Sunday, July 27, 2014

"Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing"

The title of this post is the title of this notable new article by Miriam Gohara that I just came across via SSRN.  Here is the abstract:

Investigation and presentation of comprehensive life history mitigation is at the heart of successful capital litigation that has contributed to a steady decline in capital sentences. Noncapital incarceration rates have also begun to level, and various legal developments have signaled a re-ascent of more individualized noncapital sentencing proceedings.  This return to individualized sentencing invites consideration of whether life history mitigation may, as it has in capital cases, hasten a turn away from mostly retributive punishment resulting in disproportionately harsh noncapital sentencing to a more merciful rehabilitative approach.  The robust capital mitigation practice required by today's prevailing professional capital defense norms developed following the Supreme Court's Eighth Amendment doctrine requiring individualized capital sentences that account for the unique characteristics of the offender. No such doctrinal imperative applies to noncapital sentencing. As a result, professional noncapital defense sentencing standards, while providing a general basis for various aspects of sentencing advocacy, remain relatively underdeveloped, though the same bases for ameliorating punishment in capital cases should apply with equal practical force to noncapital cases.

At the same time, institutional and doctrinal barriers -- including high caseloads and lack of resources, the prevalence of plea bargaining, and the Supreme Court's “death is different” precedent -- present formidable challenges to routine presentation of life history mitigation in noncapital cases.  Therefore, the regular presentation of life history mitigation, lacking a constitutional mandate and operating in a structure different from that of capital sentencing, will depend in the immediate term on the initiative of criminal defense lawyers with the will to consistently present it in noncapital cases.  A more widespread adoption of comprehensive noncapital mitigation practice will benefit individual clients, change the expectations of sentencing courts concerning what information they should have available before ordering punishment, and provide insight into the social causes of various types of crimes.  Over time, as it has in capital cases, familiarity with the mitigating force of social history may serve as a powerful basis for empathy and amelioration of overly punitive noncapital punishment.

July 27, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Defender hiccup or major headache for Clemency Project 2014?

The question in the title of this post is prompted by this new article from Al Jazeera America headlined "Federal defenders potentially excluded from historic clemency drive." Here are excerpts:

Six months after the Justice Department called on defense lawyers to help it identify and vet candidates for its clemency drive, there is concern that the federal defenders — whom the DOJ invited in as key partners — might never have been authorized to participate in the first place. This could leave the initiative without the manpower it needs.

A high portion of the potential pool of inmates is represented by the federal defenders, and they have been critical in the formation and operation of Clemency Project 2014, a coalition of defense lawyers and advocates created in the wake of the DOJ’s call. (The vast majority of those prosecuted in federal courts receive court-appointed lawyers; in districts where there is a federal defenders’ office, they generally handle 60 percent of those cases.)

"Federal defenders include some of the best courtroom and appellate advocates in the United States. Having them work with the Clemency Project 2014 has been important to the work we are doing,” said Mark Osler, director of the Federal Commutations Clinic at the University of St. Thomas in Minnesota, who has been training lawyers for the Clemency Project. “Losing them as a part of the coalition would be a significant challenge.”

The courts appoint federal defenders — under the Criminal Justice Act — to represent indigent defendants in federal judicial proceedings, a service paid for by the public. Now the courts’ highest authority is considering whether those appointments can extend to representing clients in their petitions to the president for mercy, a process conducted wholly in the executive branch....

In February, the Justice Department invited representatives from a select group of its traditional rivals — the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, Families Against Mandatory Minimums and the federal defenders — to a series of meetings to discuss how the process might be structured. (A conservative organization, Judicial Watch, is currently suing the Justice Department to make those discussions public.)

The criteria that eventually emerged called for inmates who were nonviolent, low-level drug offenders without significant ties to large-scale criminal organizations. They would also have to have served at least 10 years of their prison sentences, not have a significant history of crime or violence and have demonstrated good conduct in prison.

While the Justice Department will ultimately decide which inmates to recommend to the president for clemency, it is the defense bar that has been tasked by the government with most of the upfront work, including identifying worthy candidates, recruiting and training the vast numbers of pro bono attorneys needed to assist the effort, preparing the petitions and vetting which petitions reach the Justice Department’s Office of the Pardon Attorney....

Cynthia W. Roseberry, the newly appointed head of the Clemency Project 2014, a former federal defender herself, said that “we look forward to continuing our collaboration with the federal defenders,” and that she remained confident that the project has the resources to identify all prisoners who meet the criteria for clemency and to ensure they have access to counsel at no cost....

The federal defenders declined to comment on internal discussions relating to when, if ever, consideration was given to whether they were statutorily authorized to participate in such a broad clemency effort. Kathy Nester, the federal public defender for the district of Utah and the defenders’ representative on the Clemency Project 2014 steering committee, referred to standing orders by judges in six districts already appointing defenders, saying it was evidence that the work logically falls to them. (At the time of publication, the administrative office of the courts was only able to confirm that there were four such standing orders.)

“It was a federal public defender's office that submitted the successful clemency petition in the case of Ezell Gilbert late last year,” said Nester, referring to one of the eight inmates whose sentences President Barack Obama commuted in December 2013. “This was done at the urging of [the Justice Department] and federal judges who had reviewed the case. Defenders have approached the clemency project with a good faith belief that we are supposed to take positions that are in the best interest of our clients, and that this historical opportunity for relief from unreasonable sentences would certainly fall within that mission.”

Similarly, in June, a federal defender motion in Cleveland asked for a court appointment to do clemency petitions, noting that it was the deputy attorney general, not the inmates themselves, who had requested that the defense bar seek clemency for qualified inmates. In response, the DOJ asked the court to defer appointing the defenders until the administrative office of the U.S. courts makes its decision as to whether the defenders are authorized to do such work. Neither the department nor the U.S. Attorney’s office in Cleveland would say whether this was now a department-wide position....

The more than 20,000 federal inmates who have taken up the DOJ on its invitation and asked Clemency Project 2014 to review their cases now await those who set these wheels in motion to sort it all out.

I sincerely hope there does not end up being major difficulties with federal defenders working on clemency petitions for federal inmates. And however these administrative issues get worked out, it will remain the case that there are just far too many federal prisoners who could benefit from experienced defense lawyers and far too few lawyers able to provide all the legal help needed.

July 27, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, July 26, 2014

Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms

This new CNN article details how two prominent Republicans, both of whom are thought to be considering a serious run for President in 2016, are continuing to talk about the need for significant criminal justice reforms.  Here are excerpts:

Sen. Rand Paul is proposing legislation aimed at eliminating criminal sentencing rules that adversely impact minorities, saying that "we need some fresh ideas to combat old and festering problems."

The Republican from Kentucky described the measure Friday in a speech to the National Urban League. It's part of his aggressive outreach effort to African-Americans and other voting groups who don't traditionally back Republicans. Paul is trying to expand the GOP base and lay the groundwork for a potential 2016 campaign for the White House.

His address highlighted sentencing reform, expanded voting rights, and education reform. It came one day after two other possible Republican presidential hopefuls, New Jersey Gov. Chris Christie and Rep. Paul Ryan of Wisconsin, also touted similar reforms.

Sentencing reform is one of Paul's signature issues. As he's done in previous speeches, he told the audience gathered in Cincinnati that the nation's criminal justice system is still stacked against minorities. "Three out of four people in prison right now for non-violent crimes are black or brown. Our prisons are bursting with young men of color and our communities are full of broken families," Paul said....

Paul also touted that he's working with Democrats, like Sen. Cory Booker of New Jersey, on a bill that would expunge records, under certain circumstances, of non-violent and youth related crimes. And, he's rubbing shoulders with Attorney General Eric Holder on sentencing reform as well as some Republican governors.

Paul also used his address in front of the National Urban League convention to make another pitch for expanding the voting rights of ex-cons. "Nationwide, five million people are prevented from voting because of their criminal record. It's the biggest impediment to voting in our country. I want more people to vote, not less," Paul said.

He described himself as "a Republican who wants to restore a federal role for the government in the Voting Rights Act." Paul twice quoted from Martin Luther King Jr. in his speech to the century-old civil rights organization. And Paul again mentioned King as he continued his crusade against the federal government's current surveillance activities....

Some of Paul's language sounds similar to what Christie is saying. Thursday night, he and the chairman of the Republican Governor's Association once again said that there's far too many people sitting in prisons for non-violent drug crimes and called on Republicans to focus on people not just before they're born but after as well.

"I'm pro-life and if you're pro-life, you have to be pro-life when they get out of the womb also," Christie said in an appearance at the Aspen Institute in Colorado, repeating comments he made last month at a major social conservative gathering. Gov. Christie: 'You have to be pro-life when they get out of the womb'

Christie said the justice system must stop stigmatizing the disease of drug addiction and focus more on rehabilitation. "We don't give them any kind of significant treatment, long-range treatment, and then we release them. And then we wonder why they go back and commit more crimes to support their habit," Christie said.

Some recent and older related posts:

July 26, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, July 24, 2014

Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms

Paul-ryanAs reported in this official press release, House Budget Committee Chair Paul Ryan today "released a new discussion draft, 'Expanding Opportunity in America,' [which] proposes a new pilot project to strengthen the safety net and discusses a number of reforms to the EITC, education, criminal justice, and regressive regulation."  Notably, an extended section of this impressive document (Chapter 4, which runs nearly 10 of the draft's 70+ pages) is focused on criminal justice reforms.  Here are segments from this portion of the draft:

About 2.2 million people are currently behind bars — a more than 340 percent increase since 1980.  As a result, we spend about $80 billion on corrections at all levels of government — an inflation-adjusted increase of over 350 percent in that same period.  This growing cost burden on society is a cause for concern.  But perhaps what’s most troubling is the effect on individuals and families....

[Federal sentencing reform] seeks to tap this overlooked potential and ameliorate the collateral impact on children and families.  Although most offenders are in state prisons or local jails, successful reforms at the federal level could encourage states and local governments to follow their example.  This discussion draft explores a number of reforms on multiple fronts — how we sentence individuals to prison, how offenders are treated inside prison, and how society helps them to reintegrate afterwards.

