Tuesday, January 12, 2016
SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
The big news from SCOTUS this morning was a big (and notably short) ruling declaring unconstitutionally Florida's death penalty procedure via Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2015) (available here). Here is how the opinion of Justice Sotomayor for the Court gets started and ends:
A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determinewhether sufficient aggravating circumstances existed tojustify imposing the death penalty. The judge so found and sentenced Hurst to death.
We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough....
The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
Six Justices joined in Justice Sotomayor's opinion, and SCOTUS-watchers ought to have little trouble figuring out which justice concurred only in the result and which Justice dissented.
"Could One of These Cases Spell the End of the Death Penalty?"
The question in the title of this post is the headline of this new Marshall Project piece. Here is how it starts, with links from the original:
Last June, Supreme Court Justice Stephen Breyer suggested that the death penalty might be close to its ultimate demise. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote in a dissent toGlossip v. Gross, to which Justice Ruth Bader Ginsburg added her name, “I would ask for a full briefing on a more basic question: whether the death penalty violates the Constitution.”
Attorneys for death-row inmates, generally a tight-knit group, immediately started talking about what to do next. While some urged caution — arguing that if the court upholds capital punishment it could set their cause back indefinitely — others sensed a rare opportunity. The most outspoken advocates for a more aggressive strategy have been the 8th Amendment Project, a group of lawyers who oppose the death penalty and are tracking cases that might allow the court to strike it down for good.
On Friday, the high court will discuss whether to hear a challenge to the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one of several posed as direct responses to Breyer’s invitation to attack the death penalty head-on.
There is no way to know whether the justices will take any of these cases; for the court to take a case, four justices must agree, and aside from Breyer and Ginsburg, no other justices have indicated their views on whether to take such a challenge. If they do take a case, there is also no way of knowing which one they will position as the next potential landmark, the next Brownor Miranda or Roe. But each of those historic cases was preceded by numerous appeals of the sort that are now reaching the court. Death penalty abolitionists are braiding the details of these cases to the legal arguments they believe have the best shot at swaying the court.
Monday, January 11, 2016
Plain and Prejudice and Zombie Guideline Errors
The title of this post is the cheeky title I suggested for this SCOTUSblog argument preview I wrote up concerning Molina-Martinez v. United States, a case to be argued before the Justices tomorrow morning. Perhaps unsurprisingly, the sensible SCOTUSblog folks went with a more descriptive title: "Argument preview: Justices take on 'plain error' review and guideline-range mistakes. But I could not resist using my silly title in this space because it has literary/theatrical flair and Molina-Martinez concerns whether appellate courts conducting Plain error review should presume Prejudice upon discovery of a guideline calculation mistake that was buried until appeal (a Zombie Guideline Error). Though I recommend heading over to SCOTUSblog for all the gory details on this case, here is how my SCOTUSblog argument preview starts and ends:
Before modern reforms, federal sentences were essentially unreviewable on appeal. This reality resulted largely from the absence of substantive federal directives for district judges in exercising their sentencing discretion. A defendant — or a prosecutor, for that matter — was hard pressed to complain on appeal that a sentence was premised on a legal error when no sentencing laws structured what sentences district judges were to impose within wide statutory sentencing ranges.
Through passage of the Sentencing Reform Act of 1984, Congress brought law to federal sentencing. The SRA created the U.S. Sentencing Commission to promulgate sentencing guidelines directing how federal judges impose sentences. The Guidelines Manual now runs more than 500 pages and requires district judges to parse intricate provisions to calculate an “offense level” and a “criminal history score” to determine a defendant’s recommended guidelines sentencing range. Federal sentencing is now so chock full of so much law, it is inevitable that federal judges sometimes make technical mistakes in calculating a defendant’s proper guideline range. On January 12, the Supreme Court in Molina-Martinez v. United States will hear argument concerning how the courts of appeals should approach “plain error” review of guideline calculation errors not noticed until appeal....
The Supreme Court has not always broken into traditional conservative and liberal blocks in recent and older cases addressing the intersection of guideline-calculation issues and the application of the federal rules of criminal procedures. However, in part because Molina-Martinez is not the most sympathetic of defendants, and because a number of current Justices may have deep reservations about adopting any doctrine that might be seen to water down the traditionally tough standards of plain-error review, it seems likely Molina-Martinez’s counsel will have an uphill battle convincing the Court to adopt the prejudice presumption he is seeking.
Sunday, January 10, 2016
Noting criminal justice fallout when state judges and prosecutors behave badly
I have only paid a little attention to the wide-ranging scandal involving judges and prosecutors in Pennsylvania known as "Porngate," but this local article notes how this scnadal is having some criminal justice ramifications. The piece is headlined "Fallout from Porngate leads to cases being appealed, claiming racial, gender, and ethnic bias," and here are excerpts:
Since late last year, lawyers across the state have quietly seized upon the pornographic, sexist, and racially offensive emails exchanged by a small circle of judges, prosecutors, and law enforcement officials to ask courts to reevaluate decisions ranging from criminal convictions to civil judgments and even death sentences.
They argue that the insensitive correspondence -- many of which contain jokes about rape; photos mocking African Americans, Hispanics, and other minorities; and insulting comments about gays, the obese, and the disabled - expose hidden biases and an inappropriate chumminess between the judges and prosecutors who already wield great power over the state's system of justice.
"It is important that any case be judged by someone who is fair, impartial, and sensitive to the issues of abuse, racial discrimination, and to prolonged exposure to trauma," said Robert Dunham, of the Washington-based Death Penalty Information Center. "Given the insensitivity reflected in those emails, it's not surprising that lawyers would be raising challenges."...
Reviews by the Supreme Court, the Attorney General's Office, and the state Judicial Conduct Board have found no emails in which individual cases were discussed. Still, defense lawyers have challenged cases across the state:
In Philadelphia, lawyers for Griffin Campbell, the demolition contractor sentenced Friday to 15 to 30 years in prison for his role in the deadly 2013 Center City building collapse, have pointed to crude racial jokes contained in many of the emails of the prosecutor who oversaw the grand jury investigation. They argued the messages raise questions over whether his was a "racially selective prosecution."
In Harrisburg, three African American women from Philadelphia have asked the Supreme Court to reconsider a 1997 decision upholding their convictions on contempt of court, saying Eakin's emails now "raise substantial questions about the propriety of his participation in cases such as this one."
And in Cumberland County, death-row inmate Antyane Robinson is seeking a Supreme Court rehearing, saying the email traffic between Eakin, who wrote an opinion denying his earlier appeal, and the trial prosecutor in his case suggests an inappropriately friendly relationship and a potential bias toward the government case that earned Robinson a death sentence for the 1997 murder of a romantic rival. The emails, Robinson's Luzerne County lawyer Enid Harris wrote in a filing last month, "indicate an utter lack of judicial sensibility and impartiality necessary for Eakin to have provided a fair review."
Whether any of those arguments will succeed remains to be seen. Prosecutors in all three cases have dismissed the idea that any prejudice the emails may expose should warrant tossing out judgments settled years ago. The larger concern, legal experts say, is not that prosecutors or judges allowed their legal reasoning to be overtly guided by the sophomoric attitudes on display in their email in-boxes.
Rather, the more insidious threat, said Nicholas Cafardi, a Duquesne University law professor, is the doubt their correspondence may have planted in the minds of ordinary citizens with business before the court. Thirteen years ago, Cafardi led a panel of experts appointed by the state Supreme Court in an assessment of racial and gender bias in the state's court system and produced a stunning report cataloging dozens of examples of prejudice - both subtle and overt.
More than a decade since that exhaustive review, Porngate's revelations have sat uncomfortably with Cafardi. "The only credibility our judicial system has is its impartiality," he said. "Judges who make sexist or racist remarks or even enjoy being told racist or sexist jokes convey the impression that they're not impartial. It's not enough to say that they didn't mean ill. The damage to the system has already been done."
Expecting (too?) much crime and punishment talk at Prez Obama's last State of the Union
Long-time readers know that I am always hopeful that the annual State of the Union events will address criminal justice issues, and also that Prez Obama has been consistently disappointing in this respect with his prior SOTUs. But this year, for lots of reasons, I am expecting crime and punishment to play a big role in the final SOTU to be delivered by Prez Obama. One reason is because of a notable guest who will be there as reported in this BuzzFeed News piece headlined "Meet The Ex-Convict President Obama Will Host At The State Of The Union." Here is how the article gets started (with links from original):
On Tuesday, President Obama may include a renewed promise to change the way the criminal justice system deals with suspects, offenders, and convicts in his final State of the Union address. In the audience will be woman who has seen all sides of the justice system — and all after her 57th birthday. Sue Ellen Allen, who spent nearly seven years as an Arizona inmate in the state’s women’s prison near Goodyear will be among the president’s guests at the speech. Allen was raised middle class, lived wealthy, and lost it all on her way to being convicted in absentia of securities fraud while an international fugitive on the run with her husband who also served time for the crime.After she got out of prison, in 2009, Allen did everything she could to get back in and offer resources to women still behind bars that she believes will help them escape the recidivism cycle that traps many inmates in the justice system for years. Now she regularly returns to the prison that held her to run education and jobs programs for the women there. She says the experience of seeing another side of America was “a blessing” and that her new calling is part of making good on the lessons she learned behind bars. “I was well educated, I was privileged because I have white skin — I’m a white woman and that’s a privilege,” Allen told BuzzFeed News. “If you had told me what I was going to see and experience in prison, I would have said, ‘Not in my country. We don’t treat people that way.’ I was wrong.”
When Obama delivers the State of the Union speech, Allen will be there, seated in the House chamber in the Capitol. Presidents regularly use their guest list to highlight issues and policy goals, and Obama’s seventh address will be no different. (Obama is breaking the mold a little next week — one of his “guests” will be a seat intentionally left empty to highlight the Americans lost during his presidency to gun violence.)
But White House aides say the focus of the speech is different than other State of the Union speeches. Instead of the standard list of policy ideas and applause lines, senior administration officials say this State of the Union will be about the broad changes Obama promised in his first campaign and how they play into his presidential legacy.
Criminal justice is set to be a huge part of that legacy, and get a prominent place in the speech. The Obama administration has linked up with conservatives and liberals to push changes to the justice system aimed at reducing the number of people put in prison, the length of time nonviolent offenders spend there, and reducing the costs associated with a system that houses more inmates than any other country on earth. The Obama administration has attempted to address longstanding goals of criminal justice advocates at the highest levels — the administration has supported dramatic changes in the war on drugs and called for an end to many mandatory minimum prison sentences — and the lowest. Obama has taken interest in prison life, becoming the first president to visit a federal prison last July. He’s called for new anti-recidivism programs and more efforts to offer education and other assistance to people behind bars. Changing the way prisons work, the president has said, can reduce the number of people who go in, out and back into the system.
In addition to expecting Prez Obama to talk about criminal reform during his SOTU speech, perhaps we could hear mention of crime and punishment in the GOP response. At the very least, folks at FreedomWorks are suggested it should via this recent commentary headlined "Republicans Should Promote Justice Reform in State of the Union Response."
Saturday, January 09, 2016
"Keeping It REAL: Why Congress Must Act to Restore Pell Grant Funding for Prisoners"
The title of this post is the title of this new paper by SpearIt now available via SSRN. Here is the abstract:
In 1994, Congress passed the Violent Crime Control and Law Enforcement Act (VCCLEA), a provision of which revoked Pell Grant funding “to any individual who is incarcerated in any federal or state penal institution.” This essay highlights the counter-productive effects this particular provision has on penological goals. The essay suggests Congress acknowledge the failures of the ban on Pell Grant funding for prisoners, and restore such funding for all qualified prisoners.
Friday, January 08, 2016
SCOTUS grants cert on Johnson/ACCA vagueness retroactivity!
The new year is off to quite a start for federal sentencing fans: in addition to lots of notable action by the US Sentencing Commission this afternoon (basics here), the Supreme Court this afternoon granted cert via this order in Welch v. US to address the retroactive impact of its big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. Lyle Denniston has this new post at SCOTUSblog discussing the grant, and here is how it gets started:
Taking on a case that potentially may lead to the release of hundreds — and maybe more — prison inmates, the Supreme Court on Friday afternoon agreed to consider extending to earlier, closed cases its ruling last June in Johnson v. United States. A key factor in the Court’s review could be that the Justice Department now takes the position that Johnson should apply retroactively.
Defense lawyers have said that at least hundreds of inmates have already served the maximum sentence that would now be allowed under the Johnson case, but remain in prison under longer sentences, so a decision applying that precedent to them would lead to their prompt release. The question of the retroactivity of that ruling on enhanced sentencing has resulted in a nine-way split among federal appeals courts.
The new case is Welch v. United States; it will be argued in March.
US Sentencing Commission promulgates "Johnson fix" guideline amendment and proposes many other notable amendments
As noted in this recent post, today the US Sentencing Commission conducted a public meeting at which it was scheduled to "Vote to Promulgate Proposed Crime of Violence Amendment" and to "Vote to Publish Proposed Guideline Amendments and Issues for Comment." I suggested that these two agenda items could be a very big deal for federal sentencing fans; after watcing the meeting online, I now think the slate of new proposed guideline amendments that the USSC just unanimously voted to publish may be an even bigger deal than the "crime of violence" amendment that was also just officially promulgated by the USSC.
I say this because,
(1) on the crime of violence guideline amendment front, the USSC's new promulgated amendment (a) seemingly seeks to codify the best prior jurisprudence concerning what offenses should be enumerated as violent priors in the career offender guideline while eliminating the vague residual clause essentially blown up by the SCOTUS Johnson decision, and (b) seemingly will not be given retroactive effect because doing so could prove almost administratively impossible. Meanwhile....
(2) on the other proposed guideline amendment front, the USSC appears to be proposing potential amendments to a number of the most controversial and consequential amendments that it had not addressed in prior recent amendment efforts. Specifically, it seems that the USSC, after having adjusted the drug and fraud guidelines in the last two amendment cycles, now is ready and eager to consider at least some significant tweaks to the immigration and child pornography guidelines.
Because it is not easy to fully assess the potential import and impact of all the USSC action today simply by watching the public meeting live, I am hopeful that some follow-up documents will soon be available on the Commission's website so that all federal sentencing fans can fully understand and assess all of today's action. But, even before we see any official accounting of today's USSC efforts, I am eager to compliment all the members and staff of the Commission for reminding me that at least some inside-the-Beltway folks can conduct (and complete) critically important and consequential government work in an efficient and bipartisan manner (and on a Friday afternoon, no less). Kudos to the USSC!
UPDATE: I just got an official email from the US Sentencing Commission that included this text and links:
At today’s public meeting, the U.S. Sentencing Commission unanimously voted to adopt an amendment relating to the definition of “crime of violence” in the Career Offender and other federal sentencing guidelines (press release). This amendment was the result of a multi-year study prompted by concerns and problems relating to the definition of “crime of violence.” The amendment, which eliminates the so-called “residual clause,” was informed by the recent Supreme Court case, Johnson v. United States, issued in June 2015. Read the adopted amendment.
In addition, the Commission proposed an amendment on immigration offenses which would recalibrate the guidelines to ensure more proportional sentences that reflect the totality of the circumstances in a particular case. The Commission also proposed amendments that would allow for higher penalties for animal fighting offenses. An update to the Commission’s policy statement pertaining to compassionate release was also proposed. Read all of the proposed amendments and issues for comment.
Might SCOTUS take up Johnson retroactivity ASAP via Texas case appealed from district court?
Hard-core federal sentencing fans (and/or obsessive readers of this blog) know that lower federal courts have been splitting since the summer over the reroactive application of Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. As noted in this prior post, some prisoners have been urging SCOTUS to take up this issue ASAP via an original habeas petition, but now the US Solicitor General (which has been supportive of Johnson retroactivity) has this new SCOTUS filing suggesting that the Supreme Court might consider taking up the issue ASAP via a case from Texas being appealed directly from the district court's denial of relied.
This new SCOTUSblog posting by Lyle Denniston provide some broader context on all the substantive and procedural issues raised by post-Johnson litigation; it notes that the Justices are slated to consider this case from Texas, Harrimon v US, during their conference today. Here is the basic backstory of this particular case:
When Harrimon’s case was in lower courts, his sentence for illegal possession of a gun by a convicted felon was originally set at ninety-six months — eight years — but then was raised to fifteen years and eight months (188 months) by applying the enhancement provision of the residual clause. After the Johnson decision emerged, Harrimon began a federal habeas challenge to the longer sentence, seeking to rely upon that decision on the premise that it applied retroactively.
While his case was still pending in a trial court, the Fifth Circuit in a separate case ruled that theJohnson decision would not apply retroactively to cases pending on post-conviction review, such as federal habeas challenges. The district court judge rejected Harrimon’s plea, and his lawyers then moved on to the Fifth Circuit. However, instead of waiting for that court to decide his appeal, his lawyers filed a petition asking the Supreme Court to review his challenge prior to a decision by the appeals court.
I would love to see SCOTUS take up the Johnson retroactivity issue ASAP for a variety of substantive and procedural reasons. And I sincerely hope that the Justices feel some significant obligation to help lower federal courts properly clean up the uncertain mess that SCOTUS itself made through its remarkable Johnson vagueness ruling.
A few prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- "The Circuit Split on Johnson Retroactivity"
- Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
- Updating the bubbling lower-court vagueness mess six months after Johnson
"Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response"
The title of this post is the title of this notable paper authored by Paul Cassell and James Marsh now available via SSRN. Here is the abstract:
In this article, we have reviewed the legal issues surrounding restitution for child pornography victims. In our view, the Supreme Court’s Paroline decision failed to fully implement the congressional mandate that victims receive restitution for the “full amount” of their losses. Congress should move swiftly to ensure full restitution for child pornography victims by enacting the proposed Amy and Vicky Act — a more rational scheme for awarding restitution.
After the Supreme Court's Paroline ruling in April 2014, a number of reasonable folks reasonably predicted that Congress could and would move quickly to pass legislation to remedy the victim-oriented concerns stressed in this article. But, now nearly two years later, "Paroline fix" legislation seems stuck in Congress while victims like Amy and Vicky and others wait and wait for statutory reforms that, in the words of this article, would create "a more rational scheme for awarding restitution."
January 8, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)
Thursday, January 07, 2016
US Sentencing Commission slated to vote on "Johnson fix" guideline amendment and promulgate other proposals
As detailed in this official notice, the United States Sentencing Commission has "a public meeting of the Commission ... scheduled for Friday, January 8, 2016, at 1:00 p.m.... This meeting will be streamed live." Here is the agenda (with my emphasis added):
- Vote to Adopt August 2015 Meeting Minutes
- Report from the Chair
- Report from the Staff Director
- Possible Vote to Promulgate Proposed Crime of Violence Amendment
- Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment
These last two agenda items could be a very big deal, depending on what the USSC has in the works.
Deep dive into notable state-level clemency developments
This notable new Stateline piece, headlined "Move Is on to Make End-of-Year Pardons Less Random," reports on some notable new developments in state clemency practices. I recommend a full read of the piece for clemency fans, and here are excerpts:
Barry Beach in Montana got one. Gabrielle Cecil in Louisville got one. And actor Robert Downey Jr. in California got one. They won the holiday-time clemency lottery and, in the past two months, had their sentences commuted or pardoned.
Beach’s 100-year sentence for murder was shortened to time served, 30 years. Cecil’s life sentence for killing her abusive partner was forgiven. And “Iron Man” actor Downey, whose felony drug conviction in the 1990s led to nearly a year in jail, got a pardon for good behavior. They’re the lucky ones.
Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction. The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years. Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.
But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars. “I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com. “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said. “Increasingly that mindset is changing.”...
Yet despite the flurry of activity, the use of clemency and pardons by governors to ease long sentences or restore civil rights to people who have served their time remains largely a matter of chance. Your odds of getting a pardon or having your sentence commuted to, for example, time served, depend completely on what state you’re convicted in and, most importantly, on who the governor is. “It’s wholly dependent on what the governor wants to do, who the governor is, and how safe, politically, the governor feels,” said former Maryland Gov. Bob Ehrlich, a Republican who granted 228 pardons during his time in office.
Ehrlich now campaigns for regular clemency through a partnership with the law school at Catholic University in Washington, D.C., where students help inmates prepare clemency petitions to governors or the president. “It’s all subjective factors. They should not play into it, but they do,” Ehrlich said....
In the states, sporadic changes in legislation have begun to streamline the process for getting clemency, and some high-profile governors are starting to address the issue:
- New York: Democratic Gov. Andrew Cuomo said in October he would create a “clemency project” to identify prisoners who qualify for clemency, and he commuted sentences for two people and pardoned two others. The New York Times called it a "drastic turnaround" in a state whose governors have granted few pardons over the past four decades.
- Illinois: In November, Republican Gov. Bruce Rauner granted clemency to 10 people while denying 200 other requests. But the governor said he now is working through a backlog of 1,200 petitions from previous administrations.
- Montana: A new law took effect Oct. 1 that lets the governor grant clemency, even if the state board of pardons and paroles denies it. That allowed Democratic Gov. Steve Bullock to cut the 100-year murder sentence of Barry Beach to time served.
Some states like Arkansas, Connecticut and Delaware have a “culture of clemency,” said Margaret Love, the U.S. pardon attorney under Presidents George H.W. Bush and Bill Clinton. “Some states have a pretty good system, but most rely on the character of the particular governor.”
Tuesday, January 05, 2016
Interesting international death penalty data via Amnesty International
Amnesty International (AI) is a human rights organization that has long called for abolition of the death penalty worldwide. Via this New York Times article, headlined "Death Sentences Surge, Even as More Countries Drop Capital Punishment," I see that AI has released its latest accounting on global capital punishment practives in this lengthy report titled "Death Sentences and Executions in 2014." Here is the report's executive summary:
Amnesty International recorded executions in 22 countries in 2014, the same number as in 2013. At least 607 executions were carried out worldwide, a decrease of almost 22% compared with 2013. As in previous years, this figure does not include the number of people executed in China, where data on the death penalty is treated as a state secret. At least 2,466 people are known to have been sentenced to death in 2014, an increase of 28% compared with 2013. This increase was largely due to sharp spikes in death sentences in Egypt and Nigeria, where courts imposed mass sentences against scores of people in some cases.
An alarming number of countries that used the death penalty in 2014 did so in response to real or perceived threats to state security and public safety posed by terrorism, crime or internal instability. For example, Pakistan lifted a six-year-long moratorium on the execution of civilians in the wake of the horrific Peshawar school attack. The government also pledged to execute hundreds of people on death row who had been convicted on terrorism-related charges. China made use of the death penalty as a tool in the “Strike Hard” campaign, which the authorities characterized as a response to terrorism and violent crime in the Xinjiang Uighur Autonomous Region.
There is no evidence that the death penalty has a greater deterrent effect on crime than terms of imprisonment. Where governments present the death penalty as a solution to crime or insecurity they are not only misleading the public but — in many cases — failing to take steps to realize the goal of abolition recognized in international law.
Many of those states that retain the death penalty continued to use it in contravention of international law and standards. Unfair trials, “confessions” extracted through torture or other ill-treatment, the use of the death penalty against juveniles and people with mental or intellectual disabilities, and for crimes other than “intentional killing” continued to be concerning features of the use of the death penalty in 2014.
Despite these concerns, the world continues to make progress towards abolition.
With the exception of Europe and Central Asia region, where Belarus — the only country in the region that executes — resumed executions after a 24-month hiatus, Amnesty International documented positive developments in all regions of the world. The Sub-Saharan Africa region saw particular progress, with 46 executions recorded in three countries, compared to 64 executions in five countries in 2013 — a 28% reduction. The number of executions recorded in the Middle East and North Africa region decreased by approximately 23% — from 638 in 2013 to 491 in 2014. In the Americas, the USA is the only country that executes, but executions dropped from 39 in 2013 to 35 in 2014, reflecting a steady decline in executions over recent years. The state of Washington imposed a moratorium on executions.
Fewer executions were recorded in the Asia-Pacific region, excluding China, and debates on abolition began in Fiji, South Korea and Thailand.
"Reducing Crime Through Expungements"
The title of this post is the title of this timely and interesting (and perhaps controversial) new paper by Murat Mungan now available via SSRN. Here is the abstract:
Expungements reduce the visibility of a person's criminal record, and thereby reduce the informal sanctions that may be imposed on him. This reduction is enjoyed by the ex-convict only if he does not become a repeat offender, because otherwise he re-obtains a criminal record. Thus, the value a person attaches to having his record expunged is inversely related to his criminal tendency.
Therefore, by making expungements costly, the criminal justice system can sort out low criminal tendency individuals — who are unlikely to recidivate — from people who have high criminal tendencies. Moreover, the availability of expungements does not substantially affect a first time offender's incentive to commit crime, because one incurs a cost close to the reduction in informal sanctions that he enjoys by sealing his criminal record. On the other hand, expungements increase specific deterrence, because a person who has no visible record suffers informal sanctions if he is convicted a second time. Thus, perhaps counter-intuitively, allowing ex-convicts to seal their records at substantial costs reduces crime.
John Gleeson, a member of my Sentencing Judges Hall of Fame, joins notable "teammates" in stepping down from federal bench
In a (personal favorite) post of mine here more than a decade ago, I mused about creating a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system. In that post, I noted that the first inductee of my Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms. I thereafter went on to praise the more recent sentencing work of US District Judges Nancy Gertner and Paul Cassell, suggesting their post-Blakely sentencing opinions earn them a spot in the SJ Hall of Fame.
I bring up that long ago post in part because Nancy Gertner and Paul Cassell, in addition to having both done extraordinary sentencing work as federal district judges, both made the (fairly unusual) decision in recent years to step down from the federal bench and return to private practice. And now, as reported in this New York Daily News article, US District Judge John Gleeson — another extraordinary judge who has done extraordinary sentencing work in recent years — has told his judicial colleagues that he is soon to be stepping down from bench. Here are the basics:
Brooklyn Federal Judge John Gleeson, the former prosecutor who nailed the late Gambino boss John Gotti on racketeering and murder charges — shattering his “Teflon Don” reputation — is stepping down from the bench to practice law, the Daily News has learned. Gleeson, 62, made the announcement to his fellow judges on Monday, sources said. He said the decision was made in the best interests of his family — Gleeson is married and has two college-age daughters.
Gleeson was next in line to become the chief judge for the Eastern District of New York when Judge Carol Amon’s term as chief expires. With Gleeson out of the picture, Judge Dora Irizarry is expected to be the next chief judge, sources said.
“He’s worked in government service practically his entire life,” a source told The News. “If he wants to earn money while he’s still young, there’s nothing wrong with that.” Federal judges make about $200,000 a year, and Gleeson is expected to make in the seven figures in private practice.
It is rare, but not unheard of, for a federal judge with lifetime tenure to return to private practice. John Martin gave up his judicial robe in the Southern District of New York in 2003 to join a law firm....
President Clinton rewarded Gleeson [for his work as a federal prosecutor] in 1994 by appointing him to the bench....
In recent years, Gleeson was somewhat of a maverick on the bench, advocating against draconian sentences that took away a judge’s discretion. Federal prosecutors are also fighting him tooth and nail on a decision to expunge the criminal record of a Brooklyn woman who convinced the judge that she was trying to turn her life around but could not find a good job because of a fraud conviction years ago.
Here are links to a few prior posts reporting on just a few of Judge Gleeson's prior opinions that earned him a plac in the SJ Hall of Fame:
- Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging
- Former federal prosecutor urges "Mandatory minimums for kingpins only"
- US District Judge Gleeson assails drug guidelines in another potent opinon
- US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas
- US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice
- US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
Monday, January 04, 2016
Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon
Because I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon. But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on. Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:
The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.
“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.
For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.
“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”
But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.
As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.
Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”
His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...
After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.
In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.
In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.
“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”
The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.
Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”
Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.
But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”
January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)
Noting Alabama's notable struggles to secure various execution drugs
This lengthy local article, headlined "Court records show pharmacists refused death penalty drugs," reports on the various difficulties experienced by the Cotton State in an effort to get the chemical tools it needs to get its machinery of death running again. Here are some details:
At the height of Alabama’s search for lethal injection drugs, state officials were turned down by every pharmacy they contacted for help, according to court records filed Wednesday. State officials asked every licensed compounding pharmacist in Alabama to make batches of pentobarbital — once the primary drug used to kill inmates — and all refused. Attempts to buy the drug from four other states also failed, court documents state.
Those refusals could point to a rough road ahead for the death penalty, despite a U.S. Supreme Court ruling last year that cleared another drug, midazolam, for use in executions.... Alabama officials are trying to resume executions by lethal injection after a two-year hiatus caused by legal challenges and shortages of key execution drugs.
Tommy Arthur, condemned to death for the 1980s murder-for-hire of Muscle Shoals resident Troy Wicker, is one of several inmates who have challenged the state’s current approach to execution: injecting an inmate with midazolam to deaden pain, rocuronium to still the muscles and potassium chloride to stop the heart.
Midazolam has been used in botched executions in other states, including an Oklahoma execution in 2014 in which it took an inmate more than 30 minutes to die after the drugs were injected. Inmates say the use of midazolam is cruel and unusual, but the U.S. Supreme Court approved its use in an Oklahoma case last summer, seemingly clearing the way for executions in Alabama as well.
Lawyers for the state on Wednesday asked a federal court for a summary judgment that would end Arthur’s appeals and send him to the execution chamber. But Arthur’s lawyers are trying to flip the script in the case. Before the state adopted midazolam as a death penalty drug, Arthur filed a similar challenge against the use of pentobarbital, Alabama’s main execution drug before 2014. Now that he’s faced with execution by a new drug, Arthur wants to switch back to pentobarbital, a drug he claims is less cruel than midazolam.
Lawyers for the Alabama attorney general’s office say they can’t return to pentobarbital, because no one will sell the drug to the Department of Corrections. “These sources have either indicated they cannot obtain the ingredients for compounded pentobarbital, were not capable of compounding pentobarbital, or refused to be a supplier for the ADOC” lawyers for the attorney general’s office wrote in a court document.
The court documents, among hundreds of pages filed in Arthur’s case last week, shed light on Alabama’s often secretive attempts to obtain drugs for use in lethal injection. Several states have struggled to get their hands on drugs because a growing number of drug suppliers refuse to sell them, citing ethical objections or opposition to capital punishment.... [I]n the Arthur case ... new court documents show ... the state simply couldn’t find a supplier, despite contacting “nearly thirty” sources....
Arthur’s lawyers supplied the state with a list of 19 Alabama pharmacies they said were potential sources of pentobarbital. (All 19 names are blacked out in court documents.) But the state’s lawyers argue they’ve contacted all 19, plus others, and been turned down. “While Arthur alleged that as many as 10 states intend to use compounded pentobarbital for executions, the process of obtaining compounded pentobarbital is difficult to impossible for most,” the state’s lawyers wrote.
That might not matter now, given that Alabama has switched to midazolam, a drug that’s more readily available on the market. But pharmacists’ resistance to compounding execution drugs may soon turn out to be important in the search for midazolam as well...
Two major suppliers of midazolam — Illinois-based Akorn and New Jersey-based Becton-Dickinson — have declared in the past year that they’re opposed to selling the drug to Alabama for executions. While the state hasn’t identified its midazolam supplier, the state’s lawyers used “package inserts,” essentially instructions for use of a midazolam, from Akorn and Becton Dickinson in court filings this year. Both companies have denied selling the drug directly to Alabama prisons, and Akorn even asked the state to return any Akorn-made midazolam it had on hand for executions.
Individual pharmacists are also backing out of the lethal injection business. Last year, the International Academy of Compounding Pharmacists and the American Pharmacists Association both voted to discourage their members from supplying drugs for executions.
"Mr. Obama’s Trickle of Mercy"
The title of this post is the headline of this recent New York Times editorial. Here is an excerpt:
After seven years in office, Mr. Obama has issued a total of 184 commutations and 66 pardons — more grants, as the White House wasted no time in pointing out, than the last six presidents combined. But that’s a pitifully low bar, since Mr. Obama’s most recent predecessors all but abandoned the practice.
Mr. Obama knows this is a far deeper problem than can be solved by a few dozen grants. There are 9,000 applications for commutations that have not been acted on. The administration solicited applications like these in 2014 as part of a sweeping clemency initiative aimed at federal inmates who have served at least 10 years of a sentence that would be shorter today because the law has changed. To be eligible, prisoners must also have been convicted of a lowlevel, nonviolent offense, have no “significant” criminal history, and have behaved while behind bars.
At the time, the initiative seemed a big step toward reversing some of the gravest injustices of the nation’s decadeslong drug war, most obviously for the thousands of inmates still serving time for crack cocaine offenses that are punished far less harshly today.
Less than two years later, however, the vast majority of applications remain in limbo. A coalition of volunteer defense lawyers working alongside the Justice Department has struggled to get basic information on applicants. The department itself is hopelessly mired in bureaucratic tangles and institutional conflicts of interest.
By the administration’s own estimates, as many as 10,000 people could be released under the new criteria, former Attorney General Eric Holder Jr. told The Washington Post this month. So why is Mr. Obama continuing to make grants in the single or double digits?
One reason is the Justice Department; the clear solution is to run the process directly out of the White House. The president may also be wary of undercutting a package of bipartisan sentencing reforms making its way through Congress. But that legislation is far from a done deal, and may be on even shakier ground now that one of the leading Republican presidential candidates, Senator Ted Cruz, rejects reforms he previously supported.
Regardless of what Congress does, the presidential power of mercy is explicit in the Constitution, it is virtually unlimited, and presidents once used it far more freely to correct injustices. It is a “tool of public morality,” as one former federal prosecutor put it. If Mr. Obama truly wants to reinvigorate this moribund process, he has a year left to do it. The job requires only two things: a pen and the political will. There is no question that Mr. Obama has the pen.
A few recent related posts:
- Reviewing and reflecting on persistent problems with the federal clemency process
- Prez Obama commutes 95 federal prison sentences and grants 2 pardons
- An early set of takes on Prez Obama's clemency work to date
- "To forgive prisoners is divine — or as close as government gets"
- Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list
- "It’s Time for Obama to Go Big on Pardons"
Sunday, January 03, 2016
Florida prosecutors honoring Army vet by threatening 120-years mandatory imprisonment for firing two shots in air
This local story from Jacksonville, headlined "Trial set to begin for Jacksonville man facing 120 years in prison for firing 2 shots," highlights why I find so many mandatory minimum sentencing statutes troublesome and why I worry about the extreme sentencing powers that these kinds of provisions often give to local, state and federal prosecutors. Here are the details of a Florida criminal justice story with many factors that likely undermines the public's faith in the soundness, sensibility and efficacy of modern criminal justice systems:
A Jacksonville man scheduled for trial this week faces a 120-year sentence if convicted, although no one was hurt during the six aggravated assaults he was charged with using a deadly weapon. Under Florida’s 10-20-Life law, Circuit Judge Jack Schemer would have no choice but to sentence 58-year-old Randal Ratledge to 20 years for each count. Jurors likely would not be aware of the mandated sentence.
Defense attorneys say Ratledge, a military veteran, does not belong in prison for the rest of his life and are critical of prosecutors for not waiving the requirement. Attorney Bill Sheppard said he’d be willing to plead Ratledge guilty if prosecutors would waive 10-20-Life and let Schemer impose any sentence that the judge thought was just. But the best offer he’s gotten is 18 years in prison, and that’s essentially a life sentence for someone Ratledge’s age, Sheppard said.
“The problem with our system now is judges have no discretion,” Sheppard said. “Prosecutors decide the sentence, not judges.”
The state’s 10-20-Life law requires that anyone convicted of a crime involving the firing of a gun gets at least 20 years in prison, with the only exception being someone who fired a warning shot when they have a legitimate reason to feel threatened. The law requires a 10-year prison sentence when someone uses a gun during the commission of a crime, but doesn’t fire the weapon.
According to police reports, Ratledge was talking with friends and neighbors near his Panther Ridge Court home in August 2012 when he went into the house and came back with a gun. He fired a shot in the air, then ran at the people outside screaming profanities while firing a second shot in their direction.
State attorney spokeswoman Jackelyn Barnard said prosecutors have been in discussions with defense attorneys over the case. “While we cannot get into specifics pretrial, the state has considered all options which includes the waiving of the 20-year minimum mandatory,” Barnard said. The Legislature has given prosecutors discretion to waive a minimum mandatory in appropriate cases, and State Attorney Angela Corey used this discretion when she concluded it is appropriate, Barnard said.
Attorney Bryan DeMaggio, who also is representing Ratledge, said he fired two shots in the air and not in the direction of any of his neighbors. DeMaggio and Sheppard plan to argue that he was “involuntarily intoxicated” because he had a bad reaction to an Ambien pill and doesn’t remember firing the gun. “He remembers taking the Ambien, and then he remembers being in shackles,” DeMaggio said.
Ratledge didn’t understand what he was doing and is not responsible for his actions, DeMaggio said. Ambien is usually used to help someone sleep, often to help people suffering from insomnia. Prosecutors have previously argued that the six people next door were in fear for their lives and traumatized by the experience.
The jury that hears the case is not supposed to know Ratledge faces 120 years. Jurors usually aren’t advised what sentence a defendant faces and are told their only responsibility is to determine whether the defendant is guilty. Sheppard and DeMaggio asked Schemer to make an exception in this case and allow jurors to know, but the judge denied their request.
This is the second time Ratledge will go on trial. He was previously convicted of the same charges, but that conviction was thrown out before sentencing when Circuit Judge James Daniel ruled that Ratledge’s Fifth Amendment right against self-incrimination was violated during the trial. Officer C.R. Deal, who questioned Ratledge the night he fired the shots, testified in front of the jury that Ratledge told him “he made a mistake and that he did not want to talk about the incident.” Daniel found that the comment unfairly prejudiced the jury since they knew Ratledge had invoked his right to remain silent, and exercising that right should not be held against a criminal defendant.
Jury selection is scheduled to begin Monday. Which could be bad timing for Ratledge. The Florida Legislature is considering a bill that would remove aggravated assault from the list of crimes that fall under 10-20-Life. The legislation unanimously passed criminal justice subcommittees in both the Florida House and Senate, but if it becomes law it will likely take until spring or summer.... DeMaggio said the legislation as it’s now written would not be retroactive, so if Ratledge is convicted this month his sentence would be unlikely to be overturned.
Sheppard said Ratledge is holding up well. He is out on bail but required to stay in his home most of the time. “He’s a soldier trained by the U.S. Army,” Sheppard said. “He was trained to deal with it.”
Among the aspects of this case that I find so frustrating is the way in which an extreme mandatory minimum sentencing statute is precluding the just and efficient resolution of a criminal matter seemingly because state prosecutors are unwilling to trust a judge to impose a fair and appropriate sentence on an Army veteran who, it seems, simply acted very badly when having a dispute with neighbors. Even if one thinks the defendant's "Ambien defense" is a bunch of BS, I am hard-pressed to understand why it would be appropriate for an Army vet to be facing decades in prison for foolishly firing some shots in the air in the midst of a summer squabble. And, critically, it seems that the defendant and his attorney have long been willing to resolve this case without the expense now of TWO criminal trials if prosecutors were just willing to let this case be resolved like most of us think cases ought to be resolved: with a neutral judge imposing a sentence after hearing advocacy from the prosecution and defense about what sentence would be fitting.
But for reasons that need not be explained in any way and that are not subject to any review, it seem a group of local prosecutors have decided that they want this Army vet to die in prison for his horrific acts of firing shots in the air one day in August 2012. And because of Florida's 10-20-Life mandatory minimum sentencing laws, these prosecutors have the exclusive power to demand that this vet essentially give up the rest of his life to resolve this case. Perhaps if prosecutors had to explain their charging and bargaining behavior in this case, I could better understand why they have taken such a seemingly ridiculously tough sentencing posture. But they do not, and that is my most fundamental gripe with mandatory minimum sentencing statutes: they not only give prosecutors extreme charging/bargaining/sentencing powers, but they enable prosecutors to exercise this power without being subject to any transparency, review or accountability. Grrr.
"Taking Another Look at Second-Look Sentencing"
The title of this post is the headline of this notable new article authored by Meghan Ryan and recently posted SSRN. Based on the abstract alone, I am a big fan of this paper because it appears to explore rigorously a sentencing topic which I believe merits much more attention in an era marked by a record-high numbers of LWOP and other lengthy prison sentences: whether, why and how a sentence imposed long ago can and should be reconsidered anew. Here is the abstract:
A historically unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders.
Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed. These evolved societal views, the drafters have asserted, might justify reducing the offenders’ sentences. The drafters of the Code have suggested that this position is based in part on retributivism — on what these particular defendants deserve as a result of committing these crimes.
But an offender’s desert ordinarily does not change as time progresses; it is societal views of desert that change. This raises a new question in criminal law about whether the original sentencer — the one imposing punishment at the time of trial — or a new sentencer — one imposing punishment over a decade after the offense was committed — is better positioned to determine the offender’s desert. The drafters of the Code have proffered that a new sentencer is best because it can be more representative of modern values. But the new sentencer does not represent the public against which the offense was committed. And the new sentencer may not be well positioned to assess the offender’s culpability or the harm he caused.
The new sentencer may be in a better position to know whether, as time has passed, the offender has been rehabilitated or whether he still poses a danger to society, but these factors are not based on the offender’s desert. While these other utilitarian considerations may certainly justify second-look sentencing, and while second-look sentencing may very well be a useful innovation, this new approach to sentencing overlooks the important desert-based restraints of limiting retributivism upon which the Code is based. Reliable assessments of an offender’s desert generally best lie with the decisionmakers in place around the time the crime was committed.
Saturday, January 02, 2016
Local prosecutor urges Wyoming legislature to "fish or cut bait" with capital punishment
As reported in this local AP piece, headlined "Casper prosecutor says Wyoming needs to reconsider death penalty," a district attorney in the Equality State is complaining that his state legislature seems unwilling to back the state's capital laws with sufficient capital. Here is the story:
A prosecutor who secured a death sentence against Dale Wayne Eaton for the murder of a woman nearly 30 years ago says the lingering appeal in the case shows the Wyoming Legislature must decide if it's willing to provide the resources necessary to handle capital punishment.
The call came from Natrona County District Attorney Mike Blonigen, who prosecuted Eaton in 2004 for the 1988 killing of Lisa Kimmell of Billings, Montana. For years, Eaton was the only man on death row in Wyoming. His death sentence was overturned in November 2014. "You keep going, and you tell yourself that this is about what the man actually did," Blonigen said.
"But it seems the further we get removed from what he actually did, and out from his trial, the less and less that seems to matter," Blonigen said of Eaton. "Instead, we're tied up in all this other stuff that has nothing to do with the truth or untruth of any of the allegations made, but have everything to do with the procedure."
Kimmell disappeared while driving across Wyoming and fishermen later found her body in the North Platte River. In 2002, DNA evidence linked Eaton to the case while he was in prison on unrelated charges.
The Wyoming Supreme Court upheld Eaton's death sentence, but U.S. District Judge Alan B. Johnson of Cheyenne overturned it last year, ruling that ruled that Eaton hadn't received an adequate defense. Johnson said the Wyoming Public Defender's Office had tried to scrimp on expenses and failed to follow American Bar Association staffing recommendations on providing qualified lawyers, an investigator and a mitigation expert.
Johnson gave the state the choice of allowing Eaton to serve life in prison or seeking the death penalty against him at a new sentencing hearing with the requirement that the state appoint lawyers for him not associated with the Wyoming Public Defender's Office. Blonigen began pressing in state court to hold a new death penalty hearing for Eaton.
But Johnson ruled this summer that the state had failed to follow his order by not appointing new lawyers for Eaton fast enough. In his order last week, Johnson prohibited the state from holding a new death penalty hearing while Eaton appeals aspects of the order Johnson issued last year. Eaton's current legal team is asking a federal appeals court in Denver to rule that too much time has passed for Eaton to get a fair death penalty hearing.
Gov. Matt Mead's budget recommendations, released before Johnson's order, called for the Legislature to appropriate over $1 million for the coming two-year state funding cycle to pay for Eaton's defense in state court. Mead also is calling for $25,000 to study whether prosecutors and the Public Defender's Office are receiving adequate funding.
Wyoming last carried out the death penalty in 1992, when it executed convicted murderer Mark Hopkinson. Several other death sentences have been overturned on appeal since then on the grounds of ineffective legal representation from the Public Defender's Office....
Blonigen said Eaton's case underscores the need for the state to provide adequate support if it wants to keep the death penalty on the books. "You've got to have the resources and have the commitment to it to carry through with it," Blonigen said. "I think the Legislature has to decide do we really want this or not. If we really want it, then we have to change some things."
Wednesday, December 30, 2015
"Shouldn't Criminal Defense Lawyers Prepare Clients for Prison?"
The question in he title of this post is the headline of this notable commentary authored by Jay Berger and appearing in The Legal Intelligencer: Here are excerpts:
I was an attorney in Pennsylvania for over 30 years. I was also, more recently, a federal prisoner for almost five years. In 2007, I was charged with one count of mail fraud affecting a financial institution (Title 18 U.S.C. Section 1341). I pleaded guilty and served my sentence in five facilities of varying security classifications from June 2008 until April 2013. During the entire time I was incarcerated, I do not recall hearing of a single instance, my case included, where the defense lawyer provided any meaningful prison preparation or counseling for his or her client as part of the representation.
What completely baffles me about that omission is that there is roughly a 97 percent conviction rate in today's federal criminal justice system, almost all of which derives from guilty pleas, and the outcome in most cases is incarceration. Because this inevitability of serving time in prison is known well in advance of actual confinement, there are numerous prison-related matters that can and should be addressed during that interim period....
To me the solution is fairly obvious. It must be the responsibility of the defense attorneys to provide prison preparation services to their clients. Having been both a lawyer and a criminal defendant, I understand how imperative it is for clients to feel they can look exclusively to their defense attorneys for guidance in all areas of their cases. This is especially true where one of those areas ultimately involves a journey through prison. Therefore, the attorneys must either acquire enough knowledge to offer these services themselves, or in the alternative, retain a legitimate prison consulting service to work closely in conjunction with them. I view the latter approach no differently than when a defense attorney deems it necessary to retain any reliable, independent expert to provide essential skills related to the case....
I submit that any defense attorney who offers clients the strategies they need to manage through confinement and emerge successfully would add substantial value to the legal representation provided. It would bring an element to a criminal defense practice that is not typically available, and there is no better testimonial for an attorney than former clients who are satisfied that they were well represented in all facets of their cases. Word would spread and potential criminal defense clients might just be inclined to gravitate to a law firm that provides a more comprehensive representation by including prison counseling. In my opinion, this would significantly set that particular criminal defense practice apart from its competitors.
Those of us who have taken that shameful and lonely walk through prison doors could have desperately used some help from our defense attorneys to prepare us for what we were about to encounter. I assure you that we would have been eternally grateful for the consideration given to this most important aspect of our cases.
Tuesday, December 29, 2015
Interesting Texas state sentencing realities surrounding the future sentencing of 'Affluenza' teen and his fugitive mother
I tend not to blog too much about sentencing stories that are already seemingly getting too much attention in the traditional media. Ergo, I have not recently posted about the fugitive status of Ethan Couch. Couch is the Texas teen who had 15-minutes of infamy in early 2014 when, after having killed four people in a drunken-driving crash, received a 10-year probation sentence from a juvenile judge who may have been influenced by a defense psychologist's statement that Couch suffered from "affluenza" as a rich kid whose parents did not set any limits on him. But now Couch has been caught while on the run in Mexico with his mother, and this new CNN article highlights some interesting sentence aspects concerning what he and his mother are facing under Texas law.
The CNN piece is headlined "'Affluenza' teen caught, but will he get off easy?", and here are excerpts that spotlight some Texas state sentencing details that strike me as now quite interesting:
Will Ethan Couch, the "affluenza" teen, get off lightly again?, Couch drew the ire of many after a judge sentenced the then 16-year-old to 10 years probation for a 2013 drunk driving crash that killed four people.
Those who felt the sentence too lenient felt validated when Couch violated his probation and fled. He was detained Monday in Mexico. But if you are expecting a judge to throw the book at him, be warned that the book might not be too heavy.
As of now, the most severe punishment Couch could face is 120 days in adult jail, Tarrant County District Attorney Sharen Wilson said at a press conference Tuesday. The district attorney explained the dilemma she faces at a news conference Tuesday:
• Ethan Couch was sentenced as a juvenile and violated his probation as ordered by juvenile court system.
• Under Texas law, Couch, now 18, would be punished for his violation in the juvenile system.
• The maximum sentence that a juvenile judge can dish out for a violation of his juvenile probation is imprisonment in a juvenile facility until Couch turns 19, which is April 11, 2016.
• The DA wants to transfer Couch's sentence to adult court. But since this violation happened in the juvenile system, Couch effectively would start with a clean slate in the adult probation system. That is, the adult court judge could not punish Couch for violations he committed as a juvenile.
• At the time a judge reassesses Couch's probation in the adult system, he has the power to put Couch in adult jail for a maximum of 120 days.
The 120 days in jail won't please those who think Couch deserves worse, but as the facts stand now, it is what the law allows. If Couch ends up on adult probation, Wilson said, and violates it as an adult, he could face up to 40 years in jail. Couch could also find himself behind bars for longer if he is found to have committed any new crimes and is charged and convicted as an adult for those crimes.
Ethan Couch's mother, Tonya Couch, has been charged with hindering the apprehension of a juvenile, and if convicted, faces between 2 and 10 years in jail, Wilson said. It's tough to explain the legal maze that stands to benefit Ethan Couch in the form of a light punishment for violating his probation.
The judge who hears the case "will throw the book at him, but the book is only a few more months because he turns 19," said Larry Seidlin, a former state court and juvenile court judge in Florida. "So the legal issue is: Can the prosecutor move this case to adult court and try to get adult sanctions, get some state prison time. It's a close question because double jeopardy is going to take effect. We've already gone through his case. We've already done a plea bargain."...
Couch is wanted by authorities in Tarrant County, Texas, for allegedly violating his probation. His mother, Tonya, was listed by Texas authorities as a missing person after her son's disappearance, and the authorities said they believed she was assisting him.
A warrant was issued in mid-December for Couch to be taken into custody after his probation officer couldn't reach him. He appears to have dropped off the radar after a video emerged that allegedly showed him at a party where alcohol was being consumed, according to authorities. Couch had been ordered to stay away from drugs and alcohol for the duration of his sentence probation.
His sudden disappearance reignited controversy over his case, which attracted widespread attention after a psychologist testified that Couch, who was 16 at the time of the crash, suffered from "affluenza," describing him as a rich kid whose parents didn't set limits for him. His lawyers argued that his parents should share some of the blame for the crash.
Prosecutors had requested that Couch be sentenced to 20 years behind bars. The juvenile court judge's decision to put him on probation for 10 years instead of sending him to prison outraged victims' families It also prompted many observers to question the term "affluenza," which isn't recognized as a medical condition in any formal sense. G. Dick Miller, the psychologist who said the word at the trial, later said he wished he hadn't used it. And Couch's lawyers have criticized what they say is the news media's narrow focus on the term in relation to his case.
As some regular readers know, I have long been troubled by and long complained about what I perceive as unduly lenient sentences too often handed out for serious and repeat drunk driving offenses. For that reason (and others), this high-profile sentencing case has always annoyed me because it seemed to me it was more reflective of our society's general tendency to treat drunk driving offenders too leniently than reflective of a tendency to give special breaks to serious crimes committed by rich white kids with lenient parents (though I certainly believe the general impact and import of rich white privilege at sentencing also merits attention).
Prior related posts around Couch's initial sentencing:
- Texas tough means probation for teen who killed four and injured more while drunk driving?
- Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four
- NY Times debates "Sentencing and the 'Affluenza' Factor"
Would-be Prohibition offenders make huge donation to ACLU help real ex-offenders
Via The Marshall Project, I just saw this Washington Post story, headlined "Total Wine co-founder funding $15 million push to aid ex-convicts," on a notable private funding effort for a notable public cause. Here are the details:
A Maryland couple is donating $15 million to the American Civil Liberties Union to expand a campaign to cut prison populations and promote private initiatives to rehabilitate and employ ex-convicts, the ACLU announced. The grant from David Trone, co-founder of Bethesda-based Total Wine & More, and his wife, June, is among the largest in the ACLU’s history.
The Trones, both 60, join a growing cadre of wealthy businesspeople funding a coalition of liberal, conservative and libertarian groups pushing the Obama administration and Congress to unwind sentencing laws from the era of the drug war. Those advocates argue that draconian punishments have gone too far and cost too much, incarcerating 2.2 million Americans, pouring $80 billion a year into prisons and jails and hollowing out families — particularly in low-income and minority communities.
David Trone, of Potomac, cited Total Wine’s support of the “ban the box” movement — which seeks removal of the criminal-record check box from job applications — as a factor in his gift and an example of what private-sector partners can accomplish. “Yes, people make mistakes,” he said. “But if they paid the price and now want to build a better life, why should that mistake have to carry with them the rest of their lives?”
The Trones’ grant comes one year after George Soros’s Open Society Foundations pledged $50 million over eight years to the ACLU’s political arm to push for sentencing and other criminal-justice policy changes in local, state and national elections. Unlike Soros’s grant, the Trones’ gift will pay for traditional ACLU litigation and educational activities and is tax-deductible.
The six-year bequest will establish the Trone Center for Criminal Justice and boost state-level projects — including ones in the District, Florida, Texas, Oklahoma, Michigan, Pennsylvania and Indiana — where incarceration rates and the prospect of bipartisan cooperation are greatest, said Anthony D. Romero, executive director of the ACLU.
Romero said that while attention is focused on a gridlocked Congress, momentum for change is growing among state and local governments, which house more than 90 percent of the nation’s prisoners and spend more than 90 percent of incarceration-related tax dollars. He likened the momentum to the push for same-sex marriage, where business leaders who threatened to leave hostile states added an economic argument to the moral and legal case for anti-discrimination laws. “If business leaders take a big stake in pushing these reforms, it ensures the sustainability of long-lasting reform,” Romero said. “If you can tie the power of the private sector to this sled, then Congress and the president will be dragged into taking real action.”...
The ACLU said David Trone will chair a new private-sector advisory council that will include business and university leaders. The council will promote efforts to return former prisoners to the workforce and reduce the stigma of employing past offenders, Romero said. It also may consider the value of education and economic incentives such as tax credits for workers and companies. Council members include Michael L. Lomax, president and chief executive of the United Negro College Fund, and Paul Lewis Sagan, former chief executive of Akamai Technologies, the Web- content delivery company.
Ex-prisoners face a variety of federal and state rules that restrict their ability to get jobs, housing, student and business loans, occupational licenses and public assistance, said another member, Mark V. Holden. Holden is general counsel at Koch Industries, whose billionaire founders, Charles and David Koch, are key sentencing reform backers....
David and June Trone, who are graduates of the Wharton School at the University of Pennsylvania, have been longtime ACLU supporters, giving more than $1 million since 1994. David Trone said the new gift was timed as he and his brother, Robert, co-founders of the Total Wine chain, are bringing on a new chief executive so they can step back from daily operations. Total Wine has stores in 18 states, with 4,000 workers and $2.1 billion in annual sales. Romero said Trone’s success and status outside the “usual suspects” of supporters gives him added credibility with businesspeople.
The Trones were disrupters of the liquor industry. Their “big box” model of beer and wine stores triggered bitter battles with competitors and drew scrutiny from regulators and criminal charges related to volume discounts. Cases against the family were dismissed. One of David Trone’s attorneys, Roslyn M. Litman, is an ACLU board member.
“I was lucky. I had the resources and the representation to fight an injustice and win . . . [but] there are hundreds of thousands of people who don’t,” David Trone said. With the gift, he said, he hoped the ACLU “can stand up for those who are silenced . . . and figure out how folks who have made mistakes can become great workers with great jobs and drop recidivism.”
As the title of this post highlights, I think an interesting (and likely easily overlooked) aspect of this story is the fact that the Trones made their fortune through innovation in an industry that was entirely a criminal enterprise (and the progenator of considerable violent crime) less than 100 years ago during the Prohibition era.
Monday, December 28, 2015
Defense argues veteran's mental problems should make him ineligible for Oregon death penalty
This interesting local article from Oregon reports on a notable and novel argument being made by defense attorneys for a defendant accused in a brutal group murder. The story is headlined "Lawyers cite client’s military service in arguing that death penalty should not be sentencing option if found guilty," and here are the interesting details:
Army veteran A.J. Nelson stands accused of playing a central role in a brutal Eugene murder that happened three years after his squad’s armored vehicle was destroyed by a roadside bomb during a combat tour in Afghanistan.
Nelson was badly hurt in the blast, and his attorneys say there’s a link between the mild traumatic brain injury he suffered and his alleged crimes. They are asking a judge to exclude the death penalty as a potential sentencing option in their client’s case due to his service-related injury. One of Nelson’s court-appointed lawyers, Laurie Bender of Portland, said in a telephone interview that she does not know of any prior capital case in which a judge has been asked to rule on a death penalty exclusion request made on behalf of a former soldier.
Nelson, now 25, is scheduled to go to trial in March. If he is convicted of aggravated murder in the slaying of Celestino Gutierrez Jr., prosecutors could ask a jury to sentence Nelson to death. Nelson was one of three people arrested and charged with kidnapping and killing Gutierrez, and then using his car to carry out an armed, takeover-style bank robbery in Mapleton in August 2012.
The plot’s mastermind, David Ray Taylor of Eugene, is now on Oregon’s death row after a jury convicted him in May 2014. The third defendant in the case, Mercedes Crabtree, is serving life in prison with the possibility of parole after 30 years. She pleaded guilty to the murder in 2013 and agreed to testify against both Nelson and Taylor.
Nelson’s lawyers said in a recent court filing that they intend to present evidence at trial of a mental disease or defect that interfered with their client’s ability to form the intent to commit the alleged crimes. In addition to the brain injury, the attorneys also assert Nelson has been diagnosed with post-traumatic stress disorder.
Those two issues change the way people see and react to the environment, can lead to other psychological problems and produce “a greater propensity for aberrant and criminal behavior,” Bender wrote in a Dec. 15 motion to exclude the death penalty in Nelson’s case. “Nelson’s service-related injuries and illness do not exonerate him of the charged offenses but mitigate his culpability and the state’s standing to execute him,” Bender wrote...
The Dec. 15 filing includes copies of awards and commendations Nelson received as a result of his military service. They include the Purple Heart, given to soldiers who are injured or killed while serving.... Nelson’s lawyers say sentencing a war veteran with PTSD to death is unconstitutional, and amounts to cruel and unusual punishment under the Eighth Amendment. Veterans, the attorneys argue, deserve categorical death-penalty exclusions similar to those given to juvenile offenders and people with intellectual disabilities....
According to evidence presented at Taylor’s trial, Taylor came up with a plan to kill a stranger and take that person’s vehicle for use in a bank robbery.... Crabtree then obtained a ride from Gutierrez to Taylor’s nearby home. Gutierrez was slain at the house, where Taylor, now 60, and Nelson are said to have dismembered his body. Crabtree, who was 18 at the time of the incident, testified during Taylor’s trial that Nelson — at Taylor’s direction — bound Gutierrez with electrical wire and a belt, pushed a crossbow bolt through one of the victim’s ears and choked him.
After mocking Nelson for failing to kill Gutierrez swiftly, Taylor wrapped a metal chain around Gutierrez’s neck and pulled on it until the victim stopped breathing, Crabtree told the jury. Crabtree said Nelson went into a brief seizure as he and Taylor dismembered the body, and came out of it confused about what he had done.
It is well-established constitutional law that defendants can present mitigating evidence of all sorts, including evidence of mental battle scars of war, to argue to a jury not to impose a death sentence. But here it seems defense attorneys are pressing for a new categorical ban on the death penaty for veterans whose service-related injuries may have played a role in their capital crimes.
Some (of many) prior related posts:
- Should prior military service reduce a sentence?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- "Should Veterans With PTSD Be Exempt From the Death Penalty?"
- "Neuroscience, PTSD, and Sentencing Mitigation"
- Should there be a death penalty exemption for combat veterans with PTSD?
- "Military Veterans, Culpability, and Blame"
- Should honoring vets and PTSD call for commuting a death sentence?
- "Battle Scars: Military Veterans and the Death Penalty"
"It’s Time for Obama to Go Big on Pardons"
The title of this post is the headline of this notable recent New Yorker commentary authored by Jeffrey Toobin. Here are excerpts:
The orderly mind of Barack Obama appears to recoil at the vulgar world of pardons. The President is a consummate rationalist, a believer in systems and order. Pardons, in contrast, rely exclusively on the whim of the grantor. This Presidential power is descended from the concept known in Great Britain as the royal prerogative of mercy — three words that seem almost guaranteed to offend this President, singularly or especially aligned together.
But President Obama is starting to come around on pardons, or at least on commutations. (A commutation allows a convict to leave prison at a designated date; a pardon can also involve an end to a prison sentence but bestows a broader restoration of rights, like the right to vote or own a firearm.) Last week, the President announced that he had commuted the sentences of ninety-five federal prisoners and granted two pardons. In seven years, Obama has now issued a hundred and eighty-four commutations, more than his last six predecessors combined, but only sixty-one pardons, which is far less than most recent Presidents.... Obama is moving in the right direction, but he has a long way to go. There are roughly two hundred thousand people in federal prison in the United States. Do they all belong there? Should only a few dozen have their sentences shortened?
Those questions answer themselves, as Obama himself knows. He has made the reduction of mass incarceration one of the touchstones of his final years in office. As he said, in a recent speech to the N.A.A.C.P. national convention, “Mass incarceration makes our country worse off, and we need to do something about it.” No one can stop the President from doing at least that. Since 2011, Obama has been stymied by the Republican Congress from undertaking major legislative initiatives, but the pardon power is absolute and unfettered. The President can pardon everyone, and anyone, he chooses.
Obama is a democrat as well as a Democrat, and surely something in him rebels at exercising absolute power on a grand scale. One problem with pardons is that Presidents have considered them in secret, springing the decisions on the public only after they have been made. In high-profile cases, like Gerald Ford’s pardon of Richard Nixon or Bill Clinton’s pardon of the fugitive financier Marc Rich, the political repercussions have been disastrous. But Obama could avoid this problem with some innovation — and sunshine. Over the last year of his Presidency, his Administration should publish the names of people being considered for pardons. In this way, members of the public can make their views known about the wisdom (or lack thereof) of letting each individual out of prison. All Presidents and governors (who also have pardon power) are haunted by the possibility that they might release someone who goes on to commit horrible crimes. (Former Governor Mike Huckabee of Arkansas pardoned several people who did just that.)
This public airing might well save Obama from making some poor choices, but it will also guarantee him a measure of political protection. Opponents of pardons will be able to speak now, or they’ll forever have to hold their peace. If Republicans offer blanket objections to broad pardons, they’ll be demonstrating that they simply want more people in prison, regardless of the costs in dollars, public safety, or lost lives.
Most importantly, this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far. Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule — that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible....
Obama should be considering action on this vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes. He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons. These are worthy, modest goals. But the pardon power, with its roots in the monarchy, allows a President to go big — and that’s exactly how Obama should go.
P.S. Ruckman at Pardon Power is not especially impressed by Toobin's work here, as evidence by this recent posting about this commentary headlined "Toobin: Still the Worst of the Worst."
A few very recent related posts:
- Reviewing and reflecting on persistent problems with the federal clemency process
- Prez Obama commutes 95 federal prison sentences and grants 2 pardons
- An early set of takes on Prez Obama's clemency work to date
- "To forgive prisoners is divine — or as close as government gets"
- Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list
Sunday, December 27, 2015
"Prisons as addiction treatment centers?"
The question in the title of this post is the headline of this local article from the Buckeye State. Here are excerpts:
With at least four of five inmates struggling with addiction, Ohio's prisons are beginning to look more like drug treatment centers.
Prisoners participate in group counseling sessions, visit with prison "alumni" who have remained sober after leaving incarceration and enroll in Medicaid to help pay for counseling and medication-assisted treatment after they are released. Money from the state budget, $27.4 million through June 30, is paying for more counselors to treat addiction inside Ohio's prisons, said Tracy Plouck, director of the Ohio Department of Mental Health and Addiction Services.
The concept is relatively simple: people addicted to drugs commit crimes like possessing drugs, selling drugs, stealing money or property to buy drugs and hurting others because they are under the influence of drugs. Take away the compulsion for drugs and alcohol, and these lower-level offenders might not return to prison, Ohio Department of Rehabilitation and Correction director Gary Mohr said. "What we’re attempting to do is reduce crime victims out in Ohio," Mohr said.
Before changes in July, Ohio prisons were releasing 8,000 to 9,000 people with serious addiction problems each year without treating half of them, Mohr said. Staying for less than six months? You weren't eligible. Too many inmates on the waiting list? There wasn't not enough staff to help. Now, people who will be released in three months can start counseling in prison and have their medical records sent to a halfway house when they leave. By signing released prisoners up for Medicaid, the insurance program might pay for medication-assisted treatment and counseling — a combination considered by many physicians to be the gold standard of treatment.
"I can tell you right now we are going to be treating thousands of people that we weren’t treating before," Mohr said. When an inmate enters prison, he goes to a short-term reception center, and takes a test designed to spot mental health and addiction concerns. From there, he is sent to the prison where he will serve out his term. If the inmate isn't a violent offender, he might participate in a therapeutic community, groups of 70 to 180 inmates who live together, attend group counseling sessions and commit to good behavior while in prison, or a reintegration unit, where inmates work eight to 10 hours a day to simulate life outside prison.
Plouck wants to triple the number of inmates in therapeutic communities by mid 2017 by expanding the number of communities from four to eight. Madison Correctional Institution and Noble Correctional Institution are next on the list. In 2014, 569 inmates participated; by 2017, prison officials hope to have 1,500 enrolled.
Mohr also wants to have every prison enrolling eligible inmates in Medicaid by the end of 2016. Currently, 10 of 27 prisons are enrolling inmates in the low-income insurance program expanded by Gov. John Kasich. About 2,400 people have signed up since the program began in earnest this fall, Mohr said. Medicaid can pay for counseling and medication-assisted treatment after prisoners leave incarceration....
A smooth transition from treatment in prison to treatment outside of prison is critical. It's easy to remain sober in prison with no access to drugs or alcohol. The challenge comes when they are released back to homes where relatives or friends might still be using drugs or alcohol, Plouck said.
Saturday, December 26, 2015
Hoping Californians get crisp "mend it or end it" capital initiative votes in 2016
This local article, headlined "Death penalty supporters seek to speed up executions," reports on efforts in California to give voters a chance to mend the state's broken capital punishment system by initiative. Here are the basics:
Death penalty supporters got the state’s go-ahead Thursday to collect signatures for a November 2016 ballot measure aimed at speeding up executions, raising the prospect that voters will be asked to choose between toughening California’s death penalty law and repealing it.
The new initiative would require the state Supreme Court to rule on capital cases within five years. It would also limit death penalty appeals, set strict deadlines for filing appeals and seek to expand the pool of death penalty lawyers. Any attorney who now accepts court appointments to represent impoverished defendants in criminal cases would also have to take on capital cases, regardless of experience.
Another provision would eliminate the currently required public comment period before the state can approve a new single-drug execution method, which officials have proposed to replace the current three-drug executions. Supporters of the measure say it would reduce by at least half the period, typically 25 years or more, needed to resolve death penalty appeals in California. Opponents disagree, noting that the initiative would not add funding for death penalty lawyers or court staff.
A rival initiative to repeal the death penalty and replace it with life imprisonment without parole was cleared for circulation last month. A similar repeal measure was defeated by four percentage points in November 2012. Both initiatives need 365,880 signatures of registered voters in 180 days to qualify for the ballot. Sponsors of the new initiative have raised more than $1 million so far and expect to collect the needed signatures, said Charles Bell, a lawyer for the campaign.
This article also notes that California has not carried out an execution in a decade thanks to lethal injection litigation, while still having the nation's largest death row with nearly 750 condemned murderers waiting to receive their jury-imposed death sentence. As readers may recall, the remarkable size and delay that has come to define California's dysfunctional capital system itself led to a (temporary) ruling of unconstitutionality in federal courts in recent years.
As the title of this post highlights, I am hopeful that both proposals to deal with California's capital system come before voters in 2016. If both do, voters will likely have a crisp "mend it or end it" set of policy choices, and there will also likely be considerable funding (both local and national) devoted to informing voters about what votes on these proposals would mean in an election year likely to be marked by high turnout. Through such a process, we should get some really good insights concerning what voters in a huge (left-leaning) state really want to do about the death penalty circa 2016.
Prior related post:
Thursday, December 24, 2015
Is it reasonable to ask Santa Claus to bring a certiorari grant on acquitted conduct sentencing?
The silly question in the title of this post is prompted by the terrific Christmas-week opinions authored by DC Circuit Judges Kavanaugh and Millett in concurrences to the denial of en banc rehearing in US v. Bell, No. 08-3037 (DC Cir. Dec. 22, 2015) (available here). Regular readers know that I have long been troubled by the use of so-called acquitted conduct in the calculations of an applicable guideline range, both opinions in Bell spotlight well some of the reasons why.
Interestingly, Judge Kavanaugh suggests he thinks Congress or the Sentencing Commission may need to act in order now to address problems with acquitted conduct. But Judge Millett's opinion in Bell provides, in the space of eight pages, a thoughtful and thorough accounting of why the Supreme Court should consider anew the constitutional validity of sentences enhanced dramatically on the basis of allegations that a jury considered insufficient for a lawful conviction. I will provide here an exceprt from the start and end of Judge Millett's opinion:
This case is one in an “unbroken string of cases” encroaching on the Sixth Amendment right to a trial by jury, Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of certiorari). The government indicted Gregory Bell for a “mélange” of crimes, “including conspiracy and crack distribution.” Panel Op. 2. Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.” Panel Op. 3. The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.
Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months. At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison — a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.
In a constitutional system that relies upon the jury as the “great bulwark of [our] civil and political liberties,” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story, Commentaries on the Constitution of the United States 540– 541 (4th ed. 1873)), it is hard to describe Bell’s sentence as anything other than a “perverse result,” United States v. Watts, 519 U.S. 148, 164 (1997) (Stevens, J., dissenting). The foundational role of the jury is to stand as a neutral arbiter between the defendant and a government bent on depriving him of his liberty. But when the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing....
While I am deeply concerned about the use of acquitted conduct in this case, I concur in the denial of rehearing en banc. That is because only the Supreme Court can resolve the contradictions in the current state of the law, by either “put[ting] an end to the unbroken string of cases disregarding the Sixth Amendment” or “eliminat[ing] the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.” Jones, 135 S. Ct. at 9 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari). Though I am not certain Bell’s argument is directly foreclosed by Supreme Court precedent, my colleagues on the panel have done their best to navigate existing precedent, recognizing that the Supreme Court has thus far declined to address this issue. Going en banc would only delay affording the Supreme Court another opportunity to take up this important, frequently recurring, and troubling contradiction in sentencing law.
Despite seemingly having a number of sound vehicles for reconsidering Watts in the wake of Apprendi, Blakely, Booker et al., the Supreme Court has persistently dodged this acquitted conduct issue for well over a decade. Thus, we may need some of the holiday magic of Old Saint Nick in order to finally get the Justices to give needed attention to "this important, frequently recurring, and troubling contradiction in sentencing law."
December 24, 2015 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)
Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list
This Washington Post article, headlined "Obama’s clemency list brings joy to the lucky and anguish to the disappointed," notes the sadness felt by federal prisoners and their families when certain names fail to appear on the latest list of commutations. Here are excerpts from a lengthy piece that gives special attention to the (in)famous case of Weldon Angelos:
The president wants to use his clemency power to undo past injustices, and on Friday, in the largest single-day grant of his presidency, he signed 95 commutations. They brought joy to families across the country.
“God be the Glory,” said Sharanda Jones, a 48-year-old Texas woman who was sentenced to life in prison without parole for a cocaine offense. She was a first-time, nonviolent offender. “I am overjoyed.”
But for thousands of other prisoners, who may also meet the president’s criteria, their exclusion was a hard blow. “It was a great day for those who won the lottery and one more disappointment for everyone in the pipeline who should be on the list,” said Amy Povah, a former inmate and the founder of the Can-Do Foundation, a clemency advocacy group.
criminal justice reform advocates of an irrationally severe system. He was sentenced in 2004 to a mandatory 55 years in prison without the possibility of parole after he was arrested for selling marijuana in three separate transactions with a Salt Lake City police informant, while possessing a firearm. Angelos never used or pulled out the gun, but the informant testified that he saw a gun when he made the buys, and that triggered a statute referred to as “gun stacking,” which forced the judge to give him a long sentence.
Angelos’s case has been widely championed, including by Families Against Mandatory Minimums and conservative billionaire Charles Koch. Former U.S. District Court judge Paul G. Cassell, who was appointed by President George W. Bush, has called the sentence he imposed on Angelos “unjust, cruel and even irrational.” Mark Holden, general counsel and senior vice president of Koch Industries, said the failure to commute Angelos’s sentence Friday was “disappointing and devastating for Weldon and his family.”
“Think of anything in your life that you’ve waited for,” Holden said. “Everything else pales in comparison to this. It is unclear why Angelos failed to get clemency. A Justice Department spokeswoman said that officials do not discuss individual clemency petitions. Another official noted that the department is processing them “as thoroughly and expeditiously as we can.”
Each of the four times that the president has announced his commutations has been difficult for Angelos, but this time cut the deepest. And it’s not because it came around the holidays. It’s because this group of inmates will be released on April 16. “If I had been given clemency this time,” Angelos, a father of three, said in an interview at the Federal Correctional Institution at Mendota, “I would have been out for my oldest son’s graduation from high school in June.”
When he came in from the track, Angelos called his sister, Lisa. She had heard he wasn’t on the list, and she was crying. While talking to her, he looked up and saw Obama on the prison television set making his official announcement at his end-of-year news conference. “I felt like someone had punched me in the stomach,” he said.
Similar scenes were playing out in other federal prisons, said Angelos’s lawyer, Mark Osler, a law professor at the University of St. Thomas in Minnesota and a co-founder of New York University’s Clemency Resource Center. He represents nine clients who are seeking clemency. “I dreaded the phone ringing,” Osler said in a blog post he called “Sunday Reflection: The sad call”: “I looked at the screen and it said what I feared it would: ‘Unknown,’ which is how calls from prison always come up. I let it ring once, twice, three times before pressing ‘answer.’ . . . And each time I talked to them about what had happened, how I did not know how they picked the lucky ones. They told me, in heavy voices, what they would miss: a son’s graduation, the last days of a mother in fading health. And each time I hung up and sat in silence.”
White House Counsel W. Neil Eggleston said last week that Obama, who has granted 184 clemencies, has already commuted the sentences of more individuals than the past five presidents combined. “We expect that the president will grant more commutations and pardons to deserving individuals in his final year in office,” Eggleston added.
But clemency advocates say that Obama has put himself in a different position than previous presidents. Instead of granting a moment of mercy to an inmate — much like the odds of being struck by lightning — Obama’s Justice Department set out eight specific clemency criteria, including having served at least 10 years, having no significant criminal history prior to conviction and demonstrating good behavior in prison. And he raised the hopes of thousands who believed they could qualify. “What the president announced was a categorical grant to people who met those eight criteria,” Osler said. “If it’s a categorical grant, we should be seeing consistency.”
I suspect there may well be a cruel irony to the decision not to have (my former pro bono client during his 2255 efforts) Weldon Angelos on the lastest list of commutation: I think Prez Obama and his advisors might reasonably fear that granting clemency to Angelos now could undercut some urgency in Congress to continue pressing forward with statutory sentncing reform. GOP Senator Mike Lee has often mentioned the Angelos case in his advocacy for federal sentencing reform, and the stacking of mandatory minimums that resulted in Angelos' extreme sentence would be fixed in the reform bills that have been slowly moving through Congress.
I suspect Prez Obama is especially eager to see Angelos get relief from a duly enacted law, and I remain hopeful that Angelos will appear on a clemency list before this time next year if Congress in 2016 proves unable to reform the problematic provision that led to Angelos receiving a mandatory 55 years for a few minor marijuana sales. In the meantime, I hope Weldon, his family and all those advocating on his behalf might get a glimmer of comfort from the possibility that Angelos' continued incarceration may actually foster continued congressional reform efforts which would benefit thousands of fellow federal prisoners.
"Child Pornography Sentencing in the Sixth Circuit"
The title of this post is the title of this notable new papaer by Carissa Byrne Hessick now available via SSRN. Here is the abstract:
This Symposium Essay explores and analyzes the Sixth Circuit’s approach to child pornography sentencing. It critiques the Sixth Circuit’s decision to apply heightened scrutiny to below-Guideline sentences for child pornography possession. In addition to presenting a critique of the Sixth Circuit’s cases, the Essay also provides guidance for defense attorneys seeking a below-Guidelines sentence. It notes that there are particular strategies those attorneys should follow in order to secure not only a more lenient sentence from a district court judge, but also a sentence that is more likely to be upheld by the Sixth Circuit on appeal.
During the course of this discussion, the Essay identifies and criticizes three significant features of the Sixth Circuit’s cases in this area. First, it notes that the Sixth Circuit is the only circuit to have adopted heightened appellate review of below-Guideline sentences for child pornography possession. Second, it explains that the Sixth Circuit appears to be developing a common law of sentencing in child pornography cases; such a common law is contrary to the language and the logic of the Supreme Court’s Sixth Amendment sentencing cases. Finally, it explains that the Sixth circuit has failed to give appropriate deference to district court decisions to sentence below the Guidelines based on facts and circumstances of particular cases.
Wednesday, December 23, 2015
Making a space for the airing of sentencing grievances this Festivus
Among the many ways I reveal (to myself) my age and geeky nature is by still getting strangely jazzed when I realize it is Festivus. I suppose if I was a hard-core geek, I would make a serious effort to honor all the faux-holiday's grand traditions, But, lacking the energy for anything more than this silly post, I have decided to make my lasy post today a place and a space for anyone eager engage in the Festivus tradition of airing grievances particularly focused on sentencing. (As this news item highlights, Senator Rand Paul is using Twitter today to air Festivus grievances against his GOP Prez rivals.)
I readily could rattle off a wide range of sentencing grievances against the likes of Prez Obama and Congress for their tepid efforts on federal sentencing reform to date, or against the Supreme Court for failing to take up an array of Fifth, SIxth and Eighth Amendment sentencing issues that I think merit their attention, or against many of the Prez candidates (and their media inquisitors) for being unwilling (or perhaps unable) to engage seriously with an array of criminal justice reform topics, or even against some advocacy groups and media outlets for continuing to place so much emphasis on death penalty developments when there are so many more criminal justiuce issues that are so much more consequential for so many more people and yet receives so much less attention. More often than not, though, I find spending too much time on grievances make me grumpy and achieves little more. So I won't bother to vent at length here.
That said, I learn a lot (and perhaps get some misery-loves-company comfort) from hearing about others' sentencing grievances. Consequently, with this as my last post on a warm Festivus day in Ohio, I welcome and encourage any and all readers eager to air their sentencing grievances to go for it in the comment here.
"Reforming the Nation’s Criminal Justice System: The Impact of 2015 and Prospects for 2016"
The title of this post is the title of this notable report recently produced by the U.S. Justice Action Network. Here are excerpts on how it starts and ends:
Over the past year, criminal justice reform has been propelled to the forefront of national conversation, and on the minds of millions of Americans. For years, advocates have worked tirelessly to chart a path forward to overhaul a justice system that has become bloated, unsustainable and inefficient. But they knew that, to advance meaningful solutions to reduce the prison population and expand opportunities for formerly incarcerated people, that national momentum and widespread support would be needed to spur action.
Fortunately for advocates of criminal justice reform, 2015 proved to be the year that would ultimately place reform within the nation’s reach. And because of the progress made this year, prospects for achievable, comprehensive reform in 2016 are appearing considerable....
The collective efforts witnessed throughout 2015, at the state and federal levels, certainly made it the most significant in the fight for reform. For the first time, the nation at large took an active, invested role in the conversation — no longer was justice reform a topic relegated to policy conferences, legislative hearing rooms and opinion pages — it was a debate being waged in living rooms, at dinner tables, in schools and churches, and by people of every political stripe, in every age range, in every community across the country. Below is a look ahead to some of next year’s key moments, issues and actions that could impact prospects for reform in 2016, and which will ultimately determine whether or not 2016 will be the year that reforms were achieved.
Narrowing window of opportunity means the first few months are key: With the 2016 election cycle kicking into high gear, it will be crucial for federal lawmakers and national advocates for reform to make progress on reforms as early as possible in the new year. Momentum and support for reform has reached historically high levels, helping to create a political and legislative environment ripe for reform.
Law enforcement: Prominent law enforcement leaders are standing up and joining the push for action, and this widespread law enforcement advocacy effort will be crucial in the coming year to continue advancing criminal justice reforms that protect public safety and create better outcomes for all.
Congressional leadership: Senate Majority Leader Mitch McConnell (R-KY) and House Speaker Paul Ryan (R-WI) have both signaled that reforming the justice system is an important priority. In November, both McConnell and Ryan made optimistic statements signaling the bills could be included on a short list of priorities for congressional action, but stopped short of committing to floor time.
2016 election cycle: The 2016 presidential election cycle has for the first time made criminal justice reform a hot-button issue being discussed on the campaign trail by presidential candidates. Candidates on both sides of the aisle have shared proposed policies to reform the system, and have shared differing perspectives on the state of justice reform. As the campaigns continue marching forward, it is anticipated that criminal justice reform will continue making appearances in stump speeches, rallies, and interviews by those running for the White House.
45th anniversary of War on Drugs: The War on Drugs is sourced with both increasing attention on the scourge of drugs and substance abuse issues, but also amplifying the use of mandatory minimums and other one-size-fits-all criminal justice policies for lower-level drug issues. In June, the U.S. will mark the 45th anniversary of the War on Drugs, and will surely see calls for federal lawmakers to continue to reconsider current U.S. drug policies and their impact on incarceration rates, and also more effective ways of addressing substance abuse issues that impact communities everywhere.
Tuesday, December 22, 2015
Could a profit motive help improve recidivism rates (and criminal justice programming more generally)?
The question in the title of this post is prompted by this intriguing new article by Alana Semuels in The Atlantic headlined "A New Investment Opportunity: Helping Ex-Convicts; A New York program asks outsiders to fund a promising initiative to reduce recidivism. If it gets results, they get a payout." Here is how the article gets started:
Every year, the government spends billions of dollars on programs designed to help America’s neediest citizens. In many cases, whether these programs work is anyone’s guess.
Less than $1 out of every $100 of federal government spending is “backed by even the most basic evidence that the money is being spent wisely,” wrote Peter Orszag, the former head of the Office of Management and Budget, and John Bridgeland, the former director of the White House Domestic Policy Council, in a 2013 piece in The Atlantic. In their article, Orszag and Bridgeland advocate for a “moneyball for government,” arguing that an era of fiscal scarcity should force Washington to become more results-oriented.
A new partnership among New York State, 40 private investors, and a nonprofit called the Center for Employment Opportunities seeks to apply this sort of thinking to an area of policy that has been particularly resistant to interventions: lowering the recidivism rate in an era of growing prison populations.
The investors, including private philanthropists and former Treasury Secretary Larry Summers, have put up a total of $13.5 million to fund an expansion of the work that an organization called the Center for Employment Opportunities (CEO) already does with people coming out of prison. CEO’s model is simple: It prepares people who have criminal records for the workplace, gives them up to 75 days of temporary employment, and then helps them find jobs of their own. With the $13.5 million, CEO will work with an additional 2,000 clients, targeting the highest-risk people.
But the expansion of the program isn’t charity: The project is a so-called “Pay for Success” initiative, modeled after social-impact bonds, which were first used in the United Kingdom five years ago. The basic idea is that investors fund a program that has a promising approach, putting in place extensive data-collection points so that they can track the program’s results. The investors are betting on the idea that the program can do a better — and less expensive — job of providing a given service than the status quo. If they’re right, and the program meets certain expectations — in this case the benchmarks for success are to reduce recidivism by eight percent and increase employment by five percent — the government will have saved money in less prison spending. The government then pays back the investors with its savings. If the program succeeds, investors can earn a return. If it exceeds those goals substantially, investors can get a bigger return, which in this case is capped at 10 percent. The state at no point spends more money than it would have spent incarcerating the 2,000 individuals anyway.
The Pay for Success strategy isn’t just a way to test CEO’s model. It’s a way to bring careful, data-based monitoring of a program’s effect into government spending.
There are dozens of programs that seek to help people re-enter the community once they’re released from prison. They provide job training and housing assistance and college-preparation classes and counseling. But a lot of people still end up back in prison. About 700,000 individuals are released from prison nationally each year; the national recidivism rate is about 40 percent.
CEO can make a dent in this, its backers say, because it gives its clients something more: a job. Clients come in, go through a week of job-readiness training, and then get a pair of steel-toed boots and a spot on one of CEO’s five-to-seven-person crews. The crews rotate through the city, cleaning courtrooms and performing maintenance on community-college buildings and public-housing properties.
Getting clients back into the workforce, even temporarily, is a key part of CEO’s program, Sam Schaeffer, the executive director of CEO, told me. People who have never worked, or who haven’t worked in decades find themselves furnished with a metro card, a place to be every morning, and a supervisor to report to. “You’re earning a daily paycheck, and all of a sudden you’re getting on the subway, with that metro card that you couldn’t afford two weeks ago and you're reading the paper, and you’re sort of like, ‘Yea, I can do this,’” he said.
"To forgive prisoners is divine — or as close as government gets"
The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency." I recommend the lengthy piece in full, and here are excerpts:
President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news. So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states). But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency. Here is why and how....
At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate. Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.
Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history. Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value. Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.
As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson. But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....
So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state. Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning. Alas, here too the general trend has been towards greater stinginess with clemency.
Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana. Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century. Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications. Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.
The barriers to mercy are dug deeply into American politics and intellectual culture. At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims.... (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)
But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency. At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.” Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...
U.S. history turns out to be generously littered with acts of mass clemency. In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song. In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office. Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy. Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....
Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice. The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster. A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....
Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.
What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population. There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power. These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55. Routinized clemency on a grand scale will be necessary to tame this beast.
To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct. But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract. Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy. To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.
The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s.... How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.
December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Monday, December 21, 2015
Pennsylvania Supreme Court upholds Gov Wolf's execution moratorium
As reported in this local press article, Pennsylvania's "Gov. Wolf acted within his constitutional authority to temporarily halt the execution of a convicted murderer from Philadelphia, the state Supreme Court ruled on Monday." Here is more from the article about this notable ruling from the top court in the Keystone State:
In a unanimous decision, the high court said Wolf had the power to delay the death sentence for Terrance Williams until a legislative task force issued its final report on the future of capital punishment in Pennsylvania. The ruling doesn't apply to Wolf's broader moratorium on the death penalty, but represented a victory for the governor in the broader and contentious battle over the future of executions in the commonwealth.
Wolf announced the reprieve for Williams in February, saying he would shelve all executions until after the report was issued. That decision that was challenged by Philadelphia District Attorney Seth Williams and prosecutors from other counties, who argued, among other things, that the governor's position unlawfully meddled with the jury's decision in the case.
But in a 33-page decision written by Justice Max Baer, the court said, "we disagree with the Commonwealth's suggestion that the reprieve unconstitutionally altered a final judgment of this Court; rather, the execution of the judgment is merely delayed."
The court was careful to say it was not considering whether Wolf's overall moratorium was legal; instead, it said, it was weighing specifically whether the governor could delay the execution of Williams, a former quarterback at Germantown High School who was convicted for the 1984 killing of Amos Norwood, a 56-year-old church volunteer. "Future challenges to reprieves granted by Governor Wolf will have to await independent examination based upon our holdings herein," the court wrote....
Wolf issued a brief statement saying he was pleased by the court's ruling. When he announced the decision earlier this year, he called the death penalty "ineffective, unjust, and expensive." A report from the task force studying if the death penalty can be legally and effectively administered in Pennsylvania was initially due two years ago. But its deadline has been extended.
Shawn Nolan, Terrance Williams' attorney, said Monday that he had not yet shared the news with his client but was pleased with the decision. "We have been saying all along that it was constitutional what the governor did," he said. "We're gratified that the Supreme Court made a unanimous decision."
Williams' case is also scheduled to go before the U.S. Supreme Court in February. In that appeal, Nolan is arguing that former Pennsylvania Supreme Court Justice Ronald D. Castille should have recused himself from hearing appeal in the case because he was Philadelphia's district attorney when Williams was sentenced to death.
Cameron Kline, spokesman for the Philadelphia District Attorney's Office, said that prosecutors respected the decision even though they had argued for another outcome.
Prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
- Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
- Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania
- Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dysfunctional death penalty
- Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution
NY Gov Cuomo moves ahead with significant clemency effort for youthful offenders and others
As reported in this official press release, titled "Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17," the top elected official in New York today announced a major new clemency initiative. Here are just some of the details from the press release:
Governor Cuomo announced that he will use his pardon power to alleviate the barrier of a criminal conviction for people convicted of non-violent crimes committed when they were minors, and who have since lived crime-free for 10 or more years. This action, the first of its kind in the nation, advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17 year old children do not belong in the adult court system.
The Governor’s action acknowledges that people can and do move beyond the mistakes of their youth, However, their adult criminal records can make it hard for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. The Governor chooses today to use his Constitutional pardon power to remove the bars created by state law that are associated with these convictions, and allow deserving individuals to move forward with their lives....
By pardoning New Yorkers who have reached this milestone crime-free, the Governor is helping people who present little danger to the public. Moreover, the pardon will be conditional, meaning that if a person defies the odds and is reconvicted, it will be withdrawn.
The Governor’s action will affect a significant number of lives. Of 16 and 17 year olds who committed misdemeanors and non-violent felonies since such records have been tracked by the state, approximately 10,000 have not been reconvicted after at least 10 years. Annually, approximately 350 people convicted as 16 and 17 year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years. In addition to lifting the burden on these individuals themselves, their families will also feel the positive impact of this action. Now a son or daughter, husband or wife, father or mother will be better equipped to help their loved ones as they find it easier to attain employment, go to school, find housing, and work in licensed professions....
Agency staff will make a recommendation to the Governor to grant a pardon if:
The person was 16 or 17 at the time they committed the crime for which they were convicted.
At least 10 years have passed since the person was either convicted of the crime, or released from a period of incarceration for that crime, if applicable.
The person has been conviction-free since that time.
The person was convicted of a misdemeanor or a non-violent felony.
The person was not originally convicted of a sex offense.
The person is currently a New York State resident.
The person has paid taxes on any income.
The person is a productive member of his or her community, meaning that the individual is working, looking for work, in school or legitimately unable to work.
In addition to this general invitation to apply, the Administration will do targeted outreach to candidates for the pardon, starting with the most recent cohort of potentially eligible individuals, those convicted in the year 2004. Administrative staff will review the cohort and will attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website. Once the 2004 cohort has been contacted, the process will be repeated for individuals convicted in 2003, and further back until outreach has been made to all potential candidates.
The Governor’s action reinforces his commitment to alleviating barriers for people with criminal convictions, exemplified by his creation of the Council of Community Reintegration and Reintegration in 2014, and his acceptance and implementation of 12 recommendations for executive action from that Council in September of this year. These executive actions included adopting new anti-discrimination guidance for New York-financed housing, and adopting “fair chance hiring” for New York State agencies....
With assistance from the National Association of Criminal Defense Lawyers, representatives from the Governor’s Office have developed a comprehensive training program and will begin working with these associations to train volunteer attorneys via webinar in early 2016. Although individuals may apply for clemency without the assistance of an attorney, assistance from a pro bono attorney will enhance the quality of an inmate’s application and present his or her best case to the Governor. The New York County Lawyers Association, New York State Bar Association, New York City Bar Association, the Legal Aid Society, and the New York State Association of Criminal Defense Lawyers will prepare petitions for sentence commutations and the Bronx Defenders will provide post-petition legal services with respect to benefits, housing, and employment, for successful petitioners. The trainings, delivered via webinar with accompanying materials, will walk volunteer attorneys associated with the collaborating legal organizations through each step of being assigned a case, communicating with their client, and preparing a strong petition.
Today Governor Cuomo also granted clemency relief to two individuals who have demonstrated rehabilitation and made positive strides in their lives since their criminal convictions. These individuals were granted clemency relief in the interests of justice and rehabilitation. The clemencies granted today are in addition to the four the Governor granted several weeks ago.
December 21, 2015 in Clemency and Pardons, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Astute review of factors killing the death penalty ... with a questionable final assessment
The Economist has this lengthy new piece (as well as this intriguing graphic) about the modern administration of capital punishment in the United States headlined "Who killed the death penalty?: Many suspects are implicated in capital punishment’s ongoing demise. But one stands out." I recommend the full piece; but, as explained below, I am put off a bit by its concluding statement. First, here are extended excerpts along with the closing paragraph:
Exhibit A is the corpses. Or rather, the curious paucity of them: like the dog that didn’t bark in Sherlock Holmes, the bodies are increasingly failing to materialise. Only 28 prisoners have been executed in America in 2015, the lowest number since 1991. Next, consider the dwindling rate of death sentences — most striking in Texas, which accounts for more than a third of all executions since (after a hiatus) the Supreme Court reinstated the practice in 1976. A ghoulish web page lists the inmates admitted to Texas’s death row. Only two arrived in 2015, down from 11 the previous year.
There is circumstantial evidence, too: the political kind. Jeb Bush, a Republican presidential candidate — who, as governor of Florida, oversaw 21 executions — has acknowledged feeling “conflicted” about capital punishment. Hillary Clinton, the Democratic frontrunner, said she “would breathe a sigh of relief” if it were scrapped. Contrast that stance with her husband’s return to Arkansas, during his own campaign in 1992, for the controversial execution of a mentally impaired murderer. Bernie Sanders, Mrs Clinton’s main rival, is a confirmed abolitionist.
The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate — but probably brief — swansong. Fairly soon, someone will be the last person to be executed in America. The reasons for this decline themselves form a suspenseful tale of locked-room intrigue, unexpected twists and unusual suspects. So, whodunnit? Who killed the death penalty?
Where politicians follow, voters often lead. Capital punishment is no longer a litmus test of political machismo because public enthusiasm for it is waning. Most Americans still favour retaining it, but that majority is narrowing. And one critical constituency — the mystery’s first prime suspect — is especially sceptical: juries....
The widely available alternative of life without parole — which offers the certainty that a defendant can never be released — helps to explain that trend [of fewer jury-imposed death sentences]. So does the growing willingness of jurors, in their private deliberations, to weigh murderers’ backgrounds and mental illnesses; ditto the greater skill with which defence lawyers, generally better resourced and trained than in the past, muster that mitigating evidence. But the biggest reason, says Richard Dieter of the DPIC, is juries’ nervousness about imposing an irrevocable punishment. Behind that anxiety stands another, unwilling participant in the death-penalty story: the swelling, well-publicised cadre of death-row exonerees....
Those mistakes implicate another suspect in the death penalty’s demise: prosecutors. The renegades who have botched capital cases — by suppressing evidence, rigging juries or concentrating on black defendants — have dragged it into disrepute. But some responsible prosecutors have also contributed, by declining to seek death in the first place. They have been abetted by another unlikely group: victims’ relatives....
To avoid that protracted agony [of repeated capital appeals], says James Farren, district attorney of Randall County in Texas, “a healthy percentage” of families now ask prosecutors to eschew capital punishment. Mr Farren also fingers another key player in the death-penalty drama: the American taxpayer. Capital cases are “a huge drain on resources”, spiralling costs that — especially given juries’ growing reluctance to pass a death sentence anyway — have helped to change the calculus about when to pursue one, Mr Farren says....
Even when the appeals are exhausted, enacting a death sentence has become almost insuperably difficult — because of an outlandish cameo by the pharmaceutical industry. Obtaining small quantities of drugs for lethal injection, long the standard method, might seem an easy task in the world’s richest country; but export bans in Europe, American import rules and the decision by domestic firms to discontinue what were less-than-lucrative sales lines has strangled the supply....
Lethal injection was intended to be reassuringly bloodless, almost medicinal (as, once, was electrocution). Should it become impractical, it is unclear whether Americans will stomach a reversion to gorier methods such as gassing and shooting: they are much less popular, according to polls. The death penalty’s coup de grace may come in the form of an empty vial.
Or it may be judicial rather than pharmaceutical: performed in the Supreme Court, the most obvious suspect of all. In an opinion issued in June, one of the left-leaning justices, Stephen Breyer, voiced his hunch that the death penalty’s time was up. He cited many longstanding failings: arbitrariness (its use varying widely by geography and defendants’ profiles); the delays; the questionable deterrent and retributive value; all those exonerations (Mr Breyer speculated that wrongful convictions were especially likely in capital cases, because of the pressure to solve them). He concluded that the system could be fair or purposeful, but not both. Meanwhile Antonin Scalia, a conservative justice, recently said he would not be surprised to see the court strike capital punishment down.
Cue much lawyerly soothsaying about that prospect. Yet the legal denouement is already in train: a joint enterprise between state courts, legislatures and governors. Of the 19 states to have repealed the death penalty, seven have done so in the past nine years. Others have imposed moratoriums, formal or de facto, including, in 2015, Arkansas, Ohio, Oklahoma, Montana and Pennsylvania. The number that execute people — six in 2015 — is small, and shrinking. (After their legislature repealed the death penalty in May, Nebraskans will vote in 2016 on reinstating it; but their state hasn’t executed anyone since 1997.) These machinations may help to provoke a mortal blow from the Supreme Court. After all, the fewer states that apply the punishment, the more “unusual”, and therefore unconstitutional, it becomes.
Juries; exonerees; prosecutors, both incompetent and pragmatic; improving defence lawyers; stingy taxpayers; exhausted victims; media-savvy drugmakers: in the strange case of the death penalty, there is a superabundance of suspects. And, rather as in “Murder on the Orient Express”, in a way, they all did it. But in a deeper sense, all these are merely accomplices. In truth capital punishment is expiring because of its own contradictions. As decades of litigation attest — and as the rest of the Western world has resolved — killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society. In the final verdict, America’s death penalty has killed itself.
This article does an effective job summarizing how and why the death penalty in the US continues to be subject to attacks that could lead to its eventual demise. But, even using just 2015 evidence, one could still build an argument that capital punishment has steady heartbeat in the United States. Prez Obama's Justice Department sought and secured a federal death sentence against the Boston bomber in deep blue Massachusetts, while Gov Brown's Attorney General appealed and got reversed a judicial ruling threatening the largest state capital punishment system in deep blue California. Meanwhile, officials in swing state Pennsylvania and activists in heartland Nebraska still (reasonably) think advocating for the death penalty makes for good politics.
Ultimately, I see 2016 as a make-or-break year for the future of the death penalty in the US. If voters in Nebraska (and perhaps also California) vote for the death penalty's repeal, or if US voters elect a new Prez likely to appoint abolitionsit-minded judges and Justices, I will jump on the "death penalty is dying" bandwagon. But, because actual voters rather than just elites still shape the direction of significant legal reforms in our democracy, I do not expect the death penalty to be truly dying until a significant majority of Americans share the legal elite's belief that "killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society."
It is these words at the end of this article that put me off because I continue to struggle with the notion that giving tens of thousands of lesser offenders life-without-parole prison sentences is somehow more "civilized" than giving a few of the very worst murderers a death sentence. Though I respect and understand why abolitionists feel strongly that the death penalty is inconsistent with many American values they cherish, I find it problematic and troubling that so many abolitionists seem to have little respect and understanding for those who believe the death penalty vindicates legitimate values. And, I think that the reduced use of the death penalty well-chronicled in this Economist article suggest reasons why, over time, it could become easier for supporters of the death penalty to show to voters that capital punishment will in the future only be used in the very worst cases involving no doubt about the guilt and the horrors of the murders committed.
Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison
As reported in this local article, "Judge's order frees 13 held for not paying probation fees," a group of probationers got a holiday gift in the form of a significant federal judicial order preventing a locality for jailing low-level offenders for failing to pay fines or court costs. Here are the basics:
Heather Keller is looking forward to spending Christmas with her children after a federal judge's order set her free from the Rutherford County Detention Center Friday afternoon. A day earlier, a federal judge in Nashville granted an injunction that prevented officials and probation supervisors in Rutherford County from holding people in jail for certain violations or only because they could not pay fees. It also said that anyone being held for those reasons should be let go.
Keller, 35, was one of 13 inmates released from the jail in Murfreesboro who were held there because they could not pay fees to the private company contracted to oversee the Rutherford County misdemeanor probation system. The injunction that won Keller’s release was part of a lawsuit filed against Providence Community Corrections, which has changed its name to Pathways Community Corrections.
The suit was filed in October and accuses Rutherford County and PCC of working together to extort people on probation there by charging excessive fees. Many of the seven people named in the lawsuit rely on government assistance and have said in court testimony or documents that PCC's excessive fees leave them struggling to pay bills and facing extended probation terms because they cannot pay court costs.
It is a practice Alec Karakatsanis, attorney for the plaintiffs, likens to the operation of a debtors' prison. Karakatsanis said Sharp's order is only the beginning of possible probation reform in Rutherford County.
“We will fight to end permanently what we believe to be the rise of a modern debtors' prison system in which the poor and destitute are jailed and threatened with jail solely because of their inability to make monetary payments to a private company and their local government,” Karakatsanis said. “This is a very important ruling for impoverished people in Tennessee.”
The injunction was granted by Chief District Judge Kevin Sharp in Nashville. In addition to freeing these prisoners, Sharp also ordered PCC immediately stop the practice of violating probationers solely for non-payment of fees.
Keller was originally arrested for driving on a suspended license and since has been jailed twice for non-payment of probation fees, she said. “I’ve spent more time in jail for non-payment than the original charge,” Keller said.
And Sharp ordered Rutherford County Sheriff Robert Arnold to free any inmates held on violation of probation charges stemming solely from non-payment of fees and fines.
The federal district judge's 20-page injunction order in Rodriguez v. Providence Community Corrections is available for download here: Download Opinion Granting Injunction
December 21, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Saturday, December 19, 2015
An early set of takes on Prez Obama's clemency work to date
As first reported in this post (with has already generated an interesting set of comments), yesterday Prez Obama granted commutations of prison sentences to 95 federal inmates. And, as stressed in this posting from the White House blog, this development means that Prez Obama has now granted has now granted 184 commutations total -- more than the last five presidents combined." I think it is justifiable that the Obama Administration is now inclined to crow about its clemency record with respect to commutations, although it remains notable that Prez Obama has still granted precious few pardons and is still well behind even the commutation pace set by Republican predecessors like Calvin Coolige and Herbert Hoover.
Helpfully, P.S. Ruckman over at Pardon Power is already hard at work providing lots of historical context (and other types of contexts) for assessing what Prez Obama has done in this space only 24 hours since this latest grant. Here are his recent postings, all of which merit checking out:
Friday, December 18, 2015
Prez Obama commutes 95 federal prison sentences and grants 2 pardons
As reported in this official White House press release, this afternoon "President Barack Obama granted commutations of sentence to 95 individuals and pardons to two individuals." The release has a list of all the recipients of these clemency actions and their crimes and sentences, and I am hopeful I will have time (and help) in the days ahead to assess whether there is any unique elements to these latest clemency actions. For now, I can just say huzzah and reprint part of this notable press release titled "Clemency Project 2014 Welcomes Commutation of 95 Federal Prison Sentences":
In his first clemency grants since July, President Barack Obama commuted the sentences of 95 prisoners today, 27 of whom were applicants whose petitions were supported by Clemency Project 2014.
"While it is my hope that President Obama will increase the use of his clemency power going forward, one can only be happy for each and every of today's grantees and their loved ones." said Cynthia W. Roseberry, project manager for Clemency Project 2014. "Clemency Project 2014's unprecedented army of volunteer lawyers has been steadfast in its efforts to meet the Project's commitment to ensure that every applicant who appears to meet the criteria has a volunteer lawyer to prepare and submit a timely clemency petition. We are determined to do our part to make clemency a cornerstone of the Obama legacy."
"We take President Obama at his word that there is no ceiling on the number of commutations he will grant before leaving office. And so while we are grateful for every single commutation, there are many hundreds more who deserve relief. We urge the President to confound the skeptics by making 2016 an historic year for clemency grants," said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, a partner organization in Clemency Project 2014.
Thursday, December 17, 2015
"Leaders With Criminal Histories Should Be Included in Reform Debate"
The title of this post is the headline of this notable new Huffington Post commentary authored by Rev. Vivian Nixon Become, who is Executive Director of the College and Community Fellowship and Co-Founder of the Education from the Inside Out Coalition. Here are excerpts:
When tech companies hold panels on diversity consisting entirely of white men, there is an outcry — and rightly so. And when Congressional hearings on women's reproductive rights are devoid of actual women, the public is similarly aghast. The reason for this outrage is easy to understand. The people whose lives, careers, and bodies are impacted by these systems should be allowed to speak from direct experience, and are best positioned to guide meaningful decision-making.
So, why is there no uproar when policy decisions on criminal justice don't consider the recommendations of formerly incarcerated people? It's high time that those who have direct experience with mass incarceration get a seat at the table in policy conversations on reform.
As a country, we've finally come to terms with the impact of a 500 per cent increase in our prison population over the last 30 years. There is a bipartisan dialogue about the best ways to tackle the failures of America's criminal justice system. But when the nation's leading politicians and thinkers gather to address these issues, they rarely include the people who will be most impacted by policy shifts, and who bring a valuable perspective — those who have actually experienced the lifetime consequences of criminal conviction.
Many men and women with criminal history records are leaders actively working to create meaningful change, both behind the bars and once they re-enter society. I know this firsthand — while I was incarcerated in a New York state correctional facility, I spent time tutoring women in basic adult education and high school equivalency courses. Upon my release, I was eager to find a way to pursue higher education. Through the College and Community Fellowship and the Education from the Inside Out Coalition, I've worked with countless individuals who've similarly turned their lives around and helped their peers to do the same.
Why aren't these men and women seen as experts in their own cause? Sadly, society continues to ostracize the formerly incarcerated and devalue their experiences. The "tough on crime" 1990s didn't just increase our prison populations; it also allowed us to dehumanize people in prison, or those who have a criminal record. We assigned them terms like "felon," "con," and "inmate" and reduced them to their crimes — regardless of the length of their sentence and whether or not they were expected to re-enter society.
Demonizing incarcerated and formerly incarcerated individuals permitted us to leave them out of daily American life. Even worse — we excluded them from conversations about their own fates and continued to punish them with collateral consequences, long after they had served their time. In America, every sentence is a life sentence....
[F]ormerly incarcerated leaders are mobilizing. This December, 200 formerly incarcerated men and women from across the Northeast gathered in New York to discuss methods to end mass incarceration, after similar regional conferences held in the South and on the West Coast. They spoke directly and honestly with representatives from the federal government about their personal experiences and stories.
These candid conversations with people who have lived through prison and become leaders in the reform movement are invaluable for shaping criminal justice reform. The more the voices of people with criminal record histories are heard, the harder it will be to silence them — and the more likely we are to be outraged when they are excluded from conversations that impact their lives. With more than 70 million members of our society living with criminal records, we can't afford to ignore their experiences. Let's open up a seat at the table for these leaders.
Justice Department urges SCOTUS to refuse to take up original suit about marijuana brought by neighbor states against Colorado
As discussed here by Rob Mikos over at my Marijuana Law, Policy & Reform blog, late yesterday the US Solicitor General filed an amicus brief in the Supreme Court concerning the suit brought by Nebraska and Oklahoma against Colorado seeking various kinds of legal relief in the wake of Colorado's legalization of recreational marijuana. Rob provides this basic background and summary of the filing:
Per its practice, SCOTUS had requested the SG’s input. The brief can be found via this link. (To provide some background, the SG handles all litigation involving the United States before SCOTUS, and it also commonly files amicus briefs in SCOTUS cases in which the U.S. is not a party. The SG’s positions can be quite influential on the Court.) For earlier postings on this case, see here, here and here.
In a nutshell, the SG argued that SCOTUS should refuse to exercise original jurisdiction over the action. Why? Perhaps most importantly, the SG suggested that the NE / OK suit didn’t fit the mold of cases over which SCOTUS had traditionally exercised original jurisdiction – namely, cases in which one state had directly harmed another. Importantly, the SG argued that CO hadn’t directly injured its neighboring states, e.g., by exporting marijuana or authorizing private citizens to do so. Rather, any injury NE / OK have suffered is more directly traceable to the actions of private parties who buy marijuana in CO and then take it outside the state.
Because it focused on SCOTUS practice, the SG did not need to weigh in on the merits of the underlying action. But I think the argument the SG makes favors CO, if SCOTUS (or another court) ever had to decide the matter. After all, if CO is not directly responsible for the injury to NE / OK’s regulatory interests, it’s hard to see why CO could be held responsible for any injury to federal regulatory interests. In other words, if CO isn’t responsible for people using marijuana in NE / OK, then it arguably isn’t responsible for people using marijuana in CO either.
As the SG itself notes, even if SCOTUS declines original jurisdiction over the suit, NE / OK could still file it in a federal district court. Of course, it would have to overcome some daunting procedural hurdles there as well (e.g. ,standing), as noted in the SG brief.
I am hopeful I will have time in the coming days to closely analyze this SG amicus brief and to post some additional commentary at the Marijuana Law, Policy & Reform blog or here. In the meantime, here is how the Discussion section of the SG's brief gets started:
The motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction. Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.
Curious Cato commentary attacks Obama Administration for failing to change prosecutorial charging policies that have been changed
As regular readers know, I have often bashed the Obama Administration for too much talk and too little action in the arena of criminal justice reform. But because I always try to ground my criticisms in facts and to give credit to the Administration for its actions, I must call out as misinformed and misguided this new Cato commentary by Nat Hentoff headlined "Obama Ignores Judge’s Plea for Justice Reform."
The Hentoff commentary properly notes that the "charging policies that federal prosecutors are forced to follow are the one area of criminal justice reform that the president of the United States has the authority to impose unilaterally." But the commentary suggests, wrongly in my view, that through the 2010 Holder memorandum (first discussed here) the Obama Administration failed to change federal charging policy for the better.
In addition, and even more troublesome, the Hentoff commentary completely fails to mention the important 2013 Holder memorandum (first discussed here) and a 2014 Holder follow-up memo (discussed here) concerning charging of mandatory minimums and recidivist enhancements in federal drug cases. Also, and not to be overlooked in the context of federal charging policies, the Obama Administration has been quite bold when issuing a series of major charging directives that encourage federal prosecutors largely to keep their noses out of state-level marijuana reform efforts. Collectively, these major charging directives from the Obama Administration's Department of Justice to line prosecutors have marked a significant shift in charging policies, and various federal sentencing statistics suggest these changed DOJ charging policies have been having a significant impact on federal criminal justice outcomes.
This all said, though I am troubled by the particulars in this Cato commentary, I see much merit in Hentoff's final critical sentence: "Obama continues to pay lip service to criminal justice reform by enacting half-hearted half-measures." Though I believe the Obama Administration has actually been quite effective and astute in the modification of federal prosecutorial charging policies, I also believe that it has been far less effective and astute in moving forward with an array of other badly needed federal criminal justice reform efforts.
Wednesday, December 16, 2015
Mixed outcomes for marijuana reform efforts in latest omnibus spending bill from Congress
Though there are a number of federal marijuana reform bills kicking around Congress, it seems very unlikely any of these bills will be moving forward anytime soon. In the meantime, though, marijuana reform issues and proposals keep coming up in debates over government spending bills. And, in the wee hours last night, Congress passed a big new spending bill that included (and failed to include) some notable marijuana reform provisions.
Representative Earl Blumenauer, a supporter of federal marijuana reforms, issued today this press release summarizing what appears and does not appear in the omnibus bill. Here is part of the text of this release:
Representative Blumenauer is pleased to see the inclusion of the following provisions in the omnibus package:
- The policy championed by Representatives Dana Rohrabacher (R-CA) and Sam Farr (D-CA) that prevents the Department of Justice from interfering in the ability of states to implement legal medical marijuana laws (Division B, Title V, Section 542)
- Language that supports industrial hemp research allowed under Section 7606 of the 2014 Farm Bill (Division B, Title V, Section 543 and Division A, Title VII, Section 763)
Representative Blumenauer is disappointed, however, that the bill falls short by not including provisions that:
- Make it easier for banks to do business with state-legal marijuana businesses
- Allow Veterans Health Administration providers to recommend medical marijuana to their patients in accordance with state law, a provision he championed in the House
Representative Blumenauer is also disappointed to see the continuation of a rider that interferes with Washington, DC's ability to pass laws dealing with the sale of marijuana for adult use.
Cross-posted at Marijuana Law, Policy & Reform.
Tuesday, December 15, 2015
Examining the crimmigration connections between sentencing and deportation
An important and timely new and growing speciality in the legal academy is "crimmigration," a label used to describe and analyze the intersections of criminal law and immigration law. In that vein, I just came across this notable new paper by Jason Cade available via SSRN titled "Return of the JRAD," which looks closely at the particular intersection of sentencing decision-making and deportation consequences. Here is the abstract:
Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar on August 14, 2015, he recommended that the government not deport Mr. Aguilar, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief. As a result, the immigration system, as it works today, is in deep tension with the principle that under a humane system of justice the penalty should fit the crime.
Judge Weinstein’s sentencing order in Aguilar points the way to an important reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history. A sentencing judge’s decision to recommend against deportation in criminal cases offers immigration authorities an efficient, reliable, and cost-effective means of assessing a noncitizen’s positive and negative equities and determining whether removal is an appropriate part of the total penalty for the noncitizen’s transgression. In short, a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions. This essay makes the case that immigration authorities could rely on such recommendations -- as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications) -- as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation. To be sure, in some cases, that presumption should be overcome, particularly when the government can establish the noncitizen’s dangerousness or otherwise demonstrate social undesirability. But deportation should be the exception, not the rule, in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction.
Monday, December 14, 2015
SCOTUS yet again summarily reverses circuit reversal of state death sentence
The Supreme Court this morning issued what has become a notably common type of summary reversal: in White v. Wheeler, No. 14-1372 (S. Ct. Dec. 14, 2015) (available here), the Justices via a per curiam opinion determined the Sixth Circuit was wrong to overturn a death sentence based on the exclusion of a juror. Here is part of how the opinion starts and ends:
A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit. During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed. The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments. That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition....
The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire. But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context.
The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis....
As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam).
Kent Scheidegger at Crime & Consequences has this interesting closing thought in this post about this latest SCOTUS summary reversal:
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?
Reviewing and reflecting on persistent problems with the federal clemency process
The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks. But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:
As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.
“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”
As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.
“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.
And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....
But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out. Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”
“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.
Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.
Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department. “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”
Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”
But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.
Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.
Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”
Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”
No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.
Will Senate leader ever bring latest federal sentencing reform bill up for a full Senate vote?
The question in the title of this post is prompted by this notable inside-the-Beltway report from the New York Times headlined "Mitch McConnell Demurs on Prospects of Criminal Justice Overhaul." Here are excerpts:
Despite a concerted push from a broad right-left coalition, Senator Mitch McConnell said he had not determined whether he would bring a bipartisan criminal justice overhaul to the Senate floor next year. “I haven’t decided yet,” Mr. McConnell, the Kentucky Republican and majority leader, said in an interview on Thursday as he began looking toward 2016.
The Senate leader definitely seemed open to the idea. He said the proposal, which would reduce some mandatory minimum sentences, lead to early release for thousands of nonviolent offenders and set up new programs to help them adjust to life after prison, seemed to meet his criteria for allocating precious Senate floor time.
“It seems to have pretty broad bipartisan support,” Mr. McConnell said of the criminal justice legislation approved by the Judiciary Committee in October. “This is the kind of thing, when you look at it, you have principals on both sides who are interested in it. That makes it worthy of floor time.”
However, the legislation, while endorsed by both conservative and progressive interest groups, could present a sticky election-year vote for some Republicans who typically see themselves as law-and-order politicians. And the issue could get very complicated should Senator Ted Cruz of Texas become the Republican presidential nominee. Mr. Cruz voted against the plan in the Judiciary Committee and was outspoken in his criticism. So if the Republican-led Senate moved forward, it could conceivably be pushing legislation opposed by its candidate for the White House.
It is critical to recall that just a few years ago when Democrats still controlled the Senate, then-Senate leader Harry Reid never brought the Smarter Sentencing Act up for a full Senate vote ever after the SSA passed through the Senate Judiciary Committee with bipartisan support and even though there was good reason to believe the SSA would have garnered majority support from the full Senate. Thus, as this article spotlights, the passage of the Sentencing and Correction Reform Act through the Senate Judiciary Committee provides no certainty that even the full Senate will get a chance to vote of this reform bill.
As reported earlier, it is clear that the first few months of 2016 now constitute the next critical period for federal statutory sentencing reform. I remain cautiously optimistic that the broader political and social forces that have so far propelled bipartisan support for reform to this point will help carry some bill through both houses of Congress in some form in 2016. But I am not counting any sentencing reform chickens anytime before they completely hatch out of Congress and find their way to the desk of the President.
December 14, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)
Friday, December 11, 2015
SCOTUS grants cert on permissible practices for police roadside tests and for prisoner litigation
As reported in this SCOTUSblog posting by Lyle Denniston, the Supreme Court granted certiorari review on four matters this afternoon including a set of cases "that could have a nationwide effect on the roadside actions of police officers." Here are the details:
[T]he Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test. The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota.
The Court also granted review of three other cases ... [including one involving] a dispute over whether a prison inmate is excused from attempting administrative remedies for a grievance if the prisoner believed, wrongly, that he had already done so (Ross v. Blake).
The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver. The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.
In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration. It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving. In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving. The two cases involve either a blood or breath test.
Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision. And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling. The Supreme Court, at its private Conference on Friday, had thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.