Sunday, January 01, 2017
Any astute thoughts about the sentencing year that was or the year that will be?
A variety of other (mostly non-work) engagements have prevented me from having the time to do any elaborate year-in-review or year-to-come posts about sentencing topics. That said, as I take my 2016 calendars down and replace them with the 2017 versions, two matters come to mind that implicate both the year that was and the year to come:
1. SCOTUS transition: though representing only one vote, Justice Scalia's voice and impact on sentencing and criminal justice jurisprudence was far larger than his voting record. The impact and import of his legacy and his absence, along with the coming character of his SCOTUS replacement, cannot be readily overstated.
2. Marijuana reform (but few other big sentencing reforms): with four more states voting for full recreational reform and nearly a dozen others enacting or enhancing medical regimes, in 2016 marijuana reform continued at a remarkable clip while broader drug war and other sentencing reform stalled (at least at the federal level). What the new GOP executive leaders in DC will now do on these fronts is among the most interesting and dynamic and uncertain story to watch in 2017.
As always, I welcome reader throughout on these topics and any others about the year that ended yesterday or the new one getting started today.
Chief Justice extols the work of federal district judges in traditional year-end report
The Chief Justice of the United States John Roberts decided to use his 2016 Year-End Report on the Federal Judiciary, which is available at this link, to praise the work of federal district judges. The report starts with a lovely little history lesson, and it includes these passages that should especially engage criminal justice fans:
The character of a district judge is most starkly evident in a criminal trial. Most criminal charges are resolved through the plea bargaining process, but those cases that go to trial place especially high demands on the court. The judge must move the process forward in accordance with the Speedy Trial Act, consistent with the defendant’s right to constitutionally adequate representation. He must promptly decide motions and make evidentiary rulings as the trial proceeds, typically without the luxury of calm consideration and research in the quiet of chambers. The judge must carefully guide the jury on the elements of the offense and the prosecution’s burden of proof. If the trial results in conviction, the judge faces the somber task of sentencing.
Most district judges agree that sentencing is their most difficult duty. The judge must confront the offender, face-to-face, and take just account of human failing. The judge must consider the perspectives of the prosecutor, the defendant, and the victim, and impose a penalty that, by design and necessity, will alter the direction of the defendant’s life. In determining appropriate punishment, his discretion is confined by legislative determinations, and guided by carefully considered sentencing guidelines and a presentence report. At the end of the day, the sentence nonetheless critically reflects the judge’s wisdom, experience, and educated grasp of what he observed firsthand in the courtroom. In delivering the sentence, the judge speaks as the voice of the community.
In part because I know and respect so many federal district judges, I am so very pleased to see the Chief Justice deliver this kind of justified professional love letter. In addition, because I have long been a strong and dogged advocate for SCOTUS Justices having experience as a trial judge, I cannot help but "read between the lines" here and see a kind of chiefly endorsement for the next SCOTUS justice having district court experience.
Saturday, December 31, 2016
Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game
As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs." Here is more about the ruling and its context:
In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.
Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....
Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....
In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.
The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.
Thursday, December 29, 2016
BJS releases three big reports on correctional populations throughout the United States
Via email today I received news of and links to a bunch of big data reports from the Bureau of Justice Statistics (which is part of the Office of Justice Programs at the U.S. Department of Justice). Here are the titles, links and descriptions of these notable new publications:
This report presents statistics on persons supervised by adult correctional systems in the United States at yearend 2015, including persons supervised in the community on probation or parole and those incarcerated in state or federal prison or local jail. The report describes the size and change in the total correctional population during 2015. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for selected years.
This report presents final counts of prisoners under the jurisdiction of state and federal correctional authorities at yearend 2015, including admissions, releases, noncitizen inmates, and inmates age 17 or younger. The report describes prisoner populations by—
- most serious offense
- demographic characteristics.
Selected findings on prison capacity and prisoners held in private prisons, local jails, and the U.S. military and territories are also included. Findings are based on data from BJS's National Prisoner Statistics program, which collects data from state departments of correction and the Federal Bureau of Prisons.
This report presents information on changes in the jail inmate population between 2000 and 2015 by—
- demographic characteristics
- conviction status
- average daily population
- rated capacity of local jails
- percent of capacity occupied.
It also includes statistics, by jurisdiction size, on changes in the number of inmates, admissions, and weekly turnover rate from 2014 to 2015. Estimates and standard errors were based on BJS's Annual Survey of Jails.
Will Ohio get back in the business of state killing in 2017?
The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info." Here are excerpts from the AP piece:
A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.
Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.
At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.
For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.
What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017. That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.
Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....
The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.
"Clemency seeker to Obama: please don't forget us"
The title of this post is the headline of this new CNN commentary, authored by Alice Marie Johnson. Here is how it gets started and concludes:
The week before Christmas, President Obama gave a second chance -- in the form of clemency -- to 231 people. I was not among them, but since many of them, like me, were incarcerated on drug-related charges, I feel I know their stories. I am only one of thousands of first-time, non-violent offenders given a mandatory and lengthy prison terms after committing a crime under financial distress.
In 1996, I was given a death sentence without sitting on death row. I was convicted as a first-time nonviolent drug offender to life behind bars in federal prison. Since I went to prison, the laws governing my wrong-doing have changed. If I were convicted again today for the same crime, my life might look very different.
Last month, as I was preparing to put on a short play I wrote, entitled "The Strength To Be," a fellow inmate pulled me aside and gave me the news that the Obama Administration had just started announcing its next slate of clemencies. My mind went racing. What if this could be my chance to be reunited with the outside world, to see my family or what is left of it?
For 20 years I have been incarcerated, and I won't lie, it's hard to keep the hope of freedom alive for that long. But my faith in God has carried me this far. Despite the impending announcement, I knew that the show had to go on. I channeled the uncertainty of my future into my play and danced a duet to Whitney Houston's song, "I Didn't Know My Own Strength."...
I want this part to be clear: I acknowledge that I have done wrong. I made the biggest mistake of my life to make ends meet and got involved with people selling drugs. This was a road I never dreamed of venturing down. I became what is called a telephone mule, passing messages between the distributors and sellers. I participated in a drug conspiracy and I was wrong.
My trial took a toll on my family. At the time of my conviction, I had two children in college and a senior in high school. Bryant, the senior, ended up dropping out of school because of the trial. Tretessa had a good paying job with Motorola and was flying down to support me. Members of the community were at my hearings encouraging me and hoping for the best.
But I was convicted on October 31, 1996 -- and sentenced to life in prison. The day after my oldest son Charles "celebrated" his 20th birthday. It was his first birthday spent away from me. It's hard to imagine that I have now served 20 years of my life sentence for that one mistake. The United States leads the world in incarceration rates, with five percent of the world's incarcerated population and one-quarter of the world's prisoners. I am one of thousands of first-time, nonviolent offenders who were given mandatory lengthy prison terms.
During my two decades in here, I've become an ordained minister and a mentor to young women who are also in prison. And if I get out -- I have a job secured, and plan to continue to help those in prison and work hard to change our justice system. My daughter started a petition to President Obama asking him to grant me clemency, and more than 100,000 people have signed it. It a source of strength and hope for me -- a chance to be free.
The President has made an incredible push at helping to right the wrongs of our criminal justice system. I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes. But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others -- so I also hope he moves quickly. I hope his administration will process all the applications for clemency currently waiting for the President's review.
No matter what happens, I was not built to break. I will keep writing. I will continue to hold my head high and live a productive life either as a free woman or here behind bars. God has shown me my strength.
Federal military execution seemingly on track for mass rapist/murderer
This CNN article, headlined "US military could carry out first execution in over 50 years," reports on some notable developments in a notable federal capital setting. Here are the interesting details:
A former US Army soldier who has been on death row since 1988 for raping and murdering several women could now face execution after a judge denied his bid for another stay of execution. Judge J. Thomas Marten of the US District Court for the District of Kansas wrote last week that a previously granted stay of execution to Ronald Gray was "no longer in effect," denying his request to further block the military from carrying out the death sentence.
If Gray is put to death, it will be the first military execution since 1961, when John Bennett was hanged at Fort Leavenworth prison in Kansas after he was convicted of raping and attempting to kill an 11-year-old Austrian girl. The current military method of execution is lethal injection.
Gray is one of six former servicemen currently on the military's death row at Fort Leavenworth. The most recent addition to that group is former Army Maj. Nidal Hasan, who was convicted of 13 counts of murder and 32 counts of attempted murder after his 2009 shooting rampage in Fort Hood, Texas.
Gray was convicted and condemned to death in military court in 1988 for two murders and three rapes in the Fayetteville, North Carolina, area while stationed at Fort Bragg and serving as a cook. He pleaded guilty in civilian courts to two other killings and five rapes....
Gray came close to being put to death in 2008, when then-President George W. Bush signed a warrant authorizing his execution. But a federal court gave Gray a last-minute temporary stay.
In 1983, a military appeals court found the death penalty to be unconstitutional because of problems with the armed forces' sentencing guidelines, but President Ronald Reagan soon after reinstated capital punishment in the military. The President has the power to commute a death sentence and no service member can be executed unless the President confirms the death penalty.
While no execution date has yet been set, Army regulations state that a could be set sometime in the next 30 days. Gray's lawyer could not be reached for comment.
Wednesday, December 28, 2016
Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial
As reported in this new AP story, "Dylann Roof told a judge Wednesday he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life for killing nine black worshippers at a Charleston church in a hate crime." Here is more:
But there also is mystery evidence that Roof is working hard to make sure the public never sees in his federal death penalty trial.
Roof, who is acting as his own attorney in the penalty phase to prevent what he thinks would be further embarrassment to himself or his family, again was warned by U.S. Judge Richard Gergel at a hearing Wednesday that being his own lawyer was a bad idea. "That's your decision," Gergel told Roof. "I think that highlights my advice to you that you aren't served by being your own counsel."
Gergel told Roof to talk to his grandfather, who is a lawyer, and other family members one last time. He told Roof he has until the start of the penalty phase Tuesday to change his mind and hire his high-powered, publicly funded defense team back.
The same jurors who convicted Roof earlier this month on 33 counts including hate crimes and obstruction of religion will return next week to decide if he faces life in prison without parole or the death penalty.
Roof spoke for less than 10 minutes of the 35-minute hearing Wednesday. He told Gergel he does plan an opening and closing statement. He then told the judge he objects to prosecutors' plans to present a photograph of evidence in the court's possession. Roof, Gergel and assistant U.S. Attorney Jay Richardson all carefully tiptoed around saying what that evidence was. Gergel did say there was a hearing in which he decided it could be admitted in the penalty phase.
Roof also wanted a jailhouse statement left out of the penalty phase and evidence that involved his mother. No specifics were given. Gergel told Roof to go back to jail and write a motion for him to consider. Roof's ankle chain clanked as he walked back to the defense table in his jail jumpsuit.
Prosecutors also laid out their case. Most of the penalty phase will involve up to 38 people related to the nine people killed and the three people spared when Roof went into Emanuel African Methodist Episcopal Church on June 17, 2015, sat through a 45-minute Bible study in the fellowship hall, then fired 77 shots as many of the worshippers hid under tables.
Gergel, who complained during the guilt phase that prosecutors were repeating themselves at times with witnesses, said he will allow Richardson to call as many witnesses related to the victims as he wants. "The statute provides broad leeway for the victims to be heard, and I plan on honoring that," the judge said....
Gergel spent much of the hearing going over the format of the penalty phase with Roof, warning him several times he was likely doing himself no favors leaving his defense team as just advisers to file briefs. After saying he planned no witnesses, Roof told Gergel he was just answering the same question the judge had asked prosecutors. Gergel said that wasn't necessary. "Don't do them any favors," the judge said. "They aren't going to do you any."
Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case
Last month via this Wall Street Journal commentary, two former Justice Department officials Charles Renfrew and James Reynolds advocated for clemency for Sholom Rubashkin in a piece headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony." This week via this Washington Post commentary, LawProf and former Deputy AG Philip Heymann is making the case for Rubashkin while calling out the Justice Department's failure to address these matters. The piece is headlined "107 former Justice officials think this case was handled unjustly. DOJ must act." Here are excerpts:
“You don’t just try to hammer everybody for as long as you can, because you can,” Deputy Attorney General Sally Yates told the New York Times. That is the right attitude for someone tasked with the fair administration of justice. Unfortunately, Yates and Attorney General Loretta E. Lynch have, for the past year, rebuffed efforts by me and many other former senior Justice Department officials to even discuss another prosecution in which justice fell far short: the case of Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud.
Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years. Worse, his sentence was based on perjured testimony and prosecutorial misconduct.
If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons. In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served. The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.
Meanwhile, Kevin Techau, the U.S. attorney in Iowa (where Rubashkin was prosecuted), has suggested that Rubashkin used his financial resources to buy the support of so many prominent justice officials. Not only has Rubashkin lost everything he owned in this case, his wife and children now depend heavily on the support of their community for their needs. Moreover, all 107 of us are working on this pro bono. Among other things, former deputy attorneys general Larry Thompson, Charles Renfrew and I have traveled to distant meetings and volunteered considerable time to this matter, all on our own nickel.
The facts are clear: Rubashkin was vice president of Agriprocessors, a kosher meatpacking plant based in Postville, Iowa. In May 2008, more than 500 federal immigration agents raided the plant and arrested hundreds of undocumented workers. The raid resulted in the company declaring bankruptcy. Rubashkin was arrested a short time later and charged with bank fraud. And this is where things went terribly wrong. The sentence for bank fraud depends on the amount of the loss to creditors. In this case, the prosecution deliberately increased the amount of the loss — and thus the length of Rubashkin’s sentence....
I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case. Experienced former prosecutors and career Justice Department officials view this case as a stain on an institution created to uphold the law. If the department’s leadership refuses to act, I hope President Obama pardons Rubashkin and ends this tragedy. The alternative is a display of either blind self-righteousness or frightened defensiveness that is inconsistent with the Justice Department we all have served and respected.
Tuesday, December 27, 2016
New York Times made yet another editorial pitch for judicial abolition of the death penalty
Today's New York Times has this editorial headlined "The Continuing Collapse of the Death Penalty." Here are excerpts:
Piece by piece, the death penalty continues to fall apart. Last week, the Florida Supreme Court invalidated between 150 and 200 death sentences — nearly half of all those in the state — because they were imposed under a law the United States Supreme Court struck down as unconstitutional in January. The law, which required judges and not juries to make the factual findings necessary to sentence someone to die, violated the Sixth Amendment’s guarantee of a jury trial. “A jury’s mere recommendation is not enough,” Justice Sonia Sotomayor wrote for an 8-to-1 majority.
The Florida decision is the most recent sign, in a year full of them, that the morally abhorrent practice of capital punishment is sliding into the dustbin of American history — where it should have been long ago.
Juries around the country imposed 30 death sentences in 2016, a 40 percent drop from last year and fewer than at any time since the Supreme Court reinstated capital punishment in 1976, according to a report by the Death Penalty Information Center, a research group that opposes capital punishment. Twenty people were executed this year, the lowest number in a quarter-century.
The practice is not only increasingly rare, it is concentrated in an extremely narrow slice of the country. Only five states carried out executions in 2016, the report found, and only five imposed more than one death sentence. California sentenced nine people to die, the most of any state, but no one has been put to death there since 2006.
Public support for the death penalty keeps dropping, too — falling below 50 percent for the first time in more than four decades, according to a Pew Research survey. Support falls even further when respondents are given the alternative of a long prison term like life without parole. Though voters in California, Nebraska and Oklahoma last month preserved the death penalty, the overall trend is toward growing discomfort with state-sanctioned killing.
The total abolition of capital punishment, however, will depend on the Supreme Court’s reading of the Eighth Amendment’s ban on cruel and unusual punishments. So far, only one current member of the court, Justice Stephen Breyer, a regular critic of the death penalty, has expressed openness to examining this question.... Justice Breyer is asking the right questions. It is up to a majority of his colleagues to listen closely and bring the only just result: the permanent abolition of capital punishment in America.
Monday, December 26, 2016
Reports of now five names atop Prez-Elect Trump's SCOTUS short-list
Ten days ago in this post I reported on reports that federal circuit judges Diane Sykes and William Pryor were among the top contenders to be named by Donald Trump to replace Justice Scalia. Now, via How Appealing and Jan Crawford at this link, the latest buzz about the short list has now also added the names of circuit judges Thomas Hardiman and Steve Colloton, and Michigan Supreme Court Justice Joan Larsen.
I know a little bit about the sentencing "history" of many of these folks, but I am disinclined to talk up (or criticize) this history unless and until we go from short-list speculations to an actual nominee. But if others want to praise or pillory any of these folks.....
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
- Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
"Society must not forget those it incarcerates"
The title of this post is the headline given to this new commentary authored by my colleague Steven Chanenson (who is also co-managing editor of the Federal Sentencing Reporter and a former chair of the Pennsylvania Commission on Sentencing). Here are excerpts:
Prisons are usually hidden and often grim places. Supreme Court Justice William J. Brennan, Jr.'s observation nearly 30 years ago still rings true today: "Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness." It should not and need not be that way.
Although there is a vigorous debate over when and to what extent they should be used, prisons are a key public safety tool. Whenever used, incarceration must be effective, safe, and humane. Prisoners are not popular, but how we treat our criminals is, in the words of Winston Churchill, "one of the most unfailing tests of the civilization of any country."
Society has a right and an obligation to protect itself, but it needs to do so while considering both the short- and the long-term consequences for all involved. Most prisoners eventually return to our communities. Last year, almost 20,000 people were released from the Pennsylvania Department of Corrections. They are once again our neighbors across the commonwealth.
Thus, it is in everyone's interest for people who return from prison to come back better equipped to succeed than when they arrived there. If we want to slow the revolving door of incarceration and crime, we must provide meaningful access to treatment, training, and, yes, hope. We must hold the prisons accountable for meeting those goals, including through independent oversight. Both society and the inmates themselves deserve no less.
We must also celebrate the positive work done in prisons. One especially bright ray of hope was on display this month at the State Correctional Institution at Chester. The inmates and staff at the Chester prison partnered with other stakeholders to present a series of TEDx talks focused on the children of incarcerated parents.... Under the able leadership of Corrections Secretary John Wetzel, this was the fourth set of TEDx talks from a Pennsylvania prison. Like the earlier sessions, the discussions in Chester highlighted challenges faced and progress made by the speakers. While talking about the more than 81,000 Pennsylvania children who have a parent in a Pennsylvania prison, they provided a glimpse of some constructive energy that may eventually benefit those of us outside the prison walls....
Particularly during the holiday season, many of us think about the humanity of our fellow men and women. That is a sentiment we should nurture. We need to remember people in prison, how they are treated and what will happen to everyone when they return to our neighborhoods. There was a clear demonstration of hope — for safer communities and our collective humanity — at the State Correctional Institution at Chester. For that, we should all be thankful.
Sunday, December 25, 2016
Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts
Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours." I recommend the full piece and here are some excerpts:
President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”
The president certainly deserves credit for making clemency a priority before leaving office.... Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.” Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse. Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”
With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best. As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....
[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.
Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary. If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars. As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met. To give a list of names would exclude too many people.”...
On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed. The stories are all too familiar. They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes. They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime. People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.
As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with. What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”
One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....
Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act. Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record. The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....
Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”
The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited. But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.
But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice. And the state has not even begun to account for its own mistakes.
I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.
The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.
Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.
Holiday pitch from NY Times editorial board for "Cutting Prison Sentences, and Costs"
With Christmas on a Sunday this year, I will have to guess whether it was a holiday spirit or an end of year spirit that inspired this new New York Times editorial headlined "Cutting Prison Sentences, and Costs." Here are excerpts, with a little commentary to follow:
States across the country have rushed to trim prison costs by backing away from the draconian sentencing policies that drove up the national prison population from 200,000 at the start of the 1970s to a peak of about 1.6 million in 2009. While the total inmate population has declined by 2.9 percent since then, several states that approached reform more aggressively have already reduced their prison populations by far more. California, New Jersey, New York and Rhode Island have done so by more than 20 percent.
These states have shown that it is possible to shorten sentences — or divert offenders to community supervision — without compromising public safety. But even bolder reforms to the sentencing system will be necessary to bring the prison census down to where it should be and reverse the corrosive effects of mass incarceration....
A new report by the Brennan Center for Justice at New York University School of Law provides a blueprint for further reforms. It calls on states to mandate alternative sentences like drug treatment, probation or community service for low-level crimes like drug possession, minor drug trafficking, minor fraud, forgery and theft, which account for 25 percent of the nation’s prison population. Judges would have the flexibility to hand down prison sentences in exceptional circumstances, as in the case of serious, repeat offenders.
The report also recommends a reduction in sentences for major crimes that account for a majority of the prison population — aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary and serious drug trafficking. (Under such a system, the typical inmate convicted of, say, robbery would serve 3.1 years, as opposed to 4.2.) If these reforms were retroactively applied, the authors estimate, more than 200,000 people serving time for these crimes would be eligible for release.
Under a saner system, the report says, nearly 40 percent of the country’s inmate population could be released from prison without jeopardizing public safety. This would save states $200 billion over the first 10 years — enough to hire 270,000 new police officers, 360,000 probation officers or 327,000 teachers.
The preliminary reforms that many states already have enacted reflect a growing realization that mass incarceration is economically unsustainable and socially disastrous. But to reverse four decades of bad policy, state lawmakers will have to adopt a more decisive and systematic approach to sentencing reform.
Though I am inclined to embrace the essential elements of this editorial, it strikes me as politically and practically tone-deaf in many respects. Politically, the editorial could and should have emphasized the significant number of "red states" that have reduced their prison populations, states like Texas and Georgia and South Carolina and Mississippi. Practically, the editorial could and should have acknowledged that some violent crime (especially murder) and heroin problems have been increasing in recent years, which in turn suggests and demands that states and the federal government focus on fighting crime smarter and not just tougher.
Saturday, December 24, 2016
Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense
As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:
Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down. He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills. He left the computer.
As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day. He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.
Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon. Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.
But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice." The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."
The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.
Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws. The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.
But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.
Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.
"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."
The full majority ruling in Louisiana v. Johnson is available at this link. Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision:
Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive. Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars. He is now condemned to die in prison for that crime.
We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well. Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract." Solem, 463 U.S. at 296. As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes. And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature. No person was harmed, nor any property damaged. Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.
Reviewing the unique issues and challenges for sentencing ISIS sympathizers
A helpful colleague made sure I did not miss this interesting new Wall Street Journal article headlined "ISIS Sentences Pose Challenge for Judges." The subheadline highlights the main theme of the piece, "U.S. judges grapple with how to punish young Islamic State sympathizers who could become more dangerous after decades in prison," and here are excerpts:
Federal judges this year faced the unprecedented challenge of sentencing dozens of Islamic State supporters across the country, with punishments ranging from no prison time to decades behind bars.
In Minnesota, 20-year-old Khaalid Abdulkadir received three years probation for tweeting threats to kill federal law-enforcement officers after one of his friends had been arrested for providing support to Islamic State. In Ohio, 22-year-old Christopher Cornell received 30 years in prison for plotting to attack the U.S. Capitol in Washington on the terrorist group’s behalf.
The wide range reflects the difficult question at sentencing in many of these cases: Should judges give young Americans who support Islamic State a chance to turn their lives around, or a lengthy prison sentence to ensure public safety?
For the most part, judges are choosing to be cautious, although some have begun considering alternatives to prison. Of the 39 Islamic State defendants who have been sentenced so far, the average prison sentence has been 13 years, according to Fordham University’s Center on National Security.
Since 2014, more than 110 suspected Islamic State sympathizers have been prosecuted in the U.S. for a broad array of criminal activities, including making false statements to the government and traveling overseas to fight with terrorists. Roughly half of these cases have resulted in convictions, while the other half are pending, according to Fordham. Several sentencings are scheduled to happen next year, including one in Brooklyn, N.Y., for Tairod Pugh, who was the first Islamic State sympathizer in the U.S. to be convicted at trial.
No Islamic State supporter in the U.S. has received a life sentence yet. Most defendants are arrested before they commit violence and charged with providing “material support” to terrorists, which carries a maximum 20-year sentence....
More than a quarter of the sentences have occurred in Minneapolis, whose large Somali population has been a target in recent years for terrorist recruitment. In an unprecedented move, one federal judge there, Michael J. Davis, last summer asked six defendants to undergo an evaluation before sentencing to see if they could be good candidates for a “deradicalization” program.
Judge Davis ultimately allowed only one defendant, 20-year-old Abdullahi Yusuf, to be released to a halfway house, where he could receive counseling and family group therapy. For another defendant, 22-year-old Guled Omar, who was convicted at trial of conspiring to commit murder in Syria, Judge Davis imposed 35 years in prison, the harshest sentence so far in an Islamic State case.
The deradicalization effort has caught the attention of judges around the country. In Anaheim, Calif., a federal judge in October raised the possibility of assigning such a program to 26-year-old Muhanad Badawi, who was convicted at trial for helping a friend who wanted to join Islamic State overseas. Mr. Badawi ultimately received 30 years in prison.
Most Islamic State defendants are between the ages of 18 and 26 at the time of their arrest, which means many of them don’t have a criminal history and could become more dangerous after decades in prison, some lawyers say. On average, Islamic State supporters under the age of 21 have been receiving lighter sentences, according to Fordham.
Still, most judges tend to impose the harshest sentence possible under the law for terrorist defendants. Terrorism, unlike other types of violent offenses, is a crime in which law-enforcement officials feel there can be no room for error. No judge wants to be the one who gave a lenient sentence to someone who ends up committing a terrorist attack.
Friday, December 23, 2016
Seeing the state of criminal justice reform through the lens of state reforms
Though the federal criminal justice system always gets lots of attention, the reality is that most of the real criminal justice "action" takes place at the state (and local) level. Consequently, this Medium commentary by Jenna Moll, Deputy Director, U.S. Justice Action Network, titled "2016: States Home to Success on Effective Justice Reforms," serves as a useful year-end review of the state of our criminal justice reform union. Here is how the lengthy piece gets started, its middle headings, and its ending:
In 2016, the U.S. Justice Action Network made an aggressive push in 12 states to safely reform sentencing laws, reduce mandatory minimums, expand effective treatment and rehabilitation options, and improve the reentry process for returning citizens in our justice system.
With more than 1.3 million of the Americans currently behind bars in state facilities, our state work is crucial in order to actually impact the country’s incarceration rate. And every time we add another state, red or blue, to our list of successes, we make it harder for Congress to ignore the bipartisan calls for action.
The reason for our success is no secret but it is unique. We have used our right-left coalition and national allies to bring together law enforcement officials, faith-based community leaders, and stakeholders from all walks of life who recognize the pressing need to make changes.
We’ve had great successes throughout the year — and we haven’t taken our foot off the gas yet. Just last week in Ohio, the legislature passed fixes to the civil asset forfeiture system in the state that better protect due process and property rights for Ohio residents. A victory, right before the buzzer in 2016. Here’s where we and our allies made the most progress this year:
Removing Barriers to Employment...
Changing Laws, Changing Lives...
Refocusing Our Justice System ...
Bringing State Successes to D.C....
Looking ahead, we’re already focused on long-term success, educating lawmakers and interest groups in states and pressing them to coalesce around robust legislative recommendations that can make the change voters seek. We’re involved in this process across the country — in Illinois with the bipartisan State Commission on Criminal Justice and Sentencing Reform, in Louisiana and Pennsylvania with their Justice Reinvestment Initiatives, and in Ohio through the Criminal Justice Recodification Committee.
In 2016, a clear roadmap for passing successful reforms at the state level was created, strengthened, and expanded. We know that by harnessing the power of bipartisan, state-based coalitions and engaging law enforcement, the business community and faith leaders, we can set the agenda for justice reform and gain a consensus that few other issues can achieve in the current political climate. That’s why in 2017, our organization is continuing efforts in almost a dozen states and expanding our efforts on the state level to include Tennessee, Texas, and Wyoming.
At times, progress on the legislative level seems to move at a snail’s pace, in light of the overwhelming levels of bipartisan support from voters. But it’s clear that 2016 was a successful year for the justice reform movement at the state level. Across eleven states, we’ve seen thirty-six bills that we and our coalitions championed signed into law by Governors from the right and the left, and we are incredibly proud of this work. And even more proud of those allies with whom we’ve had the honor of standing side-by-side.
I call that progress — and I look forward to even more in 2017.
Thursday, December 22, 2016
Some notable comments from Senator (and AG nominee) Sessions about limiting federal crimes and prosecutorial discretion
Among my plans for the holiday break is to review some of the writings and statements of Senator (and AG nominee) Jeff Sessions concerning various criminal justice matters, and I may at times share some interesting findings in this space. To that end, I came across this lengthy floor statement from 2009 in which Senator Sessions expressed these concerns about a proposed federal hate crime provision:
For years legal commentators and jurists have expressed concern at the tendency of Congress, for the political cause of the moment, to persist in adding more and more offenses to the U.S. Criminal Code that were never Federal U.S. crimes before. This is being done at the same time that crime rates over the past decade or so have dropped and State and local police forces have dramatically improved their skills and technology. There are really fine police forces all over the country today. An extraordinary number of police officers have college degrees and many advanced degrees.
I think two questions should be asked initially. First, is this a crime that uniquely affects a Federal interest, and can it be addressed by an effective and enforceable statute? Second, have local police and sheriffs' offices failed to protect and prosecute this vital interest?
Most people do not understand that a majority of crimes -- theft, rape, robbery, and assault -- are not Federal crimes and are not subject to investigation by the FBI or any other Federal agency. They could not do so if they wanted to because they have no jurisdiction. They can only investigate Federal crimes. It has been this way since the founding of our country, and it fixes responsibility for law enforcement on local authorities where it should be.
Americans have always feared a massive Federal Government police force. It is something that we have not ever favored. This is not paranoia but a wise approach, and I do not think it should be changed....
[Attorney General Holder has been] suggesting that, in a select group of cases that are on the front burner today, the Attorney General needs this legislation -- S. 909, which has now been attached to the Defense bill -- as a backstop for State and local law enforcement to ensure that justice is done in every case.
Well, there are many prosecutorial and jury decisions that are made in State courts every day with which one could disagree. The question is whether the Federal Government will be empowered to ensure justice is done in every case.
I just want to share the reality of the world with my friends here, that anyone, I guess, can conclude that a case didn't end justly for them. One distinguished jurist is famously quoted as saying, "To speak of justice is the equivalent of pounding the table. It just adds an element of emotion to the discussion." But whatever we mean by that word, it basically means the Attorney General gets to decide whatever he wants to do. I am not sure this is good legislation. I think legislation ought to be crisp and clear and set forth criteria by which a prosecution occurs or does not occur, leaving not so much broad discretion among the prosecutorial authorities....
I would note, it is an inevitable delight of prosecutors to have more and more power and more and more ability to prosecute criminals. That is what they do. They are wonderful people. I never enjoyed anything more than being a prosecutor, wearing a white hat every day to work and trying to vindicate decent people from criminal acts. But that is just a tendency of the prosecutorial mindset that we ought not to forget....
I want my colleagues to know it is time for us in Congress to step back and question carefully any proposal to create new or further expand federal criminal jurisdiction that would encroach upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction.
Florida Supreme Court brings back to life some older death sentences
As reported in this local article, headlined "Florida Supreme Court: Death penalty cases finalized before 2002 will stand," it now appears that there is a little bit of life left in some old Florida death sentences. Here are the basics:
Some of the nearly 400 prisoners waiting on Florida's death row will not be allowed a re-sentencing under new death penalty laws, the state Supreme Court ruled Thursday.
The 6-1 ruling in a death sentence appeal by Mark James Asay says that death row inmates are not entitled to a re-sentencing unless their case was finalized after the 2002 ruling in Ring vs. Arizona, which required juries to find aggravating factors to impose the death penalty.
The court also lifted a stay on Asay's execution, previously scheduled for March of this year. It appears executions could commence soon.
Florida's death penalty has been under siege for the past year. In January, the U.S. Supreme Court ruled the state's death penalty scheme unconstitutional in Hurst vs. Florida, prompting the Legislature to re-write sentencing laws. Then, in October, the Florida Supreme Court found that the Hurst ruling required a unanimous vote by the jury to sentence someone to death, rather than a majority or supermajority required under old and existing laws. It was not clear until Thursday's ruling whether these changes entitled people already on death row to a re-sentencing hearing.
The lengthy Florida Supreme Court in Asay v. Florida is available at this link. Here is the key concluding paragraph from the majority opinion:
After weighing all three of the above factors, we conclude that Hurst should not be applied retroactively to Asay’s case, in which the death sentence became final before the issuance of Ring. We limit our holding to this context because the balance of factors may change significantly for cases decided after the United States Supreme Court decided Ring. When considering the three factors of the Stovall/Linkletter test together, we conclude that they weigh against applying Hurst retroactively to all death case litigation in Florida. Accordingly, we deny Asay relief.
There can be little doubt that this ruling will be appealed to the US Supreme Court, though there can and should be much doubt about whether SCOTUS will take up the issue.
UPDATE: A helpful tweeter made sure I did not miss this additional ruling from the Florida Supreme Court that reaches this companion conclusion for cases in which a death sentence was imposed after 2002:
After weighing all of the considerations essential to a faithful Witt analysis, we conclude that Hurst should be applied retroactively to Mosley. The purpose of the holdings in Hurst v. Florida and Hurst is to prevent a violation of the fundamental and critically important right to a trial by jury. See Hurst, 202 So. 3d at 50-51, 55.
Split Ohio Supreme Court concludes Graham violated by term-of-years juve sentence that exceeds life expectancy
The holiday season is often a time that brings some interesting sentencing ruling, and this year the jurisprudential present under my tree comes from my own Ohio Supreme Court in Ohio v. Moore, No. 2016-Ohio-8288 (Ohio S. Ct. Dec. 22, 2016) (available here). Here is how the lengthy majority opinion in Moore gets started and concludes:
We decide in this case whether the United States Supreme Court’s holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibiting the imposition of sentences of life imprisonment without parole on juvenile nonhomicide offenders also prohibits the imposition of a term-of-years prison sentence that exceeds the offender’s life expectancy on a juvenile nonhomicide offender. We hold that pursuant to Graham, a term-of-years prison sentence that exceeds a defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.
We hold in this case that Graham’s categorical prohibition of sentences of life imprisonment without the possibility of parole for juveniles who commit nonhomicide crimes applies to juvenile nonhomicide offenders who are sentenced to term-of-years sentences that exceed their life expectancies. The court of appeals abused its discretion in failing to grant Moore’s application for reconsideration. The 112-year sentence the trial court imposed on Moore violates the Eighth Amendment’s prohibition against cruel and unusual punishments. We reverse the judgment of the court of appeals and vacate Moore’s sentence, and we remand the cause to the trial court for resentencing in conformity with Graham.
Interestingly, Chief Justice Maureen O'Connor appears to have been the key swing vote here on a court that split 4-3, and her lengthy concurring opinion concludes this way:
Graham is one of the most momentous decisions in American juvenile law. Given its significance, the stated intention of the sentencing judge in this case, the de facto life sentence he imposed, and the curtness with which the court of appeals denied Moore’s application to reconsider his sentence in light of Graham, I conclude that the appellate court abused its discretion in refusing to consider Moore’s claim. The court was not bound to accept his arguments, but it was bound to consider them more thoughtfully after allowing the application for delayed reconsideration.
I concur fully in the majority opinion, which addresses the significant constitutional question that is properly before us and which holds that the court of appeals abused its discretion in failing to recognize that extraordinary circumstances were presented by Moore’s application, i.e., the unconstitutional imposition of a lengthy term-of-years sentence on a juvenile offender.
Wednesday, December 21, 2016
"The Obama Legacy: Chipping Away at Mass Incarceration" ... but ...
The quoted portion of the title of this post is the headline of this notable new commentary authored by Marc Mauer. Perhaps appropriately given the "Obama Legacy" label, the piece is focused mostly on the federal sentencing system. And, in my view inappropriately, the piece gives Prez Obama a little too much credit for some of what I consider to be his "day late and dollar short" work in this arena. With that set up, here are excerpts (with two lines emphasized that really rankles me, as I will explain after the excerpt):
As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.
In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.
There are two key reasons for the population explosion — both rooted in the war on drugs. First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies — frequently applied to drug offenses — that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years — or even life — largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences. The racial disparities from these sentencing policies were particularly extreme.
The most egregious of these policies were tied to crack cocaine offenses. Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison. That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty. Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.
Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office. The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases. Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.
While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences. That is a story of both politics and policy. During Obama’s first term he used his clemency power far less than his predecessors — a pattern that was sharply criticized by many reform groups and editorial boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office). Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies....
Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”
Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety — it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.
It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform. Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform. But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge. Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.
1. The first line emphasized above makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide "coverage for mainstream legislators to support sound policy options." This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER "mainstream" politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).
2. The second line emphasized above makes me crazy for more "inside baseball" reasons: given that this commentary makes much of the "egregious" crack/powder cocaine sentencing policies that were only partially fixed by the FSA, the commentary ought to take a moment to note that Prez-Elect Trump has nominated as Attorney General the most prominent and vocal GOP Senator who was complaining loudly about the 100-1 crack/powder laws before doing so was popular or comment. As noted in this post and recently reported by the Wall Street Journal, " Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime."
I really respect so much of the work Marc Mauer does in his commentary and through The Sentencing Project, but these troublesome statements reflect what I am seeing as the worst tendencies of the "commentariat class" since the election. Specifically, even though Prez Obama's record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town. This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.
December 21, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17)
DPIC releases year-end report highlighting "historic declines" in use of the death penalty in 2016
This press release from the Death Penalty Information Center, titled "Death Sentences, Executions Drop to Historic Lows in 2016," provides a summary of the DPIC's 2016 year-end report on the administration of the death penalty in the United States. Here is the text of the press release:
Death sentences, executions, and public support for capital punishment all continued historic declines in 2016. American juries imposed the fewest death sentences in the modern era of U.S. capital punishment, since the Supreme Court declared existing death penalty statutes unconstitutional in 1972. The expected 30 new death sentences in 2016 represent a 39 percent decline from last year’s already 40-year low of 49. The 20 executions this year marked the lowest number in a quarter century, according to a report released today by the Death Penalty Information Center (DPIC). National public opinion polls also showed support for capital punishment at a 40-year low.
“America is in the midst of a major climate change concerning capital punishment. While there may be fits and starts and occasional steps backward, the long-term trend remains clear,” said Robert Dunham, DPIC’s Executive Director and the author of the report. “Whether it’s concerns about innocence, costs, and discrimination, availability of life without parole as a safe alternative, or the questionable way in which states are attempting to carry out executions, the public grows increasingly uncomfortable with the death penalty each year.”
For the first time in more than 40 years, no state imposed ten or more death sentences. Only five states imposed more than one death sentence. California imposed the most (9) followed by Ohio (4), Texas (4), Alabama (3) and Florida (2). Death sentences continued to be clustered in two percent of counties nationwide, with Los Angeles County imposing four death sentences, the most of any county. But death sentences were down 39 percent, even in those two-percent counties.
This year’s 20 executions marked a decline of more than 25 percent since last year, when there were 28 executions. Only five states conducted executions this year, the fewest number of states to do so since 1983. Two states -- Georgia, which had the most executions (9), and Texas, which had the second highest number (7) -- accounted for 80 percent of all executions in the U.S. Although Georgia carried out more executions than at any other time since the 1950s, juries in that state have not imposed any new death sentences in the past two years.
State and federal courts continued to strike down outlier practices that increased the likelihood a death sentence would be imposed. The United States Supreme Court struck down practices in Florida, Arizona, and Oklahoma that had disproportionately contributed to the number of death sentences imposed in those states. And state courts in Florida and Delaware ruled that portions of their statutes that permitted the death penalty based upon a non-unanimous jury vote on sentencing were unconstitutional.
America’s deep divisions about capital punishment were reflected in voters’ action at the ballot box this year. Voters in California and Nebraska voted to retain the death penalty and Oklahoma voters approved a constitutional amendment regarding capital punishment. At the same time, prosecutors in four of the 16 counties that impose the most death sentences in the U.S. were defeated by candidates who expressed personal opposition to the death penalty or pledged to reform their county’s death penalty practices. In Kansas, pro-death penalty groups spent more than $1 million to defeat four state supreme court justices who had voted to overturn several death sentences, but voters retained all four justices.
DPIC’s review of the 20 people executed in 2016 indicated that at least 60 percent of them showed significant evidence of mental illness, brain impairment, and/or low intellectual functioning. This suggests that, in spite of the constitutional requirement that the death penalty be reserved for the “worst of the worst” offenders, states continued to execute prisoners whose mental illness or intellectual disabilities are similar to impairments the Court has said should make a person ineligible for the death penalty.
I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because, as I have said before, I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.
Detailing how global financier George Soros has been funding efforts to take out local prosecutors
I often think about the slogan "Think globally, act locally," and that phrase jumped to mind when I saw this fascinating Daily Signal article headlined "The ‘Staggering’ Campaign of Liberal Billionaire George Soros to Swing Local Prosecutor Elections." Soros is a "global player" in many respects, and yet this lengthy article highlights his latest local efforts. Here are excerpts:
Soros, 86, an American hedge fund manager and philanthropist, is No. 22 on the Forbes list of the world’s billionaires, with a net worth estimated at $20 billion. He finances a variety of liberal political causes, including ones related to education, immigration, climate change, and the environment. Soros’ philanthropic network, the Open Society Foundations, has spent more than $13 billion over the past three decades on initiatives to defend human rights abroad and shape the democratic process in Eastern Europe.
Soros gave an unprecedented $27 million to various 527 groups trying to defeat President George W. Bush in his 2004 re-election campaign, describing the effort as a “matter of life and death.” Soros also helped launch the Democracy Alliance, a group of major liberal donors seeking to advance progressive policymaking by investing in organizations such as Center for American Progress, Media Matters for America, and Organizing for Action, which was set up to advance the agenda of President Barack Obama.
Soros has not personally spoken with or met any of the candidates he supported in district attorney races this year and last, his advisers say. In most of the dozen prosecutor races he helped finance, Soros did not coordinate at all with the candidate he supported, they said. Instead, he operated independently by giving money to various state-level political action committees (PACs) and a national “527” unlimited-money group, each identified by a variation on “Safety and Justice.”
The form of his contributions depended on local and state campaign finance laws, Soros’ advisers say, and in some cases, as in Harris County, the collaboration was more direct.
Soros’ efforts are part of a new, broader push by progressives to locate, prepare, and fund challengers to unseat incumbent prosecutors. Such upsets are notoriously difficult to achieve in local district attorney races, where name recognition and outside interest are usually low and voters give deference to the candidate with a record. “Criminal justice reform efforts must take many forms,” Whitney Tymas, an adviser on Soros’ project challenging sitting prosecutors, said in a statement to The Daily Signal. Tymas added:
Changing laws and redirecting funding streams is critical. Because of the enormous discretion vested in those who enforce the laws, including prosecutors, it is also important to elect officials who are committed to public safety and equal justice. These officials are a key leverage point in a complicated system.
David Alan Sklansky, a Stanford University professor and former federal prosecutor, told The Daily Signal that only a “handful” of races for the 2,500 district attorneys’ offices nationwide included candidates with “reform-oriented” agendas, and of those that did, most did not involve contributions from Soros. “In a number of high-visibility district attorney races around the country, incumbents this year were unseated by challengers who promised a more moderate approach to criminal justice, backing away from a simple ‘tough on crime’ agenda and paying more attention to fairness, proportionality, and equity,” Sklansky said. “Many of these successful candidates also pledged to improve the investigation of police shootings, to rein in prosecutorial misconduct, and to be more vigilant in avoiding and correcting wrongful convictions.”
Still, Soros’ role in local prosecutor races is significant. It touches counties big and small, urban and rural; northern, southern, western, eastern, and midwestern. In total, Soros spent nearly $11 million on 12 district attorney races this election cycle, campaign filings show. A Democrat candidate supported by Soros ultimately won in 10 of the 12 races.
The trend of outside funding worries opponents of Soros’ tactics, including veteran district attorneys who say the outsize contributions threaten prosecutorial independence, which is especially important in a role as powerful and all-encompassing as theirs. “The amount of money we are talking about is staggering,” said Joshua Marquis, the district attorney of Clatsop County, Oregon, since 1994 and a board member of the National District Attorneys Association. “And it’s amplified because it’s extremely difficult to raise money as a prosecutor,” Marquis told The Daily Signal...
Soros so far has backed only Democrats in district attorney races, but his advisers insist his support for candidates isn’t based on political party and say Soros would consider making a large contribution to a “reform-minded” Republican prosecutor....
Prosecutors drive critical decisions in the criminal justice system, choosing when, whether, and against whom to bring criminal charges, as well as making recommendations for sentencing and setting the terms of plea negotiations. These decisions are receiving more scrutiny at a time where there is a growing bipartisan consensus around the need to reduce incarceration, provide more alternative punishments, and expand rehabilitation opportunities for low-level drug offenders.
As part of this effort, Soros, along with progressive groups advocating racial justice and gender equality, is trying to elect more minority prosecutors in response to what he sees as an insufficient response by incumbent district attorneys to the fatal shootings of black men by police officers. Several candidates who Soros backed are members of minority groups.
The Reflective Democracy Campaign, an arm of the progressive Women Donors Network, found in a 2015 study that 95 percent of elected local prosecutors were white. “Of course, what was happening with Black Lives Matter and police shootings was a huge wake-up call [for progressives, who began] realizing how much power these offices have and the need for us to be focused on getting great people elected,” Andrea Dew Steele, president of Emerge America, a candidate-training organization for Democratic women, said in an interview with The Daily Signal. “District attorney races have historically just been completely ignored, like most down-ballot races, in the progressive and Democratic community,” Steele said. “I am just thrilled to see that if you give a little bit of love to these races, a small investment yields a huge outcome.”
In Chicago’s Cook County, Soros funded one of several groups that helped Kim Foxx, who is black, defeat the incumbent state’s attorney, Anita Alvarez, in the Democratic primary. Foxx then easily beat her Republican general election opponent. Alvarez drew widespread criticism for her handling of the 2014 fatal police shooting of Laquan McDonald, a black 17-year-old. She took 13 months before charging the Chicago police officer who shot and killed McDonald, a delay that sparked protests.
“Soros’ funding was a big factor in my loss, obviously,” Alvarez, the first female and first Hispanic candidate to be elected as Cook County’s top prosecutor, said in an interview with The Daily Signal. “Some people want to say I lost my election simply because of the McDonald video, but I felt this movement prior to my charging that officer. When you have these outside influences, it’s scary because they don’t know the climate—that Chicago has a serious violent crime problem, a serious gun problem.”...
Soros and allied progressive groups say they will continue grooming and supporting prosecutor candidates who share their goals. Steele, of Emerge America, says she already is looking ahead to the 2018 elections, with plans to recruit and train at least 25 Democratic women to run in district attorney races.
Women, she says, are uniquely sensitive to the consequences of incarceration and, as prosecutors, are likely to use their powers more carefully. “I am hopeful that Emerge will have women running for district attorney in 2018 and make it onto Soros’ radar screen,” Steele said. “The George Soroses of the world can’t get the outcomes they desire unless you have great candidates. So what we are doing is a critical piece.”
She does not apologize for the aggressive outreach, arguing that because a state’s top prosecutors are elected, the process to become one is inherently political. “All of these races are political,” Steele said
Marquis, of the National District Attorneys Association, says he doesn’t doubt the sincerity of Soros and of progressive groups. He emphasizes that many members of the association, which represents state-level district attorneys across the U.S., support reform. Indeed, the National District Attorneys Association made headlines earlier this year when it endorsed compromise legislation in Congress meant to reduce mandatory minimum sentences for low-level drug offenders in the federal prison system.
Yet Marquis said he worries that despite these efforts, some incumbent members of the association could lose their jobs to better-funded challengers. “This is the source of great conversation among district attorneys,” Marquis said. “A lot of us are sitting around saying, ‘What if it’s me next? What if I am targeted?’”
Tuesday, December 20, 2016
"Free the Vote: Unlocking Democracy in the Cells and on the Streets"
The title of this post is the title of this new short publication from the NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project. This webpage review the publication's contents and mission:
The NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project have issued Free the Vote: Unlocking Democracy in the Cells and on the Streets, reporting on the racially discriminatory and ever-growing problem of felony disenfranchisement. The denial or abridgement of the right to vote for 6.1 million people with felony criminal convictions is a stain on our democracy.
The millions of Americans who are currently prevented from voting due to felony convictions are more than twice the difference of the popular vote in the contentious 2016 presidential election. Particularly striking is that one in 13 Black Americans of voting age is disenfranchised because of a felony conviction—a rate four times greater than non-Black Americans.
The issue is compounded by the fact that often, for redistricting purposes, incarcerated people are counted as residents of largely white rural areas where prisons are predominately located (i.e., prison-based gerrymandering). Thus, Black urban communities, from which the incarcerated population disproportionately comes, lose the critical voices of persons with felony convictions, who not only are denied a fundamental stake in the democratic process, but also who could provide insight into issues of criminal justice reform, employment, and educational opportunities.
“Felony disenfranchisement laws are shamefully nothing new,” said Leah Aden, Senior Counsel at LDF. “In the era following slavery disenfranchisement laws were tailored to limit the political power of newly-freed Black people. These racially discriminatory laws gained steam in recent decades as the failed ‘war on drugs’ and “tough on crime” policies incarcerated millions of Black and Latino Americans, continuing to weaken the voting power of communities of color.”
“Disenfranchisement policies are fundamentally at odds both with democracy and with the need to support individuals in their reentry from prison,” says Marc Mauer, Executive Director of The Sentencing Project. “By extending the right to vote to people in prison and with criminal records, we can both build a more inclusive democracy and make our communities safer.”
Among its findings, Free the Vote highlights:
◾ The impact of felony disenfranchisement laws on Black voting strength at the state level. In Florida, for example, more people with felony convictions are disenfranchised than in any other state, with Black disenfranchisement rates exceeding a fifth (21%) of the adult Black voting age population. Similar data comes out of other states such as Kentucky, Tennessee, and Virginia.
◾ Prison-based gerrymandering exacerbates the negative effects of felony disenfranchisement. In the city of Anamosa, Iowa, a councilman from a prison community was elected to office from a ward which, per the Census, had almost 1,400 residents—about the same as the other three wards in town. But 1,300 of these “residents” were prisoners in the Anamosa State Penitentiary. Once those prisoners were subtracted, the ward had fewer than 60 actual residents.
◾ Only Maine and Vermont do not restrict voting based on a felony conviction. Both states allow individuals to vote from prison via absentee ballot. Recently, there have been successful efforts to reform felony disenfranchisement policies in Maryland, Virginia, and California.
◾ Following the historic and substantial participation of people of color in the 2008 and 2012 elections, felony disenfranchisement laws that curb voting power remain a barrier to expanding America’s voting population. These laws discourage future generations from exercising the learned behavior of voting and receiving the benefits of having their voices reflected in the political process.
LDF and The Sentencing Project aim to not only ameliorate felony disfranchisement laws, but also to eradicate them. Together, we can free the vote for people who have been made vulnerable by harmful and discriminatory laws and in turn, strengthen our collective democracy.
"Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway"
The title of this post is the title of this new book by my FSR colleague and LawProf Michael O’Hear. For sentencing fans, this new book would surely make a great stocking stuffer, as this text from the publisher's website suggests:
The dramatic increase in U.S. prison populations since the 1970s is often blamed on the mandatory sentencing required by “three strikes” laws and other punitive crime bills. Michael M. O’Hear shows that the blame is actually not so easy to assign. His meticulous analysis of incarceration in Wisconsin — a state where judges have considerable discretion in sentencing — shows that the prison population has ballooned anyway, increasing nearly tenfold over forty years.
O’Hear tracks the effects of sentencing laws and politics in Wisconsin from the eve of the imprisonment boom in 1970 up to the 2010s. Drawing on archival research, original public-opinion polling, and interviews with dozens of key policymakers, he reveals important dimensions that have been missed by others. He draws out lessons from the Wisconsin experience for the U.S. as a whole, where mass incarceration has cost taxpayers billions of dollars and caused untold misery to millions of inmates and their families.
“Serious students of modern sentencing reforms — as well as everyone eager to understand the roots of, and potential responses to, modern mass incarceration — must have this book on their reading list. O’Hear thoroughly canvasses the dynamic story of Wisconsin’s uniquely important sentencing reform history.”
—Douglas Berman, author of the Sentencing Law and Policy Blog
“Fascinating political and social history. O’Hear puts national criminal justice trends into a single-state frame, providing much sharper insights than often come from trying to look at the entirety of this very big country. This is first-rate work.”
—Frank O. Bowman III, University of Missouri School of Law
Monday, December 19, 2016
"The Structure of Federal Public Defense: A Call for Independence"
The title of this post is the title of this notable new article now available via SSRN authored by David Patton. Here is the abstract:
Independence is a foundational requirement for any good system of public criminal defense. The Constitution guarantees anyone charged with a crime the right to a defense attorney regardless of ability to pay, and that attorney has the ethical obligation to provide a zealous defense, free from any conflicting outside influence. And yet the system of federal public defense is funded, managed, and supervised by the very judges in front of whom defenders must vigorously defend their clients. The arrangement creates serious constitutional, ethical, and policy problems. This Article proposes a solution: an independent federal defense agency. The agency proposed, the Center for Federal Public Defense (CFPD), would administer federal defenders’ offices, manage the system of appointed private attorneys, and seek funding from Congress for indigent defense services.
The Article places the discussion of the proposed organization in the context of other independent agencies that do not fit neatly into a single branch of government, sometimes described as “boundary organizations.” In many ways, federal public defense is ideally suited for placement outside of the formal branches of government. Many congressionally created independent organizations are structurally problematic because of separation-of-powers concerns that arise from the agencies’ enforcement or rulemaking authority. Federal public defense attorneys, however, neither make rules nor enforce them. And because of the nature of their work, they legitimately require insulation from direct government control — including from the Judiciary. In a criminal justice system that relies on its adversarial nature to function properly, it would be inconceivable to have judges decide who is hired in a prosecutor’s office, how much they should be paid, or how and whether prosecutors should investigate individual cases. It would be equally problematic to have the Judiciary act as the voice of the Department of Justice in Congress when explaining resource needs and seeking appropriations. And yet the Judiciary currently does all of those things with respect to the defense function. It should not, and the fix is straightforward: the creation of an independent defender organization.
Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner
This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:
A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.
The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.
“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously. Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.
The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:
The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline. First, the sentence was within the parameters set by law and was therefore within the judge’s discretion. Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant. Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias. The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both. Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification.
Some (of many) prior related posts on the Brock Turner case:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
Prez Obama grants another large bunch of commutations as well as a big batch of pardons
Big pre-holiday news on the federal clemency front is reported in this new White House blog posting: "President Obama Grants 153 Commutations and 78 Pardons to Individuals Deserving of a Second Chance." Here are the details as reported by White House Counsel Neil Eggleston:
Today, President Obama granted clemency to 231 deserving individuals — the most individual acts of clemency granted in a single day by any president in this nation’s history. With today’s 153 commutations, the President has now commuted the sentences of 1,176 individuals, including 395 life sentences. The President also granted pardons to 78 individuals, bringing his total number of pardons to 148. Today’s acts of clemency — and the mercy the President has shown his 1,324 clemency recipients — exemplify his belief that America is a nation of second chances.
The 231 individuals granted clemency today have all demonstrated that they are ready to make use — or have already made use — of a second chance. While each clemency recipient’s story is unique, the common thread of rehabilitation underlies all of them. For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way. For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved — by both individuals and society — in a nation of second chances.
Today’s grants signify the President’s continued commitment to exercising his clemency authority through the remainder of his time in office. In 2016 alone, the President has granted clemency to more than 1,000 deserving individuals. The President continues to review clemency applications on an individualized basis to determine whether a particular applicant has demonstrated a readiness to make use of his or her second chance, and I expect that the President will issue more grants of both commutations and pardons before he leaves office. The mercy that the President has shown his 1,324 clemency recipients is remarkable, but we must remember that clemency is a tool of last resort and that only Congress can achieve the broader reforms needed to ensure over the long run that our criminal justice system operates more fairly and effectively in the service of public safety.
This news is sure to bring holiday cheer to all those advocating for Prez Obama to go big on this front before he heads home. These grants now have me thinking Obama may end his time in office with more than 2000 clemency grants.
Some recent (post-Election Day) posts on Prez Obama and clemency:
- How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
- "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
- Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
- Terrific content and context for Prez Obama's clemency work at Pardon Power
- Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
- At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
- Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
- Anyone eager to predict how many last-month clemencies Prez Obama will grant?
Philippine Prez Duterte talking up conducting thousands of executions yearly if death penalty restored
In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels. This article from ABS-CBN News, headlined "Duterte threatens up to 6 executions daily if death penalty is restored," highlights the latest dimension of this story:
President Rodrigo Duterte has issued a grim warning, saying he will carry out daily executions of criminals once the death penalty is restored.
"Ibalik mo sa akin 'yan...araw-arawin ko yan. Lima, anim," he said during Senator Manny Pacquiao's 38th birthday celebration in General Santos on Saturday. (Give it back to me, and I will perform daily executions. Five, six.) "You destroy my country, I destroy you," he added.
The president believes capital punishment failed to deter crime in the past only because only few executions were carried out.
Death penalty in the country was abolished under the 1987 Constitution -- the first Asian country to do so -- but was reinstated under President Fidel V. Ramos in 1993 in response to increasing crime rates. It was again abolished under President Gloria Macapagal-Arroyo in 2006, reducing the harshest penalties to life imprisonment and reclusion perpetua.
Even before being elected in the 2016 polls, Duterte has been pushing for the revival of death penalty, saying it would serve as retribution for those who committed heinous crimes.
In a meeting after it was clear he won the elections, Duterte told some lawmakers he favors hanging over lethal injection as means of execution.
A bill seeking to reinstate the death penalty has recently been approved at the sub-committee level in the House of Representatives, and a principal author is optimistic on an "overwhelming" support from his colleagues. Pacquiao, who had filed Senate Bill 185 proposing that death penalty be reimposed and the penalties be increased for heinous crimes involving dangerous drugs in October, is positive that fellow senators would back the bill.
Prior related posts:
- President-elect in Philippines eager to bring back death penalty "especially if you use drugs"
- New Philippines Prez wasting no time executing deadly "tough on crime" plans
- Remarkable and disconcerning stories emerging from just a few months into Philippine Prez Duterte's aggressive new "war on drugs"
Sunday, December 18, 2016
Anyone eager to predict how many last-month clemencies Prez Obama will grant?
The question in the title of this post is prompted by this lengthy new Wall Street Journal article headlined "Barack Obama Weighs Final Requests for Clemency: President has cut short the sentences of 1,023 inmates, more than the previous 11 presidents combined." Here are excerpts:
Barack Obama, who has granted clemency more often than any president since Lyndon B. Johnson, is expected to perform more acts of mercy during his final weeks in office....
Mr. Obama’s critics, including the incoming attorney general, say his use of clemency for a large class of convicts has been a disturbing power grab. But supporters say a law that reduced drug penalties six years ago created severe injustices for those sentenced before it. They also note that Mr. Obama has granted clemency for a relatively small percentage of the large number of people who have sought it.
These trends are a centerpiece of Mr. Obama’s legacy on criminal justice reform. Legislation that would have further reduced sentences for less-serious drug offenders foundered in this fall’s highly charged political climate. But as with other parts of the president’s agenda that were snubbed by Congress—including immigration, gun control and climate policies — Mr. Obama has turned to his executive authority in the absence of more sweeping and durable legislative action. “He’s essentially rejuvenated clemency as a presidential power,” said White House Counsel Neil Eggleston. “But he has never seen it as a replacement for criminal justice reform.”...
Mr. Trump’s pick for attorney general, Alabama Sen. Jeff Sessions, a former chairman of the Senate Judiciary Committee, has described Mr. Obama’s clemency record as an “alarming abuse of the pardon power.” The former prosecutor views the rollback of tough drug sentences as a threat to public safety. Mr. Obama, a former constitutional law professor, sees long, mandatory sentences as damaging excesses from the war on drugs, particularly in the African-American community.
In 2016, Mr. Obama has cut short the sentences of 839 inmates, the most commutations ever granted in a single year, according to the Justice Department, with more possibly on the way. That brings his total to 1,023, or more than the previous 11 presidents combined. Adding Mr. Obama’s 70 pardons, which go further than commutations by wiping out convictions and restoring civil liberties, puts his clemency record just behind Mr. Johnson’s 1,187 grants.
Civil-rights advocates are demanding a more sweeping review that would dent the prison population much faster than the current case-by-case analysis. “We do not know whether the next president will support clemency efforts or criminal justice reform,’ says a late November appeal to President Obama from dozens of groups, including the NAACP Legal Defense and Educational Fund, the Sentencing Project, JustLeadershipUSA and the Brennan Center for Justice. “But we do know that until Jan. 20, you alone have the power to deliver both mercy and justice to those who deserve it.”...
Mr. Obama has received more requests for clemency than any other president, in part because of efforts to encourage inmates to petition for one if they were sentenced before a 2010 law that reduced the disparity between sentences for crack and cocaine offenses. Mr. Sessions spearheaded that legislation, which lightened penalties for crack users, but he opposes applying it to inmates retroactively. So does the nation’s largest police union, the Fraternal Order of Police, which endorsed Mr. Trump.
But in one indicator that Mr. Obama is more cautious than some critics suggest, he has granted 3% of nearly 35,000 requests; only George W. Bush granted a smaller percentage, according to an analysis by the Pew Research Center. Obama also has offered fewer pardons than any president in the past century, though more are expected before he leaves office.
I am tempted to predict that Prez Obama will grant at least a few hundred more prison commutations and also a few hundred pardons before leaving the Oval Office on January 20, 2017. This is a nothing but a blind guess and I have absolutely no insider knowledge here. What I do have is a deep disappointment that Prez Obama did not make any apparent effort to change the structure of the modern federal clemency process, which so many commentators (myself included) have rightly criticized as dysfunctional.
Some recent (post-Election Day) posts on Prez Obama and clemency:
- How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
- "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
- Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
- Terrific content and context for Prez Obama's clemency work at Pardon Power
- Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
- At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
- Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
UPDATE: In the comments to this post and also in an email to me, sentencing and clemency guru Mark Osler expressed justified frustration over the fact that the WSJ article and its chart fail to give respect to the large number of clemencies that Prez Gerald Ford granted in response to offenses related to evasion of the draft during the Vietnam war. (This Fusion article from May provides an effective review of this oft-forgotten clemency story and its continued relevance in a drug war era.) Mark sent me this update comment of criticism, along with the additional chart here produced by Pardon Power papa P.S. Ruckman.
Complains Prof Osler: "No, Obama has NOT 'granted clemency more often than any president since Lyndon B. Johnson.' And the chart the WSJ used (and you reprinted) is wrong. Neither include the Ford clemency grants. That matters, too --- the streamlined Ford process outside of DOJ, which was successful, was the one Obama rejected in favor of the bureaucracy-laden CP14."
So many states with so many interesting marijuana reform stories ... only partially covered at Marijuana Law, Policy and Reform
Especially since the election, I have found the stories and debates surrounding capital and non-capital sentencing reforms to be filled with even more intrigue and uncertainty than usual. And yet, even as sentencing law and policy gets even more dynamic, I continue to find legal and policy and practice developments in the marijuana reform space to be on a whole different level. Part of this reality comes from the fact that marijuana reform right now is such a diverse state-by-state story nationwide, with big new developments occurring literally from corner to corner of the United States. For example, in this new round-up of notable headlines at my Marijuana Law, Policy and Reform blog, there is news of note from Alaska and California and Florida and Maine (as well as from fly-over states like Ohio and Montana).
Of course, all criminal justice reform stories are ultimately state-by-state stories in the United States. Still, the fact that we see so much state-level reform an innovation in the teeth of continued federal blanket prohibition seems to me an important reminder of how decentralized power in this great country can be if folks take the time to try to avoid undue obsession with the laws and policy that emerge only from inside the Beltway. And here are a few more more recent posts from MLP&R further reinforcing this essential story:
"Duties of Capital Trial Counsel Under the California 'Death Penalty Reform and Savings Act of 2016'"
The title of this post is the title of this timely and interesting new article authored by Robert Sanger now available via SSRN. Here is the abstract:
Every trial lawyer who is handling a capital case in California or who has handled a capital case for which the decision of the California Supreme Court is not final on a pending habeas corpus petition, needs to be aware of certain specific duties and strategies required by The Death Penalty Reform and Savings Act of 2016, Proposition 66, enacted by the voters on November 8, 2016. The Act imposes new duties on capital trial counsel following a judgment of death, will require more prompt discharge of other duties and may even present an opportunity. While the article focuses on trial counsel, post-conviction counsel will need to be familiar with much of this same information to both effectively work with trial counsel, to seamlessly raise issues and, eventually, to evaluate trial counsel’s conduct.
Trial counsel’s new duties include the duty to proactively assert herself as counsel of record after judgment by objecting and engaging in strategies in the trial court in response to the Act. Trial counsel will have to advise her client during a difficult period and, when habeas counsel is appointed, work closely with that counsel to investigate and file a petition for a writ of habeas corpus. The duty to object, the duty to engage in strategies to protect the client and the duty to counsel the client must be commenced in the trial court by trial counsel as soon as there is a judgment of death. These duties will also extend to cases which may be transferred to the Superior Court by the California Supreme Court. In addition, immediately upon appointment of habeas counsel and throughout the entire course of the habeas proceedings, counsel will have a more urgent duty than she did pre-Act to be available and responsive to assist habeas counsel.
Objections must be made to the Act on statutory grounds as well as both California and United States Constitutional grounds. Some of the objections will be systemic and others will be case specific. There are reasons for the trial court, or, eventually, the higher courts, to find the Act inoperable, unconstitutional or otherwise to stay or delay the process. The Act is inoperable because it is not self-executing and because it is unfunded. The Act is unconstitutional because it violates the right to habeas corpus, interferes with the jurisdiction of the courts generally and specifically regarding capital cases, violates the separation of powers and the single subject rule and, if applied retroactively, violates the ex post facto clause. The Act also contributes to the overall unconstitutionality of the flawed capital punishment system in California.
Under the Act, trial counsel must also take specific action regarding the “offer” of counsel by the trial judge and the “orders” made pursuant to the “offer.” Strategically, delay in implementation of the “offer” and the orders pursuant thereto may be required to assure appointment of qualified counsel, to avoid the premature commencement of the habeas filing limitation and to allow trial counsel to prepare the files, materials and record necessary for habeas counsel to commence work. Trial counsel will have a duty to advise the client regarding the client’s rights following the “offer” which will be critical in light of the trial judge’s apparent power to make a finding that the client has waived habeas counsel, potentially forever.
Finally, trial counsel will have to make critical decisions and will have an important role regarding any potential claims of actual innocence or ineligibility of the client for execution. For instance, trial counsel must decide with the client and habeas counsel what information will or will not be disclosed and what litigation strategy will be employed to resist waiver of privileges that purport to be compelled under the Act. Finally, if there are grounds for factual innocence or ineligibility for the sentence of death, trial counsel must work with habeas counsel in presenting them early enough to obtain additional time to file the initial petition, if appropriate.
Saturday, December 17, 2016
Is there any way to predict how Trump judges will develop sentencing jurisprudence?
The question in this post is prompted by this new Politico article headlined "Trump set to reshape judiciary after GOP blockade: The Senate left town with 99 judicial vacancies, as well as the current Supreme Court opening." Here are excerpts:
I have truly no idea whether or how or when Trump insiders will focus seriously on filling judgeships in lower federal courts, but the persons who end up filling all these vacancies will certainly have a major impact on sentencing law and policy as developed through constitutional and non-constitutional sentencing jurisprudence. When and how Prez-Elect Trump names a replacement for Justice Scalia in the weeks ahead may provide some window into how the Trump Administration will approach lower federal court appointments, but I have a feeling judicial appointments could be a kind of "work-in-progress" for the entire first term of the Trump Administration.
Mitch McConnell’s refusal to confirm many of President Barack Obama’s judicial nominees has set the table for Donald Trump to dramatically reshape the judiciary over the next four years, as the Republican Senate set a modern record for the fewest confirmations of lifetime judicial appointees.
The Senate GOP confirmed just 20 lifetime judicial appointments to district and appeals courts in its two years in the majority, the lowest number by far in the past 28 years, according to a Congressional Research Service report obtained by POLITICO. That means that President-elect Trump will have major sway over the courts next year, starting with the Supreme Court and going all the way down to the district level.
The Senate left town last week with 99 judicial vacancies covering district and appeals courts, as well as the current Supreme Court opening. There are 52 Obama nominations to those courts pending, with Supreme Court nominee Merrick Garland the most prominent nominee still waiting for action.... Most, if not all of Obama's nominations, will be wiped away next year by Trump and Senate Republicans.
There are also 38 judicial emergencies, according to the federal judiciary. Republicans had mulled confirming some judges if Hillary Clinton had won, GOP sources said before the election, but since Trump prevailed Republicans believed there was little reason to do any judicial confirmations in the lame duck. The Senate last voted on a judge on July 6, when Brian Martinotti was confirmed to a New Jersey district court....
Over eight years, Obama got roughly the same number of judges confirmed as Bush. The Senate confirmed 323 district, circuit and Supreme Court judges for Obama and 322 for Bush, according to CRS. President Bill Clinton enjoyed 370 such confirmations. That’s led McConnell to claim that he treated “President Obama fairly with respect to his judicial nominations."
But Democrats said they had treated Bush far better in his last two years as president. “Our constitutional duty of advise and consent is not about comparing one president to another. It is to ensure our Federal courts have the judges they need,” said Sen. Patrick Leahy (D-Vt.), the outgoing top Democrat on judicial matters, in a statement as Congress left town last week. “Right now, that is not the case when one of every nine judgeships across the country is vacant.”
"Prosecutorial Misconduct: The Best Defense Is a Good Defense"
A helpful reader altered me to this recent on-line law review essay in which LawProf Fredrick Vars responds to a notable law review article by LawProf Michael Perlin. These first two paragraphs from the essay should whet the appetite for those who may be eager to consume both writings:
In “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities, Professor Michael L. Perlin persuasively argues that prosecutorial misconduct leads many people with mental disabilities to be sentenced to death and executed. Toward the end of his article, he compiles over a dozen previously-proposed reforms aimed at improving prosecutorial practice. As explained below, I am not optimistic about the prospects of these reforms, either to be adopted or to be highly effective. I think more could be accomplished by directing resources and training to the other side of the equation — public defenders. A smaller number of counties each year account for the majority of death sentences and executions. We need to better equip front-line public defenders in those counties to identify and counter prosecutorial misconduct, and, more broadly, to provide competent representation in capital cases, particularly those involving mental disabilities.that engages.
Perlin is optimistic that recent death row exonerations will be a turning point in the battle against prosecutorial misconduct in capital cases involving defendants with mental disabilities. He hopes that one particularly egregious case, in which no one questioned the defendants’ guilt, will be a watershed like the Birmingham church bombings, the most notorious of which took place just a few minutes from my home. I share Perlin’s hope but not his optimism. The bombing helped push forward the civil rights movement because everyone could empathize with the four little girls dressed in their Sunday best. Dr. Martin Luther King, Jr. quite credibly described the bombing as “one of the most vicious and tragic crimes ever perpetrated against humanity.” Mentally disabled death row inmates, even the innocent ones, live on the other side of a divide wider even than race in the 1960s. Few of us can identify closely with exonerated inmates. As a result, only the accumulation of exonerations, not one signature event, reveals the flaws in the process and shifts public opinion gradually against the death penalty.
Friday, December 16, 2016
Noticing that other states are now messing with Texas for being capital punishment's capital
This new Vice article, headlined "Texas Is No Longer America's Death Penalty Capital," reports on the unique features of 2016 in the modern history of the death penalty in the United States. Here are highlights:
Texas has long been the heartland of the death penalty in America. Since capital punishment was reinstated by the Supreme Court in 1976, the Lone Star State has executed 538 people — more than the next top six states combined. But 2016 saw a precipitous drop in the number of executions in the state. Thanks in part to new judicial scrutiny of death sentences, just seven Texans were executed this year, the fewest since 1996.
For the first time since 2001, Texas is not the most execution-happy state in the country — that grisly title belongs to Georgia, which executed nine people. This is the first year since 1984 that Texas didn't execute a single black person. And juries sentenced just three new Texas defendants to death for the second year in a row. The data was highlighted in a report released Thursday by the Texas Coalition to Abolish the Death Penalty [available here]....
One way to understand the decline is by looking at the people on death row who weren't executed. The Court of Criminal Appeals — the highest criminal court in the state — granted stays of execution to seven people who were scheduled to die this year, a higher number than normal: From 2012 through 2014, the court only granted three stays, according to the coalition. "The rising number of stays suggests that the Court of Criminal Appeals is registering the concerns about the fairness and accuracy of our state's capital punishment system," Kathryn Kase, executive director of the nonprofit criminal justice legal group Texas Defender Service, told me in an email. "These stays give the court opportunities to remedy the failures of past death penalty practices for which Texas has been roundly criticized."
In several of the cases where inmates received stays, the court leaned on a 2013 state law that gives inmates whose convictions were based on discredited science the opportunity for a new trial. Reformers say the law is among the most progressive in the country at fighting junk science in the courtroom.... Gregory Gardner, an attorney who represented two Texas death row defendants who received stays of execution this year — and a third client who was executed — believes the junk science law to be a powerful tool for defendants. "It shows how many convictions in the late 90s and the turn of the century were based on this crappy science that's been discredited," he said. "It's scary because we know people in Texas have been executed because of it in the past."
Of course, just because executions are down doesn't mean the ones taking place aren't still controversial. According to the anti-death penalty coalition's report, almost half of the people executed in the state in the last two years had a significant mental impairment. Similarly, the fact that Texas didn't execute any black people this year doesn't mean the death penalty is suddenly race-blind. All three of the Texas defendants sentenced to death in 2016 were black, and 80 percent of new death sentences in the state over the last five years have been imposed on people of color. Research has also consistently shown that murders of white victims are more likely to result in a death sentence than murders of minority victims....
And it's possible that Texas's slump in executions won't last. The state has already scheduled nine executions in the first six months of 2017. Even so, the reduction in new death sentences may augur a future where seven executions a year isn't celebrated as a noteworthy dip, but questioned as a macabre reality. "The courts are finally being more careful with these cases," Gardner told me. "We've seen the number of death sentences plummet, and I think that trend will continue."
"Why Congress May Bring Criminal Justice Reform Back to Life"
The title of this post is the headline of this effective new Marshall Project analysis by Bill Keller, which carries the subheadline " Four reasons a bipartisan bill has a better chance than you think." Here are excerpts:
It’s no wonder criminal-justice reformers woke up from Election Day 2016 with a sense of existential gloom. Given candidate Donald J. Trump’s law-and-order bluster, his dystopian portrayal of rising crime and an ostensible war on the police, and a posse of advisers who think the main problem with incarceration is that we don’t do enough of it, the idea that justice reformers have anything to look forward to is at best counterintuitive.
It is reasonable to expect that President Trump and his choice for attorney general, Jeff Sessions, will dismantle at least some of what their predecessors leave behind. Based on what they have said, the Trump-Sessions Justice Department may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the share of the corrections business that goes to private companies, accelerate deportations of undocumented immigrants and use the threat of financial sanctions to challenge so-called sanctuary cities....
But those inclined to look for silver linings may find one on Capitol Hill.... I can think of four reasons the prospects of federal reform are actually better in 2017.
First, it is not an election year. Nothing makes members of Congress squirm like the specter of attack ads portraying them as coddlers of criminals. There is reason to think those Willie Horton-style gotchas have lost some of their potency, but the prospect tends to make members of Congress more risk-averse in even-numbered years. And the lobbying alliance in favor of reform has grown and diversified and offers supportive candidates some political cover. It now includes significant numbers of police executives and prosecutors, who say our tendency to over-criminalize and over-punish wastes money and human potential without making us safer.
Second, President Obama will be gone. Some of the resistance to this year’s sentencing bill was a reluctance to give the president a parting victory. His heartfelt embrace of criminal-justice reform in the final years of his presidency was — through no fault of his own — the kiss of death in a hostile Congress.
Third, at least one of the hard-core Senate opponents of sentencing reform will no longer be there. That would be Jeff Sessions, the Republican senator from Alabama. True, as attorney general he will be in a position to encourage a presidential veto. But he will not be joining the obstructionists who this year never let a bill come to a vote at all. The chairman of the Senate Judiciary Committee, Charles Grassley, said in October that if his party leadership had brought the bill to the floor, it would have garnered 65 to 70 votes — enough to override a veto.
And fourth, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top. The subject attracts libertarians who have come to see the machinery of criminal justice as another example of overbearing government, conservative Christians who see the criminal justice morass as dehumanizing, fiscal conservatives who have noticed that incarceration is expensive, and policy wonks who see a “corrections” system that largely fails to correct.
December 16, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)
Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
This new CNN article reports that we may not be getting a SCOTUS nominee from Prez-Elect Donald Trump anytime soon and that the current front-runners are both federal circuit judges. Here are the details:
It will be some time before Donald Trump announces a nominee to fill the vacancy left by Antonin Scalia, according to transition insiders.
But two names continue to emerge to the top of the president elect's list of potential Supreme Court justices. Judges Diane Sykes and William Pryor are among the top contenders, according to multiple sources
The Supreme Court vacancy is "actively being discussed," but there is no timetable at the moment, Trump transition aide Jason Miller told reporters Thursday. "The President-elect, he had previously put out a list of 20 very qualified individuals from which he would select. I know that they have continued to narrow that list down," Miller said. "He himself has said that's probably a shorter list of 5 or 6 folks that are near the top of that, that's being narrowed down to. And again, but this is another one where it's an absolute utmost priority, so we need to make sure we get this one right."
Trump first mentioned Sykes and Pryor after a February debate -- and the two conservatives are among the only ones Trump has mentioned by name. However, aides acknowledge that given the size of the list and Trump's previous approach to filling vacancies, things are subject to change.
Sykes, 58, sits on the 7th Circuit Court of Appeals. The Marquette University School of Law grad voted to uphold Wisconsin's voter ID law and also sided with businesses in challenging the Affordable Care Act's contraception mandate. While some conservatives view Sykes favorably, others expressed concern given her age.
Pryor, a staunch conservative, called Roe v. Wade, the 1973 decision making abortion legal, the "worst abomination in the history of constitutional law." The 54-year-old Tulane Law University grad sits on the 11th Circuit Court of Appeals.
As regular readers should know, Judge Pryor would be an especially interesting pick for sentencing fans because of his recent and continuing service as a member of the US Sentencing Commission. Indeed, if Judge Pryor were to get the nomination, an interesting issue would arise concerning his continued service as a member of the USSC. I do not think there are any major legal or ethical problems with a sitting SCOTUS Justice also being an active member of the USSC, but I suspect others might believe it more appropriate for Judge Pryor to resign his position on the Commission if elevated to SCOTUS.
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
Thursday, December 15, 2016
Post-Hurst hydra chews up all death sentences in Delaware via new retroactivity ruling
Regularly readers know I use the term "post-Hurst hydra" to describe the aftermath litigation in various courts in various states as judges sort ought what Supreme Court ruling in Hurst v. Florida must mean for past, present and future capital cases. Today the post-Hurst hydra took another big bite out the the death penalty in the First State as reported in this AP article:
A Delaware Supreme Court ruling earlier this year declaring the state's death penalty law unconstitutional is retroactive, meaning an inmate convicted of killing a police officer must be resentenced to life in prison, the justices said in a follow-up decision Thursday.
The ruling came in an appeal by Derrick Powell, who was convicted of killing Georgetown police Officer Chad Spicer in 2009, but it likely means that 11 other former death-row inmates also will be spared from execution.
In August, a majority of the justices said Delaware's death penalty law was unconstitutional because it allowed judges too much discretion in sentencing and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserves execution.
That ruling came after the U.S. Supreme Court said Florida's death sentencing law, which also gave judges the final say, was unconstitutional. Alabama is the only other state that allows judges to override jury decisions on whether an offender should get life in prison or the death penalty.
In its 15-page decision Thursday, the Delaware court said its August ruling invalidating the state's death penalty law was a "watershed procedural ruling" that must be applied retroactively.
The full opinion in Powell v. Delaware is available at this link.
Interesting review of impact of Prop 47 on drug cases and offenders in California
This lengthy local article takes a remarkable and effective deep dive into the impact and import of California's Prop 47 two years after its passage. The piece carries a lengthy headline that serves as a kind of summary: "Two years after Prop 47, addicts walk free with nowhere to go: In 2014, California Voters Freed About 13,500 Low-Level Offenders From Crowded Prisons and Jails. But Many Ex-inmates Have Traded Incarceration for a Cycle of Homelessness, Drug Abuse and Petty Crime." Here are excerpts:
Two years after it was approved by California voters, Prop 47 has scaled back mass incarceration of drug addicts, but successful reform is woefully incomplete. Proponents celebrate how the law freed at least 13,500 inmates like Lopez from harsh sentences in crowded prisons and jails, but Prop 47 has done little to help these people restart their lives. Instead, the unprecedented release of inmates has exposed the limits of California’s neglected social service programs: Thousands of addicts and mentally ill people have traded a life behind bars for a churning cycle of homelessness, substance abuse and petty crime.
Prop 47 earmarked millions saved in prison costs for inmate rehabilitation, but not a penny has been spent. Meanwhile, the state’s shortage of treatment programs is more glaring than ever. Expanding rehab would be expensive, but it is still a cheaper, more effective and more humane strategy for addressing addiction than locking drug abusers in prison.
"The problem is, if you don’t actually do anything to change conditions of their lives, they’re going to be back on the streets anyway," said Elliot Currie, a University of California, Irvine criminologist. "What’s to prevent them from going back to the same old ways when they get out? The answer is nothing."
This alarming lack of support services is one key finding in a landmark investigation by USA TODAY Network-California journalists who spent seven months analyzing the impacts of Prop 47, a sweeping criminal justice reform law that has been debated and demonized but rarely understood. To uncover the ramifications of the law, reporters from four publications — The Desert Sun, The Ventura County Star, The Record Searchlight and The Salinas Californian — filed 65 records requests, scrutinized thousands of pages of public documents and performed over 50 interviews with policymakers, academics, police, district attorneys, public defenders, drug addicts and former felons. Among our findings:
California police have dramatically deprioritized drug busts in the wake of Prop 47, arresting and citing about 22,000 fewer people in 2015, a 9.5 percent decrease in the first year since the possession of meth, heroin and cocaine was downgraded to a misdemeanor.
Nearly 200,000 felony convictions have been retroactively erased by Prop 47 as of September, according to a first-ever analysis. Government agencies were not required to track how many convictions were reduced, so journalists gathered public records from 21 counties to calculate a statewide estimate. Many former felons will be slow to take advantage of their restored rights because they are unaware their convictions have been downgraded.
For those who are aware, however, Prop 47 offers an unparalleled chance for better jobs. Tens of thousands of people no longer have to report felony convictions on job applications, making them drastically more employable than they’ve been in years or decades.
Michael Romano, a Stanford law expert who helped write Prop 47, stressed in a recent interview the law has been "amazingly successful" in its primary goal, which was always to get low-level drug offenders out of California’s crowded, damaging prison system. But tackling drug addiction and mental illness, which plague so many who were released under the law, is a task that will require investing hundreds of millions of dollars in community treatment programs across the state. "It is incumbent on local governments to engage this problem," Romano said. "Prop 47 was not a cure-all. It’s not a panacea. It is one piece in an extraordinarily complicated puzzle — perhaps the most complicated puzzle in our communities."
Wednesday, December 14, 2016
Making the case for AG-nominee Jeff Sessions as an advocate for crime victims
Paul Cassell and Steven Twist have this notable new FoxNews commentary run under the headlined "Why Jeff Sessions, a conservative attorney general, would be best for crime victims." Here are excerpts:
As two crime victims’ rights advocates and law professors, we welcome the announcement that President-elect Trump will nominate Alabama Senator Jeff Sessions to be the next attorney general of the United States. Senator Sessions has a long and robust record of fighting for justice, and more specifically for enforceable victims’ rights. If confirmed by the Senate, he will undoubtedly be a powerful voice for crime victims as the chief law enforcement officer of the United States.
Our enthusiasm about Senator Sessions stems from the fact that he was an early supporter of amending the U.S. Constitution to protect rights for crime victims. This idea was first proposed by a Task Force assembled by President Ronald Reagan and later endorsed by Presidents Bill Clinton and George W. Bush. The Victims’ Rights Amendment was first introduced in Congress in 1996 by Senators Dianne Feinstein and Jon Kyl. Senator Sessions strongly advocated for the amendment and will be the country’s first Attorney General to cast votes for amending the Constitution to give rights to crime victims....
The Senator’s strong bipartisan record on behalf of crime victims does not end there. Senator Sessions crossed the aisle to work with Senator Feinstein to preserve restitution rights for crime victims and to provide stronger protections for victims of child abuse. He joined with the late-Senator Ted Kennedy to reduce sexual assaults in prison. He worked with Illinois Democratic Senator Dick Durbin to address sentencing disparities in federal drug laws and increase penalties for the most serious drug traffickers. And in many other ways, he fought against weakening the federal criminal laws whenever they posed an undue risk of creating even more victims of crime.
More impressive still is his courage as a prosecutor to take up the cause of pursuing justice for crime victims through the prosecution of their attackers. He stood against headwinds of the Old South to prosecute KKK criminals in Alabama. He prosecuted Klansman Henry Francis Hays, son of Alabama Klan leader Bennie Hays, for abducting and killing Michael Donald, a black teenager.
As a prosecutor, Senator Sessions established a record as aggressive, but fair. He remained focused on the ethical duty to do justice. We are excited about the prospect of an attorney general who sees the need for expanding rights and services for crime victims, and who has demonstrated the heart, the courage, and the leadership to head a Department of Justice that will ensure justice is pursued for all, including and especially for the crime victim.
SCOTUS adds a few more criminal cases to its current merits docket
Via this post at SCOTUSblog, I see that the Supreme Court today added a handful of cases to its docket. Here is the SCOTUSblog description of the criminal cases in the bunch:
Two of the cases that the justices agreed to review today, Turner v. United States and Overton v. United States, arise out of the brutal 1984 murder of Catherine Fuller, a District of Columbia mother. The petitioners in the case are a group of D.C. men who were convicted of the crime, based in large part on testimony from alleged eyewitnesses. Decades later, a reporter learned that defense attorneys had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had failed to turn over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts.
Today the Supreme Court agreed to review both cases. Overton had asked the court to weigh in on the standard that the lower court used to evaluate his claim that prosecutors had not complied with their obligations under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant. Turner and his co-defendants had asked the court to consider whether, when determining the significance of suppressed evidence, courts can consider information that comes to light after trial. But the court today announced that it would review a more straightforward question in both cases: whether the men’s convictions must be set aside under Brady....
In Lee v. United States, the justices return to a familiar topic: the case of a non-citizen who gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States. The petitioner in the case, Jae Lee, is a Tennessee man who came to the U.S. from South Korea in 1982 and eventually became a successful restauranteur. In 2009, he was charged with possession of ecstasy with intent to distribute. After seeing the evidence against Lee, Lee’s attorney recommended that Lee plead guilty, so that he would receive a shorter sentence. But, and despite Lee’s attorney’s assurances to the contrary, a guilty plea would result in Lee’s permanent and mandatory deportation.
Lee then sought to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney. The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had indeed provided deficient advice when he told Lee that a guilty plea would not expose him to deportation. But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway. That is the question that the court agreed to review today.
Today’s cases will likely be argued in late winter or early spring. The justices’ next regularly scheduled conference is January 6.
Interesting accounting of who is putting up capital to try to end capital punishment
The publication Inside Philanthropy has this interesting new article headlined "Capital Against Capital Punishment: Who's Fighting the Death Penalty?". Here are excerpts:
This year’s election results don’t bode too well for opponents of the death penalty. A year after they abolished it, Nebraska voters decided to reinstate capital punishment. Oklahoma voters approved “any method of execution” not prohibited by the U.S. Constitution. And California, the nation’s most populous state, struck down a repeal measure, instead approving a measure to make executions easier.
But will this capital punishment comeback last? A cadre of dedicated funders, including Atlantic Philanthropies, Open Society Foundations, the Proteus Fund and others wants to make sure it doesn’t. These death penalty opponents are playing a long game and some have been at it for years. Angry populist elections come and go, but progress against the death penalty has been ongoing. Death sentences handed out in the U.S. have dropped almost tenfold since 1996, and actual executions per year have declined by about 75 percent. A full 42 percent of the American public opposes the death penalty, a 44-year high.
While capital punishment enjoys its day in the sun (and in approving comments from President-elect Donald Trump), several big funders are working behind the scenes to chip away at the penalty’s long-standing popular support. One major player (if not the major player) is Atlantic Philanthropies, which recently granted $3.25 million to Cornell Law School to establish the Cornell Center on Death Penalty Worldwide.
The first center of its kind in the U.S., the Cornell Center will work on the policy, research and advocacy side to advance international human rights norms that favor abolition. Indeed, most executions occur in a small number of countries: the United States, and top human rights violators like China, Pakistan, Iran, and Saudi Arabia.
Those fighting the death penalty have three main strategic goals. The first involves changing public perception of executions from a necessary measure to a cruel and unusual punishment. Second, advocates focus on the states, supporting grassroots efforts to repeal. Finally, the end goal for many advocates is a nationwide ban handed down from the Supreme Court. Often, this work involves direct political appeals and lobbying, backed through 501(c)(4) organizations. While appeals to human rights are effective to a point, philanthropic efforts against the death penalty are also now quite focused on the practical problems of this punishment: why executions aren’t just wrong, but ineffective and costly to boot.
Leading the charge are groups like the National Coalition to Abolish the Death Penalty and Equal Justice USA, both recipients of large Atlantic grants in the years since 2006. While fighting the death penalty isn’t one of its major funding priorities, the Ford Foundation has also contributed at least $500,000 to the National Coalition.
All told, Atlantic Philanthropies has invested $60 million over the past decade to end the American death penalty. And although the foundation plans to discontinue its grantmaking this year (no doubt a worrisome fact for the abolition movement), it has already fertilized a whole bunch of anti-execution organizations that will continue raising funds. Among Atlantic’s biggest beneficiaries on this issue, besides the two mentioned above, are the Proteus Action League, the Advocacy Fund, Texas Defender Service, and the Southern Center for Human Rights.
In addition to its regular grantmaking, Atlantic Philanthropies backs direct lobbying, ballot initiatives and voter mobilization efforts against the penalty through its 501(c)(4), the Atlantic Advocacy Fund. But Atlantic’s greatest contribution to the fight (at least in terms of dollar support) has been its support for the Proteus Fund, via the 501(c)(4) Proteus Action League.
A longtime supporter of progressive policy efforts, the Proteus Fund channels money from donors to organizations where it can make the most impact. Proteus’s Themis Fund is dedicated solely to combating the death penalty. Aside from Atlantic Philanthropies, additional supporters include the Open Society Foundations, Tides Foundation, Butler Family Fund, Fund for Nonviolence, and the Wallace Global Fund....
The Proteus Fund isn’t the only funding intermediary taking on capital punishment. Through its Death Penalty Mobilization Fund, the Tides Foundation has awarded over $6 million in grants since 2000. Besides Atlantic Philanthropies, George Soros’s Open Society Foundations is another regular source of money for those fighting the penalty. Since the early 2000s, Open Society has granted regular sums ranging from five to six figures to prominent anti-penalty organizations. Those grantees include the National Coalition to Abolish the Death Penalty, the Tides Foundation, the Death Penalty Information Center, Death penalty Focus, and People of Faith Against the Death Penalty.
The Fund for Nonviolence, true to its name, is another anti-penalty stalwart. Through its Justice With Dignity grants program, it has disbursed modest but regular funding to many of the organizations we’ve already named. As elsewhere, many of this funder’s grants are region-specific, supporting local efforts to push back against the penalty. The Wallace Global Fund is another progressive funder with a hand in anti-death penalty work. Its funds several big-name advocacy organizations like the National Coalition, Themis at the Proteus Fund, and the Equal Justice Initiative. The numbers here are modest as well, in the high five figures. Rounding out our list, we have the Oak Foundation, whose contributions to the fight have been substantial. While Oak has offices in the U.S., it is an international funder and its death penalty work is also international, through a commonwealth nations initiative called the Death Penalty Project.
"Why All Americans Should Go To Prison: Out of sight, out of mind isn’t good enough."
The title of this post is the extended headline of this new Ozy commentary. Here are is how it starts and ends:
Americans love their prison entertainment. How could they not lap up the best moments of Orange Is the New Black, what with the lesbianness and the realness … the prison wars, the guards’ criminality, the racial commentary and, um, the lesbianness.
Sure, it feels authentic, but how would the audience know? Safe to say that few of OITNB’s millions of fans have spent even a moment in a lockup — although probably half are engaged in the illicit sharing of Netflix passwords. Remote and security-sensitive, prisons aren’t exactly accessible to the general public. States consider visits a privilege, doled out for the incarcerateds’ good behavior. To enter, one must be on the prisoners’ approved visitor list or in an organized volunteer program. Even the Supreme Court has come down in favor of strict visitation policies.
This is wrongheaded. We believe every American should be required to visit a prison. After all, some two million of their fellow citizens are incarcerated — that’s almost 1 percent of the population. For the most part, those on the outside ignore this significant minority: Inmates don’t much figure into discussions about policy, which is one reason it took decades for politicians to start dismantling mass-incarceration policies that had long ago been deemed expensive and ineffective.
Isn’t it weird that the first sitting president to visit a federal prison was … Barack Obama, in the last year of his second term? While there, he was surprised to discover that three fully grown men were housed in a minuscule 9 x 12 cell.
The idea of mandatory prison visits isn’t ours; law professor Neal Katyal tweeted about it this fall. “The bottom line is, until you experience it and understand the total disconnect between life inside and life outside, it’s really hard to understand who you want to punish and how,” Professor Katyal told us on the phone....
Katyal tells of one Iowa judge who visits every single prisoner he puts behind bars to see how they’re doing. Instead of mandatory minimums, how about mandatory visits from all?
I have been to a handful of prisons to visit clients over the last two decades (and I also got to tour a local jail as part of serving on a grand jury). But I often think I ought to make more of a habit of visiting active prisons and jails, especially because I often go out of my way to tour famous old prisons (e.g., Eastern State, Alcatraz, Moundsville) whenever my travels allow it.
Remarkably, and usefully for those unlikely to be able to head right now to any nearby graybar hotel, this lead piece this morning from The Marshall Project is headlined "Let’s Go to Prison!: A national field trip to Incarceration Nation, under the shadow of Donald Trump." The lengthy article does not substitute for a prison visit, but it highlights a project by the Vera Institute of Justice very much in the spirit of the Ozy commentary. Here is a passage providing the backstory:
[Last month brought] the Vera Institute of Justice's "National Prison Visiting Week." Through a series of field trips to 29 facilities in 17 states, Vera welcomed a diverse array of community members — from bankers to prosecutors to real estate agents to teachers, doctors, and clergy — into Incarceration Nation. The goal was to promote the value of transparency: to demonstrate that if corrections officials allowed people in, the sky wouldn't fall. In the process, the organizers hoped, both staff and visitors would engage in a "re-imagining" of the very purpose of a prison: Is it punishment? Incapacitation? Deterrence? Rehabilitation?
The event was conceived during the administration of the first president ever to visit a federal prison, and in anticipation of a next president who had vowed she would reform criminal justice “from end-to-end.” So the election of Donald J. Trump, less than a week earlier, left many participants wondering whether this field trip would still be the new beginning that was intended, or rather a last gasp of idealism about reform.
Tuesday, December 13, 2016
Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge
United States District Judge Geoffrey Crawford issued a lengthy opinion today in the long-running federal capital case of US v. Fell, No. 5:01-cr-12-01 (D. Vt. Dec. 13, 2016). A helpful reader sent me the full 57-page opinion, which I have uploaded below and which gets started this way:
In 2015, the U.S. Supreme Court issued its decision in Glossip v. Gross, 135 S. Ct. 2726. The case concerned challenges under the Eighth Amendment to execution by lethal injection of four defendants sentenced to die by state courts in Oklahoma.
Justice Breyer, joined by Justice Ginsburg, issued a dissent calling "for full briefing on a more basic question: whether the death penalty violates the Constitution." Id. at 2755. The dissent identified a series of systemic shortcomings in the administration of the death penalty in the United States, especially as it is applied by the states. It divided these into four categories: "(1) serious unreliability, (2) arbitrariness in application, (3) unconscionably long delays that undermine the death penalty's penological purpose [and] (4) most places in the United States have abandoned its use." Id. at 2756.
In response, Justice Scalia and Justice Thomas wrote two strongly worded concurring opinions which defended the death penalty as the legitimate exercise of democratic authority. Both justices pointed to the shocking cruelty of the crimes which led to the death sentences in these and other death penalty cases. Both questioned the authority of the judiciary to interpose its own philosophical concerns about the death penalty. And both identified utilitarian purposes such as deterrence which may justify executions.
The dissent and concurring opinions in Glossip offer a particularly vivid account of the long-running dispute over the constitutionality of the death penalty within the Supreme Court. A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court. The current state of the law is that the death penalty is a constitutional punishment for murder committed by adults not disqualified for reasons of intellectual disability who have received a trial which meets the standards set by Gregg v. Georgia, 428 U.S. 153 (1976) and Ring v. Arizona, 536 U.S. 584 (2002). Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.
But a trial court has its own contribution to make to the debate. The court can hold a hearing and permit witnesses to testify. In Glossip, Justice Breyer raised a series of questions about whether the death penalty is imposed fairly or in an incurably arbitrary manner. The questions he raised are troubling. They are essentially empirical. They require consideration of what has actually happened in the United States since the restoration of the death penalty following the Gregg decision.
Over the course of two weeks last summer this court sought to develop a factual record based on live testimony and supporting exhibits sufficient to answer the question of whether the constitutional requirements for a death penalty statute set out in Gregg have been met in practice. As the court's findings indicate, the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408 U.S. 238 (1972), and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the FDPA operates in an arbitrary manner in which chance and bias play leading roles.
The trial court's obligation does not end with a review of the facts. The court is required to address the legal issues raised by the parties. That resolution may be no more than an acknowledgment that the law has been settled on a particular question. Alternatively, the new factual record may require a fresh look at the manner in which existing principles are applied to a factual record which continues to develop. The court has sought to undertake this new look in a manner consistent with existing authority which comes principally from the Supreme Court.
To get right to the point, the court has sought to follow the method expressed in Atkins v. Virginia, 536 U.S. 304 (2002) in considering the proportionality of the death penalty. The court has also considered the separate argument that application of the death penalty has become arbitrary.
The disproportionality challenge falls short because of the absence of proof of a national consensus to abolish the death penalty. As the law stands now, proof of consensus is a prerequisite for finding the death penalty unconstitutional as applied to particular crimes or particular types of defendants. By assessing public opinion, especially as it is expressed through legislation in the states, the Supreme Court finds a basis for determining evolving standards of decency for the nation as a whole. If the requirement of consensus applies to the limited challenges brought in cases like Atkins, then it must also apply to the claim of disproportionality which the defense levels against the imposition of the death penalty in all cases.
The court has also considered the problem of arbitrary application of the death penalty to small numbers of defendants whose crimes are indistinguishable from the far greater number who receive life sentences. The court has followed existing law in declining to rule that "arbitrariness" is an independent constitutional violation.
Announcing a "Call for Papers for the 2017 Innocence Network Conference"
I am happy to be able to provide this space for this announcement:
The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2017 Innocence Network Conference in San Diego, California on March 24-25.
Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English. Please submit a title and paper proposal to the Innocence Scholarship Committee at this Gmail account: firstname.lastname@example.org by February 1, 2017. Paper proposals must be no more than 200 words. Completed drafts must be submitted to the Committee by March 17, 2017.
The Innocence Scholarship Committee is actively seeking publication for those papers accepted for Conference presentations in a law review symposium edition. More information about that is forthcoming.
The Innocence Scholarship Committee is composed of the following Members: Professor Aliza Kaplan, Oregon Innocence Project, Lewis & Clark Law School, Portland, Oregon; Professor Valena Beety, West Virginia Innocence Project, West Virginia College of Law; Professor Keith Findley, Wisconsin Innocence Project, University of Wisconsin Law School; Professor Stephanie Roberts Hartung, New England Innocence Project, Northeastern Law School; and Associate Clinical Professor Paige Kaneb, Northern California Innocence Project at Santa Clara Law.
A deep look into Alabama's new sentencing systems and their impacts
Because our next Attorney General (and perhaps also our next Supreme Court justice) emerged from and still have roots in the Alabama legal system, I thought it timely and valuable to spotlight this lengthy local article about Alabama sentencing reforms headlined "How has prison reform impacted Alabama?" Here are excerpts:
The criminal justice system has historically relied on human judgment for sentencing, but Alabama’s recent criminal justice reforms are attempting to equate human error to a quantifiable number. Crimes now equal a score that effectively decides an offender’s punishment. A similar score sheet labels parolees as high, medium or low risk.
Alabama is a bit of a trendsetter — for better or for worse — on the criminal justice front, said Bennet Wright, executive director of the Alabama Sentencing Commission tasked with both implementing the 2013 and 2015 reforms as well as crunching the data. “With the passage of the 2015 reforms, I think you’re seeing Alabama acknowledge for the first time that data driven decisions need to be the driving force of all criminal justice policy,” Wright said. “That’s a huge shift in policy. Obviously that’s not something everybody will jump on board with, but I think it’s important to make decisions, particularly ones that have huge price tags attached to them, to much more of a data driven process.”
The reforms are not without controversy. Attorneys remain critical of the sentencing guidelines, and judges are split on whether or not the score sheets rob them of their ability to adjudicate, but the reforms have shown promising returns in popping the balloon on Alabama’s prison population and the data collected over the next few years could continue to spur progressive criminal reform.
The two-pronged reform began with the implementation of presumptive sentencing guidelines in 2013 that essentially reduced sentencing decisions to a score sheet in an effort to be more selective and consistent about who gets locked away. For drug offenses, eight or more points — perhaps a distribution of marijuana charge (6 points) and a possession with intent to distribute charge (5 points) — will land that person in prison barring mitigating factors. For property crimes, 15 points is required for a prison sentence. Both sheets also add points for prior adult convictions, incarcerations, probation revocations and juvenile delinquencies, but the idea was — and still is — to send fewer non-violent offenders to prison to relieve the burden on a prison system that, at the time the guidelines were implemented, housed nearly twice the inmate population (25,299) than it was designed for (13,318).
The guidelines also made sentencing consistent across the state. A possession of marijuana charge, for instance, no longer relies on the presiding judge’s views of the drug. “Some judges are heavy on possession of marijuana. They detest it and (before the guidelines) would give harsher sentences than other judges would,” said former Montgomery County Circuit Judge William Shashy who retired this past month.
The 2015 prison reform, also known as Senate Bill 67 sponsored by Sen. Cam Ward, R-Alabaster, focused more on fighting the bloated prison system. A new class of felony, Class D, was created for sentencing guidelines to include non-violent offenses such as minor drug possession and third-degree theft. Those crimes now carry the lowest point totals as legislators are more concerned with locking up violent offenders. “They’re focused on felony offenses the Alabama Legislature has deemed non-violent. Mostly drug and property offenses,” Wright said.
If fewer non-violent offenders are going to prison, more are naturally going to parole and probation. The bill accounted for that by injecting funding into the state parole system to hire 100 more parole officers. Darrell Morgan, assistant executive director of the Board of Pardons and Paroles, said they have hired 71 additional parole officers as of the end of October. Seventeen more are currently being interviewed, and Morgan said more officers will be added using their general fund in an effort to reduce parole officers’ caseloads. “When this began we were around 200 cases per officer. Our target is to have everybody down to 100 offenders per officer by the end of the fiscal year (Sept. 30),” Morgan said. “That was one of the biggest issues with previous parole boards was we didn’t have the adequate staff. Now that these numbers have increased we’re able to better manage our caseloads and we can manage more people.”...
Montgomery County Deputy District Attorney Ben McGough said the sheets and implementation of Class D felonies have incentivized crime and taken the teeth out of the justice system. “When a defendant looks at their sheet and their score is two and it takes 15 to go to prison, they’re guaranteed from the beginning. You’re not going to prison no matter what happens,” McGough said. “Then they look at the sheet and think, ‘I’ve got 13 points to burn.’ they can look at the sheet, do the math, and think, ‘I can do four more non-violent offenses before the judge even has the option to send me to prison.’ And we’re literally giving them the figures.”
On the defense side, Public Defender’s Office Director Aliya McKee said the sheets reduce her clients to a figure instead of treating each case as a unique situation. “Our clients, from my perspective, get reduced to a number,” McKee said. “I’m somewhat comfortable with that being the starting point, but it’s not the solution. We want the court to see the person behind the charge. The name, not the case number.”...
As judges and attorneys feel their way through the reforms, all eyes are keen to judge what impact reforms have had on key statistics such as prison population, crime rate, parole caseload and recidivism. It’s still too soon to make definitive claims, but Wright said some early data returns are promising. State prison population, for example, has dropped from 25,299 in 2013 (189.9 percent capacity) to 23,318 this year (175 percent). “I think the initial results of the presumptive sentencing standards are promising,” Wright said. There has been a steady decrease in the prison population averaging 80-100 fewer inmates per month.”
State crime rate has also dropped during the period going from nearly 174,000 total crimes in 2013 (about 3,586 crimes per 100,000 people) to just over 162,000 this year, however, that rate was already falling from 191,318 in 2011 and 181,752 in 2012, according to Alabama Law Enforcement Agency.
Parole caseload has also begun to dip slightly. Morgan said it took longer than expected to hire new officers but active caseload is down to about 145 cases per officer. When adding inactive cases, that decline looks much smaller (about 215 per officer to about 195), but Morgan said the reform has had a noticeable impact. “(Adding inactive cases) makes the numbers still look high, but the hiring of the officers have gotten our active caseload down to a manageable level, which is lower than it was. But we still have to hire more people,” Morgan said....
On a local level, one particular statistic has the District Attorney’s Office concerned that the guidelines may be doing more harm than good for public safety. Montgomery has seen 530 more thefts this year than last year, and many in the DA’s office, including Chief Deputy District Attorney Lloria James, see the lenient sentencing guidelines as the blame.
“Those statistics don’t surprise us at all. It’s almost like a revolving door,” James said. “The problem is sort of like word travels fast on a college campus or neighborhood or things like that, in the criminal community word travels fast, and I think it’s gotten out there that pretty much if it’s non-violent — thefts, burglaries things like that — there’s almost zero chance you’re going to see some prison time, so it’s worth it to them.”
Whether or not there is a connection remains up for debate, but that hasn’t stopped District Attorney Daryl Bailey from reaching out to Sen. Ward in recent weeks about possibly making some changes. “We’ll continue looking at it, but we’ve done a lot of reform already,” Ward said. “Obviously that’s a point being made by the district attorneys, but if there's any changes needed to be made in the guidelines we need to do that. We need to make sure it's prudent for the safety of the public.”
The reforms have shown themselves not to be perfect, but Wright said that should engender further study and support in his ideal scenario. The reforms were put in place after studying prison reform in other Republican states such as Texas and North Carolina, but implementing front-to-back change is “trendsetting,” Wright said.
For now, the state must wait and see what the numbers hold. “It’s a little daunting, but that’s trendsetting to have this big of a process going on at one time,” Wright said. “That’s also why I tell people both for it and against it to take a deep breath and let’s do our best to implement it. I think with a lot of things, people get in the way of things before they implement it. We owe it to ourselves to embrace what the Legislature passed and what the intent was. Let’s give it our best good faith effort, wait a while and then sit around the table and talk about it then.”
Monday, December 12, 2016
Clemency recipients join chorus urging Prez Obama to go big on clemencies before he goes home
This new Business Insider article, headlined "Prisoners set free by President Obama are urging him to expand his clemency program before he leaves office," reports on the latest interesting pitch to Prez Obama concerning his clemency work. Here are the basics:
The day Ramona Brant walked out of prison after serving 21 years of what was supposed to be a life sentence, she felt an overwhelming mixture of emotions — elation and gratitude for her freedom, and sadness for the inmates she was leaving behind. Many of them had stories like hers. They had in one way or another gotten involved in selling drugs, often through boyfriends or husbands who would eventually testify against them in conspiracy trials. L
ike Brant, many were there to serve decades, or even life sentences without the possibility of parole. “I was not comfortable being free knowing that there were so many people who weren’t free to experience the same opportunities that I was experiencing,” Brant told Business Insider. “I’m not saying I want to go back to prison — what I’m saying is my heart is still with my sisters that I left behind, and my brothers.”
Brant was granted a sentence commutation by President Obama last February, as part of an unprecedented clemency initiative that has now reduced more than 1,000 federal inmates’ sentences. She is one of more than 40 clemency recipients who signed an open letter sent to the president on Monday pleading for mercy for nonviolent drug offenders serving lengthy sentences who have demonstrated clear conduct in prison. “We ask for your immediate intervention for thousands more prisoners who will continue to suffer needlessly unless a broader clemency plan is implemented,” the letter said.
“We have remained largely silent in appreciation of your compassion to many suffering under draconian sentencing laws passed during the crack hysteria of the late 1980s and 1990s. But with only six weeks of your presidency left, we must speak out.”
The letter, also signed by dozens of clemency advocates and former inmates, recommends the president adopt a broad amnesty program in place of the current case-by-case review of inmates’ petitions. It suggests that all nonviolent drug offenders with clear conduct have their sentences reduced to five, 10, or 15 years for first-, second-, and third-time offenders, respectively. It also specifically asks that clemency be granted to female inmates, who the letter argues are more likely than men to be serving lengthy sentences because of drugs their partners or spouses sold, and who make up less than 10% of the inmates to whom Obama has granted clemency....
The Office of the Pardon Attorney, which reviews clemency applications and recommends them to the president, the White House, and the Department of Justice did not immediately respond to Business Insider’s requests for comment on the letter....
Although Deputy Attorney General Sally Yates has previously said “every single drug petition” received before Aug. 31 will be reviewed by the Obama administration, activists and clemency advocates have been urging the president for months to quicken the pace of approvals.
Last month’s presidential election, too, has only added to the pressure. President-elect Donald Trump, who has previously called the inmates released by Obama “bad dudes,” has not expressed interest in continuing his clemency initiative. Nor has Jeff Sessions, Trump’s nominee for Attorney General, who supports harsh drug laws and mandatory minimum sentencing.
It is estimated that at least 2,000 federal prisoners serving nonviolent drug offenses were eligible for sentence reductions under the requirements laid out under Obama’s program, which stipulate that inmates have served at least 10 years of their sentences. Even more could be eligible should the Obama administration consider inmates who have served less than a decade, as it has already done in some cases.
Some recent (post-Election Day) posts on Prez Obama and clemency:
- How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
- "Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"
- Prez Obama grants 79 move commutations, taking his total over 1000 for his administration
- Terrific content and context for Prez Obama's clemency work at Pardon Power
- Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
- At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push
"Adversarial Asymmetry in the Criminal Process"
The title of this post is the title of this interesting looking new article that I just noticed via SSRN and that is authored by Daniel Epps. Based on the abstract, this article seems both provocative and somewhat counter-intuitive. But I think current and former prosecutors might have particular insights concerning the article's claims. Here is the abstract:
It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue — which I call adversarial asymmetry — is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems — including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions — would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process.
In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution.
Our current approach combines an adversarial process with politically accountable prosecutors — yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.
Remembering Eighth Circuit Judge Myron Bright, a first-ballot "Sentencing Hall of Famer"
More than a decade ago, I did some blog musing here on a winter's day to imagine a "Sentencing Judges Hall of Fame" — an institution like The National Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system. (Compare the mission statement of The National Baseball Hall of Fame.) Today, the 2016 winter seems just a bit darker to me upon hearing this news report: "Champion of equality Judge Myron Bright dies at 97."
Regular readers know why I am inclined to call the late Judge Bright a first-ballot "Sentencing Hall of Famer," and the news report does a solid (though necessarily incomplete) job of documenting just some reasons why Judge Bright was a singular judicial figure whose accomplishments and work will surely shine on for many years:
Bright was born March 5, 1919, in Eveleth, Minn., the son of Jewish immigrants from Russia. He grew up on the Iron Range during the Great Depression, and he served in the U.S. Army Air Corps in the Pacific during World War II, rising to the rank of captain. He married Louise Reisler in 1946, and they had two children.
He was admitted to the North Dakota Bar in 1947, and he practiced law for 21 years before President Lyndon Johnson appointed him to the federal bench. On Aug. 16, 1968, Bright was sworn in as a judge on the 8th Circuit appeals court.
By 2013, Bright estimated he had heard 7,000 cases and written 2,500 opinions – many of them dissents or separate concurrences – in his time on the bench. Even as late as 2014, he was hearing 40 to 50 cases a year, he said. In all, Bright served more than 48 years as a federal judge between full time and senior status.
Judges often reflect the philosophies of the presidents who appoint them, and in a December 2010 interview, Bright said he was proud to have done so, too. He and other Johnson appointees “worked unceasingly to batter down the prejudice against blacks and other minorities and women,” Bright said....
For years, Bright was concerned by the disproportionately long sentences for Native Americans who commit the same crimes as whites. In recent years, Bright said the nation needed to address the sentencing of large numbers of nonviolent drug offenders to prison, which cost the U.S. billions of dollars annually.
His efforts paid off. In 2013, then-U.S. Attorney General Eric Holder spoke out against harsh mandatory minimum sentences for nonviolent offenders. Legal experts credited Bright with being one of the most influential judges in advocating an end to mandatory minimum sentencing. “What shall I say? I got vindication,” he told The Forum in a 2013 interview.
Bright’s efforts also loomed large in the life of James Dean Walker, an Arkansas man imprisoned for more than two decades after being convicted of murdering a police officer in 1963. “After I looked at the Walker case, it didn’t smell right,” Bright told The Forum, even though he at first regarded the appeal with skepticism.
After a series of hearings and procedural reversals, Bright prevailed in a 5-4 decision that allowed Walker to leave prison as a free man in 1985. The divided appeals court concluded Walker was convicted with false evidence, and found that favorable eyewitness testimony had been suppressed....
As a judge, Bright said he had the satisfaction of seeing many of the decisions he helped to mold become embraced by the U.S. Supreme Court. Often, the son of an immigrant storekeeper who repeatedly granted credit to jobless customers found himself siding with the disenfranchised while on the bench. “I suppose I have a sympathetic heart, you might say,” Bright said, though he added that his decisions must be based on the law.
For those interested in an additional kind accounting of just some of Judge Bright's work, I am pleased to have been permitted to reprint here a letter authored by another one of my judicial heroes, U.S. District Judge Robert Pratt, which supported Judge Bright's nomination for the Morris Dees award.
With only two dissenters, SCOTUS refuses to hear Ohio death row defendant's arguments against a second execution attempt
I am somewhat surprised to see Rommell Broom's case, recently discussed here and here, on the cert denied list on this morning's Supreme Court order list. Interestingly, this denial of cert came with two dissenters: Justice Breyer and Justice Kagan. And Justice Breyer mentioned the Broom case and others is a broader three-page dissent from the denial of cert in another capital case at the end of the order list. Here are excerpts from that dissent:
Henry Sireci, the petitioner, was tried, convicted ofmurder, and first sentenced to death in 1976. He has lived in prison under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born....
Forty years is more time than an average person could expect to live his entire life when America constitutionally forbade the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8; see 5 Dictionary of American History 104 (S. Kutler ed., 3d ed. 2003). This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is “one of the most horrible feelings to which he can be subjected.” In re Medley, 134 U. S. 160, 172 (1890). I should hope that this kind of delay would arise only on the rarest of occasions. But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common....
<P> Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances. On September 15, 2009, the State of Ohio attempted to execute Romell Broom by lethal injection. State v. Broom, 146 Ohio St. 3d 60, 61–62, 2016-Ohio-1028, 51 N. E. 3d 620, 623. Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needlesand striking bone in the process, all causing “a great deal of pain.” Id., at 62, 51 N. E. 2d, at 624. The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a “cruel and unusual” punishment? See In re Kemmler, 136 U. S. 436, 447 (1890) (“Punishments are cruel when they involve . . . a lingering death”). I would have heard Broom’s claim.
As I and other Justices have previously pointed out, individuals who are executed are not the “worst of the worst,” but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. See Glossip v. Gross, 576 U. S., ___, ___–___ (2015) (BREYER, J., joined by GINSBURG, J., dissenting) (slip op., at 9–17)... Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence) (this Court, by an equally divided vote, denied a stay of execution).
I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty. Glossip, supra, at ___ (dissenting opinion); see also Knight v. Florida, 528 U. S. 990, 993 (1999) (opiniondissenting from denial of certiorari); Valle v. Florida, 564 U. S. 1067 (2011) (opinion dissenting from denial of stay); Boyer v. Davis, 578 U. S. ___, ___ (2016) (opinion dissenting from denial of certiorari); Conner v. Sellers, 579 U. S. ___ (2016) (opinion dissenting from denial of certiorari and denial of stay). Cases such as the ones discussed here provide additional evidence that it is important for us to do so. See Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., memorandum respecting denial of certiorari). I would grant this petition for certiorari, as I would in Broom v. Ohio, No. 16–5580, and Smith, and include this question.