Public safety is priority No. 1, so these reforms would apply to only non-violent and low-risk offenders.  The punishment should fit the crime, but in many cases the punishment of incarceration extends beyond prison time.  Once people have paid their debt to society, they should be able to move on. In that spirit, this proposal suggests three possible reforms:

• Grant judges more flexibility within mandatory-minimum guidelines when sentencing non-violent drug offenders.

• Implement a risk- and needs-assessment system in federal prisons while expanding enrollment in rehabilitative programming to reduce recidivism. Allow non-violent and low-risk inmates to use enrollment to earn time off their prison stay towards prerelease custody.

• Partner with reforms at the state and local level....

Unlike state inmates, only 6 percent of federal inmates are violent offenders, while another 15 percent are guilty of weapons offenses.  In fact, most federal prisoners—nearly 51 percent — are serving time for a drug-related offense, and data from the U.S. Sentencing Commission shows that most of these federal drug offenders are in the lowest criminal-history category.   But under current law, a single gram of crack cocaine could be all that separates a convict from a less-than-five-year sentence and a 40-year sentence. Rigid and excessive mandatory sentences for low-level drug offenders, like these, may add to an already over-crowded prison system without appreciably enhancing public safety.

There are also economic and social consequences to unreasonably long sentences. Not only do they put undue burdens on families, but they may actually make people more likely to return to crime.  As Justice Fellowship notes, “Rather than encouraging criminals to become peaceful, productive citizens, prison culture often has the opposite effect, operating as a graduate school for crime.”  The federal government should follow the lead of several states and consider how sentencing guidelines, including alternative forms of detention, can both prevent crime and steer non-violent, low-risk drug offenders away from the addictions and networks that make them more likely to reoffend....

Although crime rates have fallen since the 1980s, the unintended consequence of these mandatory minimums is that some low-risk, non-violent offenders serve unreasonably long sentences....

A major challenge of criminal-justice reform is lowering the high rates of recidivism. High rates of recidivism are not only costly to the taxpayer and dangerous for society; they present a missed opportunity to bring more individuals into society as productive and contributing members....

[Proposed] reforms seek to put a greater focus upon rehabilitation and reintegration. Although the federal government’s reach is limited, these reforms would give judges the discretion they need to prevent nonviolent offenders from serving unreasonably long sentences; they would align inmates’ incentives to help reduce recidivism; and they would partner with states and community groups to expand their life-affirming work.

July 24, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

"Paying for Gideon"

The title of this post is the headline of this notable new essay by Beth Colgan now available via SSRN. Here is the abstract:

To protect the “noble ideal” that “every defendant stands equal before the law,” Gideon v. Wainwright guaranteed the right to defense counsel for those who cannot afford it. Gideon’s concept is elegantly simple: if you are too poor to pay for counsel, the government will provide.  The much more complicated reality, however, is that since Gideon, courts have assigned counsel to millions of American defendants too poor to pay for an attorney, have required those defendants to pay for their counsels’ services, and have punished those unable to do so.

This essay examines how we moved from Gideon’s guarantee to this reality.  I assert that Gideon’s protection against recoupment for those with no ability to pay has remained hidden in plain sight due to misinterpretations in two lines of cases.  The first line involves a series of cases in which the Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment required the waiver of financial barriers to accessing the courts.  The second line involves the misapplication of the Fifth Amendment’s collateral consequences doctrine to the Sixth Amendment’s effective assistance of counsel jurisprudence, leading to a misunderstanding that to be constitutionally effective, counsel need not advise a client about collateral consequences.

I posit that the intersection of these two lines of cases has obscured the unconstitutional nature of today’s recoupment schemes, pushing Gideon out of the picture.  The more or less successful attempts by advocates, academics, and the courts to squeeze recoupment into a due process/equal protection/effective assistance of counsel frame misses the fact that today’s version of recoupment is itself a Gideon problem.

July 24, 2014 in Fines, Restitution and Other Economic Sanctions, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, July 23, 2014

After SCOTUS vacates First Amendment stay, Arizona Supreme Court delays execution

As reported in this new AP story, after the US Supreme Court late yesterday vacated the novel stay imposed by the Ninth Circuit based on lethal injection drug secrecy concern, "Arizona's highest court on Wednesday temporarily halted the execution of a condemned inmate so it could consider a last-minute appeal."  Here is more:

Joseph Rudolph Wood, 55, was scheduled to be put to death Wednesday morning at the state prison in Florence, but that was delayed when the Arizona Supreme Court said it would consider whether he received inadequate legal representation at his sentencing. The appeal also challenges the secrecy of the lethal injection process and the drugs that are used.

The state Supreme Court could still allow the execution to move forward later Wednesday once it considers the arguments.

The U.S. Supreme Court on Tuesday cleared the way for Arizona to carry out its third execution in the last year following a closely watched First Amendment fight over the secrecy issue. Wood's lawyers used a new legal tactic in which defense attorneys claim their clients' First Amendment rights are being violated by the government's refusal to reveal details about lethal injection drugs. Wood's lawyers were seeking information about the two-drug combination that will be used to kill him, including the makers of the drugs.

A federal appeals court ruled in Wood's favor before the U.S. Supreme Court put the execution back on track. The 9th U.S. Circuit Court of Appeals decision marked the first time an appeals court has acted to delay an execution based on the issue of drug secrecy....

