Monday, April 27, 2015

As penalty phase continues, new poll reveals local disaffinity for death penalty for Boston bomber

I find notable the results of a new poll reported in this Boston Globe article headlined "Few favor death for Dzhokhar Tsarnaev, poll finds: Less than 20% of Mass. residents support execution."  Here are the details, along with some explantions:

Although nearly a third of Massachusetts residents say they support the death penalty for egregious crimes, less than 20 percent believe Boston Marathon bomber Dzhokhar Tsarnaev should be put to death — a level of support that has eroded over recent months as the jury’s decision on his fate nears, a Boston Globe poll shows.

“It seems that voters have concluded that Tsarnaev does not deserve a quick death, but rather should spend the remainder of his days in a windowless cell contemplating the heinous acts that put him there,” said Frank Perullo, president of Sage Systems LLC, which conducted the poll. “To voters, it would seem death is too easy an escape.”

In Boston, support for the death penalty has dwindled even further: Only a quarter believe it is ever appropriate, and just 15 percent think Tsarnaev should be executed. Almost 66 percent of Bostonians and nearly 63 percent statewide favor a life sentence.

The poll comes in the penalty phase of Tsarnaev’s trial. Jurors have just heard three days of wrenching accounts from victims and families of the dead. Now the defense will begin its case to spare his life. Perhaps surprisingly, given seven weeks of graphic testimony, the public’s appetite for Tsarnaev’s execution appears to have diminished over the course of the legal proceedings....

A Globe poll taken a few months after the bombing in September 2013 showed that 33 percent favored death. A WBUR poll conducted days after his conviction this month showed that 26 percent favored death. Those compare with the 18.9 percent favoring death in the new Globe poll, which was based on telephone interviews April 22 and 23 with 804 people, nearly half in Boston....

[E]xperts offered several possible explanations for the diminishing appetite for the death penalty, starting with the timing of the survey: The Globe poll was conducted after Bill and Denise Richard, whose son Martin was killed and whose daughter, Jane, lost a leg in the blasts, made their plea on the front page of the Globe for prosecutors to drop the death penalty. The Tsarnaev brothers’ dual bombs, and the crime spree that followed, left four people dead and injured more than 260 others....

Daniel S. Medwed, a Northeastern University criminal law professor who has followed the case closely, said the letter and the discussion that followed might have changed people’s minds. “It didn’t talk about moral opposition. It was much more about the process of the death penalty case and being dragged through this for years and years,” he said. “The heartfelt letter resonated with the community.”...

David Hoose, a criminal defense attorney with the Northampton firm Sasson Turnbull Ryan & Hoose who has experience in federal death penalty cases, said the opposition to death for Tsarnaev could be rooted in the concerns over his youth or the cost and drawn-out nature of the appeals process....

Hoose and others cautioned that the poll results could not predict what a jury might do. “The people answering this poll have not had to sit through the weeks of gut-wrenching testimony by these victims,” said Hoose, who is also on the board of the Massachusetts Citizens Against the Death Penalty Fund. “I think the real $64,000 question here is, how much is this going to influence the 12 people making the decision?”

April 27, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, April 25, 2015

Lots of thoughts for and about new Attorney General Loretta Lynch

In the wake of the confirmation of Loretta Lynch to be Attorney General, I see lots of traditional and social media discussion of what she might and what she should do in this role in the months ahead.  Here is a sampling of some of some of this commentary:

Because I know so very little about the (always opaque) internal structure and politics of the US Department of Justice, I do not have any detailed predictions or concrete advice for the new Attorney General. In the short term, I am hopeful she will give some speeches in order to better identify her likely priorities in the months ahead.

April 25, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, April 24, 2015

Attorneys for another convicted CIA leaker urges judges to follow Petraeus sentencing lead

This notable new Washington Post article, headlined "Attorneys ask judge to consider Petraeus in sentencing ex-CIA officer Sterling," the seemingly lenient treatment given yesterday to former CIA director David Petraeus for leaking information to his journalist/mistress (basics here) is already having an echo effect in other federal criminal cases.  Here are the interesting details:

Defense attorneys for the former CIA officer convicted of giving classified information to a New York Times reporter urged a federal judge on Friday to sentence their client in line with the terms faced by other so-called leakers — noting that not 24 hours ago, a retired general and ex-CIA director was given mere probation in a similar case.

Defense attorneys for Jeffrey Sterling did not endorse a specific penalty, but they urged U.S. District Judge Leonie M. Brinkema to consider the impact of the case and be fair. The defense attorneys argued that in three other recent leak cases, those convicted received — at the most — 30 months in prison. On Thursday retired general and former CIA chief David Petraeus was sentenced to two years of probation and a $100,000 fine. “In meting out justice,” defense attorneys wrote, “the Court cannot turn a blind eye to the positions the Government has taken in similar cases.”

Sterling, 47, was convicted in January of nine criminal counts after jurors determined unanimously that he gave classified information to New York Times reporter James Risen about a sensitive operation to put faulty nuclear plans in the hands of Iranian officials. Federal prosecutors earlier this week urged a judge to impose a “severe” sentence and said they felt the U.S. probation office had correctly calculated the range in the federal sentencing guidelines as 19 years 7 months on the low end and 24 years 5 months on the high end.

Such a sentence would have few parallels: The closest might be the 35-year prison term imposed by a military judge on Chelsea Manning, who leaked the largest volume of classified documents in U.S. history. And Sterling’s defense attorneys argued that a prison term within the guidelines would be “plainly excessive,” essentially penalizing Sterling for not taking a plea deal. “Mr. Sterling was convicted, under the Espionage Act, for ‘leaking’ information to a reporter,” defense attorneys wrote. “He should be treated similarly to others convicted for the same crimes and not singled out for a long prison sentence because he elected to exercise his right to a trial.”

Defense attorneys pointed to two similar cases in which alleged leakers reached plea agreements and avoided decades behind bars. Former CIA officer John Kiriakou, who revealed the name of another covert officer, was ultimately sentenced to 30 months in prison, and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter, was ultimately sentenced to 13 months in prison, defense attorneys argued. They argued that Petraeus, who lied to the FBI, reached a deal to avoid prison entirely. “Mr. Sterling should not receive a different form of justice than General Petraeus,” Sterling’s defense attorneys wrote.

Prosecutors have characterized Sterling’s case as “unique” and argued that the harm he caused to national security was grave. They have argued that Sterling, motivated by “pure vindictiveness,” leaked details that compromised one of the nation’s few ways to deter Iran’s nuclear ambitions, and in doing so, put a Russian scientist who was working with the CIA in danger....

Sterling is scheduled to be sentenced May 11.

April 24, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Why the US Sentencing Commission's moderate moderation of fraud guidelines has few fans

This new Huffington Post piece, headlined "Why Nobody Is Really Happy With New Guidelines For Punishing White-Collar Criminals," provides an effective review of why the US Sentencing Commissions new amendments to the fraud guidelines is not garnering widespread praise. Here are excerpts:

A federal panel voted earlier this month to amend the guidelines that federal judges use when sentencing people who commit economic crimes. But few are happy with those changes: Sentencing reform advocates say they don't go far enough to fix draconian sentences, while the U.S. Department of Justice contends that the changes could give some white-collar criminals a new avenue for unfair leniency.

Recommended sentences for economic crimes under the current rubric are so severe, they are no longer taken seriously, some prosecutors and judges suggest. Those guidelines have relied on complicated calculations involving criminal gain and inflicted losses that spit out sentences that can appear inconsistent or absurd. One federal New York judge called the math "hocus-pocus." In 2008, for example, a federal judge sentenced a 72-year-old man to 330 years in prison for an investment scam.

The U.S. Sentencing Commission is responsible for coming up with the road map that federal judges can use when issuing these sentences. On April 9, the commission approved new guidelines, which now will be submitted to Congress and will go into effect in November, unless lawmakers intervene.

Chief Judge Patti Saris, who chairs the commission, contended last week that the economic crime guidelines are not broken, but has acknowledged that they could provide more clarity on what to do in the cases of certain first-time, low-level offenders. The changes aim to make punishments more fair by giving greater weight to a criminal's role and his or her intent....

In March, the Justice Department came out against some of these changes, in favor of more targeted reforms. DOJ is worried that the intent clarification could allow white-collar criminals to claim they never meant to hurt anyone. A fraudster running a Ponzi scheme who is caught early, for example, could argue that he hoped the scheme wouldn't fail.

It makes sense that the Justice Department would want to preserve the option to impose harsher sentences in certain cases. Frank Bowman, a professor at the University of Missouri School of Law who has commented on the draft guidelines, said that from DOJ's perspective, stringent guidelines can give them leverage when negotiating plea bargains.

But some legal experts argue that the Obama administration is missing the point in this case. "All we want to do is make guidelines such that a federal prosecutor can actually look a federal judge in the face and say, 'Impose these guidelines as written,'" Bowman said. If the guidelines had more credibility, he added, judges might be more inclined to follow them and hand down stronger sentences. "The Justice Department is cutting off its nose to spite its face," he said.

Mark Holden, senior vice president and general counsel for Koch Industries, told The Huffington Post that he considered the commission's emphasis on offender intent "a positive development and consistent with the Bill of Rights." He added that the guidelines "are an effort to make the punishment fit the crime," but that more needs to be done on criminal justice reform overall....

Advocates say that when it comes to sentencing reform, there are parallels between drug crimes and economic crime. Mary Price, general counsel for Families Against Mandatory Minimums, asked, "Do we just count drugs, or do we look at [the harm] people really intended? How much harm did they cause? … Are they the courier or the mastermind?" She added that she was disappointed with the pending changes to the economic crime guidelines, calling them "rather minimal."

Prior related posts:

April 24, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, April 23, 2015

Senate finally votes on AG nominee and confirms Loretta Lynch by vote of 56 to 43

The GOP has finally succeeded in getting Attorney General Eric Holder out of his job by finally allowing the full Senate to vote on his nominated successor, Loretta Lynch.  This New York Times article provides more of the details, and starts this way:

After one of the nation’s most protracted cabinet-level confirmation delays, the Senate Thursday approved Loretta Lynch to be attorney general. She is the first African-American woman to hold the position.

Ms. Lynch, the United States attorney for the Eastern District of New York, was confirmed 56 to 43.

Her confirmation took longer than that for all but two other nominees for the office: Edward Meese III, who was nominated by President Ronald Reagan, and A. Mitchell Palmer, who was picked by President Woodrow Wilson, according to the Congressional Research Service.

Republicans have found themselves in a quandary for months. They longed to replace Attorney General Eric H. Holder Jr., and they agreed that Ms. Lynch was qualified for the job. But they opposed her because Ms. Lynch defended President Obama’s executive actions on immigration.

What’s more, Senator Mitch McConnell, Republican of Kentucky and majority leader, had held up the nomination until the Senate voted on a human trafficking bill, a process that dragged on for weeks. The measure passed on Wednesday by a vote of 99 to 0. And some Republicans continued to strongly oppose Ms. Lynch. “We do not have to confirm someone to the highest law enforcement position in America if that someone has committed to denigrating Congress,” Senator Jeff Sessions, Republican of Alabama, said on the Senate floor Thursday. “We don’t need to be apologetic about it, colleagues.”

In the end several Republicans — to the surprise of many of their own colleagues — voted aye for Ms. Lynch, including Mr. McConnell.

Some conservative groups had called on Senate Republicans to block a vote on Ms. Lynch altogether because of her stance on the president’s immigration policies. Many Senate Republicans feared the party would face serious political repercussions if it blocked an African-American woman with strong credentials and enthusiastic support from many in law enforcement.

Opponents still forced a procedural vote before her final confirmation, an unusual requirement for such a high position. The nomination moved along easily, by a vote of 66 to 34.

April 23, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?

Petraeus-broadwellThe question in the title of this post is prompted by the sorted story surrounding the criminal misdeeds of former CIA director David Petraeus.  This press report, with the subheadline "Former CIA director and military commander expected to plead guilty to sharing government secrets with his biographer and lover, Paula Broadwell," provide the backstory leading up to this afternoon's sentencing of a high-profile federal defendant:

A scandal that began to unravel in Charlotte ends in Charlotte on Thursday when former CIA Director David Petraeus is expected to admit sharing top government secrets with his biographer and lover.

Under a February agreement with prosecutors, Petraeus, 62, will plead guilty to one count of unauthorized removal and retention of classified material, a misdemeanor that carries a maximum sentence of one year in prison and a $100,000 fine. The government will recommend that punishment for the former commanding general in Iraq and Afghanistan be limited to two years’ probation and a $40,000 fine.

U.S. Magistrate Judge David Keesler, who will preside over Petraeus’ hearing, is not bound by the plea deal. But legal experts say judges typically give great weight to such agreements.

Critics say the retired general is getting off light, given how zealously the Obama administration has pursued government leaks. By comparison, CIA analyst and case officer John Kiriakou, the whistleblower who revealed the secret CIA torture program, is serving a 30-month sentence. Open-government groups say President Barack Obama’s lieutenants have prosecuted more leakers than the rest of U.S. administrations combined.

“It’s hard to reconcile cases like that, and it leads to the conclusion that senior officials are held to a different and more forgiving standard than others,” said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists in Washington, D.C.

The case against Petraeus, a former Obama confidant, has apparently troubled the administration from the start. The New York Times reported earlier this year that Attorney General Eric Holder was resisting the recommendations of his staff to charge Petraeus with a felony that could have led to possible prison time.

Petraeus resigned three days after Obama’s 2012 re-election. Up to then, the retired four-star general was among the most respected military leaders of modern times. He was sometimes mentioned as a future presidential or vice presidential candidate.

That all began to change three years ago. Paula Broadwell of Charlotte had already written “All In,” Petraeus’ biography. But in May 2012, the West Point graduate began sending a series of anonymous emails disparaging Jill Kelley of Tampa, Fla. Kelley was a friend of Petraeus and other military leaders. Broadwell, documents say, considered her a romantic rival.

Using “Tampa Angel” and at least one other pseudonym, Broadwell sent some of her emails from the old Dilworth Coffee shop on East Boulevard. Within weeks, the FBI had traced the messages back to Broadwell. In June 2012, agents visited the Dilworth home she shares with her husband, radiologist Scott Broadwell, and their two children. A search of her email accounts uncovered the affair. Prosecutors say Broadwell’s computer housed classified information that went far beyond her security clearance as a major in the Army Reserve.

Petraeus resigned as CIA director on Nov. 9, 2012. Court documents filed by acting U.S. Attorney Jill Rose of Charlotte and others say Petraeus shared eight “black books” with Broadwell that he compiled in Afghanistan. Prosecutors say the books held everything from secret codes and the identities of covert officers, to war strategy and notes from National Security Council meetings. Broadwell kept the books for at least four days beginning in August 2011, prosecutors say. The FBI later seized the books during an April 2013 raid on Petraeus’ home.

Petraeus lied to investigators about both having classified information and sharing it with Broadwell, according to court documents. Prosecutors say none of the classified material appeared in Broadwell’s book.

I am troubled by the appearance of disparate favorable treatment being shown to Petraeus, especially given how serious his offense conduct seems and his lies to investigators (which could have been charged as obstruction of justice).  Unfortunately, I do not think federal prosecutors have ever explained — or will ever have to explain — just why they gave Petraeus a seemingly "sweetheart" deal (every pun intended there).  Without any such explanation from federal prosecutors concerning how they exercised their charging and bargaining discretion in this case, it is difficult for me to make an informed judgment on the sentence being recommended by prosecutors for the former CIA director.

UPDATE: This CNN piece reports on the outcome via its headline: "Petraeus sentenced: 2 years probation; $100K fine." By Theodore Schleifer,

April 23, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, April 22, 2015

Is there a "growing movement against death penalty – on the right"?

The question in the title of this post is prompted by this notable new press article with this full headline: "Nebraska highlights growing movement against death penalty – on the right: Seventeen Republican lawmakers seek abolition of capital punishment in the state as Christians, conservatives and libertarians band together for change." Here are excerpts:

A growing coalition of Christian, fiscally conservative and libertarian lawmakers are pushing to repeal the death penalty in some of America’s reddest states. And after years of working against state-sponsored executions, historically a Democratic platform, some conservatives say they believe the efforts are gaining traction.

The push for reform was on full display last week in Nebraska, as 17 Republican lawmakers in the one-house legislature advocated for passage of abolition bill LB268. “I know many of you, when you went door to door, you said to the constituent you talked to: ‘You send me to Lincoln, [Nebraska,] and when I get down there I’m going to find government programs that don’t work, and I’m going to get rid of them,’” Senator Colby Coash told fellow lawmakers. “And that’s exactly what LB268 does … We can get justice without this method.”

The bill passed its first hurdle with a 30 to 12 vote in favor of repeal, potentially enough to override Republican governor Pete Ricketts’ veto threat. Two more successful votes are needed to send the bill to the governor’s desk, and there is strong opposition, including filibuster threats, to overcome. Still, conservative advocates said they believe it is one of the most promising developments in decades.

“We’re probably in the best position we’ve been in since the bill passed in 1979,” said Stacy Anderson, the conservative executive director of Nebraskans for Alternatives to the Death Penalty, about the last time the state’s legislature passed an abolition bill. “From the conservative standpoint, the death penalty fails on all of our core values.”...

Republicans are still the most likely group to support capital punishment, with 77% in support of the death penalty. Still, conservative activists point to the 10% decrease in Republican support over 20 years, growing support for life without parole as an alternative to the death penalty, and the issue’s low priority ranking among voters.

The most widely cited reasons for opposing the death penalty seem in line with some of the most fervent strains of American Republicanism: fiscal conservatism, pro-life principles and small government ideals. And with increasing scrutiny on states that continue to execute prisoners despite a shortage of lethal injection drugs, the issue appears poised to continue to attract attention.

“It’s a government program that risks innocent life, costs more than the alternative, and is certainly not about limited government,” said Marc Hyden, an outreach specialist with Conservatives Concerned About the Death Penalty. “When I’m first speaking, I think conservatives give me kind of a weird look,” said Hyden. “But about halfway through the presentation, it starts clicking with them – that this is a program that just doesn’t mesh with conservative ideals.”

The campaign has seen growing interest in red states such as Georgia, Kentucky, Kansas and Tennessee, both Hyden and abolitionists said.

In Montana, a fiercely conservative state, a death penalty abolition bill made it out of the House judiciary committee for the first time perhaps ever, according to death penalty abolition advocates there. “I was shocked,” Moore told the Missoulian. “I didn’t expect it to come out of committee.” At the time that the bill passed to the floor, a stunned Moore described it as having “a tiger by the tail”. The abolition bill failed in a vote on the house floor, but many see its progress out of the judiciary committee as nothing short of stunning. “We were very excited,” said Jennifer Kirby about the bill’s progress. “It’s about time.”

April 22, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

More good and important questions criminal justice questions for the 2016 Prez field

Images (2)As explained in this prior post, I think we already have enough declared candidates for President to early to start assembling criminal-justice reform questions to ask any and all persons pursuing the top position in the Executive Branch of the US Government. As also noted in that prior post, Radley Balko got this task off to a running start earlier this month via this extended Washington Post piece headlined "Are you running for president? Please answer these questions about the criminal justice system." I now see folks at The Crime Report have this effective follow-up headlined "Campaign 2016 and Criminal Justice."

This valuable Crime Report piece provides  effective context for a discussion of criminal justice reform during the (already underway) 2016 Prez campaign, and and a number of question that should be of special interest to sentencing fans:

In our system, most of the gritty justice issues, from overcrowding in jails and prisons to police use of force and errant prosecutors, are dealt with on a state and local level—not by the feds.

Nevertheless, leadership in the White House matters: it establishes priorities, frames the national agenda and sets a tone. And we clearly need leadership today.

Crime and justice issues are back on the national agenda to an extent that hasn’t been seen since the “tough on crime” era of the 1990s.

Not a single question on the topic was asked during the 24 presidential, vice presidential and primary debates leading up to the 2012 election.

Perhaps that’s understandable. National opinion polls have shown steadily diminishing public concern about crime over the past two decades — in effect, tracking the national decline in crime rates.  Of course, it’s worth noting that polls have also shown that public safety remains high on the list of issues troubling many of our poorest cities and neighborhoods.

But while politicians might be forgiven for largely staying away during recent presidential election cycles from the hot-button subject of crime and justice (a silence, it must be said, that some commentators have welcomed for the breathing space it has allowed efforts at serious reform), they shouldn’t get a pass now.

We’re confronted today by the consequences of our collective failure to deal with many of the problems that the anti-crime policies of past decades set in motion —and by our persistent failure to address the glaring and deep-rooted inequities that those policies exposed....

Readers of The Crime Report are well informed of these challenges. And it’s also gratifying to note that some of the prospective candidates from both major parties have begun to acknowledge them as well. In this one area of our national life, at least, a healthy bi-partisanship has begun to appear.

But we need to make sure that a healthy debate about justice reform doesn’t get swept under the rug by the homogenizing pressures of a political campaign. It’s hard to separate what ails American criminal justice from the systemic problems of American society—from racism to economic inequality and our underfunded educational system. It’s never been more important to get our would-be leaders on the record.

So, as our own contribution to the effort, The Crime Report plans over the next few months to ask each candidate targeted questions about his or her ideas and visions for fixing what many consider our “broken” criminal justice system—and to publish them here....

Following the path blazed by Balko, our editorial team has come up with 13 questions we believe deserve honest and practical answers. You can read our proposed questions below....

The War on Drugs. The federal government has historically allocated about the same amount of resources to drug interdiction on the border and abroad as for drug treatment in the U.S. Is that a fair division, or would you spend more or less money on either function?...

Sentencing Reform. What steps would you take with Congress to reduce the long prison sentences that have contributed to the growth in our federal prison population? What steps would you take to encourage states to do the same?...

Marijuana. Federal law makes marijuana an illegal drug, but several states have either legalized recreational pot—or are considering doing so. What would you do about this contradiction? Do you favor changing the federal classification of marijuana as a dangerous drug?...

Capital Punishment. Do you favor capital punishment for terrorism or other heinous federal crimes?...

Overcriminalization. Do you believe we have overcriminalized too many behaviors that pose little or no danger to public safety? If so, what will you do about it?

Recent related post:

April 22, 2015 in Campaign 2016 and sentencing issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Is resignation of current DEA head a very big moment for federal marijuana policy?

The question in the title of this post is prompted by a number of stories I have seen in the wake of yesterday's news that Michele Leonhart is resigning as Administrator of the Drug Enforcement Administration.  Here are links to some of these stories:

The last story linked here highlights what will really determine the answer to the question in the title of this post: if President Obama nominates somebody for this position who expresses openness to federal marijuana reforms and a serious commitment to a more public-health oriented approach to all drug enforcement issues (e.g., Dr. Sanjay Gupta?), the transition at the top of DEA could end up being a very big deal.

Cross-posted at Marijuana Law, Policy & Reform

April 22, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 21, 2015

"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"

The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday.  The piece is authored by Leah Litman, and here is the abstract:

This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief.  In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause.  It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.

April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Lots of inside DOJ news emerging from inside the Beltway

My sentencing students often get tired of hearing me talk about the importance of WHO sentences and who sets sentencing policies, but these two new news stories out of Washington DC are all about personnel issues in the US Department of Justice:

April 21, 2015 in Who Sentences? | Permalink | Comments (0) | TrackBack

"What's the Matter with Cumulative Error?: Killing a Federal Claim in Order to Save It"

The title of this post is the title of this notable new paper concerning federal habeas review authored by Ryan Semerad now available via SSRN. (For the record, Ryan happens to be one of (many) wonderful students in my sentencing class this spring, but I am pretty sure he hd finished most of this article before I started polluting his mind.). Here is the abstract:

This Note investigates the inefficacy of cumulative error claims raised by state death row inmates in their federal habeas corpus petitions. It surveys modern federal habeas precedents giving rise to cumulative error claims, investigates the various circuit standards used in evaluating these claims, and concludes that these claims fail due to the confluence of vague historical precedent and increasingly restrictive federal habeas law. It recommends constructing a mandatory pre-federal habeas review procedure wherein claims of cumulative error are evaluated on the merits by all the stakeholders in the state criminal justice systems in order to ensure the integrity of that system and the reliability of criminal convictions and sentences. 

April 21, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 20, 2015

New Sentencing Commission data reveal within-guideline sentences now rarer than non-guideline sentences

The US Sentencing Commission today released on this webpage its latest, greatest federal sentencing data for all of Fiscal Year 2014 and the first quarter of FY 2015.  Here are links to these two new data runs:

First Quarter FY15 Quarterly Sentencing Update (Published April 20, 2015)

Final FY14 Quarterly Sentencing Update (Published April 20, 2015)

I thought Fiscal Year 2014 was likely to be a quirky year for federal sentencing data, primarily because (1) in January 2014, the Commission indicated it probably would reduce the drug sentencing guidelines across the board, and (2) in March 2014, the Attorney General indicated that he supported having the new-reduced-guidelines informally applied in on-going drug cases even though they would not become official until November 2014.   Because of this big pending guideline change to a big chunk of federal sentencing cases, I was not surprised that throughout much of Fiscal Year 2014, a majority of sentences did not come within calculated guideline ranges. 

Sure enough, the complete USSC data now show that, while FY 2013 had 51.2% of all cases sentenced within the guidelines, in FY 2014 that number dropped significantly to 46%.  In other words, less than half of all federal sentences throughout FY 2014 were within-guideline sentences, and it seemed likely that the big change in the overall data from just the prior year largely reflected a drug-sentencing-guideline transition dynamic.

But my view on the overall data story has changed somewhat now that the Commission has released its First Quarter FY15 Quarterly Sentencing Update.   I am pretty sure (though not certain) that most drug sentences imposed during the first quarter of FY15 should involve the new-and-improved drug guidelines and thus the transition to the new guidelines should not dramatically distort the overall FY 2015 data (although there is a one-month difference between when the USSC fiscal year and its new-guideline year gets going).  But, fascinatingly, the new data reveal that, even with the new guidelines in place, still less than half of all sentences at the start of FY 2015 were within-guideline sentences: specifically, only 46.5% of all sentences in the first quarter of FY 2015 were within-guideline sentences.

For various reasons, this too-brief discussion of USSC data perhaps only highlights how hard it is for me in this space to effectively account for and explain basic federal sentencing data.  But, as the title of this post suggests, I think the latest data run now provides reason to believe hat a typical federal judge in a typical case (whatever than means) is now typically a bit more likely to impose a non-guideline sentence rather than a within guideline sentence.

April 20, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

"Local Cook County Prosecutors To Focus On Treatment Over Prison For Small-Time Drug Cases"

The title of this post is the headline of this notable local news story emerging today from Chicago.  Here are the details:

Cook County prosecutors were set to announce major changes in how they prosecute low-level drug cases, including sending more nonviolent drug offenders to treatment, rather than prison.

State’s Attorney Anita Alvarez was scheduled to announce reforms to how her office handles minor drug cases, including dismissal of all future misdemeanor marijuana cases. The move also is expected to cover how prosecutors handle cases involving small amounts of other drugs; including ecstasy, cocaine, and heroin. The program would be focused on defendants with less than three arrests or citations for misdemeanor drug charges.

The announcement comes on April 20, also known as “4-20” day, in reference to a term used by marijuana smokers as slang for “lighting up,” but officials said the timing of the announcement and the date were only coincidental.

Alvarez was expected to detail the new drug prosecution strategy Monday morning, as part of an effort to keep nonviolent repeat drug offenders out of jail, and instead treat such cases as a public health issue. A spokeswoman for Alvarez’s office said, defendants currently facing a Class 4 felony drug possession charge could be sentenced to up to 3 years in prison, and a $25,000 fine. Her proposed changes to drug prosecutions would mean those same defendants would be sent to treatment programs instead of prison.

The move could free up prosecutor and law enforcement resources. In Cook County, such Class 4 felony drug cases made up 25 percent of all felony prosecutions last year. It was not immediately clear when the reforms would go into effect, but the changes would not affect pending cases already in the system.

April 20, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Intricate federal criminal law statutory questions on SCOTUS docket this week

Most casual Supreme Court fans are surely looking ahead to next week's oral arguments in the same-sex-marriage and lethal injection cases.  But this week brings two other exciting and intricate cases before SCOTUS for federal criminal justice fans, as these SCOTUSblog brief summarizes reveal: 

Johnson v. US, No. 13-7120: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act [and whether ACCA's residual clause is unconstitutionally vague].

McFadden v. US, No. 14-378: Whether, to convict a defendant of distribution of a controlled substance analogue -- a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) -- the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

Regular readers know that the Johnson case is getting a second argument this week after SCOTUS asked the parties to brief the constitutional issue it raised on its own after the first oral argument. And helpful Rory Little via SCOTUSblog provides these informative new posts with more on what can be expected in this week's arguments:

In addition, Garrett Epps has this extended new Atlantic piece discussing both Johnson and McFadden headlined "Too Vague to Be Constitutional: Two indecipherable criminal laws passed in the 1980s now face scrutiny at the Supreme Court."

April 20, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, April 19, 2015

After mistrial and plea deal, prominent accused child molestor in Delaware gets probation sentence

As noted in this recent post, there has been considerable controversy in California over a state judge earlier this month sentencing a teenager who pleaded guilty to a single child sex offense to "only" 10 years of imprisonment, a term well below the applicable 25-year mandatory minimum statutory sentencing term.  (Bill Otis here at Crime & Consequences also complained about the judge's sentencing decision California case).  With that recent case in mind, a notable contrast in context and outcomes emerges from this child sex offense story from Delaware.  Here are the dynamic details (with a few bits of the story highlighted for subsequent comment):

Eric Bodenweiser — once a standardbearer of the Sussex County tea party, described by voter after voter in 2012 as a trustworthy Christian man — was sentenced to one year of probation Friday for committing two acts of unlawful sexual contact against a young boy in the 1980s.  A judge sentenced Bodenweiser to a year in prison, but suspended it in lieu of the probation term.  If Bodenweiser obeys the conditions of probation, he will not return to confinement. He must also register as a Tier 1 sex offender....

The sentence for Bodenweiser, 56, of Georgetown closes a scandalous chapter in Sussex politics.  But for his indictment on more than 100 sex offenses in October 2012, Bodenweiser would likely be a state senator today, and not a sex offender.  He had handily beaten an incumbent Republican senator in the September 2012 GOP primary in a district Democrats weren't likely to win.  Days before his arrest, he abandoned his campaign.

Bodenweiser pleaded not guilty, and after a weeks-long trial in 2014, a jury was unable to reach a unanimous verdict on any one of 15 counts prosecutors brought in front of them.  After the mistrial, Bodenweiser convinced Bradley any fair retrial would have to happen outside Sussex County because of the case's intense publicity and news coverage.

Prosecutors struggled, meanwhile, to keep the victim out of trouble.  The man, who was in middle school when Bodenweiser was in his early 20s, lost his temper more than once on the stand under caustic questioning from Bodenweiser's attorney, Joe Hurley.  And after the first trial ended, he was charged by Delaware State Police with a gun offense.

But before a second trial began, Bodenweiser accepted a plea offer from prosecutors on March 18, pleading no contest to two less serious crimes with the knowledge it meant a guilty verdict.

The victim, now in his late 30s, testified that repeated sexual advances and assaults by Bodenweiser affected him deeply.  "I couldn't understand why it kept happening and why he wanted me to do these things," the man said last year in court.  "I thought something was wrong with me." He came forward after years of silence, he testified, because he was alarmed Bodenweiser was about to win the election.

At his trial, Bodenweiser was charged with but ultimately not convicted of raping the victim, forcing him to take part in complete sex acts.  That, though, is not what he pleaded no contest to in March; his pleas were for the lesser offenses of unlawful sexual contact, of "touching the genitalia" of the boy, as prosecutor John Donahue said in court.

Bodenweiser took the stand at trial to deny exposing the boy to anything more salacious than an occasional glimpse of pornography.  His pastor, though, testified that in the fall of 2012, Bodenweiser told him "there's something there, there," in the context of discussing the accusations. Hurley fought hard, court records show, to have the pastor's testimony excluded from trial.

In my discussion of the California sex offense sentencing case over at Crime & Consequences, I stressed that I am generally more concerned about prosecutorial discretion than judicial discretion because of how opaque and consequential prosecutorial discretion can be.  In this case, I cannot help but wonder if politics played a role in the timing of the prosecutorial decision to indict a up-and-coming outsider politician for over 100 sex offenses that allegedly took place 25 years earlier.  Notably, the defendant had his political career ruined just by the prosecutorial decision to indict on so many salacious charges.

Despite his career being ruined just by the charges, the defendant here exercised his right to require the prosecution to prove up its case in a public trial.  Once a public open trial was required, prosecutors apparently decided only to seek to prove up 15 of the 100+ alleged offenses, which makes me further question the evidentiary basis for the 100+ charges in the initial indictment.  And even with only its 15 strongest charges now in play, the prosecutors could not convince a jury that the defendant as guilty of a single charged offense.

Thereafter, perhaps because prosecutors finally realized how weak their case was now that it was subject to public review and scrutiny, prosecutors decided they could be content with the defendant getting sentenced to probation for what they previously alleged was 100+ sex offenders.  But still eager to have this defendant forever officially branded a sex offender, the prosecutors sought to cut the defendant a deal he could apparently thought unwise to refuse.

I am not asserting that state prosecutors here did anything wrong in the way they handled this notable child sex offense case. What I am saying is that I would like a whole lot more information about how and why state prosecutors did what they did.  But, to my knowledge, there are no ready means for me or anyone else in the general public to get more information or understanding about what may have (and have not) influences prosecutorial decision-making in this matter.

April 19, 2015 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, April 18, 2015

Oklahoma now able to use nitrogen gas as execution method if needed

As reported in this CNN piece, headlined "Oklahoma approves nitrogen gas as backup execution method," the Sooner State is now officially able to use a novel execution method sooner or later. Here are the details:

Oklahoma Gov. Mary Fallin signed a bill on Friday that would allow the state to perform executions with nitrogen gas if lethal injection is ruled unconstitutional or becomes unavailable. Nitrogen causes a quick loss of consciousness and then death from lack of oxygen, Fallin's office said in a press release.

CNN affiliate KFOR says it's never been used in an execution in the United States. "The person will become unconscious within eight to 10 seconds and death a few minutes later. In other words, a humane, quick and painless death," said Rep. Mike Christian, one of the bill's authors, according to KFOR....

Oklahoma's executions have been put on hold while the U.S. Supreme Court reviews its use of lethal injections. Last year, the state came under scrutiny when it took 43 minutes to kill convicted killer Clayton Lockett.

Fallin reaffirmed her support for the death penalty. "Oklahoma executes murderers whose crimes are especially heinous," Fallin said. "I support that policy, and I believe capital punishment must be performed effectively and without cruelty. The bill I signed today gives the state of Oklahoma another death penalty option that meets that standard." The governor's office said the first alternative for execution is lethal injection, followed by nitrogen gas, the electric chair and the firing squad.

A few recent and older related posts:

April 18, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

"Why We Let Prison Rape Go On"

The title of this post is the headline of this notable new commentary in today's New York Times authored by Chandra Bozelko. Here are excerpts:

It’s been called “America’s most ‘open’ secret”: According to the Bureau of Justice Statistics, around 80,000 women and men a year are sexually abused in American correctional facilities. That number is almost certainly subject to underreporting, through shame or a victim’s fear of retaliation. Overall, only 35 percent of rapes and sexual assaults were reported to the police in 2010, and the rate of reporting in prisons is undoubtedly lower still.

To tackle the problem, Congress passed the Prison Rape Elimination Act, signed into law by President George W. Bush in 2003. The way to eliminate sexual assault, lawmakers determined, was to make Department of Justice funding for correctional facilities conditional on states’ adoption of zero-tolerance policies toward sexual abuse of inmates....

But only two states — New Hampshire and New Jersey — have fully complied with the act. Forty-seven states and territories have promised that they will do so. Using Justice Department data, the American Civil Liberties Union estimated that from 2003 to 2012, when the law’s standards were finalized, nearly two million inmates were sexually assaulted.

Six Republican governors have neglected or refused to comply, complaining of cost and other factors. Rick Perry, then the governor of Texas, wrote to the Justice Department last year stating that 40 percent of the correctional officers in male facilities in Texas were women, so that “cross-gender viewing” (like witnessing inmates in the shower, which contravenes the legal guidelines) could not be avoided. The mandated measures, he said, would levy “an unacceptable cost” on Texas, which has one of the highest rates of prison sexual assault....

Ultimately, prisons protect rape culture to protect themselves. According to the Bureau of Justice Statistics, about half of prison sexual assault complaints in 2011 were filed against staff. (These reports weren’t all claims of forcible rape; it is considered statutory sexual assault for a guard to have sexual contact with an inmate.)

I was an inmate for six years in Connecticut after being convicted of identity fraud, among other charges. From what I saw, the same small group of guards preyed on inmates again and again, yet never faced discipline. They were protected by prison guard unions, one of the strongest forces in American labor....

The Justice Department estimates that the total bill to society for prison rape and sexual abuse is as high as $51.9 billion per year, including the costs of victims’ compensation and increased recidivism. If states refuse to implement the law when the fiscal benefit is so obvious, something larger is at stake.

According to Allen Beck, senior statistical adviser at the Bureau of Justice Statistics, “institutional culture and facility leadership may be key factors in determining the level of victimization.” Rape persists, in other words, because it’s the cultural wallpaper of American correctional facilities. We preserve the abuse because we’re down with perps getting punished in the worst ways.

Compliance does not even cost that much. The Justice Department estimates that full nationwide compliance would cost $468.5 million per year, through 2026. Even that much is less than 1 percent of states’ spending on corrections. Putting aside the cruelty and pain inflicted, prison rape costs far more than the implementation of the law designed to stop it.

April 18, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, April 17, 2015

Parent of Boston bombers' young victims: "To end the anguish, drop the death penalty"

Richard-right1The title of this post is drawn from the headline of this remarkable new Boston Globe commentary authored by Bill and Denise Richard, parents of 8-year-old Martin who was one of three people killed in the April 2013 explosions at the marathon's finish line. The full piece is a must read, and I will quote it all here to help ensure these victims' voices get heard in full:

The past two years have been the most trying of our lives. Our family has grieved, buried our young son, battled injuries, and endured numerous surgeries — all while trying to rebuild lives that will never be the same. We sat in the courtroom, day after day, bearing witness to overwhelming evidence that included graphic video and photographs, replicated bombs, and even the clothes our son wore his last day alive. We are eternally grateful for the courage and life-saving measures of first responders, Boston Police, the Boston Fire Department, and good Samaritans on April 15, 2013. We also thank the FBI and other law enforcement agencies, the Department of Justice, and the Massachusetts US Attorney’s Office for leaving no stone unturned during the investigation and trial.

But now that the tireless and committed prosecution team has ensured that justice will be served, we urge the Department of Justice to bring the case to a close. We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal.

We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.

For us, the story of Marathon Monday 2013 should not be defined by the actions or beliefs of the defendant, but by the resiliency of the human spirit and the rallying cries of this great city. We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.

This is a deeply personal issue and we can speak only for ourselves. However, it is clear that peace of mind was taken not just from us, but from all Americans. We honor those who were lost and wish continued strength for all those who were injured. We believe that now is the time to turn the page, end the anguish, and look toward a better future — for us, for Boston, and for the country.

April 17, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, April 16, 2015

Latest Pew survey data on death penalty opinions

4-16-2015_01This new Pew Research Center report carries the headline "Less Support for Death Penalty, Especially Among Democrats: Supporters, Opponents See Risk of Executing the Innocent." Here are some specifics from the report:

A majority of Americans favor the death penalty for those convicted of murder, but support for the death penalty is as low as it has been in the past 40 years. A new Pew Research Center survey finds 56% favor the death penalty for people convicted of murder, while 38% are opposed.

The share supporting the death penalty has declined six percentage points, from 62%, since 2011. Throughout much of the 1980s and 90s, support for the death penalty often surpassed 70%. In a 1996 survey, 78% favored the death penalty, while just 18% were opposed.

Much of the decline in support over the past two decades has come among Democrats. Currently, just 40% of Democrats favor the death penalty, while 56% are opposed. In 1996, Democrats favored capital punishment by a wide margin (71% to 25%). There has been much less change in opinions among Republicans: 77% favor the death penalty, down from 87% in 1996. The share of independents who favor the death penalty has fallen 22 points over this period, from 79% to 57%.

The latest national survey by the Pew Research Center, conducted Mar. 25-29 among 1,500 adults, finds widespread doubts about how the death penalty is applied and whether it deters serious crime. Yet a majority (63%) says that when someone commits a crime like murder, the death penalty is morally justified; just 31% say it is morally wrong, even in cases of murder.

At the same time, 71% of Americans say there is some risk that an innocent person will be put to death. Only about a quarter (26%) say there are adequate safeguards in place to make sure that does not happen. About six-in-ten (61%) say the death penalty does not deter people from committing serious crimes; 35% say it does deter serious crime.

And about half (52%) say that minorities are more likely than whites to be sentenced to death for similar crimes; fewer (41%) think that whites and minorities are equally likely to be sentenced for similar .

The survey also finds that Americans are relatively unaware about whether the number of death penalty executions taking place in the U.S. has changed in recent years....

The share of women who favor the death penalty has fallen 10 points since 2011, while men’s views have shown virtually no change. Men are now 15 points more likely than women to favor the death penalty (64% vs. 49%). Four years ago, the gender difference was much more modest (65% of men favored the death penalty, as did 59% of women)....

Support for the death penalty has edged down among whites, blacks and Hispanics since 2011, but wide racial differences persist. About six-in-ten whites (63%) favor the death penalty, compared with 34% of blacks and 45% of Hispanics.

Age differences in views of the death penalty continue to be modest. About half (51%) of those under 30 favor the death penalty, as do 57% of those 30 to 49, 61% of those 50 to 64 and 54% of those 65 and older.

Among religious groups, sizable majorities of white evangelical Protestants (71%), white mainline Protestants (66%) and white Catholics (63%) favor the death penalty. But those who are religiously unaffiliated are divided (48% favor, 45% oppose). In 2011, the religiously unaffiliated supported the death penalty by a wide margin (57% to 36%).

As with overall views of the death penalty, there are demographic and partisan differences in attitudes about capital punishment. The sharpest disagreements are in views of whether minorities are more likely than whites to face the death penalty.

Fully 77% of blacks say minorities are more likely than whites to receive the death penalty for similar crimes. Whites are evenly divided: 46% say minorities are disproportionately sentenced to death, while an identical percentage sees no racial disparities. More than twice as many Democrats (70%) as Republicans (31%) say minorities are more likely than whites to receive the death penalty for similar crimes.

There also are educational differences in these opinions: 60% of college graduates say minorities are more apt to receive the death penalty than are whites, as do 55% of those with some college experience. But among those with no more than a high school education, 44% say minorities are disproportionately sentenced to death; 48% say whites and minorities are equally likely to receive the death penalty for similar crimes.

April 16, 2015 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack