Tuesday, October 21, 2014

"Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases"

The title of this post is the title of this intriguing new empirical study authored by Joanna Shepherd and Michael Kang.  Here is the study's summary:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals.  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections.  Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections.  These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights.  Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

This study’s two principal findings:

  • The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.  As the number of airings increases, the marginal effect of an increase in TV ads grows.  In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

  • Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision.  Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

The study is based on the work of a team of independent researchers from the Emory University School of Law.  With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013.  State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases.  These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.

The findings from this study have several important implications.  Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves.  Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.

October 21, 2014 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Koch Industries give "major grant" to NACDL to help with indigent defense

I noted in this post back in April that the Koch Brothers have a history of supporting criminal justice reform groups and efforts. That interesting story now has another interesting chapter as evidence by this new press release headlined "NACDL Selected to Receive Significant Grant from Koch Industries, Inc. to Address Nation's Profound Indigent Defense Crisis." Here is how the press release gets started:

The National Association of Criminal Defense Lawyers (NACDL), the nation's preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing, has been selected by Koch Industries, Inc. to receive a major grant in support of NACDL's efforts to address the nation's profound indigent defense crisis.

There are two components to this generous and critical initiative:

  • Significant expansion of access to training through an ambitious combination of scholarship support for indigent defenders, web-based training via the Internet, and targeted on-site training for indigent defense providers who lack adequate resources to provide comprehensive continuing education for line attorneys and supervisors.
  • Examination of state level indigent defense delivery systems in order to ascertain strengths that can be replicated elsewhere as well as weaknesses and the ways in which those can be rectified.

Both components will seek to achieve the goals set forth in the American Bar Association's Ten Principles of a Public Defense Delivery System, which are widely recognized as providing a comprehensive framework for the effective delivery of legal services for the indigent accused.

October 21, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias

A high-profile (and high-cost) capital case starts its next big phase as reported in this new AP article headlined "Opening statements expected in Jodi Arias sentencing retrial." Here are the basics:

Jurors in Phoenix will once again be asked to decide whether Jodi Arias should be executed for the gruesome murder of her former boyfriend. Lawyers are expected to make opening statements Tuesday at the sentencing retrial, more than a year after a jury found her guilty of killing Travis Alexander in June 2008. The first jury deadlocked on whether to sentence her to life imprisonment or death.

A new jury that was picked over the past several weeks will be sworn in as the former waitress tries to make another case that her life should be spared.  They won't consider whether or not she's guilty -- that's already been decided.  The retrial is expected to last into December....

Arias stabbed and slashed Alexander nearly 30 times, slit his throat so deeply she nearly decapitated him and shot him in the forehead.  She left his body in his shower where friends found him about five days later at his suburban Phoenix home.  She acknowledged she killed Alexander, but claimed it was self-defense after he attacked her.  Prosecutors said it was premeditated murder carried out in a jealous rage after the victim wanted to end their affair and planned a trip to Mexico with another woman.

Weeks after Arias was convicted, the jury failed to reach a unanimous decision on her punishment.  Her attorneys have since sought, unsuccessfully, to dismiss the death penalty as an option.  If another deadlock occurs, the death penalty would automatically be removed as an option, leaving a judge to sentence Arias to one of two options: life in prison or life in prison with the possibility of release after 25 years.

The sentencing retrial will be a mini-trial of sorts to get a fresh jury up to speed on the case.  Four hundred people were called as prospective jurors.  Many of them were cut after they said they either made up their minds about the case or knew too much to be impartial.  Some jurors cited their objection to the death penalty.

At her last trial, she testified for 18 days, describing for jurors an abusive childhood, cheating boyfriends, dead-end jobs, a shocking sexual relationship with Alexander, and her contention that he was physically abusive....

The costs of defending Arias have topped $2.5 million and will mount during a second penalty phase. Prosecutors have declined to provide their costs to try the case.

I am pleased this AP article ends with a discussion of the economic costs of this notable case. Because it is unlikely Arias will ever be executed even if she is sentenced to death, and because imposition of a death sentence will ensure years of state and federal appeals at taxpayer expense, I think prosecutors in this case are likely to do more harm to Arizona taxpayers than to Jodi Arias via this retrial. 

Some prior posts on the Arias case:

October 21, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend

Download (1)As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:

The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully.  Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....

During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name.  He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013.  But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.

Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment.  He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters.  "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration.  As a family, we are ready to support and guide Oscar as he serves his sentence."

The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."

The prosecution had asked for a minimum prison sentence of 10 years for Pistorius.  After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing.  Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....

Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.

She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."

In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."

The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.

In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.

On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.

Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.

The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.

Previous related post:

October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, October 20, 2014

New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders

Download (2)I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court.  Here is how the Globe article starts:

The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.  

Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000.  “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.

Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing.  His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system.  “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.

Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.”  That means considering mental health or substance abuse treatment as well as time in prison.  Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.

Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse.  Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.”  She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”

Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said.  “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”

The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users.  “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said.  “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”

Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:

Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.  In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence.  For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.

I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years.  But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.  And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.

October 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS order list gets week off to exciting start for criminal justice fans

As reported here and here at SCOTUSblog and here at How Appealing and here at Crime & Consequences, the Supreme Court this morning issued this order list which included one notable GVR and three grants of certiorari.  All of this SCOTUS action has a direct or indirect connection to criminal justice issues; these excerpts from Lyle Denniston's SCOTUSblog reporting highlights the basics of the cert grant: 

The Supreme Court, taking on an issue that reaches hotels and motels across the nation, agreed on Monday to rule on the power of city governments to require commercial lodgings to open their guest lists to the police. In agreeing to hear a Los Angeles case, the Justices also said they would rule on whether a lawsuit can be filed to use the Fourth Amendment to strike down a police inspection law in its entirety, whatever the factual situation in a given case.

The case of Los Angeles v. Patel was one of three new cases the Justices accepted for review.... Other issues in the newly granted cases focus on whether federal courts have power to order that guns taken from an individual during a drug prosecution should be transferred when the case is over to a neighbor and a friend to whom the owner wanted to sell them (Henderson v. United States), and whether it is unconstitutional for a state court to exclude an accused individual and defense lawyers from a hearing to examine the legality of prosecutors’ exclusion of minority jurors from serving (Chappell v. Ayala).

In addition, the notable GVR involved the application of the Burrage causation issue resolved last SOCTUS Term in a criminal prosecution involving a doctor convicted of four counts of unlawful distribution of a controlled substance leading to death.  Justice Alito, joined by Justice Thomas, concurred in a written opinion to make clear that "nothing in today’s order should be understood as suggesting that petitioner is entitled to acquittal."

October 20, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Why Did the Supreme Court Sidestep Sentencing Dispute?"

The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro.  Here are excerpts:

The U.S. Supreme Court's ­refusal to add a Washington drug case to its docket would not ordinarily get much notice.  But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-­running dispute over judicial discretion in ­sentencing.

The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted.  In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.

"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."

Cato Institute senior fellow Ilya Shapiro said, "It's not just high-­profile culture-war issues like same-sex ­marriage and the right to bear arms that the Supreme Court is avoiding like the plague."  Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked.  "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along.  As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable ­practice" of basing sentences on uncharged or unproven offenses.

An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review.  "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."

In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....

Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....

The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."

Previous related posts on the Jones case:

October 20, 2014 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, October 19, 2014

Judicial misconduct complained against Fifth Circuit Judge Jones based on provocative death penalty speech dismissed

Thanks to recent posts at Hercules and the Umpire and at Crime & Consequences, I see that the judicial misconduct complaint filed against US Circuit Judge Edith Jones of the Fifth Circuit based on a provocative speech she gave concerning the death penalty at a law school.  The lengthy dismissal order is available here, and this AP article reviews the basics:

A council of federal judges has dismissed a misconduct complaint against a conservative appellate judge who was alleged to have made racially discriminatory remarks at a lecture on the death penalty.

Judge Edith Jones ... allegedly said at a speech in February 2013 at the University of Pennsylvania law school that certain racial groups like African-Americans and Hispanics are predisposed to crime, and are prone to commit acts of violence and to be involved in more violent and heinous crimes than people of other ethnicities.

Thirteen individuals and public interest groups filed a judicial misconduct complaint against Jones, and Chief Justice John Roberts assigned the case to the appeals court in Washington at the request of the chief appeals judge in New Orleans. The dismissal, which took place in August, was publicly disclosed Wednesday.

In a lengthy inquiry, a three-judge panel of the judicial council was unable to find any recording of Jones' remarks, forcing them to rely on varying recollections of audience members about precisely what Jones said. "It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are `disproportionately' involved in certain crimes and `disproportionately' present in federal prisons," said the panel. "But we must consider Judge Jones' comments in the context of her express clarifications during the question-and-answer period that she did not mean that certain groups are `prone to commit' such crimes," the panel of judges said.

"In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial," said the panel. "They resemble other albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system."

Attorney Maurie Levin, who represents the complainants, said the ruling "essentially credits Judge Jones' stale recollections over the testimony of a lawyer and five law students who set down their recollections not long after the lecture. There is simply no way to understand that as a fair weighing of the evidence." The complainants are appealing to the Committee on Judicial Conduct and Disability of the judicial council.

I especially recommend Judge Richard Kopf's analysis and reactions in his post at Hercules and the Umpire, and I found noteworthy and important these particular reactive insights from Judge Kopf:

The work of the Special Committee and Professor Jeffrey Bellin makes me proud to be a federal judge. The clarity, tone, thoroughness and objectivity which is evident in the Report of the Special Committee is remarkable....

In my opinion, the essential allegations of the complaint lack a credible factual basis. With the aid of Professor Bellin’s searching investigation, the Report of the Special Committee, in restrained terms, explains why that is so.

I fear that complaints like this one will chill, and may even be intended to chill, judicial speech concerning the law, the legal system, and the administration of justice, particularly when the judge does not share the jurisprudential or ideological views of the listeners, and despite the fact that federal judges are expressly encouraged under the Code to speak about the law and how to improve it.

As distinguished from my fears expressed in the preceding paragraph, the Report of the Special Committee does a skillful job of explaining why controversial speech by a federal judge in the context of a talk on the law does not violate the Code.

Prior related posts:

UPDATE: Judge Kopf now has this additional interesting post on this matter titled "On being 'uncomfortable' and 'offended' — the ethics complaint against Judge Jones and the student affiants."

October 19, 2014 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, October 18, 2014

With DAG James Cole also stepping down, new appointments will remark DOJ

DownloadAs detailed in this Los Angeles Times article, "Deputy Attorney General James M. Cole said in an interview Thursday that, like his boss, he will soon leave the Justice Department." Here is more about the emptiness at DOJ and DAG Cole's work and legacy:

The coming departure of Cole, who for four years has been the day-to-day boss of the department, adds to a growing leadership vacuum at the federal government’s top law enforcement agency. Atty. Gen. Eric H. Holder, Jr. announced last month that he would leave as soon as a successor is confirmed, though the Obama administration has so far not announced a replacement.

At least half a dozen other top positions at Justice, including the associate attorney general, the No. 3 job, are currently filled with acting appointees.

Cole said he was particularly proud of his efforts to take a softer federal approach to enforcement of federal marijuana laws, a project to encourage nonviolent prisoners serving long drug sentences to apply for a presidential commutation, and prosecution of Credit Suisse bank and individual Swiss bankers for helping U.S. citizens evade taxes.

He has also been closely involved in Holder’s “smart on crime” initiative to reduce the prison population and the large proportion of African Americans in federal prisons.

Cole said he expected to leave in early January, after someone has been chosen to take his place, on a permanent or acting basis.

October 18, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, October 17, 2014

ProPublica urges next AG to "Fix Presidential Pardons"

The title of this post is drawn from the headline of this strong new piece from the Editor-in-Chief of ProPublica. The full headline and subheadline provides the basics: "For the Next Attorney General, a Modest Suggestion: Fix Presidential Pardons; More than two years ago, a ProPublica series showed that white applicants were far more likely to receive clemency than comparable applicants who were black. Since then, the government has spent hundreds of thousands of dollars on a study, but the pardons system remains unchanged." And here are a few excerpts from a piece that is styled as an open letter to the next Attorney General:

Dear Possible Attorney General Nominees (You Know Who You Are),...

More than two years ago, ProPublica reporters Dafna Linzer and Jennifer LaFleur revealed that white applicants were nearly four times as likely to receive a presidential pardon as were comparable African Americans. The story appeared on the front page of The Washington Post, our publishing partner. I know, I know, this seems improbable but LaFleur spent many months doing a statistical analysis that eliminated every other factor we could imagine that might explain this disparity. We sent our findings and methodology to several leading experts in the field. All agreed that race was the only factor driving the vast difference. We published our methodology and you can read it here. Linzer's reporting on the pardons process suggested that it was far more subjective than you might have thought. We wrote about how race creeps into decision-making even when no one is overtly biased. It's worth a look.

Given the starkness of these findings, we at ProPublica thought, naively, that your predecessor and his boss would move immediately to address this problem. As I'm sure you're aware, a president's authority to grant pardons is one of the only unchecked powers in our constitutional system of checks and balances. When it comes to pardons, President Obama can do whatever he wants.

We were told by several political insiders that the pardon stories did not prompt reform because of their timing. They appeared in late 2011, just as the president was gearing up for what was expected to be a bruising campaign for a second term. It was not considered the politically ideal moment for the nation's first African-American president to make the justice system fairer for people of color. And so the government did what it so often does in such circumstances: It commissioned a study to see if our findings were correct....

If history is any guide, you'll be getting a tsunami of pardon requests in the last months of the administration. It might be nice to have come up with some serious reforms by then to fix a process that is so demonstrably flawed. There are lots of ideas about what could done, from setting up an independent pardons commission to taking the pardons office out of the Justice Department.

Good luck with the confirmation hearings. And remember, two years can fly by a lot quicker than you'd ever imagine....

Best Regards,

Stephen Engelberg/Editor in Chief, ProPublica

October 17, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, October 16, 2014

"Is Hillary Clinton ready for marijuana's 2016 push?"

The title of this post is the headline of this notable and lengthy new CNN article.  Here are excerpts:

When Hillary Clinton graduated from Wellesley College in 1969 -- where the future first lady and Secretary of State says she did not try marijuana -- only 12% of Americans wanted to legalize the drug.  In 45 years, however, the tide has changed for legalization: 58% of Americans now want to make consumption legal, two states (Colorado and Washington) already have and two more states (Oregon and Alaska) could join them by the end of the year.

Despite their growth in approval, many activists see 2014 as a smaller, but important, step to their end goal.  It is 2016, when voters will also have to decide who they want in the White House, that marijuana activists feel could be the real tipping point for their movement.

"There will certainly be even more on the ballot in 2016," said Tamar Todd, director of marijuana law and policy and the Drug Policy Alliance.  "More voters coming to the polls means more support for marijuana reform and in presidential election years, more voters turn out."

Demographics and money are also an important consideration.  Big donors who are ready to fund pro-legalization efforts are more loose with their money in presidential years, according to activists, while Democrats and young people are more likely to turn out. This means legalization activists will be better funded to reach the nearly 70% of 18 to 29 year old Americans who support legalization.

On paper, activists feel their plan will work. But it is one yet to be decided factor -- who Democrats will nominate for president in 2016 -- that could throw a wrench into their push. Clinton is the prohibitive favorite for the Democrats' nomination, but to many in the marijuana legalization community, she is not the best messenger for their cause.

"She is so politically pragmatic," said Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws.  "If she has to find herself running against a conservative Republican in 2016, I am fearful, from my own view here, that she is going to tack more to the middle. And the middle in this issue tends to tack more to the conservative side."...

Clinton has moved towards pro-legalization, though. Earlier this year, during a town hall with CNN, she told Christiane Amanpour that she wants to "wait and see" how legalization goes in the states before making a national decision. At the same event, she cast some doubt on medical marijuana by questioning the amount of research done into the issue.

Later in the year, Clinton labeled marijuana a "gateway drug" where there "can't be a total absence of law enforcement."

"I'm a big believer in acquiring evidence, and I think we should see what kind of results we get, both from medical marijuana and from recreational marijuana before we make any far-reaching conclusions," Clinton told KPCC in July. "We need more studies. We need more evidence. And then we can proceed."

This is more open, however, than in 2008 when Clinton was outright against decriminalization, a step that is less aggressive than legalization. Despite warming on the issue, Clinton's position is concerning to activists like St. Pierre because he feels they are far from solid. "If reforms keep picking up... the winds in our sails are clear," he said. "But if we lose one of more or all of those elections this year, cautious people around her could make the argument that this thing has peaked and you now have to get on the other side of it."

Cross-posted at Marijuana Law, Policy & Reform

October 16, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 15, 2014

Will Eric Holder still be Attorney General well into 2015?

The question in the title of this post is prompted by this recent press report that "President Obama plans to wait on nominating a new attorney general to replace Eric Holder until shortly after the November election." Here is more on the slow pace of Holder's departure from the Office of Attorney General: 

A source close to the process on Tuesday confirmed to Fox News that the president plans to wait until after the Nov. 4 midterm elections. The source said the administration considers the appointment to be serious and wants to wait so the nomination doesn’t get mired in election-year politics. Democrats reportedly had asked the president to hold off until after Nov. 4.

But some Senate Republicans wanted Obama to wait until the new Senate is seated in January to name his pick to succeed Holder. By naming a nominee shortly after the election yet before the new year, the White House would be putting his or her confirmation in the hands of some lawmakers who are not returning in 2015 -- and thus no longer accountable to voters. Further, the White House would be handing the nomination to a Democrat-controlled Senate, despite the possibility that control of the Senate could flip to Republicans in January.

Sen. Ted Cruz, R-Texas, has warned that confirming Holder’s successor before a new Congress is sworn in “would be an abuse of power that should not be countenanced."...

White House Press Secretary Josh Earnest, asked about the timing, said Tuesday that it will take a "little bit of time" to choose the right nominee for the job. But he urged the Senate to "act quickly and in a bipartisan fashion to confirm that person."

The lame duck timetable covers just seven legislative calendar weeks, not accounting time off for holiday recesses. But the White House has pointed out there is precedent for such a move. The day after the 2006 midterm, President George W. Bush nominated Robert Gates as secretary of defense and he was confirmed in less than a month with bipartisan support.

A few recent related posts:

October 15, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, October 14, 2014

AG Eric Holder officially says federal prosecutors should no longer require defendants to "waive their right to bring future claims of ineffective assistance of counsel"

I have long thought it both bad policy and ethically suspect to expect or require criminal defendants to waive future rights (as opposed to current rights) in a plea agreement.  Consequently, I am very pleased to see this new press release coming the the US Department of Justice, titled "Attorney General Holder Announces New Policy to Enhance Justice Department's Commitment to Support Defendants' Right to Counsel." Here are the details (with my emphasis added):

Attorney General Eric Holder, along with Deputy Attorney General James M. Cole, announced today that the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel.  The new policy bolsters the department’s commitment to ensuring that individuals are ably represented as they face criminal charges and marks the Attorney General’s latest step to reform the criminal justice system.

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” said Attorney General Holder. “Under this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.  I am confident in the ability of our outstanding prosecutors to ably and successfully perform their duties without the use of these waivers, as the vast majority of them already do.  Moving forward, I am certain that this more consistent policy will help to bring our system of justice closer in line with our most fundamental values and highest ideals.”...

Deputy Attorney General Cole unveiled the new policy through a memorandum to all federal prosecutors and through a conference call today. Prior to today’s action, 35 of the department’s 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel. While the department believes such waivers are legal and ethical, the new policy will create a uniform policy for all U.S. Attorneys to follow.

The memo directs federal prosecutors to no longer ask defendants to waive future claims of ineffective assistance of counsel in plea agreements. It also instructs prosecutors to decline to enforce waivers that have already been signed in cases where defense counsel provided ineffective assistance resulting in prejudice or where the defendant’s ineffective assistance claim raises a serious issue that a court should resolve.

As noted in this prior post, a few months ago the the Supreme Court of Kentucky unanimously rejected a challenge by the federal government to Kentucky Bar Association Ethics Opinion stating that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  Thus, I think DOJ is still on shaky ground when it asserts a belief that such waivers "are legal and ethical," but this suspect view becomes a lot less worrisome if the feds no longer plan to use such waivers nand also will not seek to have them enforced.

Kudos to AG Holder and others in DOJ for making the sounder ethical and policy approach to this significant matter now official DOJ policy.  And, notably, those who regard national consistency in federal sentencing policy and practice to be important should also welcome this universal policy decision coming from Main Justice.

UPDATE: The one-page memo referenced in this press release can be downloaded here:  Download DOJ Policy on Waivers of Claims of IAC

October 14, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

I cannot resist the urge to use this space to reflect upon (and perhaps salve) my disappointment in the learning the certiorari petition in Jones v. US, No. 13-10026 — a case in which I wrote this SCOTUS amicus brief in support of cert — came up only one SCOTUS vote short of making it as the petition today was denied over a dissent authored by Justice Scalia and joined by Justices Thomas and Ginsburg.   As I briefly explained in this initial post on the cert denial, I find especially notable and troubling that neither Justices Sotomayor and Kagan provided the key single additional vote for cert given that both were in the majority in two recent cases which, I think, further set a foundation for finding constitutional limits on guideline punishment enhancements based on acquitted conduct.

As I have explained in prior posts and in my Jones amicus brief, in Peugh v. United States, 133 S. Ct. 2072 (2013) (authored by Justice Sotomayor), the Supreme Court clarified that Guideline ranges, even though now only advisory after Booker, still have consequential “force as the framework for sentencing” and thus are subject to at least some constitutional limitations on how they are calculated and applied. Id. at 2083-84.  And in Alleyne v. United States, 133 S. Ct. 2151 (2013) (with both Justices Sotomayor and Kagan as key votes to reverse a pre-Blakely/Booker precedent), the Supreme Court overturned a prior holding that had failed to recognize that the constitutional protections of the Fifth and Sixth Amendments apply fully not only to facts raising maximum sentences, but whenever the law creates a “linkage of facts with particular sentencing ranges." 133 S. Ct. at 2159-62.

I continue to believe (or at least want to believe) that the huge acquitted conduct guideline punishment enhancements at issue in Jones have to trouble greatly any Justice who truly accepts the Apprendi-Blakely Sixth Amendment jurisprudence, AND who truly believes the advisory federal sentencing guidelines still have constitutionally-significant legal force (as Peugh holds), AND who truly claims the Constitution is concerned with judicial findings of facts that raise punishment floors as well as ceilings (as Alleyne holds).  In other words, I continue to believe (or at least want to believe) that Justices Sotomayor and Kagan would be votes to reverse the sentences at issue in a case like Jones if and when cert is ever granted to review huge acquitted conduct guideline punishment enhancements.  

So why wasn't cert granted this time around, especially with Justices Scalia, Thomas and Ginsburg vocally in support of such a grant in Jones?  As the title of this post is meant to suggest, I think Justices Sotomayor and Kagan may have concluded it would be virtuous and valuable to be passive in this setting, at least for right now, because any extended SCOTUS consideration of extended acquitted guidelines punishment could give Sixth Amendment rights (and SCOTUS itself) an extended black eye (especially if one or both of them might ultimately be inclined to uphold extended acquitted guidelines punishments in Jones).  

I have long hoped for and sought a cert grant on acquitted conduct enhancements because I have long believed jurisprudes on both the left and the right will (and should) have a hard time defending, especially in light of the strong jury-rights rhetoric in cases like Apprendi and Blakely, a federal guideline sentencing system that still recommends huge punishment increases based essentially on judicial rejection of a not-guilty jury verdict.  (Notably, the only time SCOTUS directly addressed this issue, in the 1997 Watts case, the Court issued a summary reversal to permit acquitted conduct enhancements and thus prevented full briefing or oral argument on the matter.)   But yet again because of another cert denial, we will not learn if Justices Breyer and Kennedy (or even CJ Roberts), who in other settings express concerns about prosecutorial power and excessive sentencing, might be cajoled through full briefing and argument to see the constitutional vices of allowing prosecutors and judges to trump juries in the federal sentencing process. 

Finally, once one starts thinking about the possibility that Justices Breyer and Kennedy and even CJ Roberts might have been especially eager right now to dodge full consideration of acquitted conduct punishments, it becomes hard to avoid speculating about "long confernce" deals to deny cert and thereby dodge consideration now of other (higher profile) hard constitutionally issues.  As all Court-watchers know, the really big cert-denial news after the SCOTUS long conference involved denials in all the same-sex marriage cases from around the country.  Dare I show my ignorance about what really goes on behind SCOTUS doors when I wonder if, at least tacitly, a large block of Justices concluded during the long conference that it was in every Justices' interest to be "deeply in denial."  Just a (silly?) thought.

Previous related posts on the Jones case:

October 14, 2014 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case

I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal.  As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference."  Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg.  Mega-bummer!!!

Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original): 

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal.  See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment).  If so, their constitutional rights were violated.  The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.”  Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).  We have held that a substantively unreasonable penalty is illegal and must be set aside.  Gall v. United States, 552 U.S. 38, 51 (2007).  It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.  It may not be found by a judge.

For years, however, we have refrained from saying so.  In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case.  We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness.  551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”).  Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....

This has gone on long enough.  The present petition presents the nonhypothetical case the Court claimed to have been waiting for.  And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.  Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs.  The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions.  But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.  

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated.  744 F. 3d 1362, 1369 (2014).  We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land.  Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases.  But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne.  As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.

Previous related posts on this case and acquitted conduct sentencing enhancements:

October 14, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, October 13, 2014

Oklahoma AG requests additional delay before state gets back to executions

As reported in this Reuters article, "Oklahoma's attorney general has filed a request to delay three upcoming executions in Oklahoma due to a lack of drugs and to provide more time to implement new lethal injection protocols, according to court documents obtained on Monday."   Here is more:

Attorney General Scott Pruitt has asked the Oklahoma Court of Criminal Appeals to delay two executions set for November and one set for December because the state does not have the necessary drugs or the medical personnel to carry out the executions, a filing from last week showed. The drugs used during executions in the United States are under scrutiny after inmates in troubled executions in Ohio, Oklahoma and Arizona took longer than is typical to die and showed signs of distress.

Pruitt requested a Jan. 15 execution date for Charles Warner, convicted of raping and murdering 11-month old Adrianna Walker. Pruitt was scheduled to be executed Nov. 13. His original execution date was April 29, the same night of the botched execution of condemned murderer Clayton Lockett. Lockett's execution prompted the state to delay all executions pending a review and investigation into why it took Lockett over 40 minutes to die....

Richard Eugene Glossip and John Marion Grant were also scheduled for execution in 2014, but Pruitt asked that their executions be set for Jan. 29 and Feb. 19, respectively. Robert Patton, director of the Oklahoma Department of Corrections, issued a statement on Monday supporting the 60-day delay.

Dale Baich, attorney for Warner, issued a statement applauding Pruitt's request, saying more time is needed for the federal courts to review a lawsuit filed by 26 inmates, including Warner, Glossip and Grant. The lawsuit argues that the state is experimenting on death row inmates with untested lethal injection drugs, violating the law’s ban on cruel and unusual punishment.

October 13, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"

The question in the title of this post is the first line of this AP article headlined "Factors that may affect if Pistorius spends time in prison." Because I know very little about South African sentencing law and procedure, I found this AP article quite informative, and here are excerpts:

Judge Thokozile Masipa began hearing testimony Monday before deciding what sentence the double-amputee Olympic athlete should serve.  Pistorius was acquitted of murder in Steenkamp's shooting death but convicted of a lesser charge of culpable homicide, or killing Steenkamp through negligence.  It has a wide range of possible sentences in South Africa, from a fine and no prison time to as much as 15 years in jail....

Judge Masipa will hear testimony from a small number of witnesses called by the defence and then prosecution before deciding on Pistorius' sentence.  The defence began presenting witness testimony on Monday, arguing why the judge should be lenient.  Prosecutors could call Steenkamp's family members to show that Pistorius should be sent to prison for years because of the suffering he has caused....

Pistorius' lawyers cited what they say is his remorse and previous good character as reasons for a lenient sentence.  Defence lawyers began by calling a psychologist who has counselled the athlete since he killed Steenkamp. Dr. Lore Hartzenberg testified that Pistorius was a "broken man" wracked with grief following the shooting, and had lost his reputation, his friends and his career.  The defence hopes her testimony -- which focused on what she said was Pistorius' emotional pain following an accidental killing -- will help persuade Masipa that Pistorius is remorseful, has suffered already and shouldn't be sent to prison because he needs ongoing therapy.

Prosecutor Gerrie Nel countered that Pistorius was "still alive" and Steenkamp wasn't and that should be considered....

Pistorius' work with charities before the Feb. 14, 2013 shooting was listed extensively by his agent, Peet van Zyl, who was also called by the defence.  Van Zyl's testimony was designed to paint the Paralympic champion as a generally good person who had no previous criminal record.  He also said that Pistorius had lost all his athletics endorsements because of the court case and had already been punished financially.

A social worker from South Africa's department of correctional services was the only one of the three defence witnesses who testified on the first day of the hearing to suggest a sentence.  Joel Maringa said three years of "correctional supervision" would be appropriate, where Pistorius would be partly under house arrest and have to do community service, but would also be able to train and attend athletics meets.

Nel fiercely criticized that suggestion, saying it was "shockingly inappropriate" after Pistorius killed someone.  The prosecution, which sought a murder conviction, has insisted that Pistorius should go to prison because of the level of negligence he displayed when he fired four hollow-point bullets through a toilet cubicle door in his home and into a small space without checking who was inside.

Masipa's options are wide-ranging: She could order a fine and a suspended prison sentence, meaning the 27-year-old Pistorius spends no time in jail unless he offends again.  But she could also sentence him to up to 15 years in prison.  In between those two scenarios, Masipa could order he be put under house arrest for a period.  Pistorius could apply for parole after serving half of any prison sentence.

October 13, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Noting how politicians can be pro-life and pro-death (penalty) in Texas

This local story on modern Texas politics, headlined "Being pro-life in gov's race doesn't extend to death row," highlights what concerns about the sanctity of life real mean in the Lone Star State.  Here are excerpts:

When Attorney General Greg Abbott talks about his opposition to abortion, he often mentions his Catholic faith. Not so when he talks about his support for the death penalty, whose abolition is advocated by Pope Francis.

“Catholic doctrine is not against the death penalty, and so there is no conflict there,” Abbott, the Republican nominee for governor, said when asked about that point in a meeting with the San Antonio Express-News Editorial Board.  The Catholic catechism doesn't exclude the death penalty as an option if that's the only way to defend human lives from an offender, but it says that given current options, such cases “are very rare, if practically non-existent.”

Pope Francis, in reaffirming the church's call to abolish the death penalty last year, asked that such sentences be commuted to a lesser punishment allowing for the offender's reform, the National Catholic Register reported.  “The difference, of course, is one between innocent life and those who have taken innocent lives,” Abbott said of his position on abortion versus the death penalty.

A different view on capital punishment would itself be seen as tantamount to a political death sentence in Texas.  Abbott's Democratic opponent, Sen. Wendy Davis, also backs the death penalty — even though as a Fort Worth City Council member in 2000 she voted to impose a moratorium on it, and even though the Texas Democratic Party platform calls for substituting life in prison for capital punishment, saying the death penalty is applied disproportionately to the poor and persons of color.