Wood was sentenced to death for killing Debra Dietz and her father, Eugene Dietz, in 1989 at the family's automotive shop in Tucson.... On the day of the shooting, Wood went to the auto shop and waited for Dietz's father, who disapproved of his daughter's relationship with Wood, to get off the phone. Once the father hung up, Wood pulled out a revolver, shot him in the chest and then smiled. Wood then turned his attention toward Debra Dietz, who was trying to telephone for help. Wood grabbed her by the neck and put his gun to her chest. She pleaded with him to spare her life. An employee heard Wood say, "I told you I was going to do it, I have to kill you." He then called her an expletive and fired two shots in her chest....

Arizona has executed 36 inmates since 1992. The two most recent executions occurred in October.... The fight over the Arizona execution has also attracted attention because of a dissenting judge's comments that made a case for a firing squad as a more humane method of execution.

Recent related posts:

July 23, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, July 22, 2014

Within-guideline sentences remain below 50% according to latest quarterly USSC data

As reported in this post a few months ago, US Sentencing Commission First Quarter FY14 Quarterly Sentencing data included some big news: for the first time, less than half of all federal sentences imposed were technically "within-guideline" sentences.  To be exact, in that quarter, only around 49% of the 18,169 sentences imposed were within-guideline sentences.

Today, the USSC released, via this document, its Second Quarter FY14 Quarterly Sentencing data, and it remains the case that a slight majority of federal sentences are being imposed outside the guidelines. But, as Table 4 on this latest data run reveals, this reality is partially a product of the fact that in the second quarter of FY14 there was a record-high percentage of above-guideline sentences (2.5%) and a record-high percentage of government-sponsored below-guideline sentences (28.6%).  In this last quarter, notably, there was actually a small downtick in the number of below guideline sentences imposed by federal district judges (from 20.7% of all federal cases down to 20.1%).

As I have said before, I believe all the recent talk about the need for federal sentencing reform is likely finding expression in the way both federal prosecutors and federal judges are now using their sentencing discretion.  The data from the last few quarters suggest that, as we hear ever more public policy groups and politicians on both the right and the left echoing AG Eric Holder's call for less reliance on long terms of incarceration, more federal prosecutors and federal judges feel ever more justified in seeking/imposing more sentences below the guidelines.

July 22, 2014 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?

The question in the title of this post follows up the news, reported here by the AP, that the full Ninth Circuit yesterday denied Arizona officials en banc review of the remarkable panel ruling putting in place an execution stay on First Amendment grounds (basics here).   The AP reports that Arizona is, unsurprisingly, planning to ask SCOTUS to vacate the stay, and I suspect First Amendment challenges to executions protocols will become commonplace nationwide if SCOTUS leaves the stay in place.

Chief Judge Alex Kozinski make extra sure his dissent — which is available here along with another dissent authored by Judge Callahan for 11 other members of the Ninth Circuit — garnered extra attention by providing these candid comments at the close of his operion about the fundamental problems with lethal injection as an execution method:

Whatever happens to Wood, the attacks [on lethal injection execution procedures] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Scalia, J., concurring in denial of certiorari) (“How enviable a quiet death by lethal injection . . . .”). But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.

July 22, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, July 21, 2014

Thoughtful Teague-based criticism of the remarkable California capital ruling in Jones v. Chappell

Among a large number of major sentencing developments last week, the biggest in the capital punishment arena was clearly, as discussed here and here, U.S. District Judge Cormac Carney ruling that all of California's death penalty system is unconstitutional.  The ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), has already generated lots of thoughtful discussion (as reflected in posts here and here), and I am now pleased to reprint another insightful bit of analysis sent my way over the weekend.  Specifically, Professor Richard Broughton sent me an e-mail with his reaction ot the Jones ruling and kindly permitted me to reprint this excerpt:

It looks to me as if the case should (or at least could) have been disposed of on Teague v. Lane grounds.

I was troubled that California didn't raise Teague, and was glad that Judge Carney addressed it sua sponte.  But his analysis was entirely perfunctory and merely glossed over, or simply failed to cite, a number of important Supreme Court precedents on Teague and "new rules."  (Chaidez, Summerlin, Lambrix, etc.).  I suppose one could argue that Jones was asking for a substantive rule rather than a procedural one, and could therefore avoid the Teague bar.  That strikes me as a stronger way to avoid Teague in this case. But Judge Carney didn't articulate his ruling this way.  Instead, Judge Carney simply said the rule was not "new," thus alleviating any need to categorize it as a substantive or procedural rule.  In light of the Supreme Court's (and other courts') consistent rejection of delay-as-cruel-and-unusual-punishment claims, it would seem to me that a reasonable jurist would not have felt compelled by precedent to conclude that Jones was entitled to relief.  Hence, the rule here was "new."

Judge Carney's effort to avoid the "new" rule bar by claiming that this ruling fits within the dictates of Furman and its progeny with respect to the wanton and freakish imposition of the death penalty strikes me as entirely wrong (and barred, if we are talking about a procedural rule).  Jones wasn't merely trying to have Furman apply to a new set of facts -- it was an effort to extend Eighth Amendment doctrine to situations where there are long delays, an extension that was not dictated by Furman and that courts have routinely rejected (indeed, if the rule was dictated by precedent, why has it been so often rejected?).  I would think the State could plausibly argue that, despite Furman and its progeny, the precise rule that Jones was seeking -- that delays in his execution render his sentence unconstitutional because California's death penalty system has not followed procedures that would expedite capital cases -- was not dictated by precedent when his conviction became final.  Therefore, there would have been a need to decide whether it was substantive or procedural, and if procedural, it would be barred.  There is, in fact, Ninth Circuit precedent on this very matter, applying the Teague bar to a Lackey claim.

I read Bill Otis's post at C&C on Jones as essentially requiring a Miranda-type prophylaxis.  I agree substantially with that view (though I think few other federal courts would come out and say this is what they are requiring), and I think California and others may start thinking about some legislative reforms to address the problem that Judge Carney identifies.  I think even those of us who support the death penalty acknowledge that delays are a problem, though for different reasons than the capital defense bar thinks.  But if Otis's view is accurate, doesn't that simply serve to reinforce the reality that Teague bars the rule that Judge Carney set forth?

Of course, I am troubled by many aspects of the case, not just the Teague analysis.  That's just the tip of the iceberg for me.  But I didn't see anyone else talking about Teague. Maybe there's a good reason for that; maybe my view of the Teague issue is premature and I'm ultimately wrong.  My mind is open.  But I am concerned that this view could take hold not just in more California cases on habeas review, but in other jurisdictions, as well. And I think California and the others should be prepared to assert the Teague bar (if my instincts are right).   At a minimum, I think Teague is a plausible basis for rejecting these kinds of claims, and that the case should have at least dealt more extensively with that doctrine. 

Recent related posts:

July 21, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

How many of nearly 50,000 federal prisoners need a lawyer to help with drug sentence reduction efforts? How many will get a lawyer?

The questions in the title of this post are my first "practical aftermath" questions in the wake of the US Sentencing Commission's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive (basics here).  As hard-core federal sentencing fans likely already know, most lower federal courts have ruled that federal prisoners do not have a Sixth Amendment right to counsel applicable at the sentence modification proceedings judges must conduct to implement reduced retroactive sentencing guidelines.  Consequently, none of the nearly 50,000 federal drug offense prisoners who may soon become eligible for a reduced sentence have any right to legal assistance in seeking this reduced sentence.

Fortunately for many federal prisoners seeking to benefit from previous guideline reductions, many federal public defender offices have traditionally made considerable efforts to provide representation to those seeking reduced sentences.  But even the broadest guideline reductions applied retroactively in the past (which were crack guideline reductions) applied only to less than 1/3 of the number of federal prisoners now potentially eligible for reductions under the new reduced drug guidelines.  I suspect that pubic defenders are unlikely to be able to provide significant legal help to a significant number of drug offenders who will be seeking modified sentences under the new reduced drug guidelines.

I raise this point not only to highlight the legal services need created by the USSC's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive, but also to wonder aloud whether lawyers who have been gearing up to help with clemency applications might be now usefully "detailed" to help with retroactive application of reduced drug sentences.  In contrast to clemency petitions, in which legal arguments are somewhat less important than equitable claims, the proper application of new reduced drug offense guidelines can involve various legal issues that may really need to be addressed by sophisticated legal professionals.

Some recent related posts on reduced drug guideline retroactivity:

July 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns

BartAs reported in this new New York Times piece, a "federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team." Here is more about a ruling sure to garner more attention (and litigation) in the week ahead:

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. “This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death....

Arizona officials ... Sunday ... appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.

Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality....

Mr. Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed on Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.

The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.

Lawyers for Mr. Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A Federal District Court sided with the state, but on Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”

The majority Ninth Circuit panel opinion runs 28 pages, is available at this link, and concludes this way:

Because we conclude that Wood has raised serious questions as to the merits of his First Amendment claim; that the balance of equities tips sharply in his favor; that he will face irreparable harm if the injunction is not granted; and that the injunction is in the public interest; we conclude that the district court abused its discretion in denying Wood’s preliminary injunction request.  We do not decide with certainty that a First Amendment right exists to the information Wood seeks, nor do we resolve the merits of the Plaintiffs’ underlying § 1983 claim. We do, however, reverse the district court’s denial of Wood’s preliminary injunction motion. We grant a conditional preliminary injunction, staying Wood’s execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed.

The dissenting opinion by Judge Bybee runs 35 pages, is available at this link, and makes these concluding points:

The decision to inflict the death penalty is a grave and solemn one that deserves the most careful consideration of the public, the elected branches of government, and the courts. We must be cognizant that a life is at stake. But we cannot conflate the invocation of a constitutional right belonging to the public at-large — such as the First Amendment right of public access to certain proceedings and documents — with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court.

July 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, July 18, 2014

Split Iowa Supreme Court declares all mandatory juve sentencing terms violate state constitution

Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders.  The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)  

In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment.  The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student.  He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment.  For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts.  We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment.  We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.

The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:

By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court.  As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old.  Will the majority stop here?  Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds?  If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26?  As judges, we do not have a monopoly on wisdom.  Our legislators raise teenagers too.  Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?

July 18, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

USSC votes for full (though slightly delayed) retroactivity of new reduced drug guidelines

I just received this early report via a credible source as to what the US Sentencing Commission did this afternoon on the issue of making its new lower guidelines retroactive:

The Commission just voted unanimously to make the "drugs minus 2" amendment retroactive with a single limitation -- no order reducing a sentence can take effect until Nov. 1, 2015.  This is later than the Judicial Conference recommended (they proposed that it effect in May 2015 to give courts and probation time to prepare)....

The Commission predicts that more than 46,000 will be eligible to seek a reduction.  Part of the reason for the delayed effective date is to make sure each inmate is released with a re-entry plan and the opportunity for transitional steps such as halfway houses or home confinement.

UPDATE:  Here is a link to the USSC's official press release about its vote, which starts this way:

The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015.

The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward.  Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015.  Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate.

“This amendment received unanimous support from Commissioners because it is a measured approach,” said Judge Patti B. Saris, chair of the Commission. “It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015.

ANOTHER UPDATE: Here is a link to the official statement in response to this vote from AG Eric Holder, which runs this single paragraph:

“The department looks forward to implementing this plan to reduce sentences for certain incarcerated individuals. We have been in ongoing discussions with the Commission during its deliberations on this issue, and conveyed the department's support for this balanced approach. In the interest of fairness, it makes sense to apply changes to the sentencing guidelines retroactively, and the idea of a one-year implementation delay will adequately address public safety concerns by ensuring that judges have adequate time to consider whether an eligible individual is an appropriate candidate for a reduced sentence. At my direction, the Bureau of Prisons will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system."

July 18, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, July 17, 2014

Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18

As this official public notice reports, on July 18, 2014 at 1pm EDT, the US Sentencing the Commission will hold a public meeting at which "the Commissioners will vote on whether or not to retroactively apply, in whole or in part, [its recent guideline] amendment reducing the drug quantity table by two levels." At the risk of overstating the importance of this vote, I am inclined to assert that it may be the most practically consequential USSC decision in nearly a decade. The (slightly misleading) headlines of these two media discussions of the coming vote helps to highlight why:

It is likely hard for anyone who has not followed federal sentencing very closely for decades to fully appreciate all the dynamic challenges that this vote presents for the US Sentencing Commission (as well as for the US Department of Justice and for all those who work day-to-day the federal sentencing system).  Helpfully, this extended BuzzFeed article by Evan McMorris-Santoro provide a primer on some of the issues swirling around this important USSC vote.  The article's headline highlights its themes: "Despite Rhetoric, Obama Administration Pushes To Keep Thousands Of Felons In Jail Under Old Rules: The Justice Department announced major changes to the way federal drug crimes are punished this year. But the rules for existing convicts might be different — and many White House allies are angry."

Some recent related posts on reduced drug guideline retroactivity:

July 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Lots of notable discussion of yesterday's notable decision striking down California's death penalty

As reported in this prior post, yesterday in a significant ruling in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available here), U.S. District Judge Cormac Carney declared all of California's death penalty system unconstitutional.  Not surprisingly, this important ruling has already generated considerable traditional media attention, and How Appealing collects some of the major stories here and here.

The heart of the remarkable ruling in Jones v. Chappell turns on (1) the (not disputable) fact that "California’s death penalty system is so plagued by inordinate and unpredictable delay that the death sentence is actually carried out against only a trivial few of those sentenced to death," and (2) the (very disputable) conclusion that allowing any one murderer to "executed in such a system, where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections — that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death."  I have lots of thoughts about both fact (1) and conclusion (2) that I hope to find time to share in future posts (or future amicus briefs), but for now I figured I would link to some of the early analysis of the opinion I have so far seen elsewhere in the blogosphere:

July 17, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Divided en banc Third Circuit announces new approach to preserving procedural sentencing error claims

Yesterday the Third Circuit issued a relatively short en banc ruling in US v. Flores-Mejia, No. 12-3149 (3d Cir. July 16, 2014) (available here), which reverses its previously-articulated approach to how objections to claimed procedural sentencing error must be preserved.  Here is how the majority opinion, per Judge Roth, gets started:

Jose Luis Flores-Mejia appeals the sentence imposed on him for his conviction of the offense of reentry after deportation. His appeal raises the issue of what a defendant must do in order to preserve a challenge to the procedural reasonableness of a sentence.  At the sentencing hearing,  Flores-Mejia made a mitigation argument, based on his cooperation with the government.  Flores-Mejia contends that his initial presentation of this argument is sufficient, without more, to preserve his claim that the District Court committed procedural error by failing, when it pronounced sentence, to give meaningful consideration to this argument.  The government counters that Flores-Mejia’s failure to object, at a time when the District Court could have promptly addressed it, did not preserve the issue for appeal and leaves his claim subject to plain error review.

We have decided that, to assist the district courts in sentencing, we will develop a new rule which is applicable in those situations in which a party has an objection based upon a procedural error in sentencing but, after that error has become evident, has not stated that objection on the record.  We now hold that in such a situation, when a party wishes to take an appeal based on a procedural error at sentencing — such as the court’s failure to meaningfully consider that party’s arguments or to explain one or more aspects of the sentence imposed — that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal. Our panel holding in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), differs from our holding today and is superseded. 

A group of five Third Circuit judges signed on to a spirited dissent authored by Judge Greenaway, and here is how it gets started:

In our system of jurisprudence, we examine our principle, consider the facts and the law and make decisions.  The venerable principle of stare decisis requires reexamination not when we come up with a better mouse trap but when there is a principled basis for change.  See Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (“[A]ny departure from the doctrine of stare decisis demands special justification.”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (“The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. . . . At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.”). Indeed, “the very point of stare decisis is to forbid us from revisiting a debate every time there are reasonable arguments to be made on both sides.”  Morrow v. Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J., concurring).  

Our Court, in a unanimous precedential opinion, adopted a procedure for district courts to follow at sentencing a scant six years ago.  See United States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008).  Now, without intervening Supreme Court precedent and without a majority of our sister courts, we not only reexamine but indeed create a new procedure that flies in the face of Federal Rule of Criminal Procedure 51, with no compulsion or mandate to do so.

In its attempt to promote judicial economy, the majority ignores the plain language of Rule 51, misreads the state of the law of our sister circuits, and invokes a fundamental change to our sentencing procedures that is both unwarranted and difficult to square with the Supreme Court’s post-Booker jurisprudence.  For this reason, I respectfully dissent.

July 17, 2014 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"

I have long stressed my belief that many federal sentencing reform efforts can and should be viewed as a cause that ought to attract politicians and people with true conservative principles.  This recent Wall Street Journal opinion piece, headlined "An Opening for Bipartisanship on Prison Reform," authored by Newt Gingrich and Pat Nolan echoes this point. Here are excerpts:

Several states have passed meaningful reforms, including expanding drug courts to order mandatory drug treatment programs, increasing funding for drug and mental-health treatment, and limiting costly prison beds to violent and serious repeat offenders. These state reforms passed in part thanks to conservative support.

Right on Crime, a national organization founded in 2010 that we both belong to, is helping spread the word that backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause.

On a panel at the annual Conservative Political Action Conference in March in National Harbor, Md., Texas Gov. Rick Perry explained how reform worked in his state. In 2007, Texas scrapped plans to build more prisons, putting much of the savings into drug courts and treatment. The results have been impressive: Crime in Texas is at the lowest rate since 1968. The number of inmates has fallen by 3%, enabling the state to close three prisons, saving $3 billion so far. What inspired the reform, Gov. Perry said, was this: "Being able to give people a second chance is really important. That should be our goal. The idea that we lock people up, throw them away, never give them a chance at redemption is not what America is about."

In 2010, South Carolina followed Texas' example, toughening penalties for violent criminals while creating alternatives to incarceration for nonviolent offenders. These included providing community drug treatment and mental health services for lower-level lawbreakers—mostly drug and property offenders—who made up half of the state's prison population. South Carolina also increased funding for more agents to supervise offenders in the community. Three years later, the prison population has decreased by 8%, and violent offenders now account for 63% of the inmate population. South Carolina's recidivism rates also are much improved and the state has closed one prison.

Other states—Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi—have adopted similar reforms. As is so often the case, the states are showing the way. Congress should apply these common-sense reforms to the federal prison system.

The reforms have developed in the states, as conservatives tend to prefer. But now that there is proof that prison reform can work, the debate has gone from an ideological discussion to evidence-based changes that can be applied to the federal system.

Republican Sens. John Cornyn and Ted Cruz, who have seen the benefits firsthand in Texas, have been joined by Republican Senate colleagues such as Rob Portman, Marco Rubio, Mike Lee, Jeff Flake and Ron Johnson in backing one or more prison-reform bills. Two bills, the Recidivism Reduction and Public Safety Act (S. 1675) and the Smarter Sentencing Act (S. 1410) have already passed the Senate Judiciary Committee and await action by the full Senate.

In the House, Republican Reps. Jason Chaffetz, Raúl Labrador, Trey Gowdy and others are backing similar legislation. This push for reforming the federal prison system has support on the other side of the aisle as well. Such liberal stalwarts as Sens. Dick Durbin, Patrick Leahy and Sheldon Whitehouse, and Reps. John Conyers, Bobby Scott and Jerrold Nadler have signaled their backing.

July 17, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, July 16, 2014

"Recalibrating Justice: A Review of 2013 State Sentencing and Corrections Trends"

The title of this post is the title of a notable new report from the Vera Institute of Justice. The report, available via this link, checks in at less than 50 pages and provides a terrific accounting of state-level reforms nationwide. This one-page summary provides these highlights:

In 2013, 35 states passed at least 85 bills that largely eschew the tough-on-crime policies of the past.  Lawmakers exhibited a willingness to pursue change consistent with the growing body of research that demonstrates carefully implemented and well-targeted community-based programs and practices can produce better outcomes at less cost than incarceration.  In particular, states enacted legislation to:

> Reduce prison populations and costs.  States repealed or narrowed mandatory sentencing schemes, reclassified offenses, or altered sentencing presumptions. States also sought to expand access to early release mechanisms — such as good time credits —designed to accelerate sentence completion.

> Expand or strengthen community-based sanctions.  States introduced or strengthened community corrections programs proven to reduce recidivism.  Some states expanded eligibility for diversion programs — a sentencing alternative through which charges will be dismissed or expunged if a defendant completes a community-based program or stays out of trouble for a specified period.  States also expanded community-based sentencing options, including the use of problem-solving courts.

> Implement risk and needs assessments. Several states focused on the use of validated risk and needs assessments as the basis for implementing individualized offender case plans.  These states passed laws requiring assessments of an offender’s risk of recidivism as well as his or her criminogenic needs — characteristics, such as drug addiction and mental illness — that when addressed can reduce that risk.  States incorporated these assessments at different points in the criminal justice process — at the pre-trial stage, at the pre-sentencing stage, or to inform supervision and programming, whether in prison or in the community.

> Support the reentry of offenders into the community.  States passed laws to mitigate the “collateral consequences” of criminal convictions — such as restrictions on housing and social benefits and exclusion from employment.  In some states, legislators sought to clarify, expand, or create ways to seal or expunge criminal records from the public record. Others focused on helping offenders transition from prison or jail back into the community by increasing in-prison and post-release support.

> Make better informed criminal justice policy.  A number of states sought a deliberate discussion about the purpose and impact of proposed sentencing and corrections legislation and looked to external groups to debate proposals, collect and analyze data, and formulate policy recommendations. Some states even passed legislation requiring fiscal or social impact statements in order to help legislators consider the ramifications of proposed criminal justice reforms.

July 16, 2014 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Federal district judge declares California's death penalty unconstitutional under Eighth Amendment

An notable new opinion by a (Republican-appointed) federal district judge in California is sure to be the talk of the death penalty community for the forseeable future and is also sure to be the basis for a intriguing coming appeal to the Ninth Circuit (and perhaps the Supreme Court). The opinion in Jones v. Chappell, No. 2:09-cv-02158-CJC (C.D. Cal. July 16, 2014) (available for download below), is authored by a GWB-appointee Cormac Carney, and it is described by the judge as an "ORDER DECLARING CALIFORNIA’S DEATH PENALTY SYSTEM UNCONSTITUTIONAL AND VACATING PETITIONER’S DEATH SENTENCE." Here is how the 29-page opinion start and ends:

On April 7, 1995, Petitioner Ernest Dewayne Jones was condemned to death by the State of California.  Nearly two decades later, Mr. Jones remains on California’s Death Row, awaiting his execution, but with complete uncertainty as to when, or even whether, it will ever come. Mr. Jones is not alone. Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

That is the reality of the death penalty in California today and the system that has been created to administer it to Mr. Jones and the hundreds of other individuals currently on Death Row. Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment....

When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. That promise is made to the citizens of the State, who are investing significant resources in furtherance of a punishment that they believe is necessary to achieving justice. It is made to jurors who, in exercise of their civic responsibility, are asked to hear about and see evidence of undeniably horrific crimes, and then participate in the agonizing deliberations over whether the perpetrators of those horrific crimes should be put to death. It is made to victims and their loved ones, for whom just punishment might provide some semblance of moral and emotional closure from an otherwise unimaginable loss. And it is made to the hundreds of individuals on Death Row, as a statement their crimes are so heinous they have forfeited their right to life.

But for too long now, the promise has been an empty one. Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional. Accordingly, the Court hereby VACATES Mr. Jones’s death sentence.

Full opinion:  Download Jones Cal DP opinion

July 16, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

"Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures"

The title of this post is the title of this notable paper I just came across via SSRN authored by Meredith Martin Rountree.  Here is the abstract:

About 11% of those executed in the United States are death-sentenced prisoners who sought their own execution.  These prisoners are commonly called “volunteers,” and they succeed in hastening execution by waiving their right to appeal their conviction and sentence. Certain interpretations dominate.  Those who oppose a condemned prisoner’s request for execution often cite the prisoner’s history of mental instability and frame the prisoner’s decision as a product of suicidal depression.  Related to this narrative is one that links death row conditions to the prisoner’s decision to hasten death.  Conditions, in this account, contribute to the decision to abandon appeals by wearing the prisoner down to the point that he loses the will to live, or by contributing to “death row syndrome,” an evolving (and controversial) psychiatric diagnosis describing a mental condition that some prisoners develop as a result of living under a death sentence in highly socially isolating and stark conditions of confinement.  Other narratives focus on ideas of rational choice and personal autonomy.  This account emphasizes prisoners’ desire to control their own destiny and the civic virtue of respecting autonomy and choice, even for the least among us.

The empirical support for these explanations is sparse, and this article emerges from a larger effort to test the hypothesis that prisoners who seek execution resemble those who take their own lives in prison.  The prison suicide literature has identified certain characteristics — such as race, sex, age, mental illness, and prison conditions — as increasing the risk of suicide behind bars.  My research on Texas volunteers generally suggests many, but not all, of those traits characterize that volunteer population as well. This article focuses on findings that point to areas for future research not only on volunteers but also on larger questions of processes of hopelessness and culpability among criminal offenders, and how the criminal justice system may influence life-ending decisions. 

July 16, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack