Thursday, February 19, 2015

The back-story of George Toca's case (and its impact on other juve LWOPers)

George TocaThis new Bloomberg article authored by by Matt Stroud provides an interesting account of the stories behind what was, until it was settled a few weeks ago, the case the Supreme Court had planned to use to resolve the retroactive application of its Miller Eighth Amendment ruling. The piece is headlined "Prisoners Sentenced to Life as Kids Just Lost Their Best Chance for Freedom: How the criminal justice system failed George Toca — and 1,500 others like him," and it is a must-read and a must-watch based on the video linked to the story. Here are excerpts:

In 1984, when Toca was 17, he was charged with accidentally shooting and killing his best friend, Eric Batiste, during a failed carjacking.  Victims picked him out of lineups, despite initial statements to police describing an older, heavier shooter who was at least five inches taller than Toca and who did not have four gleaming gold caps on his top front teeth.

Largely on the basis of eyewitness testimony, Toca was convicted of second-degree murder in 1985 and given a mandatory sentence of life in prison without the possibility of parole. He has spent most of the last 31 years in Louisiana’s notorious Angola state penitentiary....

Toca has had an interesting winter.  In addition to denying responsibility for his friend’s killing — and working with lawyers at the Innocence Project New Orleans since 2003 to prove his case — Toca appealed to be resentenced based on his age at the time of the alleged crime. The U.S. Supreme Court selects less than 2 percent of the cases presented to it. In December, it agreed to hear Toca’s appeal....

[I]n 2012, in Miller v. Alabama, the court ruled that a mandatory sentence of life without parole, handed down in 29 states’ murder cases as well as those in federal court, is unconstitutional for offenders younger than 18.  The decision left a question on the table: What about those who had already been convicted?  Should they be resentenced?

Some states have said that all juveniles sentenced to mandatory life without parole should have a new sentencing hearing. Others — Louisiana, Pennsylvania, Michigan, and Minnesota — have decided against retroactivity.  The exact numbers are in dispute, but according to figures from Human Rights Watch and estimates from the Juvenile Law Center in Philadelphia, that means about 1,500 sentences nationwide hang in the balance.  By agreeing to hear and decide Toca’s appeal, the Supreme Court planned to end the uncertainty of those cases.

But in the weeks after the court agreed to hear the case, Toca was approached by Orleans Parish District Attorney Leon Cannizzaro with a tempting offer.  Toca had long maintained his innocence in the shooting, but now the D.A. had a deal for him. If he signed a plea agreement admitting to armed robbery, Cannizzaro would drop the original conviction and Toca would be paroled immediately....

Since he agreed to a plea deal, though, the Supreme Court dismissed his case and he is no longer standing in for 1,500 juvenile lifers like him in front of the nation’s highest court.

For those who believe juveniles sentenced to life behind bars should be forced to spend their lives there, Toca’s release is actually good news.  “This shows me that the system works,” said Bobbi Jamriska, whose pregnant sister was brutally beaten and stabbed to death in 1993 by a 16-year-old in suburban Pittsburgh.  “They went back and they questioned his case and raised their concerns, and [Toca] ended up being let out of jail.”

Jamriska has fought hard to keep both the death penalty and life without parole on the table for juvenile offenders.  As Pennsylvania director of the National Organization of Victims of Juvenile Murderers, she said her organization didn’t want Toca’s case in front of the Supreme Court anyway.  His case is “an extreme,” she said. “Even the victim’s family is saying, ‘Get him out of jail,’ ” Jamriska said.  “We’d prefer to have a case that’s more representative of some of the horrific crimes juveniles commit.”...

Will the Supreme Court [take up] another [case]?  Marsha Levick, deputy director and chief counsel of the Juvenile Law Center in Philadelphia, believes it will.  At least five cases —three in Louisiana, two in Michigan — have been sent for Supreme Court review and could replace Toca’s, but not until the next term at the earliest. That's in October.

Levick doesn’t blame Toca for his decision. “First and foremost, good for him,” she said. “I don’t think anybody who has been waiting for the retroactivity issue to be ruled upon would in any way question the decision that George Toca made. How could he not walk out of prison after 30 years?” For the other juvenile lifers nationwide, “obviously it was disappointing,” she said. “They’re still waiting, just as they have been for 30, 40, 50 years. And they think it’s time for them to get out as well.”

Toca hopes they do, too. Sitting outside with the sun shining above him, he looked down and offered an apology. “I know they was really relying on my case to get the retroactivity of the Miller case resolved,” he said. “All I can say is, I’m sorry that I let ’em down. This was all I could do.”