The moratorium didn't pass, and Davis said that the questions prompting her to support it then have largely been answered through such means as advancement in the use of DNA evidence. “Obviously, before we mete out the most serious of punishments, we need to know we've done everything to assure that the person on the receiving end of that punishment is guilty,” Davis told the Express-News Editorial Board in a separate appearance Friday. “We have made some advances in that regard. ... Is there still work to do? Absolutely.”

Both candidates credited work by Sen. Rodney Ellis, D-Houston, on the issue. Abbott cited his efforts with Ellis on legislation to expand DNA testing in death penalty cases. “I know that the only way the death penalty will work is to ensure its absolute accuracy — that everyone who is given the death penalty is guilty of the crime for which they were accused and convicted of committing,” Abbott said.

Being sure can be difficult.  In 2010, Anthony Graves became the 12th death-row inmate to be exonerated in Texas, absolved of the 1992 Burleson County murder for which he was convicted.  Michael Morton, who served 25 years in his wife's Williamson County murder before being exonerated, told CNN, “I thank God this wasn't a capital case.”...

Abbott and Davis both said if elected, they'll also take care in presiding over executions. “I will ensure that before I ever allow an execution to occur, I will be 100 percent convinced that the person who is being sentenced to the death penalty is guilty of that crime,” Abbott said. Davis said, “As governor, I'll take that very seriously and make sure that before that punishment is meted out that we have done everything we can to answer the questions that need to be answered.”

October 13, 2014 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, October 12, 2014

"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw"

The title of this post is the title of this intriguing new paper by U.S. District Judge Mark Bennett. Here is the abstract:

Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic.  It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor.  Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges.  The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random.

Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005).  Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed.  This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences.  This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.

This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress.  It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines.  If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.

October 12, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Documenting a notable California legal crusade against sex offender restrictions

This lengthy local article, headlined "Pair seeks repeal of sex-offender laws in California," provides a detailed review of a notable effort to take down via court challenges local sex offender restrictions. The piece merits a full read, and here are a few highlights:

A crusading civil rights attorney and a registered sex offender have partnered in a legal battle that has prompted dozens of California cities to repeal or revise what the pair believe are unconstitutional ordinances restricting the activities of sex offenders.

Since March, Santa Maria attorney Janice Bellucci and Frank Lindsay, a 62-year-old water-treatment specialist from Grover Beach and registered sex offender for 35 years, have filed 18 lawsuits in federal court challenging ordinances in cities from Stockton down to National City.

To date, Bellucci has settled 15 of the lawsuits, while 38 other cities have avoided litigation by agreeing to repeal their ordinances. Six other cities have voluntarily suspended enforcement of their ordinances, while ordinances in another 18 cities are still under review.

“The way I look at it is that I’m protecting the Constitution of the United States as well as the state of California,” said Bellucci, president of California Reform Sex Offender Laws, a nonprofit she launched three years ago as an affiliate to the national Reform Sex Offender Laws organization.

While Bellucci believes she’s fighting for the rights of oppressed sex offenders, others say she’s endangering the state’s youth. “As an elected official and as a mother, I’m concerned about the health and safety of our young people who don’t have a voice,” said Carson Councilwoman Lulu Davis-Holmes. Carson is one city sued by Bellucci that plans to fight the lawsuit. “Our kids did not make the choice to be molested,” Davis-Holmes said. “I personally think we need to do more to protect those who cannot protect themselves,”

Bellucci’s flurry of lawsuits was prompted by a 4th District Court of Appeal’s decision in January that found sex offender ordinances in Orange County and the city of Irvine cannot impose restrictions more stringent than state law, which only restricts sex offenders who are on parole and whose victims were under the age of 14 from visiting public parks without the express permission of their parole agent.

In addition to the suits she filed with Lindsay, Bellucci has filed two lawsuits on her own, challenging ordinances in Canyon Lake and Commerce. Those complaints do not name Lindsay as a plaintiff because ordinances in those cities do not apply to sex offenders whose convictions are as old as Lindsay’s.

In April, the state Supreme Court declined a petition by the Orange County District Attorney’s Office to review the appellate court ruling, leaving it intact. The appellate court ruling, coupled with the spate of litigation initiated by Bellucci, could have a major impact on the lives of California’s 107,913 registered sex offenders, roughly 14 percent of the nation’s 774,600, as cities and counties are forced to either repeal their ordinances or make them uniform with state law.

This companion article, headlined "Sex-crimes convict says registration has ruined his career, endangered his life?," provides a profile of the sex-offender who is the plaintiff in much of the discussed California sex offender litigation.

October 12, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack