambitious, consensus-based recommendations that place public safety first while reserving prison for those who truly need it,” said task force chair, former Republican congressman from Oklahoma J.C. Watts, Jr. “If taken together, these reforms are projected to reduce the federal prison population by 60,000 people in the coming years and save more than $5 billion.”

Congress established the bipartisan panel in 2014 in response to mounting concerns about the scale and cost of the federal Bureau of Prisons (BOP), which currently houses 197,000 people with a budget of almost $7.5 billion this year. Alan Mollohan, the task force’s vice-chair, said that the seven-fold increase in the BOP’s population since the 1980s is unsustainable. 

"The BOP has been operating at crisis levels for decades," said Mollohan, a former Democratic congressman from West Virginia. "As a result, its policies and practices have not kept up with best practice in the field, presenting a missed opportunity to rehabilitate those who are confined in federal prisons and thus promote public safety.”...

In the report, the task force recommends that the federal justice system move away from its current “one size fits all” approach to meting out punishment and delivering treatment and programs. Instead, they advise that sentencing decisions and correctional responses be based on the individual case–an approach grounded in research evidence as the most effective means of reducing recidivism.

Observing that prison is expensive and imposes tremendous harm to individuals, families, and communities, the Task Force recommends that prison sanctions be used sparingly and long terms of incarceration be reserved for only the most serious federal crimes. They advise incentivizing participation in programs that are proven to lower recidivism and increase the odds of success for individuals reentering society. And, in following the example of successful reforms in states like Texas, Utah, Georgia, South Carolina, and Pennsylvania, they advocate for a more diversified, evidence-based approach to criminal justice that delivers public safety at less cost.

In more specific terms, the Task Force recommends that:

  • Mandatory minimum penalties for drug offenses should be reserved for “drug kingpins”–those found to have served a leadership role in a large cartel;
  • Program and treatment participation in prison should be incentivized through earned time off one’s sentence; and
  • The BOP should better assess the risks, needs, and assets of its population and align programming and treatment accordingly to reduce recidivism and enhance public safety.

Along with the release of this important report, J.C. Watts, the chair of the Charles Colson Task Force on Federal Corrections, authored this Washington Post commentary headlined "Prisons are full of low-level offenders. It’s time to rethink federal sentencing laws.: Americans believe in redemption, but for too long, our reflexive reliance on incarceration has left us little room to show it."

January 26, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

What lessons are to be learned from California's recent experiences with sentencing reform?

The question in the title of this post is prompted by this notable new post authored by Michael Rushford at Crime & Consequences (and supplemented by Bill Otis) titled "Congressional Supporters of Sentencing Reform Need to Look at California."  As regular readers know, I have long pointed to California as a state to watch closely in the sentencing reform arena, and thus I am pleased to see this post urging federal legislators to look at California's modern reform experiences.  But while the C&C folks seem to think the California experience should lead Congress to back away from proposed statutory sentencing reforms, I see many of the problems emphasized by the C&C folks to be a result of the abject failure of California's legislature to respond wisely with statutory reforms when there was an obvious need to improve its sentencing structures.

I have previously highlighted some of these California realities in this extended 2014 post titled "Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?".  In that post, I stressed that while the tough-on-crime crowd over at C&C is eager to blame recent California developments on recent sentncing reform required by a federal court order in Plata and resulting from voter initiatives, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and systematically with the state's enduring sentencing problems before they became so acute that federal court intervention was required.

The critical part of the California reform story left out from the C&C discussion is that the California legislature from 2005 to 2010 completely failed to respond in any sound way to sensible calls by sentencing reformers to deal with the state's unconstitutional prison overcrowding and the statutory sentencing problems aggravating these problems.  The court orders requiring prisoner release in Plata and the voter-approved sentencing reforms passed in subsequent elections were the direct result of federal courts and Californian voters no longer being able to trust the state's elected representatives to move responsibly forward with needed state statutory sentencing reform.   

In some ways, this potentially problematic, reactive-reform dynamic is already playing out in the federal sentencing system.  For example, the US Supreme Court has been saying in various ways for many years that Congress needed to fix various problems with the Armed Career Criminal Act.  Congress long failed to respond, and we ultimately get the Justices in Johnson striking down the ACCA statute as partially unconstitutional (which will now require the release of many offenders previously sentenced as armed career criminals).  Similarly, the US Sentencing Commission and the US Department of Justice have been saying in various ways for many reasons that Congress needs to address record-high federal prison populations.  I suspect the USSC concluded, after Congress failed to heed its repeated calls for broad statutory reforms, that it had to do something big itself (with DOJ's support) and thus voted unanimously to reduce guideline sentences for all drug offenses across the board and to make these reforms retroactive.

Now, after years of failing to heed calls by sentencing reformers (and the bipartisan US Sentencing Commission) to get ahead of statutory sentencing problems, much of Congress (now led by the GOP) has seemingly come to realize that failing to deal proactively and systematically with sentencing and corrections reform could produce even more long-term problems and challenges.  But, yet again, the tough-on-crime crowd at C&C and elsewhere is vehemently opposed to a legislature moving forward proactively and systematically with enduring statutory sentencing problems before we get to a crisis point and other actors feel compelled to get involved due to legislative inaction.

January 26, 2016 in Federal Sentencing Guidelines, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

"Why we must rethink solitary confinement"

The title of this post is the headline of this new Washington Post commentary authored by the President of the United States Barack Obama.  Here are excerpts from the piece, which concludes with a pitch for broader sentencing reforms:

Solitary confinement gained popularity in the United States in the early 1800s, and the rationale for its use has varied over time.  Today, it’s increasingly overused ... with heartbreaking results — which is why my administration is taking steps to address this problem.

There are as many as 100,000 people held in solitary confinement in U.S. prisons — including juveniles and people with mental illnesses.  As many as 25,000 inmates are serving months, even years of their sentences alone in a tiny cell, with almost no human contact.

Research suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences.  It has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior.  Some studies indicate that it can worsen existing mental illnesses and even trigger new ones.  Prisoners in solitary are more likely to commit suicide, especially juveniles and people with mental illnesses.

The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance.  Those who do make it out often have trouble holding down jobs, reuniting with family and becoming productive members of society.  Imagine having served your time and then being unable to hand change over to a customer or look your wife in the eye or hug your children.

As president, my most important job is to keep the American people safe.  And since I took office, overall crime rates have decreased by more than 15 percent.  In our criminal justice system, the punishment should fit the crime — and those who have served their time should leave prison ready to become productive members of society.  How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer.  It’s an affront to our common humanity....

The Justice Department has completed its review [on the use of solitary], and I am adopting its recommendations to reform the federal prison system.  These include banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells.  These steps will affect some 10,000 federal prisoners held in solitary confinement — and hopefully serve as a model for state and local corrections systems.  And I will direct all relevant federal agencies to review these principles and report back to me with a plan to address their use of solitary confinement.

Reforming solitary confinement is just one part of a broader bipartisan push for criminal justice reform.  Every year, we spend $80 billion to keep 2.2 million people incarcerated.  Many criminals belong behind bars.  But too many others, especially nonviolent drug offenders, are serving unnecessarily long sentences.  That’s why members of Congress in both parties are pushing for change, from reforming sentencing laws to expanding reentry programs to give those who have paid their debt to society the tools they need to become productive members of their communities.  And I hope they will send me legislation as soon as possible that makes our criminal justice system smarter, fairer, less expensive and more effective.

In America, we believe in redemption.  We believe, in the words of Pope Francis, that “every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.”  We believe that when people make mistakes, they deserve the opportunity to remake their lives.  And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.

January 26, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, January 25, 2016

Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?

The question in the title of this post is prompted by this new article from The Hill reporting on the Supreme Court's denial of cert in a Pennsylvania case involving a blanket Eighth Amendment attack on the death penalty.  Here is the article's discussion of the matter:

The Supreme Court announced [today] that it would not hear a case challenging the constitutionality of the death penalty.  The appeal was filed on behalf of Shonda Walters, who was sentenced to death in May 2006 for murdering her next door neighbor with a hatchet and stealing his car.

The U.S. Supreme Court of Pennsylvania for the Eastern District upheld the lower court’s death sentence, saying the court found the evidence sufficient to support her conviction for first-degree murder.  In appealing the decision to the Supreme Court, Walters asked the justices to weigh in on whether the imposition of the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  The court did not give any statement supporting or dissenting from its decision to reject the case.

Court watchers have been expecting the justices to take up the constitutionality of the death penalty in light of a dissent by Justice Stephen Breyer last year.  Experts said Breyer’s dissent provided a blueprint for a broad challenge to capital punishment....  The court appears to be waiting for the right case to weigh in.  The case that was declined on Monday is Walter v. Pennsylvania.

I know that a lot of folks eager to have the death penalty completely abolished in the United States are ever hopeful, especially in the wake of Justice Breyer's Glossip dissent, that the Supreme Court will consider anew a wholesale Eighth Amendment challenge to any and every death sentence.  But I have always considered quite significant the fact that Justice Breyer's dissent in Glossip was joined by only one other Justice; moreover, just last week every member of the Court except Justice Sotomayor voted to reinstate a number of Kansas death sentences as consistent with the Eighth Amendment (as blogged here). 

I fully understand why Justice Breyer's dissent in Glossip is now prompting many capital defense attorneys to raise and seek to preserve an Eighth Amendment broadside attack on the death sentence given to his or her client.  But, especially after the Supreme Court's most recent capital case work from Kansas and elsewhere, I am one "court watcher" who does not expect this kind of claim to be taken up by the Justices anytime soon.

January 25, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Helpful accounting by Pew Charitable Trusts of huge state-level reforms resulting from Justice Reinvestment Initiative

The good folks at Pew recently released these two helpful mini-reports that provide a summary accounting of lots of the criminal justice reform work that has been done by states in recent years through the so-called Justice Reinvestment Initiative:

The first of these linked documents has a pdf version with huge chart with lots of interesting specifics under the heading "Sentencing and Corrections Reforms in Justice Reinvestment States."  Anyone eager to get a feel for just some of the massive criminal justice reforms that have taken place in the states over the last decade ought to check out this document.  And the document has this overview discussion at the outset:

Since 2007, 31 states have reformed their sentencing and corrections policies through the Justice Reinvestment Initiative, a public-private partnership that includes the U.S. Justice Department’s Bureau of Justice Assistance, The Pew Charitable Trusts, the Council of State Governments Justice Center, the Crime and Justice Institute, the Vera Institute of Justice, and other organizations.  Although reforms vary from state to state, all aim to improve public safety and control taxpayer costs by prioritizing prison space for serious and repeat offenders and investing some of the savings in alternatives to incarceration for low-level offenders that are effective at reducing recidivism.

Justice reinvestment policies generally fall into four categories: sentencing laws that instruct courts about how to sanction convicted defendants; release laws that determine the conditions for offenders’ departure from prison; supervision laws that guide how those on probation or parole are monitored; and oversight laws that track the progress of these changes.

In the years since the wave of reforms began, the total state imprisonment rate has ticked downward while crime rates have continued their long-term decline.  At the same time, states that have enacted justice reinvestment laws expect to save billions of dollars as a result of their reforms. 

The second document linked above drills down a little deeper into sentencing-specific reforms, and a quick review of the state-by-state changes suggests that even more "red" states have been involved in making sentencing reforms through the Justice Reinvestment Initiative than "blue" states.

January 25, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana

Via a 6-3 ruling authored by Justice Kennedy, the Supreme Court this morning decided via Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (avaialable here), that "Miller announced a substantive rule that is retroactive in cases on collateral review."  This is huge news for lots of reasons, and I will likely have a series of posts on this ruling and its reasoning in the hours and days and weeks ahead.

Intriguingly, the majority opinion for the Court spent relatively more energy justifying jurisdiction in the case than the declaration that Miller is a substantive rule under Teague's framework for retroactive applicaton of new constitutional rules.  In any event, here are a few key passages from the tail end of the Court's Montgomery opinion explaining its ruling:

The Court now holds that Miller announced a substantive rule of constitutional law.  The conclusion that Miller states a substantive rule comports with the principles that informed Teague.  Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convic­tions, in every case where a juvenile offender received mandatory life without parole.  A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.  See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years).  Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions.  Those prisoners who have shown an inability to reform will continue to serve life sentences.  The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinous crimes are capable of change.

January 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

GOP empire striking back against federal sentencing reform efforts in Congress

TomCottonThis new Politico article, headlined "Cotton leads effort to sink sentencing overhaul: A cadre of conservative Republicans is lining up against the bipartisan measure, imperiling its future," reinforces my long-standing concern that the prospects of significant statutory sentencing reform emerging from Congress gets dimmer every week that passes without movement forward on the bills that have made it through the judiciary committees.  Here is the first part of the article:

Sen. Tom Cotton, the hawkish upstart who's already made waves railing against the Iran nuclear deal and government surveillance programs, is now leading a new rebellion against a bipartisan effort to overhaul the criminal justice system — hoping to torpedo one of the only pieces of major legislation that could pass in President Barack Obama’s final year.

GOP tensions over a bill that would effectively loosen some mandatory minimum sentences spilled over during a party lunch last week, when Cotton (R-Ark.), the outspoken Senate freshman, lobbied his colleagues heavily against the legislation, according to people familiar with the closed-door conversation. The measure passed the Senate Judiciary Committee last fall with bipartisan support.

“It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” Cotton said later in an interview with POLITICO. “I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”

Cotton isn’t alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate. Risch stressed this message, according to one Republican source: Shouldn’t the GOP be a party of law and order?

Risch declined to elaborate on his concerns over the bill, saying he was displeased that his private remarks made during a party lunch were made public. But the deepening Republican split over reforming key elements of the criminal justice system — an effort years in the making that has been powered by an influential right-left coalition — may imperil whether Senate Majority Leader Mitch McConnell ultimately will take up the measure later in this election year.

Conservatives opposing the legislation are coalescing around Cotton’s view — despite strong pushback from bill supporters — that the measure could lead to the early release of people convicted and imprisoned for violent crimes. Sen. Ted Cruz (R-Texas), once a supporter of easing mandatory minimums for nonviolent drug offenders, has also made this argument. And there’s stiff resistance in pockets of the Republican Party to do anything that may erode its tough-on-crime reputation.

Backers of the bill say their changes to sentencing laws merely allow qualifying inmates to have their cases revisited by the same judge and prosecutor who landed them in prison. The judge would then have the discretion to hand down a reduced sentence. “It’s not true,” said Senate Majority Whip John Cornyn (R-Texas) of opponents’ insistence that violent criminals could be freed under the sentencing reforms. “I’d say, please read the bill and listen to people like [former Attorney General] Michael Mukasey who makes the point, which is a critical point, that there’s no get-out-of-jail-free card.”

But that perception, hardening among conservatives, is a serious obstacle for supporters of the bill like Cornyn, who as the Senate’s second-ranking Republican is the most influential GOP backer of the criminal-justice measure. And last week, McConnell — who is often hesitant to press ahead on issues that divide his 54-member conference — indicated a breather of sorts on the bill, saying GOP senators would take some time to get educated on the measure.

Those comments discouraged some supporters, since any major pause could spell doom for the bill this year. In a couple of months, the GOP-led Congress will turn its attention to its top legislative priority — budget and appropriations bills — while individual lawmakers shift into full campaign mode. “Members of the Judiciary Committee have been deeply involved on that issue, the rest of us have not,” McConnell told reporters of criminal justice reform. “So we’re going to be working through the process of bringing everybody in the Republican Conference up to speed on this very important issue, and we’re going to do that before any decision is made about floor time.”

The criminal justice overhaul isn’t limited to sentencing reforms. The measure also includes reforms to the prison system championed by Cornyn and Sen. Sheldon Whitehouse (D-R.I.) — changes that Cotton said he supports. And overhaul efforts also are complicated by the issue of so-called mens rea reform, with House Republicans and some GOP senators — including Orrin Hatch of Utah, the most senior Senate Republican — demanding changes to rules governing criminal intent.

But the sentencing changes are triggering the biggest — and most vivid — rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, where a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch.

January 25, 2016 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Sunday, January 24, 2016

Lots of notable new year marijuana reform developments via Marijuana Law, Policy and Reform

It has been some time since I highlighted here developments in the marijuana reform space, and these recent posts from Marijuana Law, Policy & Reform highlight just some of the reasons why 2016 is already full of marijuana reform stories worth keeping an eye on:

January 24, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Making a pitch for judicial second looks while asking "Did I Sentence a Murderer or a Cooperative Witness?"

The question in the second half of the title of this post is the headline of this New York Times commentary authored by Stefan Underhill, a federal district judge in Connecticut.  But the headline does not reflect what thus commentary is really about: it makes a pitch for creating a significant new judicial second-look mechanism in federal sentencing.  I recommend this commentary in full, and here are excerpts:

In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since. As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.

He was the enforcer for a brutal gang of drug dealers in Bridgeport, Conn., known as the Terminators, and had sold heroin, assaulted rival dealers and murdered a potential witness.  But after a falling-­out with the head of the gang, he turned over a stash house to the police and fled the state.  When captured in 2001, he immediately confessed to the murder and later testified as a star witness for the prosecution.

Thus arose my problem: He had committed horrible crimes, but he also seemed to be making an unusually sincere effort to atone for them.  So which man was I sentencing?  The murderer or the remorseful cooperator?

The prosecutor rewarded his cooperation by filing a so­called 5K motion, which allowed me to ignore the mandatory life sentence he otherwise would have faced.  Still, after weighing the seriousness of his crimes, I sentenced him to 18 years, which was more time than even the prosecutor wanted....

In the years that followed, I often wondered whether his remorse was strong enough to overcome his past.  In 2012, I had the chance to find out.  While attending a conference on sentencing issues, I learned that he was serving time in a prison nearby.  I wanted to know whether he had become a better citizen or a better criminal.  So I asked a prison staffer if I could meet with him in private.

That the warden felt no need to post a guard was my first clue that he had changed for the better.  He was working in his first real job at the prison industries factory and had been promoted to supervisor.  He showed me recommendations from prison employees for good jobs on the outside.  He brought a folder full of certificates he had earned for attending classes.  He talked lovingly about his girlfriend and daughter, with whom he planned to live as a family after his release.

The meeting made me proud of his accomplishments, but sad that I had not been more confident in him.  He still had several years left on his sentence, but it was clear that he had served enough time.  After I returned to my office, I contacted the prosecutor and his lawyer and encouraged them to find a way to get him released early.  But they told me there was no straightforward way to shorten a federal inmate’s sentence, even if prison officials acknowledge that more jail time is a waste of time and money.  So he had to stay in prison, at an annual cost of $30,000 to taxpayers.

The tragedy of mass incarceration has recently focused much attention on the need to reform three-­strikes laws, mandatory minimums and the federal sentencing guidelines, which often direct judges to impose excessive sentences. We also need a mechanism for judges to re­evaluate the sentences they’ve imposed.  It’s true that federal prisoners can earn up to 15 percent off the length of their sentences if they stay out of trouble.  But this doesn’t incentivize prisoners to take advantage of work or study opportunities.

Instead, Congress should enact legislation that would allow every sentenced defendant one opportunity to petition his sentencing court for a reduction based on extraordinarily good conduct and rehabilitation in prison.

This “second-­look review” should be available only to prisoners who are supported by their wardens.  To minimize the increased workload on busy federal judges, each prisoner should be allowed only a single opportunity to seek early release and do so only after serving at least half of the sentence imposed (or two­-thirds of a mandatory minimum sentence).

Factors in support of an early release should include more than just clean disciplinary records in prison.  Job readiness, success with drug treatment, completion of vocational and educational training and extraordinary family or health circumstances should count as well....

I don’t advocate for a return to the flawed federal parole system that was essentially abolished in the 1980s.  In that system, a judge who believed that a defendant should spend three years locked up would impose a nine­year sentence because parole was likely to be granted after he served one­-third of it.  But if that defendant’s parole was delayed or denied, the judge’s original intent was impeded.  In contrast, my proposal would give the sentencing judge control. This makes sense because judges know whether a particular defendant got a break at sentencing or not and can best gauge the extent of positive change in a person....

A “second look” to adjust sentences would give inmates an incentive to prepare themselves for productive lives on the outside, and allow judges like me to correct sentences that turn out, in hindsight, to be unnecessarily long. This would improve the fairness of our criminal justice system and increase the public’s confidence in our courts.

UPDATE: Intriguingly, since I posted this piece, the New York Times changed its on-line headline to "Did the Man I Sentenced to 18 Years Deserve It?". And, echoing my own gut instincts, it seems that more than a few commentors think that someone who murdered a potential witness deserves at least 18 years in prison. In light of that view, I think the most notable aspect of this sentencing story is fact that the initial 18-year prison sentence "was more time than even the prosecutor wanted."

January 24, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Friday, January 22, 2016

"Incarceration Incentives in the Decarceration Era"

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

After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined.  Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth.  These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.

This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders.  This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals.  Ultimately, the future of the decarceration era is precarious but not doomed.  The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.

January 22, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Over dissent of Justice Breyer, Alabama goes forward with its first execution in years

As reported in this lengthy local article, headlined "Alabama executes Christopher Eugene Brooks for 1992 murder of Jo Deann Campbell," Alabama got its capital punishment tide rolling again last night. Here are some of the details:

Alabama death row inmate Christopher Eugene Brooks was executed Thursday night for the 1992 slaying of a Homewood woman after the U.S. Supreme Court denied his request for a stay of execution.

Brooks was pronounced dead at 6:38 p.m. in the execution chamber at the Holman Correctional Facility in Atmore.  He was the 57th death row inmate executed in Alabama since executions resumed in 1983 after an unofficial more than decade-long nationwide moratorium ended. He was the first person executed in Alabama since 2013....

After the execution Alabama Prison Commissioner Jeff Dunn said the execution with the controversial sedative drug midazolam "went exactly as planned."  Brooks did not appear to struggle during the administration of the drugs.  His attorneys and other inmates had claimed the first drug in the cocktail does not put the condemned inmate in deep enough sleep to prevent pain when the other two drugs are administered.  Dunn said that there are no other executions currently planned, but the prison system does have the drugs available to conduct more. He said the same drug combination has been used in other states.

Dunn also read letters from victim Jo Deann Campbell's two sisters and mother, all of whom witnessed the execution. Mona Campbell, her mother, said the execution does not give her closure and will not bring back her youngest daughter.  She said she hoped Brooks had "made peace with God."  Jo Deann's sister, Fran Romano and Corinne Campbell also issued statements. "Just as God forgives me for my sins I pray for mercy for this man's soul," Corinne wrote....

Minutes before he was to die, word spread that the U.S. Supreme Court had denied Brook's request to stay the execution. Justice Stephen Breyer dissented from the ruling. Dunn said prison officials were notified of the justices' decision at 5:55 p.m., five minutes before the execution was scheduled to begin....  The request for the stay was made to Justice Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred with Thomas' decision to deny the stay.

Brooks, 43, was convicted in the December 1992 rape and murder of 23-year-old Jo Deann Campbell. Investigators linked Brooks to the crime through DNA, fingerprints, and Campbell's car and other items taken from her Homewood apartment, including a credit card he had used.  Her partially clothed body had been found under her bed and she had been beaten with a barbell.

Brooks was one of 187 inmates on Alabama Death Row.  Twenty-two have served longer than Brooks on death row. Alabama changed its drug combination for executions in 2014 after it and other states reported they could no longer find supplies of the drugs it had used in the past, mainly because manufacturers did not want their drugs used in executions.

The SCOTUS order denying a stay in this case is available at this link, and here is the text of the concurrence and dissent:

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the denial of certiorari.

This Court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U. S. 447 (1984), two decisions we recently overruled in Hurst v. Florida, 577 U. S. ___ (2016).  See Harris v. Alabama, 513 U. S. 504 (1995).  I nonetheless vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.

JUSTICE BREYER, dissenting from denial of application for stay of execution and petition for certiorari.

Christopher Eugene Brooks was sentenced to death in accordance with Alabama’s procedures, which allow a jury to render an “advisory verdict” that “is not binding on the court.”  Ala. Code §13A–5–47(e) (2006).  For the reasons explained in my opinions concurring in the judgment in Hurst v. Florida, ante, at 1, and Ring v. Arizona, 536 U. S. 584, 613–619 (2002), and my dissenting opinion in Schriro v. Summerlin, 542 U. S. 348, 358–366 (2004), I dissent from the order of the Court to deny the application for stay of execution and the petition for a writ of certiorari.  Moreover, we have recognized that Alabama’s sentencing scheme is “much like” and “based on Florida’s sentencing scheme.” Harris v. Alabama, 513 U. S. 504, 508 (1995).  Florida’s scheme is unconstitutional.  See Hurst, ante, at 1 (BREYER, J., concurring in judgment). The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment.  See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 1–2).  I respectfully dissent.

January 22, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Will FBI child porn operations generate same controversy as Fast and Furious?

The question in the title of this post is prompted by this new USA Today report headlined "FBI ran website sharing thousands of child porn images."  Here are the basics from the article:

For nearly two weeks last year, the FBI operated what it described as one of the Internet’s largest child pornography websites, allowing users to download thousands of illicit images and videos from a government site in the Washington suburbs.

The operation — whose details remain largely secret — was at least the third time in recent years that FBI agents took control of a child pornography site but left it online in an attempt to catch users who officials said would otherwise remain hidden behind an encrypted and anonymous computer network. In each case, the FBI infected the sites with software that punctured that security, allowing agents to identify hundreds of users.

The Justice Department acknowledged in court filings that the FBI operated the site, known as Playpen, from Feb. 20 to March 4, 2015. At the time, the site had more than 215,000 registered users and included links to more than 23,000 sexually explicit images and videos of children, including more than 9,000 files that users could download directly from the FBI. Some of the images described in court filings involved children barely old enough for kindergarten.

That approach is a significant departure from the government’s past tactics for battling online child porn, in which agents were instructed that they should not allow images of children being sexually assaulted to become public. The Justice Department has said that children depicted in such images are harmed each time they are viewed, and once those images leave the government’s control, agents have no way to prevent them from being copied and re-copied to other parts of the internet.

Officials acknowledged those risks, but said they had no other way to identify the people accessing the sites. “We had a window of opportunity to get into one of the darkest places on Earth, and not a lot of other options except to not do it,” said Ron Hosko, a former senior FBI official who was involved in planning one of the agency’s first efforts to take over a child porn site. “There was no other way we could identify as many players.”

Lawyers for child pornography victims expressed surprise that the FBI would agree to such tactics – in part because agents had rejected them in the past – but nonetheless said they approved. “These are places where people know exactly what they’re getting when they arrive,” said James Marsh, who represents some of the children depicted in some of the most widely-circulated images. “It’s not like they’re blasting it out to the world.”...

But they have also prompted a backlash of a different kind. In a court filing, a lawyer for one of the men arrested after the FBI sting charged that “what the government did in this case is comparable to flooding a neighborhood with heroin in the hope of snatching an assortment of low-level drug users.” The defense lawyer, Colin Fieman, asked a federal judge to throw out child pornography charges against his client, former middle school teacher Jay Michaud. A federal judge is scheduled to hear arguments on that request Friday.

Fieman said more than 100,000 Playpen registered users visited the site while it was under the FBI’s control. The Justice Department said in court filings that agents had found “true” computer addresses for more than 1,300 of them, and has told defense lawyers that 137 have been charged with a crime, though it has so far declined to publicly identify those cases.

“The government always considers seizing an illegal child pornography site and removing it from existence immediately and permanently,” Justice Department spokesman Peter Carr said. “While doing so would end the trafficking of child pornography taking place on that one website, it would do nothing to prevent those same users from disseminating child pornography through other means.” Still, he said, “The decision whether to simply shut down a website or to allow it to continue operating for a brief period for a law enforcement purpose is a difficult one.”

Justice officials said they were unable to discuss details of the investigation because much of it remains under seal, at their request. The Justice Department said in court filings that agents did not post any child pornography to the site themselves. But it did not dispute that the agents allowed images that were already on the site to remain there, and that it did not block the site’s users from uploading new ones while it was under the government’s control. And the FBI has not said it had any ability to prevent users from circulating the material they downloaded onto other sites.

“At some point, the government investigation becomes indistinguishable from the crime, and we should ask whether that’s OK,” said Elizabeth Joh, a University of California Davis law professor who has studied undercover investigations. “What’s crazy about it is who’s making the cost/benefit analysis on this? Who decides that this is the best method of identifying these people?”

January 22, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Thursday, January 21, 2016

"Pulling Leviathan's Teeth – The Political Economy of Death Penalty Abolition"

The title of this post is the title of this provocative new article available via SSRN authored by Jerg Gutmann. Here is the abstract:

It is not immediately apparent why a state would willingly abolish the death penalty and thereby lose a powerful political instrument.  The fact that some states abolish capital punishment while others retain it has thus far been explained by systematic differences in the values of politicians or citizens.  An explanation of different behavior based on different preferences for such behavior is, however, largely tautological and not of much use to social science.  

This article proposes and empirically tests a political economy model in which rational politicians are more likely to abolish the death penalty when it is of no political use to them and if the process of abolition serves as a self-commitment in periods of transition.  The results of estimating stratified Cox regression models show that the death penalty tends to be abolished particularly during periods of democratization and transitions to peace, but also that independence of the judiciary can encourage abolition.  In contrast, military dictatorships are significantly more likely to retain capital punishment, as are countries with a common law legal system and those that are strongly politically influenced by Islam.  These findings support the view that the abolition of capital punishment is at least partly motivated by rational political considerations.

January 21, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (0)

Wednesday, January 20, 2016

Disconcerting backstory apparently explains quick departure of DOJ's Pardon Attorney

I had seen news late last week that the Justice Department’s relatively new pardon attorney had announced she was resigning her post, and this new Washington Post article about the departure provides some of the backstory. The piece is headlined "Attorney overseeing clemency initiative leaving in frustration," and here are excerpts:

The Justice Department’s pardon attorney — charged with overseeing the review of clemency petitions from federal inmates — is stepping down at the end of January because she is frustrated by a lack of resources for one of the president’s centerpiece criminal-justice initiatives, according to people close to her.

The departure of Deborah Leff, who has been in her role since 2014, comes as the Obama administration struggles to process a backlog of more than 9,000 pending clemency petitions. As the president approaches the end of his second term, time is running out for his high-profile effort to offer clemency to certain nonviolent federal drug offenders harshly sentenced in the nation’s war on drugs.  

The Justice Department said it is confident that Leff’s departure will not delay the administration’s clemency initiative, and it hopes to find a replacement quickly.  Justice spokeswoman Emily Pierce also said the department is asking Congress to more than double the number of lawyers assigned to the pardon office, from 22 to 46.

Leff could not be reached for comment but released a statement saying that she has known President Obama for more than 20 years and that she thinks “his commitment to reinvigorating the clemency process — and the promise that holds for justice — can change the lives of a great many deserving people.” But Leff added: “It is essential that this groundbreaking effort move ahead expeditiously and expand.”

A former trial lawyer, senior television producer and president of the Public Welfare Foundation, Leff was highly respected by sentencing reform advocates. “She never got the staffing she needed,” said one friend. “She was very frustrated.” Other people close to Leff said that she was passionate about making the clemency initiative work but had been unhappy for quite some time about not having enough resources.

Obama has commuted the sentences of 184 federal inmates. White House Counsel Neil Eg­gleston said in December that Obama has commuted the sentences of more individuals than the past five presidents combined and that the president will grant more commutations and pardons this year. But advocates of sentencing reform are disappointed that the clemency process has not moved more quickly and that more of the thousands who have submitted clemency petitions have not had their sentences commuted....

A senior Justice Department official said that the clemency initiative is of the highest priority for the department and that those involved have been working tirelessly to move petitions along as quickly as they can with a limited budget and legal restrictions....

“To lose the head of the office that’s running the clemency initiative is concerning,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We hope she is replaced by someone who is as dedicated, smart, passionate and committed as she was to getting these petitions through.”

Pierce said the department has been constrained by law in terms of how many resources and how much of its budget it can devote to the clemency initiative. Pierce said the department has “provided additional funds to the pardon office within the confines of our budget and has detailed dozens of additional full- and part-time attorneys over the course of the clemency initiative.” Despite the constraints, a Justice official said that lawyers are reading each of the thousands of clemency petitions that have been submitted and have prioritized the ones that best meet the new criteria set out by the administration....

Justice officials said that they expect to name a replacement before Leff leaves Jan. 31. “A new pardon attorney will be named in the near future and we expect the work of the pardon attorney’s office to continue apace as we identify and vet potential candidates for the president’s clemency priorities,” Pierce said. “The Justice Department is dedicated to the goals of the clemency initiative and is steadfastly committed to doing all it can to ensure fairness in the criminal-justice system.”

I find this story disconcerting because it seems to me just another manifestation of the problems Prez Obama has himself created by having ignored his clemency powers during his first six years in office and then deciding he should try to make up for lost time on his way out of the Oval Office.  I had (foolishly?) hoped Prez Obama would have been a lot smarter in this important space in the wake of the ugly last-day clemency doings of Prez Clinton back in 2001 and especially with out-going Prez Bush telling in-coming Prez Obama on Inauguration Day 2009 that clemency matters should garner his attention.  But here we are seeing, yet again, that by ignoring these matters until essentially the last minute, Prez Obama's record in this space will be marked by various missteps and frustrations (although I remain hopeful that even his "last-minute" efforts will still result in a notable improvement on the work of many of his recent predecessors in the clemency arena).

January 20, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Supreme Court, reversing Kansas Supreme Court, finds no Eighth Amendment problems with Kansas capital procedures

Continuing to do significant capital sentencing procedure work at the start of 2016, the Supreme Court this morning handed down an opinion rejecting Eighth Amendment concerns with the way Kansas has imposed some capital sentences.  The opinion of the Court in Kansas v. Carr, No. 14-449 (S. Ct. Jan. 20, 2016) (available here), authored by Justice Scalia and joined by every Justice except Justice Sotomayor, is at times quite nuanced in its analysis and at times quite crisp.  Here are excerpts from the start and body of the opinion highlighting these realities: 

The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man.  The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt.”  And second, whether the Constitution required severance of the Carrs’ joint sentencing proceedings....

As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt.  Assuming without deciding that that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that standard of proof....

Not once do the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt — nor would that make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a factual determination.....

The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense.  Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence....

Whatever the merits of defendants’ procedural objections [about a joint sentencing], we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1 (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991); see also Brown v. Sanders, 546 U. S. 212, 220–221 (2006).

The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” 512 U. S., at 12.  The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence.

In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale.

January 20, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform

This new National Review commentary authored by James Copland and Rafael Mangual, headlined "On Criminal-Justice Reform, Obama Should Practice What He Preaches — Civility," levels complaints at the Obama Administration for complaining about mens rea reform efforts in Congress.  Here are excerpts:

In his final State of the Union address, President Obama expressed his hope to reach across the aisle on what he described as a “priority” issue: criminal-justice reform. Although we strongly agree with the president that reforming the federal approach to criminal justice should be a priority, he has unfortunately jeopardized such reforms with an uncompromising hostility to Republicans’ — and other Democrats’ — reform ideas....

Following the lead of left-wing advocacy groups including Public Citizen and Think Progress, the White House and the Justice Department almost instantly came out against both criminal-intent bills [introduced in the House and Senate]. A White House official told the Huffington Post that these bills would “enable defendants charged with a range of offenses — including violent crimes, terrorism, and sexual offenses — to potentially escape liability for egregious and harmful conduct.”

These claims are pure poppycock and completely at odds with the president’s State of the Union call for a “rational, constructive,” and “more elevated debate.”  To be sure, there might be reasonable critiques of the draft legislation and possible amendments that could create different definitions or standards — just as the sentencing reforms supported by President Obama ought to be vetted to make sure that they are not releasing violent criminals back onto the streets.  But by drawing a line in the sand against Republican priority reforms — and by suggesting that Republican and Democratic legislators who support criminal-intent standards are somehow soft on terrorism or sexual assault — the president is hardly being constructive or elevating the debate on criminal-justice reform.

In essence, the bill so vehemently opposed by the White House would merely require Congress to be explicit whenever it wishes to criminalize conduct without regard to the intent of the actor.  It would prevent courts from assuming from congressional silence that Congress meant to send unknowing violators of a law or regulation to jail, as opposed to merely hitting them with an often-hefty civil fine or penalty.

Democrat stalwarts on the House Judiciary Committee, including John Conyers (D., Mich.) and Shelia Jackson Lee (D., Texas), are supporting this reform because they understand it’s a matter of fundamental fairness. They also understand that it is small businesses and individuals, disproportionately minorities and those less well off, that tend to get unknowingly entangled in the labyrinthine federal code; big businesses and their executives have teams of lawyers to advise them.

The fact is that 15 states have explicit “default” standards for criminal intent like those in the bipartisan task force’s bill. Michigan enacted such a reform most recently, in December 2015. The Michigan ACLU spoke in favor of the law, and it passed both houses of the legislature unanimously.

If President Obama really does care about getting something done on the issue of criminal-justice reform, he ought to heed his own advice and take a more civil tone in his own contributions to that debate. It’s hardly “constructive” to demonize others’ positions and adopt a “my way or the highway” negotiating stance. With Republicans enjoying majorities in both chambers, the criminal-intent piece of the reform effort — a product of more than two years’ effort by a bipartisan task force — is especially important if the president truly hopes to achieve meaningful progress toward criminal-justice reform in his remaining year in office.

Some recent and older related posts:

January 20, 2016 in Criminal justice in the Obama Administration, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, January 19, 2016

Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform

This new article from Roll Call, headlined "Former Officials Press Senate for Sentencing Bill Vote," reports on the latest inside-the-Beltway federal sentencing reform development. Here are the basics:

Dozens of former federal prosecutors and government officials sent a letter to the Senate leadership Tuesday urging a vote on a bipartisan bill to overhaul the nation’s criminal sentencing laws.

The letter to Majority Leader Mitch McConnell, R-Ky., and Minority Leader Harry Reid, D-Nev., seeks to counter concerns about the bill (S 2123) and instead focus on improvements it makes to the corrections system. “Otherwise, good policy reforms could easily fall victim to politics and fear,” the letter states.

Signers include Michael Mukasey, an attorney general under President George W. Bush, former FBI directors Louis J. Freeh and William S. Sessions, several former U.S. attorneys and several federal appeals court and district court judges....

McConnell, who makes the decision about floor votes, has not said if the Senate will vote on the bill. Majority Whip John Cornyn, R-Texas, a co-sponsor, has said that would happen in 2016. Judiciary Committee Chairman Sen. Charles E. Grassley, R-Iowa, is also pressing for a vote soon.

The momentum for a sentencing overhaul bill faces a challenge because of the tight schedule in an election year and the possibility that the Republicans won't retain their Senate majority. There is also opposition, including from a separate group of former federal prosecutors who sent a letter to leadership in December with concerns about the bill.

The letter sent by Mukasey and others Tuesday seeks to counter those concerns. It says the bill makes “modest, reasonable changes” that would amend “just a few sentencing policies that produced unintended consequences and created imbalance in the scales of justice.”

The bill ties longer mandatory minimum prison sentences to high-level drug traffickers and violent criminals, gives prosecutors new tools to seek enhanced penalties for violent criminals and gives federal prisons a way to make the public safer by reducing the number of inmates who commit crimes once released from their sentence.

“A drug dealer using a gun will still be subject to a significant mandatory minimum sentence for use of the firearm plus additional time for the underlying drug offense,” the letter states. “And since the Department of Justice has committed to a case-by-case review to ensure that any resentencing is done carefully and with complete transparency, offenders who pose a threat to public safety will not be released early.”

Having former GW Bush Attorney General Mukasey on this pro-reform letter strikes me as quite significant because he has been seemingly hesitatant to support big sentencing reforms in the recent past. I doubt this letter itself will dramatically change the political and practical dynamics of getting federal sentencing reform done in the coming months, but advocates of reform shold certainly be glad to have former AG Mukasey now on the reform bandwagon.

UPDATE: The letter signed by former AG Mukasey reference above is available at this link. Another similar letter urging federal sentencing reforms addressed to both House and Senate leaders signed by over 70 prominent police chiefs and federal prosecutors is available at this link.  In addition, this new Politico article, headlined "GOP split threatens sentencing overhaul," reports on the state of play in the Senate.  Here is how it starts:

Senate Majority Leader Mitch McConnell faces snowballing pressure to tackle an overhaul of the criminal justice system. But deep dissension within his own party — between pro-reform Republicans and law-and-order types — is threatening one of the few items on the congressional agenda with a real chance of becoming law this year.

January 19, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida

In this post last week not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various Florida courts as both state and federal judges try to make sense of just what Hurst must mean for past, present and future capital cases.

Not surprisingly, as reported in these two new local articles, courts, lawyers and experts are already puzzled by the situation that SCOTUS has now handed them:

As these capital cases are sure to unfold in hard-to-predict ways in the weeks and months ahead, I cannot help but be especially sympathetic to the difficult position in which Florida's prosecutors and the families of victims of capital murderers now find themselves in.  Until the Florida legislature enacts a Hurst fix, and likely long thereafter, so many of the worst-of-the-worst murder cases are going to be in a legal limbo that will make hard cases for prosecutors and hard times for families only that much harder.  

Prior related posts:

January 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5)

SCOTUS grants cert on two more criminal cases (and on Obama's immigration policies)

Big news this morning from the Supreme Court is reported in this new SCOTUSblog post from Lyle Denniston: 

The Obama administration’s sweeping change of deportation policy for undocumented immigrants will get a thorough review by the Supreme Court, including the question of whether it violates the Constitution, the Court announced Monday.  The case will be set for argument in April, making it almost certain that there will be a final ruling by the end of June — in the midst of a presidential election campaign in which immigration is a major issue.

I suppose sentencing fans can and should be interested in the range of (quasi-?)criminal justice aspects of the law and policy involving immigration. But I am more revved up by this new SCOTUS order list because cert review was also granted on two new federal criminal cases, one of which appears to involve insider trading, the other another ACCA dispute. I hope to have more information on these grants this afternoon after I deal with some morning off-line commitments.

UPDATE:  The SCOTUSblog post linked above now has this additional brief descriptions of the other cert grants this morning, together with helpful links to the SCOTUS pages on each case:

Besides the immigration case, the Court on Tuesday accepted review of three other cases: a significant new case on insider trading in securities (Salman v. United States, grant limited to Question 1 in the case); a plea for further clarification of the enhanced sentences available under the federal Armed Career Criminal Act (Mathis v. United States), and the power of a judge, after dismissing jurors in a case, to recall the jury for further deliberation (Dietz v. Bouldin). 

As always, I would be grateful for early reader perspectives on which of these cases ought to garner extra attention in future weeks (and posts).

January 19, 2016 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, January 16, 2016

"The End of the Death Penalty Isn't Near"

The title of this post is the title of this recent column by Noah Feldman for Bloomberg View, which is actually mostly focused on various votes by various Justices in this past week's ruling in Hurst v. Florida.  Here are excerpts:

The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again.  The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter.  The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific.  The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.

This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines.  According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt.  The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion....

In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate.  Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay — a decision that requires five justices.

The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing.  Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.

And what about Breyer?  He still hasn’t given up on the constitutionality of the sentencing guidelines.  He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury.  He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.

The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.

Prior related postson Hurst:

January 16, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Friday, January 15, 2016

Supreme Court grants cert on high-profile political corruption case and to explore malicious prosecution suits

As reported in this extended post by Lyle Denniston at SCOTUSblog, the Supreme Court granted certiorari review on eight new cases this afternoon. None of the cases involve sentencing issues, but there are two cases with criminal justice elements. Here are excerpts of Lyle's account of these grants and their place within the Court's overall docket:

Taking no action on the Obama administration’s plea for approval of its new immigration policy, the Supreme Court on Friday agreed to review the claim by former Virginia Governor Robert F. McDonnell that he is innocent of corruption or fraud because he did not take any official action to benefit a friend and benefactor. The Court also added seven other cases to its docket for decisions this Term.

The new orders filled some remaining slots for argument, presumably in March or April, but there were not enough to complete the full calendar. That means some cases could be granted next week and still be decided before the current Term ends in late June, especially if the briefing schedule were expedited....

The case involving the former governor of Virginia (McDonnell v. United States) was a high-profile prosecution that had appeared to remove him from any future chance of becoming a national leader in the Republican Party.  Both he and his wife were convicted of corruption charges based on prosecutors’ claims that the governor used the powers of his office to help a Richmond businessman approach state agencies for help in promoting a health supplement his company was producing.  The governor was sentenced to two years in prison, and Maureen McDonnell was sentenced to a year and a day in prison.  She currently has an appeal pending in a lower court.

His appeal raised two issues, but the Court agreed to rule only on his claim that prosecutors used too expansive an interpretation of the “official acts” provision used in corruption cases under three federal bribery or fraud laws.  The Court chose not to hear McDonnell’s claim that the trial judge did not do enough to bar jurors who might have been influenced by the heavy publicity that surrounded his case, before and during trial.  McDonnell has been allowed by the Court to remain out of prison until his appeal of his conviction is decided by the Justices....

Manuel v. Joliet, Ill.: Does an individual who claims to have been a victim of police fabrication of evidence have a right to sue for discriminatory prosecution under the Fourth Amendment — an issue left open previously by the Court.

January 15, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Intriguing new poll on 2016 Californian perspectives on the death penalty

This local article, headlined "Poll: California death penalty is toss-up for voters," reports on a notable new poll of a notable group of state voters on an issue that often garners national attention. Here are the basics:

Opposition to capital punishment continues to rise in California, a new Field Poll released Friday shows, with state voters now equally divided between scrapping the death penalty altogether and speeding up the path to executing inmates on the nation's largest death row.

The poll found that 47 percent of voters favor replacing the death penalty with life in prison without the possibility of parole in California, up from 40 percent in 2014.  But at the same time, the poll shows that 48 percent of registered voters would support proposals to accelerate the state's notoriously slow system of resolving death penalty appeals to pick up the pace of executions.

California voters are likely to be confronted with those two issues on the November ballot. Death penalty opponents are preparing a measure that would abolish California executions, while advocates of capital punishment are proposing a conflicting measure to reform and speed up the death penalty system....

Voters in 2012 rejected the last effort to abolish California's death penalty by a 52 to 48 percent margin.  If voters were to approve both measures in November, the one with the most votes would settle the death penalty question in California for now, according to both campaigns.

"I think the public really wants some action," said San Bernardino County District Attorney Michael Ramos, among the leaders of the measure to speed up the process. "We are either going to fix the death penalty or it's going away in California."

Support for such a measure, which includes shortening the timetable for the California Supreme Court to resolve death penalty appeals, has dropped since 2014, according to the Field Poll. At that time, 52 percent of state voters backed efforts to accelerate death penalty cases, four percent above the most recent poll.

California has not executed an inmate in nearly ten years as a result of legal challenges to the state's lethal injection method, leaving 750 inmates on death row whose state and federal appeals now take decades to resolve. National polls have also shown dropping support for the death penalty, which remains on the books in 30 other states.

January 15, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, January 14, 2016

Is there any chance any domestic criminal justice issue gets any attention during tonight's GOP debate?

The first big Prez debate of this big Prez election year takes place in South Carolina, and I am already assuming that any number of notable and important domestic criminal justice issues will be largely forgotten as GOP candidates spar again over the now-standard debate topics of immigration, ISIS and terrorism, and economic development.  Still, as this new Marshall Project piece highlights, the location of the GOP debate tonight was the site of a high-profile mass shooting, and that reality might perhaps enhance the (slim) odds we get a question or two about the death penalty or gun violence or the racial dynamics of crime, policing and punishment.  The MP piece is titled "Republican Candidates on Criminal Justice: A Primer," and here is how it sets up a review of what the GOP candidates in the prime-time debate have said so far on the campaign trail about these issues:

Race. Guns. The Death Penalty.

If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South.  The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?

Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses.  In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds.  But questions of race, guns and the death penalty have only intensified nationally since then.  Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.

January 14, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Gun policy and sentencing, Race, Class, and Gender, Second Amendment issues, Who Sentences? | Permalink | Comments (25)

Florida Supreme Court wasting no time trying to figure impact of Hurst

This new article by Chris Geidner for BuzzFeed News reports that the top court in the Sunshine State is asking lawyers to sort out ASAP the dark death penalty clouds that the Supreme Court created with its ruling earlier this week in Hurst finding unconstitutional the process Florida uses for imposing death sentences.  The article is headlined "Florida Supreme Court Orders State To Address Death Sentencing Ruling’s Effect By Friday," and here are excerpts:

The Florida Supreme Court on Wednesday ordered state officials there to address questions by Friday about the effect of the U.S. Supreme Court’s decision striking down the state’s death sentencing law on a man due to be executed in less than a month. The brief order from the Florida high court came in the case of Cary Michael Lambrix, who currently is scheduled to be executed on Feb. 11. On Jan. 11, his lawyers had filed a petition for relief based on a similar argument to that made by Timothy Hurst at the U.S. Supreme Court.

After the U.S. Supreme Court ruled on Jan. 12 in Hurst’s case that Florida’s death sentencing law was unconstitutional under the Sixth Amendment because it violated the right to a jury by making the imposition of a death sentence the responsibility of a judge and not a jury, the Florida Supreme Court amended its order in Lambrix’s case. Lambrix was convicted and sentenced to death in 1984 for the murders of Clarence Moore and Aleisha Bryant....

Specifically, the state is ordered to address whether the U.S. Supreme Court’s decision should apply retroactively to past death sentences in Florida, how Hurst applies given the specific facts of Lambrix’s sentencing, and whether any error in Lambrix’s case should be viewed as harmless.

January 14, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Wednesday, January 13, 2016

"'Not Ordinarily Relevant': Bringing Family Responsibilities to the Federal Sentencing Table"

The title of this post is the title of this notable Note, which I just happened across, authored by Emily Anderson and recently published in the Boston College Law Review. Here is the abstract:

Incarceration results in negative social, psychological, and economic impacts on an inmate’s family and dependents. These impacts last well beyond the period of incarceration and can cause lifelong challenges.  Federal statutes require courts to consider mitigating factors while calculating a sentence, including a defendant’s characteristics. Family ties and responsibilities are considered an aspect of a defendant’s characteristics.  Yet the Federal Sentencing Guidelines significantly limit the extent to which courts can use family ties and responsibilities to reduce or alter a defendant’s sentence.

This Note first argues that the Guidelines should be amended to indicate that courts can consider family ties and responsibilities when determining a sentence.  This Note then argues that Rule 32 of the Federal Rules of Criminal Procedure should be amended to require that a family impact assessment be incorporated into each presentence investigation report to provide courts with information about a defendant’s family ties and responsibilities.

January 13, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

In wake of Obergefell, Alaska legislator introduces bill to ban marriage between inmates

In this post right after the Supreme Court's landmark marriage ruling in Obergefell v. Hodges, I asked in my post title "Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?".  To date, I have not yet seen many stories suggesting post-Obergefell prison problems.  But this local Alaska story, headlined "Bill would ban prison marriages, but not for the reason you think," suggests the Last Frontier could be one of the first states to change its prison marriage laws since the ruling. Here are the basics:

In his younger years, Anchorage Republican Rep. Bob Lynn served as a police officer in Tucson, Arizona. Last year, when the U.S. Supreme Court legalized same-sex marriage nationwide, that decision and Lynn’s firsthand experience merged in his mind.

On Friday, Lynn introduced House Bill 218, which would prohibit marriages at the state’s prisons.  Lynn said the bill is a matter of fairness.  If a same-sex couple falls in love within a prison’s walls, he doesn’t want them to have the ability to get married and share a cell with their spouse.  “We’ve got a lot of prisoners who have a spouse outside the prison,” he said. “That’s not fair to them where somebody in the jail can have their spouse in there.”

Lynn said the bill would apply to same-sex and heterosexual couples alike; a person would not be able to get married to an inmate on prison grounds....

To accommodate a married same-sex couple who commit a crime together, Lynn’s bill includes a provision that would prohibit the Department of Corrections from putting the couple into the same facility.  It also toughens the ban on conjugal visits — currently a regulation of the department — by putting it into law.  That makes the ban tougher to overturn.

I suppose I can (sort of) see the logic of wanting to preclude two convicted spouses from being able to live together while serving their prison terms, but I have a hard time fully understanding why that concern would or should justify a blanket prohibition on allowing prisoners to marry the person of their choice if that other person also happens to be in custody. And because the Supreme Court has long suggested that only "legitimate security concerns" can justify "placing reasonable restrictions upon an inmate's right to marry," I could readily see a successful constitutional challenge to this blanket prisoner marriage ban if it were ever to become the law in Alaska.

January 13, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Might misguided mens rea reform concerns derail federal sentencing reform's momentum?

The question in the title of this post is prompted by this new Atlantic piece headlined "A New Hurdle in the Push for Criminal-Justice Reform: A disagreement between a House Republican and the Obama administration creates a challenge."  Here is how the article starts:

The stars seem to have aligned.  An unlikely coalition of liberals and conservatives has coalesced around criminal-justice reform, as the public appears to be paying more attention to fatal police shootings and mass incarceration. President Obama has worked to gin up momentum for reform, and is expected to press for action during his final State of the Union address Tuesday evening.

Even with that common ground, however, tensions are bubbling up.  A debate over the burden of proof for criminal convictions now threatens to throw a wrench into the effort to overhaul the nation’s criminal-justice system.  That debate was on full display Tuesday during a conversation between House Judiciary Committee Chairman Bob Goodlatte and The Atlantic’s Washington Editor-at-Large Steve Clemons at an Atlantic Exchange event.  The Republican chairman suggested that the House of Representatives won’t approve a criminal-justice deal without changes to the way the U.S. criminal code determines criminal intent, despite the fact that the White House opposes the changes.

“A deal that does not address this issue is not going anywhere in the House of Representatives,” Goodlatte said when asked if he would oppose a deal that did not include such a provision.  “It has to be overcome.  This is a critical element to doing justice in this country.”

The disagreement points to the possibility that negotiations will break down.  It highlights the challenges, and potential pitfalls, of assembling a left-right coalition, and raises the question of how much various interests at play will be willing to compromise.  The dispute also threatens to stall sentencing reform, an issue that the president has elevated as a top priority in his second-term.

At stake is a question of fairness.  Goodlatte, along with conservative and libertarian organizations, support legal changes that they say would protect citizens from being unfairly charged with crimes they unknowingly committed. The White House, along with liberal organizations, believe that altering the burden of proof could make it more difficult to prosecute criminal activity.  Critics also fear the proposal could let big business off the hook for illicit activities that lawyers could claim a company didn’t know were illegal.

That conflict could derail sentencing reform.  Goodlatte indicated Tuesday that he would not support an effort to deal with criminal-intent and sentencing reform separately as a way of bolstering the odds of passing legislation to cut down on mandatory minimums for certain offenses.

As the question in the title of this post suggests, I think Rep. Goodlate is 100% right that a provision clarifying that nobody should face serious federal criminal charges without federal prosecutors having to prove the accused had a significantly culpable mens rea is "a critical element to doing justice in this country."  Indeed, one of the reasons I stopped considering myself a "liberal" as that term is now understood is because of these kinds of issues where so-called "liberals" seem eager to deny a premise I consider fundamental in a liberal society, namely that one should not be treated like and branded a serious criminal by the government unless and until that government can prove an individual has acted and thought like a serious criminal.

Notably, I know that at least one serious criminal justice reform group, the National Association of Criminal Defense Lawyers is supportive of mens rea reform.  Consequently, I suspect and fear the "liberal organizations" against this kind of reform are the same type that were cheerleading the laws contributing to mass incarceration passed during the Clinton era when Democrats were eagerly trying to earn political points by being even tougher on crime than their political adversaries.  Blah. 

Some recent and older related posts:

January 13, 2016 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Tuesday, January 12, 2016

Unless Prez Obama goes off script, do not expect much SOTU talk about criminal justice reform

The White House has now released here the "Remarks of President Barack Obama – As Prepared for Delivery State of the Union Address." And, despite much early buzz that criminal justice reform was going to get some serious attention, it seems that the only part of the speech that even gets close to mentioning this topic comes at the very outset:

Tonight marks the eighth year I’ve come here to report on the State of the Union.  And for this final one, I’m going to try to make it shorter.  I know some of you are antsy to get back to Iowa.

I also understand that because it’s an election season, expectations for what we’ll achieve this year are low.  Still, Mr. Speaker, I appreciate the constructive approach you and the other leaders took at the end of last year to pass a budget and make tax cuts permanent for working families.  So I hope we can work together this year on bipartisan priorities like criminal justice reform, and helping people who are battling prescription drug abuse.  We just might surprise the cynics again.

Given Prez Obama's so far uninspired record in this space, I suppose I should not be too surprised or disappointed that all the criminal justice buzz leading up to this speech was just more smoke and mirrors. And, if Prez Obama ends up walking the walk on what some have called "mass clemency," I will not be troubled that he did not talk the talk about criminal justice issues in this final SOTU. Still, I am now far less excited to hear him deliver the speech.

January 12, 2016 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (9)

A few (too) quick thoughts on the post-Hurst hydra

Download (1)As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida's death penalty procedures have Sixth Amendment problems in light of the Supreme Court's 2002 ruling striking down Arizona's similar judge-dependent system in Ring v. Arizona.  Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what's next is the interesting issue now to follow:

Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.

The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring.  I tried to tell them that was insane.  They didn't listen.  Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.

How many of the existing judgments can be salvaged?  The Supreme Court said it left harmless error analysis to the state courts.  In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance.  Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.

The first thing the Florida Legislature needs to do is fix its system.  And do it right this time.

Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be  held responsible for the capital mess Florida now finds itself in.  Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House).  I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.

As for the mess that Hurst will create, I am coining the term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida's courts (both state and federal).  Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.

Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states' capital systems might be subject to another round of procedural attack now.  Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst.  Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.

Prior related post:

January 12, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23)