February 19, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 18, 2015

Yet again, Sixth Circuit reverses one-day sentence for child porn downloading as substantively unreasonable

Regular readers who follow federal sentencing in child porn cases likely recall that the Sixth Circuit and an Ohio-based federal district judge got into a sentencing tug-of-war over the sentencing of child porn downloader Richard Bistline not long ago.  And even irregular readers should know that circuits, if they stick with it, will always win these kinds wars.  More proof of that reality come from another similar Sixth Circuit case decided today, US v. Robinson, No. 13-230806 (6th Cir. Feb. 18, 2015) (available here), which starts this way: 

The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).  Defendant’s previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (“Robinson I”).  On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served.  The district court also lengthened the period of supervised release and imposed additional conditions of release.  The government’s second appeal raises the question of whether this second sentence is substantively reasonable.

For the reasons set forth below, we VACATE Defendant’s sentence and REMAND the case for reassignment and resentencing. 

Prior related posts concerning similar case:

February 18, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, February 17, 2015

Florida Supreme Court stays lethal injection pending SCOTUS case, and AG Holder urges national execution halt

As reported in this Reuters piece, "Florida’s highest court put executions on hold Tuesday while the U.S. Supreme Court decides whether use of a controversial general anesthetic constitutes “cruel and unusual” punishment of condemned killers." Here is more:

The state Supreme Court stopped the execution of Jerry William Correll next week because the Supreme Court recently agreed to hear a challenge some Oklahoma inmates brought against use of midazolam hydrochloride as the first of three drugs used in lethal injections. Florida uses essentially the same formula, the court said in a 5-2 ruling.

The state switched to midazolam as an anesthetic in 2013 when some foreign drug manufacturers quit supplying other drugs previously used in executions. The Department of Corrections said 11 lethal injections have been carried out with midazolam in Florida since then. Florida courts have approved midazolam, but the nation’s highest court agreed Jan. 23 to hear an appeal by 21 Oklahoma inmates in a case citing prolonged executions and signs of pain reported in that state, Arizona and Ohio.

Chief Justice Jorge Labarga wrote that if the nation’s highest court rules in favor of the prisoners, “then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continued viability.”

Justices Charles Canady and Ricky Polston dissented, saying Florida should proceed with Correll’s execution unless the U.S. Supreme Court stays it. Canady wrote that a stay in another state does not automatically require one in Florida, and that agreeing to review Oklahoma’s use of the drug means the justices will forbid it.

Meanwhile, as reported in this piece in The Hill, US Attorney General Eric Holder suggested today that all states ought to follow Florida's lead while the Supreme Court lethal injection case is pending:

Attorney General Eric Holder called Tuesday for a national moratorium on the death penalty until the Supreme Court weighs in on the issue later this year...

Late last month, the Supreme Court agreed to hear an appeal the from death row inmates in Oklahoma who are challenging the state’s procedures for lethal injections. "I think a moratorium until the Supreme Court makes that decision would be appropriate," Holder said.

February 17, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

AG Holder brags about achievements of DOJ's Smart on Crime initiative

The Department of Justice has just made available these two notable items:

I view both of these documents to be must-reads for any and all sentencing fans, and I will here highlight the data reported by AG Holder in his speech that strike me as most intriguing, as well as the AG's closing policy pitch:

In the year before our Smart on Crime charging policy took effect, roughly 64 percent of federally-charged drug trafficking offenses carried a mandatory minimum sentence. Last year, the new policy brought that number down to approximately 51 percent — a reduction of 20 percent relative to the prior year.  Put another way, we have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two.  That’s a major reduction.  In fact, it is historic.  The Sentencing Commission confirms that these numbers show that federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record....

Even though mandatory minimums have been charged significantly less frequently under our new policies, the percentage of cases in which we receive substantial cooperation from defendants has remained exactly the same.  This also holds true of the ability of our prosecutors to secure guilty pleas in these cases. In the year before Smart on Crime took effect, our prosecutors won guilty pleas in approximately 97 percent of drug trafficking cases.  A year later, despite significant reductions in our uses of mandatory minimums, this percentage stands at 97.5.  So the notion that the Smart on Crime initiative has somehow robbed us of an essential tool is contradicted not only by our history – but by clear and objective facts....

The work we have done is nothing short of groundbreaking.  But this is no time to rest on our laurels. Significant challenges remain before us.  And a great deal of work remains to be done.

Our prisons are still overcrowded.  Across the country, far too many people remain trapped in cycles of poverty, criminality, and incarceration.  Unwarranted disparities are far too common. Law enforcement is distrusted in far too many places and cops are not appreciated for the tough job they do so well.  And if we hope to build on the record we’ve established so far — and to make the Smart on Crime initiative not only successful, but permanent — it will be incumbent upon all Americans — most especially our Congress — to work together to ensure that all of this is just the beginning. From critical improvements to the juvenile justice system, to a range of back-end criminal justice reforms, we must continue to advance promising, bipartisan legislation to make our communities safer, treat individuals more justly and allow more efficient use of law enforcement resources.

Our efforts over the last six years have laid a strong foundation for a new era of American justice. Congress can help us build on this foundation by passing important, bipartisan legislation like the Smarter Sentencing Act, which would give judges more discretion in determining sentences for people convicted of certain federal drug crimes. And going forward – with measures like this one, and with the tireless work of our United States Attorneys and their colleagues, the strong leadership of our outstanding new Attorney General and Deputy Attorney General, and the robust engagement of the American people – I believe there’s good reason for confidence in where this work will lead us.

February 17, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Would you urge out-going (and apparently corrupt) Oregon Gov Kitzhaber to commute all death sentences?

The question in the title of this post is prompted by this notable new commentary authored by Frank Thompson, a retired assistant director of institutions and superintendent of the Oregon State Penitentiary.  Here are excerpts:

I know what it is like to execute someone. I am a retired prison superintendent who conducted the only two executions that have taken place in Oregon in the past 53 years.

The death penalty in Oregon comes at a high cost to our state in both human and fiscal resources.  I call on Gov. Kitzhaber to convert 35 death sentences to life without the possibility of release before he leaves office at mid-morning on Wednesday.

Based on my experiences as a correctional professional, capital punishment is a failed public policy — especially in Oregon where we have funded a death penalty system for over 30 years, yet only put to death two inmates who volunteered themselves for execution by abandoning their appeals. No other corrections program exemplifies such a complete failure rate.

During my more than two decades of running correctional facilities, I saw the population of those who are capable of extreme violence up close. I have no doubts at all that these offenders did not think about the death penalty for one second before committing their violent acts. Instead, research has been shown that public safety is greatly improved when our limited tax dollars are redirected to law enforcement agencies to solve cases and prevent crimes.

I understand exactly what is being asked of public employees whose jobs include carrying out the lawful orders of the judiciary to end another person's life.  The burden weighs especially heavily on my conscience because I know firsthand that the death penalty is not applied fairly or equally in Oregon.  I have known hundreds of inmates who are guilty of similar crimes yet did not get the death penalty because they reached a plea bargain of life without parole simply because they had the means for professional legal assistance.

I also understand, from my experiences in corrections, the potential awful and lifelong repercussions that can come from participating in the execution of prisoners.  Living with the nightmares is something that some of us experience.  This is particularly the case with those of us who have had more hands-on experience with the flawed capital punishment process, and/or where an execution under our supervision did not go smoothly.

I am never troubled when people make a forceful argument that "capital punishment is a failed public policy."  But I find it troubling that this argument is being made now to a disgraced (apparently corrupt) out-going governor rather than to the new incoming governor and other public-policy officials who are going to be staying in their jobs and would need to deal with the administrative and political implications and consequences of their actions.

Notably, it is not just Oregonians urging out-going Gov Kitzhaber to clear the state's death row.  Professors Charles Ogletree and Rob Smith have this new Huffington Post commentary headlined "Gov. Kitzhaber: Your Job Is Not Yet Done." here is how it concludes:

Governor Kitzhaber declared a moratorium on the death penalty back in 2011. He labeled the State's practice of imposing death sentences "neither fair nor just" and concluded that a "compromised and inequitable" capital punishment system is not befitting of Oregon. Nothing has changed and nothing will: the death penalty in Oregon is too broken to fix.

In his resignation letter, Governor Kitzhaber told us that he was proud to not have presided over any executions. Yet, as Governor, he presided over a state that has sentenced people to death under the same unjust system that led him to impose the moratorium. The Governor has the power to leave the troubled history of this disreputable death penalty system in Oregon's rearview mirror; and doing so would enhance the integrity of the criminal justice system without compromising public safety.

Governor Kitzhaber: You lit the torch in 2011; and now, in these few remaining hours, please carry that torch across the finish line.

February 17, 2015 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

NY Times editorial laments "The Roadblock to Sentencing Reform" ... while creating another

This lengthy new New York Times editorial spotlights and laments that one powerful Senator now appears to be the main impediment to federal sentencing reform moving forward in Congress.  Here are excerpts:  

For more than a year, members of Congress have been doing a lot of talking about the need to broadly reform harsh federal sentencing laws, which are a central factor in the explosion of the federal prison population.  It’s an overdue conversation, and one of the few in which Democrats and Republicans find some agreement — but, so far, they have nothing to show for it.

In the last session, senators introduced three bipartisan bills.  Two proposed “front end” reforms, like reducing or eliminating ridiculously long mandatory minimum sentences for some drug crimes.  The other focused on “back end” fixes, like increasing opportunities for good-­time credit to allow certain prisoners early release.

None of the bills got anywhere, but it was encouraging to see all three reintroduced in the new Republican­-led Senate. At least it was until they ran into a roadblock in the shape of Senator Charles Grassley, Republican of Iowa.  Mr. Grassley, the chairman of the Judiciary Committee, wields great power over any sentencing legislation....

Mr. Grassley, for reasons that defy basic fairness and empirical data, has remained an opponent of almost any reduction of those sentences.  In a speech from the Senate floor this month, he called the bills “lenient and, frankly, dangerous,” and he raised the specter of high-­level drug traffickers spilling onto the streets.

Mr. Grassley is as mistaken as he is powerful.  Mandatory minimums have, in fact, been used to punish many lower­-level offenders who were not their intended targets. Meanwhile, the persistent fantasy that locking up more people leads to less crime continues to be debunked.  States from California to New York to Texas have reduced prison populations and crime rates at the same time. A report released last week by the Brennan Center for Justice found that since 2000 putting more people behind bars has had essentially no effect on the national crime rate.

The bill that appears to have the best chance of passing anytime soon is known as the Corrections Act — that’s actually a sprawling acronym for Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System. Co­sponsored by Senator John Cornyn, Republican of Texas, and Senator Sheldon Whitehouse, Democrat of Rhode Island, the bill’s name is more ambitious than its goals, which include giving a narrow group of inmates the chance to participate in educational and other programs in exchange for earlier release. (The bill authorizes no financing for these programs, relying instead on, among other things, the volunteer efforts of faith­-based groups.)

Rehabilitation is a laudable aim, and it should be a part of any sentencing reform package. But the Cornyn-­Whitehouse bill would exclude nearly half of all federal prisoners — in many cases without any evidence that they pose a greater risk to public safety.

The bill also relies on an inmate’s criminal history.  This is a legitimate measure when it is used with the awareness that law enforcement disproportionately targets minorities. The danger is that white-­collar prisoners, who are most often white, will receive the law’s benefits, while, say, drug offenders, who are disproportionately African­-American, will be left out.

Finally, the bill pushes the use of data­-based risk­-assessment tools, which sound smart but again — because they rely on factors like a person’s employment history, neighborhood and education level — often have racially disproportionate effects....

Sentencing reform is a big and complicated issue, and may take some time to get right.  It would be a mistake to pass an incomplete bill and pretend that the hard work of reform is done.

Though I obviously laud the New York Times editorial board for complaining about a "roadblock" to reform created by Senator Grassley, I am troubled that this editorial goes on to create some more hurdles of its own through its (somewhat chaotic) criticisms of the Corrections Act. Every possible sentencing reform bill is sure to be an "incomplete bill" from somebody's perspective, but that should never serve alone as a reason to stall any needed reforms. The Fair Sentencing Act passed in 2010 was incomplete for only partially reducing the crack/powder disparity and for failing to make its reforms retroactive. But that reform still achieved a lot even though it did not achieve enough. Same goes, in my opinion, for all the sentencing reform bills now making the rounds.

Moreover, as a matter of substance, this editorial hammers Senator Grassley for defiance of empirical data, but that assails the Corrections Act for incorporating "data­-based risk­-assessment tools" and criminal history in its structures for back-end reform.  I fear the NYT editorial board wants policy-makers to be concerned only with the public safety data that it likes and to ignore the public-safety data that might undermine the Grey Lady's own mysterious sense of "fairness."  In this way, this editorial provides still more support for roadblocks to reform because any and everyone concerned about any part of the reform bills are encouraged to let their vision of the best reforms serve as an enemy and hurdle for any and all good and needed reforms.  

February 17, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, February 16, 2015

"The United States Execution Drug Shortage: A Consequence of Our Values"

The title of this post is the title of this commentary authored by Ty Alper available via SSRN. Here is the abstract:

The recent inability of states to obtain drugs for use in executions has led to de facto moratoria in a number of states, as well as gruesomely botched executions in states that have resorted to dangerous and unreliable means to obtain these drugs. The refusal of some pharmaceutical companies to provide drugs to U.S. prisons has significantly impeded the imposition of the death penalty in a number of states. Despite this, it is the anti-death penalty activists who tend to draw the attention of the media, state officials, and politicians charged with carrying out executions. The media focuses particular attention on advocates in Europe who have campaigned to pressure European drug companies to stop distribution of their products to U.S. prisons for use in executions.

This paper challenges that narrative and posits instead that it is the drug companies that have long sought to avoid the use of their products in executions, for moral and financial reasons, as well as to comply with European law. When we look back on the fourth decade of the modern era of capital punishment in the United States, we may consider it the decade that marked the beginning of the end. If so, it will not be the result of a handful of activists successfully thwarting the administration of capital punishment. Rather, it will be the consequence of U.S. states imposing the death penalty in the context of a modern world that generally abhors the practice, using a method of execution that is very much dependent on major players in that world.

February 16, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Senate unanimously passes child porn restitution bill to fix Paroline problems

As report in this article, last week the U.S. Senate finally passed a bill to restructure the standards and procedures for restitution awards for victims of child porn downloading offenses.  This bill made it through the full Senate a little less than year after the Supreme Court issued a split decision on this matter in the Paroline case.  Here are the basics of the response by Congress:

A bill named for two women whose childhood images were turned into heinous pornography was handily passed in the Senate on Wednesday. The Amy and Vicky Child Pornography Victim Restitution Improvement Act was approved by a 98-0 vote.

The measure gives hope to victims that they will finally be able to win major compensation from any single person who illegally viewed, made or distributed their images. Victims of child pornography and other sexual exploitation “ought to have access to full restitution from any single perpetrator for their losses,” said Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican.

The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.

The bill responds to a 2014 Supreme Court 5-4 ruling in Paroline v. United States that said people convicted of viewing, making or distributing child pornography should be ordered to pay a nontrivial amount of restitution — but it should fit the scale of the offense....

The Paroline case stemmed from a lawsuit filed by a woman known as “Amy Unknown” against Doyle R. Paroline of Texas, who was convicted of having two images of her in his child pornography collection. When the 5th U.S. Circuit Court of Appeals ruled in Amy’s favor and ordered Paroline to pay $3.4 million in damages to her, Paroline asked the Supreme Court to review his case. Paroline’s court-appointed attorney said after they won last year that he would contest any restitution award against his client.

Amy, now an adult, was sexually assaulted by her uncle when she was about 9 years old. The uncle put pictures of her rape online, and those images have been shared by pedophiles worldwide. “Vicky” is the pseudonym of another victim, whose father raped her as a child and took “orders” from men to make videos of her being bound and sodomized.

I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders.

A few (of many) prior posts on Paroline and child porn restitution issues:

February 16, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Tennessee Supreme Court to consider electric chair as back-up execution method

I am pleased and intrigued to see, via this local article, that the "Tennessee Supreme Court will decide whether a death row inmate can challenge the state's back-up method of execution: the electric chair." Here is more about this notable litigation:

The court agreed to take the case — which stems from a Davidson County Chancery Court battle — on Friday. Arguments are set for May 6 in Knoxville. The state says that inmates who are challenging the electric chair as unconstitutional cannot do so because none of the inmates is facing that method of execution.

A group of 34 inmates previously challenged the state's primary protocol, lethal injection, and then added a challenge to the electric chair when it was deemed a back-up method.

The appeal to the Supreme Court, as well as another seeking the release of names of people involved in the execution process, come from the pending chancery court case. Once the Supreme Court decides the issues, the chancery court case will be able to move forward.

I fear that this case might resolve only whether and when a Tennessee defendant can challenge a back-up method of execution. Nevertheless, I find it notable and potential important that a state supreme court is now going to consider in any way an execution method other than lethal injection.

February 16, 2015 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences

As reported in this AP piece, headlined "Federal prosecutors want same sentences in Amish beard-cutting case when they are resentenced," the feds are claiming that the reversal on appeal of the most-serious charges against a group of Amish defendants (details here) should not impact their sentence one whit.  Here are the details:

Sixteen Amish men and women whose hate crime convictions in beard- and hair-cutting attacks were overturned still should receive the same sentences, federal prosecutors told a judge who will resentence the group.

The members of the eastern Ohio Amish group are scheduled to be resentenced March 2 after the 6th U.S. Circuit Court of Appeals overturned only their hate crimes convictions. New sentences are required because the original sentences were based both on hate crimes convictions and convictions on other charges but did not differentiate between them.

The attacks were in apparent retaliation against Amish who had defied or denounced the authoritarian style of Sam Mullet Sr., leader of the Bergholz community in eastern Ohio. The U.S. Attorney's Office, in a court filing on Friday, said Mullet should be resentenced to 15 years for concealing evidence and making false statements to the FBI. Both of those charges were not overturned.

The other defendants should also be given the same lesser sentences. Those defendants who have already been released should be sentenced to time served, the prosecutors said.

Prosecutors argued that the conduct that led to the hate crime charges, which included kidnapping, should still be considered even if the defendants are no longer convicted of a hate crime.

Defense attorneys are expected to file their response next week.

I am neither surprised or troubled that the feds want the same sentences imposed on the less culpable defendants who have already finished serving their prison time. But I struggle to see how urging the same exact sentence for Sam Mullet Sr. despite reversal of the most serious convictions against him serves to "promote respect for the law" as 18 USC 3553(a)(2)(A) requires.

Related prior posts:

February 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Notable new commentary on the notable work of the Colson Task Force

ImagesA helpful reader shared with me this notable commentary authored by Jim Liske, who is CEO of Prison Fellowship and is serving on the Charles Colson Federal Corrections Task Force. The FoxNews piece is headlined "Colson Task Force offers chance for Restorative Justice," and here are excerpts:

I am honored to serve on the new Charles Colson Task Force on Federal Corrections, which met for the first time in late January. Named for my organization’s founder, the Task Force is a bipartisan, nine-member panel chaired by J.C. Watts, that will address long-existing challenges in federal corrections and make data-driven recommendations to make the system more effective and just—for the sake of prisoners and our communities alike....

In the last several years, individual states have already begun to pursue prison reform that hold offenders accountable and yet give them hope for restoring their lives once they’ve served their time. Hawaii has seen success through its HOPE program, which guarantees “swift and sure sanctions” for those who violate the terms of their probation. This accountability-intensive approach, which affirms offenders’ potential by expecting them to do better, has been so effective, it’s being copied in courtrooms nationwide. Some states are increasing their use of earned-time credits, which allow people to earn the right to rejoin the community earlier by using their time productively, and still others are reducing sentences for non-violent offenses.

Reforms like these offer hope for evidence-based, cost-effective changes the Task Force will examine. But we can go a step farther. The time is right for prison reforms that aren’t just evidence-based, but values-based, reflecting our beliefs in the God-given dignity, value, and potential of every human being. Justice can be restorative when we make sure that the opportunity for both accountability and redemption are balanced at the core of our criminal justice system.

Why should justice be restorative? At its heart, crime isn’t about law-breaking; it’s about violating the peace and wholeness of the entire community. Public safety may require that we lock someone up, but that alone will not heal victims or the community or change the conditions that help breed crime. When the responsible party has the opportunity for redemption and restoration — by making amends to his victims, changing his thinking, and earning back the public’s trust by living a law-abiding, constructive life upon release—the community can find healing and move beyond the vicious cycle of crime and incarceration....

The Charles Colson Task Force is an important first step that honors the legacy of a visionary leader, but the challenges facing our criminal justice system cannot be solved by this group alone. It’s time for everyone with a stake in criminal justice and public safety—which is all of us—to call for reforms that elevate and prioritize victims’ voices, provide genuine opportunities for prisoners’ moral rehabilitation, and engage the entire community in breaking the cycle of crime.

We all need to speak up to create the kind of restorative society, based on the dignity and value of every life, that each of us wants to call home.

Prior related post:

February 16, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 15, 2015

"Procedural Proportionality"

The title of this post is the title of this notable new paper by William Berry III now available via SSRN. Here is the abstract:

Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment.  Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.

Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases.  Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.

February 15, 2015 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 13, 2015

ACSBlog conducting "symposium on racial inequalities in the criminal justice system"

I just noticed that the ACSBlog early this week kicked off a "two-week symposium on racial inequalities in the criminal justice system" via this post titled "Pervasive Inequalities in the Criminal Justice System." Here are excerpts from this introductory post:

[R]acial inequality in this country remains tightly intertwined with economic inequality, and aspects of the criminal justice system that disadvantage poor people disproportionately disadvantage people of color. There also exists implicit racial bias, if not outright prejudice, in the hearts of some police, prosecutors, judges and jurors which can manifest itself during any phase of a criminal case.

The result is that Americans of color face disadvantages at every stage of the criminal justice system. From arrest to sentencing, obtaining bail to obtaining a lawyer, plea bargaining to jury selection, and even in being put to death, criminal defendants consistently fare better when they are white....

Whether due to racial hatred, implicit bias or economic inequality, there is overwhelming evidence that criminal defendants of color are subjected to a different criminal justice system than white defendants. For the next two weeks, ACSblog and a succession of experts will examine flaws at each stage of the criminal justice system and propose solutions so that the Constitution’s guarantee of equal justice under the law may be realized for every American.

Here are links to the posts in this series that have been published so far:

February 13, 2015 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Pennsylvania Gov declares moratorium on state death penalty

As reported in this local piece, headlined "Gov. Tom Wolf declares moratorium on death penalty in Pa.," there is some headline-making news about capital punishment administration emerging from the Keystone State: 

Gov. Tom Wolf declared a moratorium Friday on the death penalty in Pennsylvania, potentially halting the process for 186 prisoners who've received a death sentence. Since 1693, the commonwealth has executed 1,043 prisoners, the last of which was Philadelphia torture killer Gary Heidnik in 1999. That execution took place, in large part, because Heidnik gave up his right to appeal.

In a statement released Friday, Wolf said the state's current death penalty is "a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive."...

Wolf's first action was a temporary reprieve to Terrance Williams, who was scheduled to be executed on March 4. Williams was convicted of two murders he committed as a teenager in 1984. "Today's action comes after significant consideration and reflection," Wolf said. "This moratorium is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes."

Shortly after Wolf's announcement, Sen. Daylin Leach, D-Montgomery, said he reintroduced his bill Friday to abolish the death penalty altogether. "I am extremely grateful that our governor will stop spending our tax dollars to, in the words of former US Supreme Court Justice Harry Blackmun, tinker with the machinery of death," he said, in a written statement.

Gov. Wolf's detailed four-page statement justifying his decision today is a fascinating read (which I am going to make my sentencing students read and re-read). The full statement is available at this link, and here are excerpts:

Pursuant to authority granted in Article IV, § 9 of the Constitution of Pennsylvania, I am today exercising my power as Governor to grant a temporary reprieve to inmate Terrence Williams. A death warrant for this case was signed on January 13, 2015 by my predecessor, acting pursuant to Section 4302 of the Pennsylvania Prisons and Parole Code. The execution was scheduled for March 4, 2015.

The reprieve announced today shall remain in effect until I have received and reviewed the forthcoming report of the Pennsylvania Task Force and Advisory Committee on Capital Punishment (established under Senate Resolution 6 of 2011), and any recommendations contained therein are satisfactorily addressed. In addition, it is my intention to grant a reprieve in each future instance in which an execution is scheduled, until this condition is met....

There are currently 186 individuals on Pennsylvania’s death row. Despite having the fifth largest death row in the nation, the death penalty has rarely been imposed in modern times. In the nearly forty years since the Pennsylvania General Assembly reinstated the death penalty, the Commonwealth has executed three people, all of whom voluntarily abandoned their right to further due process.

In that same period, Governors have signed 434 death warrants. All but the three noted above have subsequently been stayed by a court. One inmate has been scheduled for execution six times, each of which has been cancelled due to a state or federal appeal. Two inmates have remained on death row for more than three decades. This unending cycle of death warrants and appeals diverts resources from the judicial system and forces the families and loved ones of victims to relive their tragedies each time a new round of warrants and appeals commences. The only certainty in the current system is that the process will be drawn out, expensive, and painful for all involved.

While the pace of the process frustrates some, the fail-safes of appellate review are essential in avoiding a catastrophic miscarriage of justice. Since reinstatement of the death penalty, 150 people have been exonerated from death row nationwide, including six men in Pennsylvania....

If the Commonwealth of Pennsylvania is going to take the irrevocable step of executing a human being, its capital sentencing system must be infallible. Pennsylvania’s sy stem is riddled with flaws, making it error prone, expensive, and anything but infallible....

[A]administering the death penalty, with all the necessary legal appeals and safeguards as well as extra security and individual cells on death row, is extremely expensive. A recent analysis conducted by the Reading Eagle estimates that the capital justice apparatus has cost taxpayers at least $315 million, but noted that this figure was very likely low. Other estimates have suggested the cost to be $600 million or more. The Commonwealth has received very little, if any, benefit from this massive expenditure.

February 13, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Texas sentencing jury finally brings needed sanction to recidivist drunk driver

A helpful reader, knowing I have long expressed concern about under leniency often shown to dangerous repeat drunk drivers at sentencing, altered me to this notable state sentencing story out of Texas.  The story, headlined "Texas man sentenced to two life terms after 10th DWI," reinforces my view that juries can sometimes be wiser than judges at sentencing:  

Bobby Gene Martin’s brushes with law reinforcement for driving drunk date to 1981. But this week, his 30-year streak of DWI arrests came to an abrupt end.

A Texas jury convicted the 64-year-old of his 10th drunk driving offense along with a retaliation charge for threatening to harm the arresting officer and his family. They gave him two life sentences.

The jury came back with its guilty verdict after three hours of deliberation. And throughout the proceedings, the jury had no idea that Martin had already been arrested nine other times for drunk driving. They only knew that this was at least his third. “You could see they were actually shocked that he’d had 10 DWIs and was still out and about driving around,” Montgomery County Assistant District Attorney Kyle Crowl said.

Martin was also convicted of threatening to kill the arresting deputy, his wife, his children and his mother, according to the prosecutor. It also wasn’t the first time he had made such threats, Crowl noted. During a 1999 incident, Martin was accused of threatening to kill the officer who arrested him and “everything he ever loved.”...

Martin will be 80 before he is eligible for parole, according to Crowl.

UPDATE:  I just noticed this Houston Chronicle article which asserts that Bobby Gene Martin is the "33rd [Texas] inmate serving life in state prison for drunk driving" as a result of multiple drunk driving convictions. Though I do not know Texas law well, I presume that most (if not all) of these recidivist drunk drivers were given these life sentences by juries and that they are eligible for parole at some point like Bobby Gene Martin. I make this point because it highlights some contrast between these recidivist alcohol offenders and the hundreds of recidivist drug offenders serving life without parole in federal prison due to a mandatory LWOP statutory minimum sentencing term.

February 13, 2015 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Is a federal judge about to declare unconstitutional federal marijuana law? And then what?

The question in the title of this post is prompted by this Reuters report on an on-going federal criminal trial in California. Here is why:

A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.

Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.

"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.

The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.

In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.

Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.

But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."

Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.

Cross-posted at Marijuana Law, Policy and Reform

February 13, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

"The Perils of Overcriminalization"

The title of this post is the title of this new Heritage "Legal Memorandum" authored by Michael Mukasey and Paul Larkin.  Here is its abstract:

Overcriminalization is a serious problem that has led to questionable prosecutions and injures the public interest.  Thousands of criminal laws are scattered throughout the federal criminal code, and hundreds of thousands of regulations are supposed to implement those laws.  In addition, the whole notion of consciousness of wrongdoing in the criminal law has been obscured.  

Because prosecutors have no incentive to change a system that rewards their excesses, revisions may have to come from Congress — itself the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success.  If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.

February 13, 2015 in Offense Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 12, 2015

Spotlighting the administrative challenges posed by high-profile capital cases

This New York Times article, headlined "Jury Pool for Trial in Aurora Shooting Is Pressed on Death Penalty," highlights the various administrative difficulties a high-profile capital case formally gets underway in Colorado.  Here are excerpts:

Lawyers on Wednesday began questioning potential jurors for the trial of the man accused of killing 12 people and wounding 70 during a showing of a Batman film in a packed Colorado movie theater in 2012.

The defendant, James E. Holmes, has pleaded not guilty by reason of insanity, though his lawyers admit he was the gunman. The district attorney is seeking the death penalty, and prosecutors and defense lawyers focused most of their questioning on how prospective jurors feel about that sentence....

Officials sent jury summonses to 9,000 people here — a number that dwarfs even the 1,300 or so potential jurors who filled out questionnaires in the trial of the man accused in the Boston Marathon bombings. The pool of potential jurors has since been whittled to about 2,000. Questioning of those people is expected to take 16 weeks, during which the pool will be reduced to 120, who will receive further questioning, and finally to 12 jurors and 12 alternates.

The trial, to be held in this Denver suburb, could last from early spring to October, with testimony expected from police officers, crime scene experts, witnesses and mental health experts. The shooting took place July 20, 2012, at a movie theater in the Denver suburb of Aurora, where about 400 people were attending a screening of “The Dark Knight Rises.”... 

Two and a half years later, the effects of the massacre continue to ripple through the region, with victims and their families grappling with depression and post­traumatic stress disorder and divided over the prosecution’s decision to seek the death penalty. Some have argued that it is the only way to ensure justice; others have said it will cause years of appeals, an excruciating prospect for those seeking a degree of closure.

Recent and older related posts (with lots of comments):

February 12, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, February 11, 2015

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:

A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."

Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.

Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...

Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.

Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.

February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

The Ohio Supreme Court this morning handed down an interesting constitutional ruling in Ohio v. Bevly, No. 2015-Ohio-475 (Feb. 11, 2015) (available here), striking down a distinctive mandatory sentencing provision for certain sex offenders.  Here is how the majority opinion concludes: 

We hold that because there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced evidence corroborating the crime, the statute violates the due-process protections of the Fifth and Fourteenth Amendments to the United States Constitution.  Furthermore, because a finding of the existence of corroborating evidence pursuant to R.C. 2907.05(C)(2)(a) is an element that must be found by a jury, we hold that the application of R.C. 2907.05(C)(2)(a) in this case violated Bevly’s right to trial by jury found in the Sixth and Fourteenth Amendments of the United States Constitution.  We reverse the judgment of the court of appeals, and we remand the case to the trial court for imposition of its sentence in accordance with this opinion.

Justice French dissents in an opinion which explains why she thinks the there is rational basis for the sentencing provision struck down by the majority:

When its victims are younger than 13, the crime of gross sexual imposition (“GSI”) carries a mandatory prison term, as opposed to a presumption of prison, so long as “[e]vidence other than the testimony of the victim was admitted in the case corroborating the violation.” R.C. 2907.05(C)(2)(a). I cannot agree with the majority’s conclusion that this corroboration provision simultaneously violates due process, equal protection, and the right to a jury trial. Therefore, I respectfully dissent....

The General Assembly rationally could have concluded that it is unwise or unfair to categorically mandate prison for every person guilty of GSI against a child victim and that more sentencing discretion is appropriate in cases when no evidence corroborated the child victim’s testimony. By reserving the mandatory term (and the associated costs and resources) for convictions with the most evidence of guilt, the General Assembly has made a policy determination that corroboration is relevant to the punishment for child GSI convictions. As the court of appeals recognized in unanimously upholding the statute, “It seems obvious that the General Assembly felt that it was better to start out with a sentence that was not required to be mandatory and to make the sentence mandatory only if there is corroborative proof beyond the alleged victim's testimony that the crime was actually committed.” 2013-Ohio-1352, ¶ 9.

 

Off the top of my head, I cannot think of another sentencing provision in Ohio or anywhere else that a court has found unconstitutional based on rational basis review. Notably, the Bevly opinion indicates in a footnote that it addresses only the defendants federal constitutional claims because "the state constitutional challenges were not raised at the trial or appellate levels." That means the state of Ohio might reasonably try to a press an appeal to the US Supreme Court. It will be interesting to see if it will.

February 11, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack