Wednesday, November 09, 2016

Fascinating mixed criminal justice initiative results developing in California

Though a little under 40% of all precincts have been reported, the early results on all the criminal justice reform ballot initiatives in California reported here indicate this fascinating mixed bag of criminal justice reform developments:

Proposition 57 reforming "Criminal Sentences & Juvenile Crime Proceedings" is winning 64% to 36%

Proposition 62 "Repeal of Death Penalty" is losing 45% to 55%

Proposition 64 enacting "Marijuana Legalization" is winning 56% to 44%

Proposition 66 providing for "Death Penalty Procedure Time Limits" is winning 51.5% to 48.5%

In other words, the largest state in our Union has voted again against repealing its death penalty and seems to be voting for a competing reform intended to speed up the path of condemned murderers from death row to the execution chamber. At the same time, this state has enacted via initiative yet another significant reform to its non-capital sentencing system that seems likely to further reduce the state's modern heavy reliance on incarceration. And the state with a huge population and a "local" economy that is of truly global significance will now be fully turning away from the criminalization of recreational marijuana use by adults.

November 9, 2016 in Marijuana Legalization in the States, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Nebraska voters resoundingly rejecting its legislature's abolition of state's death penalty

Though the votes are not all in, this official Nebraska election page has enough results and those results are lopsided enough that I feel comfortable concluding that Nebraskans have decided to preserve its death penalty.  The votes now in show 60% of voters deciding to repeal the legislation that abolished the death penalty in the state.  Together with the similarly strong pro-death penalty vote in Oklahoma, it is certainly clear that folks in the heartland are not eager to turn away from the ultimate punishment.

November 9, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Tuesday, November 08, 2016

In Oklahoma, ballot initiative on death penalty wins big and sentencing reform initiatives also win

Though hard to figure out from just looking at this official Oklahoma election page, it appears that all the sentencing ballot issues being considered by voters passed:

State Question 776 has won 66.5% to 34.5%, thereby amending the Oklahoma Constitution to guarantee the state’s power to impose capital punishment and set methods of execution.

State Question 780 has won 58% to 42%, thereby reclassifying certain state property offenses and simple drug possession as misdemeanor crimes.

State Question 781 as won 56% to 44%, thereby taking the savings from reclassifying certain offenses to fund rehabilitative programs, including substance abuse and mental health treatment programs.

November 8, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0)

"How Do You Vote in Prison and Jail? For the most part, you don’t."

The title of this post is the headline of this new Slate article which serves as a fitting final Election Day post before I gear up to post about Election Day results.  Here are excerpts:

People who are incarcerated find creative ways to do things the rest of us don’t have to think much about.... But how do they vote in elections?

Well, they mostly don’t. In almost every state, the law states that incarcerated people are not allowed to cast ballots. In fact, most states even impose voting restrictions on former prisoners who are out on parole, and a few states — Kentucky, Florida, Iowa, and Virginia — have lifetime disenfranchisement laws for anyone who has ever been to prison. These laws combine to prohibit an estimated 6.1 million Americans from voting, per one October 2016 estimation.  There is a movement among criminal justice advocates to restore voting rights for felons, but the politics of reform on this issue are notoriously complicated and again, vary state by state.

There are two states that currently afford prison inmates the right to vote while in confinement: Maine and Vermont.  Inmates in both states vote through absentee ballots rather than on-site polling places. Utah, New Hampshire, and Massachusetts also used to allow prisoners to vote, but they don’t anymore. In Massachusetts the change came after a group of inmates tried to form a political action committee in 1997 pressing for better health care and less expensive phone calls, leading then-Gov. Paul Cellucci to propose a constitutional amendment to prohibit inmate voting that passed in 2000.

So that’s prisons.  Local jails are a different story, because most of the people confined in them on any given day are in pretrial detention — meaning they haven’t yet been convicted of whatever crime they’ve been arrested for — or they’ve been convicted of misdemeanors. While there are a handful of states that ban people serving time for misdemeanors from voting, it’s fair to say that most jail inmates and detainees — roughly 750,000 Americans at any given time — are legally allowed to cast ballots as long as they are otherwise eligible. (They will also most likely do so via absentee ballots, though it’s technically possible for jails to have polling places on-site.)

That doesn’t mean a lot of them end up actually doing it, though there are jails around the country that make a special effort to encourage inmates to exercise their right. In the Cook County facility in Chicago, the largest jail in America, a voter drive effort organized this year by lawyer Michelle Mbekeani-Wiley has resulted in about 1,000 new registered voters and 1,600 absentee ballots cast....

Other jails that are known for helping inmates exercise their right to vote include those in Washington, D.C., Philadelphia, and San Francisco. In Suffolk County, Massachusetts, volunteers from the League of Women Voters this year helped register about 300 inmates (out of a total jail population of about 1,600); in New York, jail officials distributed voter registration forms and informational fliers in the facilities’ public areas, including law libraries and barber shops. Such efforts are outliers, however, and typically depend on the initiative of outside advocacy groups.

November 8, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Should and will SCOTUS take up Rommell Broom's constitutional claim that Ohio cannot try again to execute him after botched first attempt?

SCOTUSblog recently posted here its list of "Petitions to Watch" from the Supreme Court's scheduled conference of November 10, 2016, and all five cases on the list involve criminal justice issues. But the last of the listed petitions concerns a remarkable Ohio capital case that has been previously discussed on this blog, and is described this way:

Broom v. Ohio, No. 16-5580

Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

I could discuss at great length not only why this case is so jurisprudentially interesting, but also why either a grant or a denial of cert at this stage of the litigation could prove quite interesting and controversial.  Rather than go off on such matters, however, I will be content for now to link to some of my prior posts on this this case:

November 8, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Is the likely federal sentencing guideline range for "Bridgegate" defendants convicted last week at least 3 to 4 years in federal prison?

As noted in this prior post, late last week a federal jury returned guilty verdicts against Bridget Anne Kelly, the former deputy chief of staff to NJ Gov Chris Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey on seven federal criminal charges stemming from the so-called "Bridgegate" scandal.  This Wikipedia page provides lots of background on the scandal, and this lengthy New York Times article about the convictions provides these hints about the federal sentencing issues to now be debated as a February sentencing for Ms. Kelly and Mr. Baroni looms:

A federal jury convicted two former allies of Gov. Chris Christie on Friday of all charges stemming from a bizarre scheme to close access lanes at the George Washington Bridge to punish a New Jersey mayor who declined to endorse the governor’s re-election.  Though only the two defendants, Bridget Anne Kelly and Bill Baroni, were tried in the so-called Bridgegate case, the scandal surrounding the lane closings in September 2013 left Mr. Christie deeply wounded....

David Wildstein, who was installed as the governor’s enforcer at the Port Authority of New York and New Jersey, which operates the bridge, pleaded guilty to orchestrating the lane closings and became the prosecution’s chief witness....

Facing about 50 reporters and television cameras outside the federal courthouse here on Friday, the United States attorney for New Jersey, Paul J. Fishman, said that his office brought charges against only the people it believed a jury would find guilty beyond a reasonable doubt.  There was substantial documentary evidence, he said, to corroborate Mr. Wildstein’s testimony about Ms. Kelly and Mr. Baroni, once Mr. Christie’s top staff appointee at the Port Authority....

The convictions carry a maximum sentence of 20 years in prison, but under federal guidelines, Ms. Kelly and Mr. Baroni are likely to get far less time.  Mr. Fishman said Friday that under federal guidelines, Mr. Wildstein would be sentenced to 20 to 27 months in prison, but that he was likely to get “credit” from the judge for his cooperation. Prosecutors were likely to recommend longer terms for Mr. Baroni and Ms. Kelly, Mr. Fishman said, because they did not accept responsibility for their crimes and because prosecutors believe that they did not testify truthfully.

Judge Susan D. Wigenton set sentencing for Feb. 21.

I found at this link a copy of the plea agreement in which Mr. Wildstein agreed to plead guilty to two counts and to have his guideline calculation add up to an offense level 16 (including a three-point downward adjustment for acceptance of responsibility).  Such an offense level for a first offender accounts for his applicable guideline range being set at 21-27 months before he gets any further cooperation credit for his substantial assistance in the prosecution of Ms. Kelly and Mr. Baroni.  Assuming the same basic guideline calculations for Mr. Baroni and Ms. Kelly, but now without any benefit for acceptance of responsibility AND with a two-point enhancement for obstruction of justice based on testifying falsely, it seem they are facing an offense level of 21 (at least), and thus looking at an advisory guideline range of 37-46 months (at the lowest).

I can certainly imagine all sorts of arguments that could possibly be made by federal prosecutors to try to drive up the applicable guideline range further, but I suspect that USA Paul Fishman and his line prosecutors will be content to argue for a federal prison sentence in the range of three to four years.  I would also expect that defense attorneys for Ms. Kelly and Mr. Baroni will look for ways to contest any guideline range enhancement and will also advocate forcefully under the provisions of 18 USC 3553(a) for a sentence below whatever the guideline range is calculated to be. 

Because I am going to be turning this real case into a real-world teaching exercise in my sentencing class, I would be grateful to have informed (or even uniformed) folks provide any insights or ideas about how they expect the sentencing for Ms. Kelly and Mr. Baroni and Mr. Wildstein to play out in the week ahead.

Prior related post:

November 8, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Some Election Day headlines for sentencing fans ... (to read while waiting in line to vote?)

18702169.548e53c77fc3cI am about to head out to vote, and I have the great fortune (and white privilege?) of a local polling place where there is almost never a line to impede or slow down my voting efforts.  (And this year I have the extra excitement of getting to see one of my teenagers serving as a poll worker.  I am so very proud of her willingness to go through the local training and get up at 5am this morning in order to help everyone have an easy and smooth experience exercising the franchise.)

I am certain that starting this evening I will be blogging about results of key elections for those interested in sentencing reform (as partially previewed here), though I fear it will not be until Wednesday until we know about all the big initiative votes in California because polls there do not close until 11pm EST.  Before that time, though, I am hopeful we might have a sense of the outcomes of the big marijuana reform votes on the East Coast (especially in Florida, Maine and Massachusetts) and also of the death penalty votes in the Heartland (Oklahoma and Nebraska).

In the meantime, I have collected here some headlines and links to stories that provide a kind of Election Day starter.  Though I sincerely hope readers do not experience long lines or waits to vote, perhaps these stories can help some pass the time:

November 8, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Monday, November 07, 2016

"Extreme Prison Sentences: Legal and Normative Consequences"

The title of this post is the title of this intriguing looking new paper authored by Melissa Hamilton now available via SSRN.  Here is the abstract:

The American criminal justice system has an obsession with lengthy prison sentences.  From theoretical perspectives, harsh penalties may be justified to retributively punish heinous criminals, to incapacitate dangerous people, and to deter potential wrongdoers.  But for a penalty to achieve any of these purposes it must still be proportional to the offense and offender.  A disproportionately severe sentence is harmful in being unnecessary and tyrannical in nature.

This Article reports on an empirical study of extreme sentences, which is defined to include sentences of imprisonment of at least 200 years. The author compiled an original dataset of extreme sentences issued in the federal sentencing system. Since the year 2000, federal judges sentenced 55 individuals to prison terms ranging from 200 to 1,590 years.  At such a length, these sentences may appear irrational as they are beyond any person’s natural lifespan, particularly as the federal system provides no opportunity for parole.  Thus, it may be of interest to understand how and why such extraordinary sanctions came to fruition and to confront the consequences thereof in terms of normalizing extreme prison sentences.

The study undertook quantitative and qualitative analyses of a variety of sources related to the cases in the dataset.  The sources included statistical databases, case opinions, governmental press releases, and news reports.  The study results revealed that the discourses underlying extremely long sentences generally (a) justified them for the theoretical purposes of retribution, incapacitation, and/or deterrence; (b) approved them on proportionality grounds; (c) regarded the penalties as the practical equivalent of life sentences; (d) represented an exclusionist mindset; (e) relied upon dehumanizing caricatures; and (f) presented with cognitive biases, such as anchoring and scaling effects.

In the end, however, the Article still questions whether the extreme nature of these sentences is rational in any circumstance as they represent penalties that no person can possibly complete.  And even if a prison term of at least two centuries may be a proper one, the author posits that such a penalty appears disproportionate for multiple cases in the dataset.  At least a few of the defendants, for example, were nonviolent, first-time offenders.  Further, the federal judiciary’s acceptance of sentences of these extreme lengths has normative consequences that likely will continue to have a ratchet effect in future cases.

November 7, 2016 in Examples of "over-punishment", Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Split Fourth Circuit panel concludes Virginia’s geriatric release program insufficient to save juve LWOP sentences from violating Graham

A Fourth Circuit panel today handed down a lengthy split decision today in LeBlanc v. Mathena, No. 15-7151 (4th Cir. Nov. 7, 2016) (available here), concerning the application of the Supreme Court's Eighth Amendment Graham ruling in Virginia.  Here is how the majority opinion by Judge Wynn gets started:

Graham v. Florida, 560 U.S. 48, 74 (2010), held that “the Eighth Amendment forbids the sentence of life without parole” for juvenile offenders convicted of nonhomicide offenses. Accordingly, the Supreme Court held that States must provide juvenile nonhomicide offenders sentenced to life imprisonment with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75.

Nearly a decade before the Supreme Court decided Graham, Respondent, the Commonwealth of Virginia, sentenced Petitioner Dennis LeBlanc to life imprisonment without parole for a nonhomicide offense he committed at the age of sixteen. In light of Graham, Petitioner sought postconviction relief from his sentence in Virginia state courts. The state courts denied Petitioner relief, holding that Virginia’s geriatric release program — which was adopted more than fifteen years before the Supreme Court decided Graham and will allow Petitioner to seek release beginning at the age of sixty — provides the “meaningful opportunity” for release that Graham requires.

Mindful of the deference we must accord to state court decisions denying state prisoners postconviction relief, we nonetheless conclude that Petitioner’s state court adjudication constituted an unreasonable application of Graham.  Most significantly, Virginia courts unreasonably ignored the plain language of the procedures governing review of petitions for geriatric release, which authorize the State Parole Board to deny geriatric release for any reason, without considering a juvenile offender’s maturity and rehabilitation.  In light of the lack of governing standards, it was objectively unreasonable for the state courts to conclude that geriatric release affords Petitioner with the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” Graham demands. Id.  Accordingly, Petitioner is entitled to relief from his unconstitutional sentence.

Judge Niemeyer issued a lengthy dissent that gets started this way:

In affirming the grant of Dennis LeBlanc’s habeas petition brought under 28 U.S.C. § 2254, the majority holds that the Virginia Supreme Court concluded unreasonably that Virginia’s geriatric release program provided a meaningful opportunity for release to juveniles and therefore satisfied the requirements of Graham v. Florida, 560 U.S. 48 (2010).  Graham forbids sentencing juveniles to life in prison without parole for nonhomicide crimes.  In reaching its conclusion, the majority relies simply on its expressed disagreement with the Virginia Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011), and effectively overrules it.  The Virginia court’s opinion, however, is demonstrably every bit as reasonable as the majority’s opinion in this case and should be given deference under § 2254(d)(1).

Especially because the "swing" vote on this panel came from a district judge sitting by designation, I think there is a decent chance this case might get further consideration by the Fourth Circuit sitting en banc. I also would expect Virginia to seek Supreme Court review if it does not seek or secure en banc review.

November 7, 2016 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Global Overview of Sex Offender Registration and Notification Systems"

A helpful reader altered me to this interesting publication with the same title as this post.  The publication was produced by the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (known as SMART). Here is its introduction:

Sex offender registration and notification systems have proliferated around the world over the last twenty years. After the United States’ first national-level sex offender registration law was passed in 1994, 29 additional countries have enacted sex offender registration laws.  A handful of these systems are more analogous to what would be considered a CHRI (criminal history record information) database as opposed to a ‘registry’, but are included in this overview for the sake of thoroughness.

The following countries have laws governing sex offender registration systems at the national and/or provincial level: Argentina, Australia, Bahamas, Canada, Chile, Cyprus, France, Germany, India, the Republic of Ireland, Jamaica, Kenya, Maldives, Malta, New Zealand, Nigeria, Portugal, South Africa, South Korea, Spain, Taiwan, Trinidad & Tobago, United Kingdom and Commonwealth Nations (Bermuda, Gibraltar, Guernsey, Isle of Man, Jersey, and the Pitcairn Islands), and the United States.

The following countries have considered or are considering sex offender registration and notification laws, but such laws have not yet passed: Austria, Barbados, Belgium, Belize, Cayman Islands, Fiji, Finland, Hong Kong, Israel, Malaysia, Poland, Samoa, St. Lucia, Switzerland, United Arab Emirates, and Zimbabwe.

What follows in this SMART Summary is a brief snapshot of the sex offender registration and notification laws in each of the countries that have enacted such provisions, sequenced in chronological order of the first country in a continent or region to implement such laws.  Statutory references, where available, are provided. In addition, the footnotes contain additional references which might assist the reader in finding out more detailed information about the countries’ sex offender registration and notification provisions.

As this is a rapidly developing area of the law, and many statutes have not been officially translated into English, the reader is encouraged to check for the current versions of any nation’s provisions and consult official translations, rather than relying solely on this SMART Summary.

November 7, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6)

What are the elections that followers of sentencing reform are (or should be) watching especially closely?

On this Election Day eve, I am debating whether I should be putting together some kind of "Sentencing Reformers' 2016 Election Guide."  There are some obvious elections that everyone will obviously be watching which obviously will impact the fate of major sentencing reform efforts.  Who becomes Prez elect and which party controls the US Senate will, of course, be a focal point for all Election Night coverage, and these representative democracy outcomes will directly influence the direction and shape of future federal statutory sentencing reform developments.

In addition, those who care a lot about the state and fate of capital punishment will be following closely the big repeal/retain votes in California and Nebraska (and perhaps a lower-consequence vote in Oklahoma).  And those who care a lot about about the state and fate of marijuana reform will be following closely the big full legalization votes in five states (Arizona, California, Maine, Massachusetts, Nevada) and the medical marijuana votes in four other states (Arkansas, Florida, Montana, North Dakota).

Not to be overlooked among the higher-profile ballot initiatives are (arguably more consequential) state sentencing reform initiatives in California (Prop 57) and Oklahoma (State Questions 780 and 781).  And, as detailed via this Governing round-up, there are various other "criminal justice" ballot initiatives in various states dealing with victim rights and gun control and a few other issues that surely can echo through sentencing systems.

In addition to all this action, I suspect there may some (lower-profile?) "sleeper" federal, state or local races in which candidates or issues could have a pretty big impact on sentencing reform.  I would be grateful to hear from readers in the comments about any particular races/issues they are following particularly closely with an eye on current and future sentencing realities.  

Are there any of the elections mentioned above that readers think are especially important for sentencing reform?  

Are there elections I have not flagged that ought to be on the radar screens of sentencing reformers?

UPDATE: Via Twitter, I was alerted to this new article from The Nation which spotlights local Arizona DA up for re-election whose race might be of interest to readers of this blog.  The full headline of the article provides a taste of its contents: "This Arizona Prosecutor Is Waging a Strange War on Weed — and That’s Just the Beginning: Bill Montgomery is up for election tomorrow."

November 7, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

"Public Attitudes toward Punishment, Rehabilitation, and Reform: Lessons from the Marquette Law School Poll"

The title of this post is the title of this new article now available via SSRN authored by Michael O'Hear and Darren Wheelock. Here is the abstract:

Since the late 1990s, many opinion surveys have suggested that the American public may be growing somewhat less punitive and more open to reforms that emphasize rehabilitation over incarceration.  In order to assess current attitudes toward punishment, rehabilitation, and the criminal justice system, we collected survey data of 804 registered voters in Wisconsin.

Among other notable results, we found strong support for rehabilitation and for the early release of prisoners who no longer pose a threat to public safety.  However, we also found significant divisions in public opinion.  For instance, while black and white respondents largely shared the same priorities for the criminal justice system, black respondents tended to see the system as less successful in achieving those priorities.  Additionally, we found significant differences in the views of Democrats and Republicans, with Republicans more likely to favor punishment as a top priority and Democrats more likely to support rehabilitation.  Finally, we found that survey respondents that hold negative views of African Americans are significantly less likely to support rehabilitation, even after statistically controlling for the other variables in the model.

November 7, 2016 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Sunday, November 06, 2016

Do we need to worry seriously about voter confusion in the states in which the future of the death penalty is on ballot?

The question in the title of this post is prompted by this recent article from Governing headlined "As Voters Decide Death Penalty's Fate, Ballots Confuse Some: This year's proposals aren't as simple as marking whether you're for or against capital punishment."  Here are excerpts:

The death penalty is legal in 30 states, but a growing number have repealed it in the last decade.  Depending on the election, California and Nebraska could be next.  While voters in those two states decide whether to do away with capital punishment, voters in Oklahoma — where botched executions have led to a temporary moratorium — could strengthen their state's ability to carry it out....

[But] like the issue of capital punishment, this year's ballot measures on the topic are complicated.

In Nebraska, the state legislature overrode their governor to repeal the death penalty in 2015, but the law never went into effect because opponents gathered enough signatures to put a referendum on the ballot.  If voters ultimately uphold the law, it would be the first state under GOP control to ban capital punishment since 1973.

But first, voters will have to figure out which side they stand on — something that could be difficult for many.  The ballot measure gives voters two options: "repeal" or "retain." People who choose "repeal," as confusing as it may be, won't be voting to repeal the death penalty — they'll be voting to repeal the legislature's repeal of the death penalty and thus keep the option of executions available.

Nebraska GOP Gov. Pete Ricketts is campaigning in favor of capital punishment and has contributed about $400,000 to the effort.  In his veto letter to state lawmakers last year, he said their vote on a death penalty ban “tests the true meaning of representative government.”  Though a bipartisan majority of legislators overrode his veto, Ricketts may be correct that the public is with him: An August poll found that about 58 percent of likely voters in Nebraska are in favor of the death penalty.

In California, the ballot features two conflicting propositions — one that would repeal the death penalty and another that would keep it.  If both measures earn a majority of votes, whichever gets more will go into effect.  Most polls suggest the pro-death penalty measure will pass.

And in Oklahoma, the legality of capital punishment isn't up for a vote. Instead, voters will decide whether to add a section to the constitution that affirms the state’s authority to carry out executions, regardless of which method is used.  After several botched executions, the state halted any future ones until further notice. Oklahoma's ballot measure would also exempt the death penalty — but not specific methods of execution — from being invalidated by courts as cruel and unusual punishment.  "It takes away the debate on whether or not we should have capital punishment," said state Rep. John Paul Jordan in an interview with The Oklahoman.  "It allows us to direct our attention as a Legislature towards how we implement it and how we do it in the most humane way possible.”

Critics of the Oklahoma ballot question say the constitutional amendment is unnecessary, undermines the authority of the courts and could invite expensive lawsuits.  Several civil rights experts have raised concerns that the measure would strip citizens of their constitutional protections against cruel and unusual punishment.  Nevertheless, a July poll found that more than 70 percent of likely voters supported the constitutional amendment.

Although polling in all three states suggest that a majority of voters support the death penalty, there's evidence that the framing of the question makes a major difference in how people respond. I n Oklahoma, when likely voters were asked if they supported the death penalty, three-quarters said yes.  But when given the option of eliminating the death penalty and replacing it with a life sentence without parole, along with other financial penalties, a slight majority favored a ban on the death penalty.

November 6, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Life Without the Possibility of Parole for Juvenile Offenders: Public Sentiments"

The title of this post is the title of this new paper authored by Jennifer Gongola, Daniel Krauss and Nicholas Scurich. Here is the abstract:

The United States Supreme Court recently abolished mandatory life in prison without the possibility of parole (LWOP) for juvenile offenders, holding that the practice was inconsistent with the 8th amendment’s cruel and unusual punishment clause, and its “evolving standards of decency” jurisprudence. The Court explicitly left open the question of whether non-mandatory LWOP is consistent with these constitutional standards.

This paper examines the public’s sentiment concerning juvenile LWOP. An online sample (n = 599) weighted to be representative of the U.S. population was queried about juvenile LWOP as a general policy and in response to a specific case in which they had to impose a prison sentence on a juvenile convicted of murder. The age of the juvenile was experimentally manipulated. Overall, 31% of participants favored juvenile LWOP as a general policy while 55% were willing to impose juvenile LWOP in the specific case presented. The age of the juvenile moderated this effect, such that participants were more willing to impose LWOP on a 16-year-old than a 12-year-old both as a general policy matter and in response to the specific case vignette. A majority of participants were consistent in their preferred punishment across both frames, including 30% who selected LWOP.

Political affiliation was the only demographic variable that predicted consistency in preferred punishment across the two frames. Additionally, participants who consistently endorsed juvenile LWOP placed greater emphasis on retribution and deterrence as goals of punishment while individuals who evidenced inconsistent punishment preferences placed a greater emphasis on rehabilitation.

November 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)

Another big NYC white-collar sentencing produces another way-below-guideline sentence

This USA Today article, headlined "Wall Street fraud sentencing prompts tears and debate," provides the highlights of a high-profile federal fraud sentencing that took place in Manhattan on this past Friday. Here are some of the details:

It was an emotional federal court sentencing, with the future of an Ivy League-educated former private equity executive hanging in the scales of justice.  

The prosecution said Andrew Caspersen, a scion of a wealthy business family, should get as much as a 15-year-plus prison sentence for executing a Ponzi-like scam that collectively bilked about a dozen of his clients, family members, and his investment company out of roughly $46 million.  The defense said Caspersen never intended to steal and betray. Asking for leniency, his attorney, Paul Shechtman presented evidence to show the 40-year-old father of two had been gripped by a pathological gambling addiction.

On the bench in the 14th-floor Manhattan courtroom sat U.S. District Judge Jed Rakoff, a renowned legal independent and author of a recent essay that almost seemed to foreshadow the proceeding.  "Distinctions of intent frequently determine, as a matter of law, the difference between going to prison and going free," Rakoff wrote in The New York Review of Books in his examination of neuroscience and the law.  What ensued was a nearly three-hour debate over whether and how much gambling addiction should factor in the sentence — complete with references to "The Gambler," a short novel by Fyodor Dostoyevsky.

By the end, Caspersen and his wife, Christina, wept as they held one another in the courtroom.  Shechtman brushed away tears of his own.  And Manhattan U.S. Attorney Preet Bharara issued a statement that noted Caspersen had been sentenced — but made no comment on the punishment.

The prosecution attacked the gambling addiction defense from the start. Assistant U.S. Attorney Christine Magdo argued that 2014-2016 scam run by the Princeton University and Harvard Law School graduate had been carefully calculated. In a sentencing memo to the court, she noted that Caspersen fooled his roughly dozen victims by incorporating sham entities with names similar to real private equity firms.

The victims lost millions.  Some, investment professionals themselves, declined to present victim statements by name, fearing the reputational loss of being fooled.  Magdo added that Caspersen used much of the scam proceeds to pay the mortgage and two home equity credit lines on a Manhattan apartment, as well as a $3 million home in Bronxville, a wealthy suburb of New York City....

Shechtman submitted dozens of support letters to the court, including pleas for leniency from Caspersen's wife, friends, and even the doorman of his Manhattan co-op. The defense also turned to scientific and financial trading experts.  Dr. Marc Potenza, a Yale University School of Medicine psychiatry professor and mental health expert on addiction, examined Caspersen and reviewed his health records in preparation for testifying at the sentencing hearing. "Mr. Caspersen suffered from a severe gambling disorder, a mental illness, and there is little doubt that it contributed substantially to him losing his own money and seek money by fraud from others to continue on the same destructive path," Potenza wrote in a letter to the court....

Citing the experts' conclusions, Shechtman urged Rakoff to weigh the "tragic dimension" of Caspersen's gambling addiction.... Caspersen fought back tears as he addressed the court before being sentenced. "I have committed serious crimes of fraud, and have no one to blame but myself," he said. "I stand before you asking for mercy."...

After more than an hour of testimony and questioning of Potenza, Rakoff said he deemed it "more likely than not" that gambling addiction existed and could be a mitigating factor. Still, he stressed it must be weighed with other factors in the case. "It was a substantial fraud," said the judge. "It was a fraud that involved the deception of people who had a lot of faith in the defendant."

Ultimately, Rakoff sentenced Caspersen to four years in prison, followed by three years of supervised release, and nearly $28 million in restitution. "No purpose would be served by having him rot in prison for years on end," said the judge. He characterized federal sentencing guidelines that would allow the far longer sentence sought by prosecutors as "absurd." And, referring to the likelihood that some might question the leniency, Rakoff said outsiders didn't know all the facts of the case.

I cannot find any indication that Judge Rakoff has or plans to write up his sentencing conclusions in a formal opinion, but I sincerely hope he does.  For consistent and cogent sentencing even after Booker made the guidelines advisory, it is critical in my view not only for federal district judges to consider thoughtfully all the 18 USC 3553(a) sentencing factors, but also for them to produce written opinions to explain how they weighed those factors in high-profile cases in which they significantly deviate from the ranges suggested by the guidelines.

November 6, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Friday, November 04, 2016

Another week and another big batch of clemencies from Prez Obama

As this new USA Today article highlights, "President Obama's decision to grant 72 more commutations Friday — just before getting on Air Force One for a two-city campaign tour of North Carolina — shows how far he's gone in his efforts to "reinvigorate" the pardon process." Here is more:

Just a year ago, it might have been unthinkable for a president to use his constitutional power to shorten sentences so close to an election, regardless of who's on the ballot. "Commutations a week before an election? That's a wow factor of 10!" said P.S. Ruckman Jr., a political scientist who has studied, among other things, the timing of presidential clemency.

Obama has now granted 170 commutations in just the past eight days, bringing the total for his presidency to 944. It's the largest number of commutations in any single year in history, and represents an exceptional "surge" in the president's clemency power in his last year.

"What President Obama has done for commutations is unprecedented in the modern era." White House Counsel Neil Eggleston said in a statement. "The president is committed to reinvigorating the clemency authority, demonstrating that our nation is a nation of second chances, where mistakes from the past will not deprive deserving individuals of the opportunity to rejoin society and contribute to their families and communities."

Most of Obama's pardons have been through his clemency initiative, which seeks to reduce the long mandatory-minimum sentences meted out under sentencing guidelines from the late 1980s through the 2000s....

The frequency with which Obama is now granting commutations has encouraged some advocates who had been urging the president to "vastly increase the pace" of the effort. "The Obama administration has said it was committed to ever more grants, and it seems quite clear that the president’s actions are matching his words," said Cynthia Roseberry, the manager for Clemency Project 2014, a coalition of lawyers working on commutation cases to present to the president....

Of the 72 commutations granted Friday, 17 were for inmates serving life sentences.

November 4, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"If guilt is proven, should juries always convict?"

The title of this post is the headline of this very interesting new article appearing in my own local Columbus Dispatch.  Here is the context and commentary that follows the headline:

No one denied that Edwin Sobony II savagely beat his wife’s heroin supplier with a baseball bat when the man visited the couple’s Hamilton Township home in December. Sobony admitted to investigators that he did it after repeatedly begging the man to stay away.  At his trial in September on charges of felonious assault, his defense attorney told jurors that Sobony’s actions were “felonious as hell.”

Yet the attorney, Sam Shamansky, encouraged the jury to acquit his client anyway. “He assaulted him with this bat,” Shamansky said, holding the weapon aloft during his closing argument.  “And you say to yourself, ‘You know what, that’s OK. That’s what I would have done.’ Because no one can challenge that opinion. You can go back in that jury room and believe that and vote for it and nobody can touch you. That’s the beauty of the system. It prevents these kinds of prosecutions from ruining lives.”

Shamansky also told jurors that they could acquit by finding that Sobony acted in defense of himself and his family. But he acknowledged last week that, in case they rejected the self-defense claim, he was trying to persuade them that they could employ what is known as jury nullification to find his client not guilty.

Jury nullification occurs when jurors acquit a defendant, despite the prosecution proving its case beyond a reasonable doubt, because they believe the law is unjust or has been unjustly imposed.  It appeared to happen last week in Oregon, where a jury acquitted seven defendants who had armed themselves and occupied a national wildlife refuge during a 41-day standoff with federal authorities.

Shamansky’s arguments on behalf of Sobony didn’t work. The jury deliberated for less than three hours before finding the mail carrier guilty of one count of felonious assault. Sobony, 38, is scheduled to be sentenced Wednesday by Franklin County Common Pleas Judge Charles Schneider.

Not everyone agrees that nullifying a law is an appropriate option for juries. Ric Simmons, a professor of law at Ohio State University’s Moritz College of Law, said jurors take an oath to follow the law and return a conviction if the prosecution meets its burden of proof. “In my view, jurors are under a legal obligation to follow the law,” he said.

However, jurors can’t be punished for their decisions, regardless of their reasoning, and their verdicts can’t be appealed. “So jury nullification exists, and we can’t do anything about it,” said Simmons, a former prosecutor.

Others say jury nullification is a time-honored tradition in the United States and was seen by the Founding Fathers as a check on abuse or overreach by the government. It was used by pre-Civil War juries to acquit those charged with violating the Fugitive Slave Act. More recently, it’s been used to acquit those charged with what juries consider antiquated drug-possession laws.

“Jury nullification has played a huge role in the development of our laws,” said Clay S. Conrad, author of “Jury Nullification: The Evolution of a Doctrine.” “For instance, it’s why we have a range of charges for murder, from manslaughter to capital murder. Juries didn’t want everyone to get the death penalty.”

Conrad, a lawyer based in Houston, said police, prosecutors and judges shouldn’t be the only ones allowed to use discretion in how they apply the law. “If a jury believes the prosecution’s idea of justice is wrong, they should have every right to reflect that with their verdict,” he said. “I think the problem we have with getting more juries to nullify in cases where it is appropriate is because so many people are unwilling to challenge authority.”

The leading advocacy group for jury nullification is the Fully Informed Jury Association, a nonprofit organization founded in 1989 in Montana. The group works to educate the public about jury nullification and says that juries should be informed about it as part of jury instructions. “We’re trying to overcome a lack of information, but it’s more than that,” said Kirsten Tynan, the group’s executive director. “Jurors are almost always going to be misinformed. They’re told by the court that they must follow the law as it’s given to them. “We have to educate people that what they’re being told isn’t necessarily true.”

I got into a bit of a verbal fight with my friend and colleague Professor Ric Simmons about this issue just earlier this week (and thus I love seeing him quoted on this front).  Readers may not be too surprised to hear that I am generally a fan and supporter of jury nullification.  Indeed, I generally believe that juries should be instructed about their power and right to nullify, though I also believe that prosecutors should be able to explain to jurors why they think broad use of nullification powers could have an array of potentially harmful societal consequences.

In this setting and in many others dealing with jury trial rights and procedures, I suspect views are often influenced by one's broader perspectives on the operation of present (and future?) criminal justice systems (both personally and professionally).  I have long viewed US criminal justice systems as bloated and inefficient, and thus I have always been inclined to embrace the jury's role as a critical "democratic" check on the criminal justice work of legislative and executive branches. (The late Justice Scalia's writings in cases like Blakely and other jury-respecting rulings have reinforced and enhanced these perspectives in recent years.) My colleague Professor Simmons obviously takes a different view, and I suspect he will not be surprised to know that I believe his views are at least somewhat influenced by his own professional history before he became an academic.

November 4, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Supreme Court (surprisingly?) grants last-minute stay of Alabama execution

As reported in this Washington Post article, the "Supreme Court stayed the execution Thursday night of an Alabama inmate who had been scheduled to die by lethal injection." Here is more about this interesting development and its context:

This marked the seventh time that Thomas D. Arthur — who was convicted of murder and is the second-oldest inmate on Alabama’s death row — had faced an execution date that was called off, according to the office of Alabama Attorney General Luther Strange. Arthur’s execution was scheduled for Thursday evening, but the uncertainty stretched into the night as officials in Alabama waited for the Supreme Court to consider his appeals.

Supreme Court Justice Clarence Thomas — the Supreme Court justice assigned to the 11th Circuit, which includes Alabama — said in an order shortly before 10:30 p.m. that he was halting the execution until he or the other justices issued another order. Thomas referred the case to the full court, and shortly before midnight, the justices issued an order granting Arthur’s stay request. The order included a statement from Chief Justice John G. Roberts Jr. explaining that while he did not believe this case merited a review from the Supreme Court, he had decided to vote for a stay anyway as a courtesy to his colleagues.

Roberts wrote that four of the other justices had voted in favor of staying the execution. “To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy,” he wrote. Roberts said Thomas and Justice Samuel Alito would have rejected the request; he did not explain why an eighth justice was not involved in the vote.

According to the court’s order, Arthur’s stay request would remain granted until the justices decide whether to consider the case. If they decide against it, the stay will be terminated. “We are greatly relieved by the Supreme Court’s decision granting a stay and now hope for the opportunity to present the merits of Mr. Arthur’s claims to the Court,” Suhana S. Han, an attorney for Arthur, said in a statement.

Arthur, 74, was sentenced to death for the 1982 killing of Troy Wicker, described in court records as the husband of a woman with whom Arthur had an affair. According to a summary of the case from the Alabama Supreme Court, Arthur was serving a life sentence for fatally shooting a relative of his common-law wife and, while on work release, had an affair with Wicker’s wife before killing Wicker. After three trials, Arthur was sentenced to death. One of his executions was called off after another inmate confessed to the killing, though a judge ultimately dismissed that inmate’s claim.

In appeals filed Thursday, Arthur’s attorneys argued that Alabama’s “deficient lethal injection protocol” would have had “torturous effects,” pointing to the state’s planned use of the sedative midazolam, which has been used in at least three executions that went awry. Last year, the Supreme Court upheld Oklahoma’s execution protocol in a case that hinged in part on that sedative.

Arthur’s court filings also argued that the state should execute him by firing squad, arguing that “execution by firing squad, if implemented properly, would result in a substantially lesser risk of harm” than the proposed lethal injection method. Strange’s office, in its response, noted that under Alabama state law, the Department of Corrections is only allowed to carry out executions by injection and electrocution.

Strange criticized the justices for their action late Thursday. “With all due respect to the Supreme Court, tonight’s order undermines the rule of law,” Strange said in a statement. “While I agree with Chief Justice Roberts that ‘This case does not merit the Court’s review,’ in my view, there is no ‘courtesy’ in voting to deny justice to the victims of a notorious and cold-blooded killer.”...

There have been 17 executions in the United States so far this year, according to the Death Penalty Information Center, and the country is on pace to have its fewest executions in a quarter-century. Arthur’s was one of four executions scheduled through the end of 2016, according to the center.

November 4, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Thursday, November 03, 2016

"A Proposal to Restructure the Clemency Process — The Vice President as Head of a White House Clemency Office"

The title of this post is the title of this interesting new essay authored by Paul Larkin and now available via SSRN. Here is the abstract:

The need for reconsideration of the federal clemency process is a real one, and there is a consensus that the Justice Department should no longer play its traditional doorkeeper role. Using the vice president as the new chief presidential clemency adviser offers the president several unique benefits that no other individual can supply without having enjoyed a prior close personal relationship with the chief executive.

Whoever is sworn into office at noon on January 20, 2017, as the nation’s 45th President should seriously consider using as his principal clemency adviser the person who was sworn into the vice presidency immediately beforehand. The president, clemency applicants, and the public might just benefit from that new arrangement.

November 3, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Could puppies be the "magical" elixer that can make modern correctional institutions actually correctional?

BonpFuOIUAEiRnkThe question in the title of this post is prompted by this lengthy new local article from California headlined "California prisons struggle to get inmates to change. Are puppies the ‘magical’ answer?." The piece is about a lot more that has been going on in California prison policy and practice than just a shaggy-dog story. But the article's headline and "softer" contents gives me an excuse to post a puppy picture of the dog breed that I share my life with, and I like hearing about prisoners getting some dog-gone good puppy vibes as well. Here are excerpts:

When a pair of puppies stepped into a state prison’s highest security yard on a scorching summer day, dozens of felons fretted that the Labradors would singe their feet on hot pavement. “Pick them up! You’ve got to carry them. Watch out for their paws!” inmate Andre Ramnanan remembers his worried peers shouting at him.

Three months later, Ramnanan says the dogs still have a “magical” effect on the yard at Mule Creek State Prison in Amador County. Sometimes, they even defuse fights.  “I’ve seen fights almost break out and then stop because someone says, ‘Wait, there’s a dog here,’ ” said Ramnanan, 43.

Ramnanan, serving life without parole for participating in a murder and kidnapping 24 years ago, is one of a handful of inmates enrolled in a program that gives prisoners a shot at redemption by asking them to nurture service dogs that one day will comfort wounded veterans or children with autism. 

The program, called Tender Loving Canines, is among the wealth of new and restored rehabilitation courses that are popping up in California state prisons since Gov. Jerry Brown began boosting programs that help inmates prepare to re-enter society. Today, those programs are giving inmates more opportunities to study, work or pursue therapy than they were offered a decade ago when the state’s prisons were severely overcrowded.

They also provide a template for the reforms Brown is advocating with Proposition 57, his initiative to slim the state’s prison population by empowering parole boards to grant early releases for nonviolent inmates who better themselves while in confinement.

Inmates and their loved ones are following the measure closely. On a recent visit to Mule Creek State Prison, some inmates said it may speed their release. “I wanted to join the program because it was helping the community, and I want to get back to the community,” said inmate Maurice Green, 37, who is participating in the service dog program. “Hopefully, if Prop. 57 passes, it’ll be next year.”...

Mule Creek State Prison contains about 3,500 inmates. It’s reserved for inmates who likely would be harmed by prisoners at other institutions, such as corrupt cops, felons who’ve separated themselves from gangs and sex offenders. It also houses inmates with special medical needs, such as prisoners who use wheelchairs. In May, it opened two new wings that will allow it to house about 1,500 more inmates. So far, the $344 million project is at half capacity while the prison hires more medical and mental health workers to staff the new wards.

Like other prisons, it was extremely overcrowded before a series of court rulings beginning in 2009 compelled the state to direct thousands of new inmates to county jails. Brown as attorney general and earlier in his term as governor unsuccessfully appealed those decisions. Since 2009, the state’s prison population has fallen from about 170,000 inmates to fewer than 129,000.

When Mule Creek was at its most-crowded, inmates slept in gymnasiums and in activity rooms, Lt. Angelo Gonzalez said. Back then, the prison didn’t have room for the rehabilitation programs that inmates are using now. “We had so many inmates that the focus was on providing the basic necessities,” said Mule Creek Warden Joe Lizarraga.

Lately, Mule Creek has seen more inmates joining anger management and conflict resolution programs that Lizarraga has been able to fund through grants that support prisons in rural communities. Statewide, Brown has escalated funding for inmate rehabilitation from $355.2 million in 2011 to $481.5 million this year.

Dogs are at the heart of two of Mule Creek’s most popular programs. In the high-security yard, five young dogs are attached to inmates around the clock in the program that trains them to become service animals. They’re stars of the yard, threading crowds of well-tattooed inmates as they follow their mindful trainers. In a lower-security wing, stray dogs from Amador County spend time with inmates until they become socialized and ready for adoption through local shelters.

Last week, inmate James Hardy had a breakthrough when a rambunctious pit bull he’s been minding suddenly started playing with a chihuahua. Until then, the two dogs had been enemies. He identifies with the strays, recognizing that he, too, could use some help figuring out how to live better outside prison.

“They came from a rescue center. They’re a lot like us. I see us like we’re rescues, too,” said Hardy, 40, of Sacramento, who has been in and out of prison for the last 20 years. He’s serving seven years for vehicle theft.

Cherie Flores, one of the service dog training instructors from Tender Loving Canines, said inmates and puppies are a good match. She visits twice a week, coaching the inmates on how to prepare the dogs for a lifetime of service. “This is amazing for them and for the dogs,” she said. “These guys have nothing but time and structure. Puppies need time and structure. This is everything for them.”

Lizarraga makes a point to spend time with the service dogs in Tender Loving Canines. Some members of his staff had reservations about putting the dogs in the prison’s highest security wing. He thought it was worth a chance, to see if the dogs would change the atmosphere. “It’s our most violent yard. What better place to put a program that had the potential to calm the yard down? It’s done a tremendous job,” he said.

Ramnanan said he joined the program in part because he wanted to “atone” for the 1992 murder that sent him to prison. In the past, he used to sit in his cell and “be angry at the world.” Lately, he pays close attention to a puppy named Amador, turning a fan on her when she pants at night. “It’s a 24-hour-a-day job,” he said. “You find an attachment and someone needs you. It’s a good feeling.”

November 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Death row defendants come up just short in big circuit panel rulings about lethal injection protocols

Though I am saddened that the lovable baseball club from Cleveland came up just short against a lovable baseball club from Chicago very early this morning, there are some death row defendants and lawyers who I suspect are much more troubled by a much more serious legal matter in which their arguments to federal circuit panels came up just short yesterday.   Specifically, two court panels, one in the Sixth Circuit and one in the Eleventh Circuit, yesterday handed down two split 2-1 rulings against death row defendants in Ohio and Alabama.  Here are links to the rulingsand the start of the majority opinions:

Phillips v. DeWine, No. 15-3238 (6th Cir. Nov. 2, 2016) (available here):

In this appeal, a group of inmates sentenced to death in Ohio challenge the constitutionality of the State’s newly enacted statutory scheme concerning the confidentiality of information related to lethal injection. The district court dismissed some of their claims for a lack of standing and the remainder for failure to state a claim. For the reasons stated below, we AFFIRM.

Arthur v. Alabama DOC, No. 16-15549 (11th Cir. Nov. 2, 2016) (available here):

It has been 34 years since Thomas Arthur brutally murdered Troy Wicker. During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to death for Wicker’s murder.  After his third death sentence in 1992, Arthur for the next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction appeals in both state and federal courts.

In addition, starting nine years ago in 2007 and on three separate occasions, Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be used in his execution.  This is Arthur’s third such § 1983 case, and this current § 1983 case was filed in 2011.  For the last five years Arthur has pursued this § 1983 case with the benefit of lengthy discovery. The district court held a two-day trial and entered two comprehensive orders denying Arthur § 1983 relief.  Those orders are the focus of the instant appeal.

After thorough review, we conclude substantial evidence supported the district court’s fact findings and, thus, Arthur has shown no clear error in them.  Further, Arthur has shown no error in the district court’s conclusions of law, inter alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital is a feasible, readily implemented, and available drug to the Alabama Department of Corrections (“ADOC”) for use in executions; (2) Alabama’s consciousness assessment protocol does not violate the Eighth Amendment or the Equal Protection Clause; and (3) Arthur’s belated firing-squad claim lacks merit.

November 3, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, November 02, 2016

"Judicial Sentencing Error and the Constitution"

The title of this post is the title of this notable new paper authored by Reid Weisbord and George Thomas now available via SSRN. Here is the abstract:

Much recent scholarship has sharply criticized the pervasive phenomenon of wrongful convictions, but the literature has overlooked an important related injustice: inaccuracy in criminal sentencing. This Article provides the first comprehensive scholarly treatment of judicial sentencing error, which has become widespread in the modern era of both ad hoc revision to criminal codes and increasingly complex criminal sentencing systems that often lack internal coherence or sensible statutory organization.

Although nearly always the product of human error, the problem of judicial sentencing error is more aptly characterized as systemic because sentencing judges often face ever-changing, overlapping statutory requirements contained in separate parts of the criminal code. We identify both the source and harmful consequences of judicial sentencing error, and then examine constitutional principles implicated by the untimely correction of an erroneous sentence.

Focusing particularly on a defendant’s interest in finality, we argue that the constitutional guarantees of substantive due process and protection against double jeopardy under the Fifth Amendment should be construed to limit the time to correct an erroneously lenient sentence, with the Double Jeopardy Clause supplying the more potent limiting principle and objective legal standard. We conclude that — by according respect for principles of finality in criminal sentencing — the law could create an effective institutional incentive for the State to ascertain the correctness of sentencing orders at or near the time of punishment, thereby preventing the harm and injustice that occur when the defendant’s reasonable expectation of finality has been frustrated for the legitimate but not indomitable sake of accuracy.

November 2, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Advisory Nevada commission advises the creation of a sentencing commission to create advisory sentencing guidelines

This new local article, headlined "Panel calls for commission to set Nevada sentencing guidelines for criminal offenses," reports on a recommendation by one commission to create another commission to make sentencing recommendations. Here is how the article begins:

A criminal justice advisory panel agreed Tuesday to recommend that state lawmakers establish a special commission to set statewide sentencing guidelines for crimes.  Creation of a sentencing commission, which would work to bring consistency to sentencing practices statewide, was one of several recommendations of the Advisory Commission on the Administration of Justice for consideration by the 2017 Nevada Legislature.

The commission, led by state Supreme Court Justice James Hardesty, has met numerous times since the last legislative session to scrutinize Nevada’s criminal justice system and recommend reforms.  Hardesty envisioned a sentencing commission modeled after one adopted in Connecticut that considers a crime’s severity and a defendant’s criminal history.  Judges could deviate from recommended sentencing guidelines but would have to explain their reasoning, which would be subject to possible appellate review.

He said it would make the criminal justice system fairer and reduce racial disparity. “This is something that we can do now,” Hardesty said. “This is something the Legislature can do now.”

He noted a previous study that showed a wide gap in sentences around the state. Some judges, he said, sentenced defendants to prison 30 percent of the time and other defendants more than 60 percent of the time for similar crimes.

November 2, 2016 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Election 2016: astute views "this Year’s Soft-on-Crime Attack Ads"

Maurice Chammah has this effective new article at The Marshall Project taking a look at "Campaign ads in the age of criminal justice reform." Here are excerpts from how it starts and ends:

It’s campaign season, which means the long shadow of Willie Horton is with us yet again. George H.W. Bush’s 1988 attack ad, which blamed his Democratic opponent Michael Dukakis for releasing a man who went on to commit more violent crimes, has become shorthand for a style of political advertising that continues to reappear every cycle. This year is no different.

But there are a few new approaches to these ads that may reflect larger trends in the politics of criminal justice....

“Most of these spots flinch when it comes to going for a pure fear appeal, à la Willie Horton,” says Robert Mann, a journalism professor at Louisiana State University who wrote a book on the 1964 “Daisy” ad. Mann noted that an attack ad about Democratic Connecticut state Sen. Mae Flexer — which criticizes her vote to repeal the state’s death penalty and support an early release program — “was careful to show several non-minority faces.” The attack on Kaine also features primarily white criminals.

This year, many ads in the Horton tradition focus on the subject of rape, perhaps in an attempt to appeal to women voters. In Houston, Texas, an ad accuses the incumbent district attorney, Republican Devon Anderson, of jailing a rape victim to ensure she would testify. Republican ads against North Carolina gubernatorial candidate Roy Cooper and Catherine Cortez Masto, who is running for a Senate seat from Nevada, accuse each of them of putting a low priority on testing rape kits and solving rape crimes in general.

Ads in North Carolina are targeting Deborah Ross, the Democratic challenger to Sen. Richard Burr, for her efforts on behalf of a 13-year-old named Andre Green, who was charged with sexually assaulting his 23-year-old neighbor while the victim’s toddler was in the room. In 1994, as an ACLU lobbyist, Ross advocated against placing Green in an adult court. “If Deborah Ross had her way, Green would be on our streets,” the ad says. In response, Ross released her own ad attacking Burr for being soft on sex criminals. The ad points out that Burr voted against the Violence Against Women Act, which includes funding for rape crisis centers, and voted against funding the federal sex offender registry (in truth, his vote was against a much broader budget bill).

Jonathan Davis, a partner at Northside Research + Consulting, an opposition research firm in New York, sees the trend as a tactical appeal to women in an election where their votes are not as predictable. Hillary Clinton “is poised to win a historic percentage of Republican women,” he says. “There is a large block of female voters in key states who know they're backing Clinton for president, but are still open to persuasion in down-ballot races.”

Some of those down-ballot candidates, including district attorney hopefuls in Florida and Colorado, are also trying different strategies with their advertising: they are using the language of criminal justice reform, calling for rehabilitation rather than prison for minor crimes. Colorado Democrat Beth McCann is running an ad featuring Francisco Gallardo, a former gang-member who now works with at-risk youth. In the ad, Gallardo says, "We need something that's more comprehensive, that's not just about building jails, but promoting the front end, building more empathy, more education, more opportunities...the reason Beth [McCann] can make those hard choices is she’s connected in the community."

But at the end of the day, despite these newer trends, the soft-on-crime attack endures. The best proof of its power is that even critics of mass incarceration are willing to use it. The most surprising Horton-esque attack this season comes from the suburbs of Denver, where a radio ad is targeting incumbent district attorney Peter Weir. The ad accuses Weir, a Republican, of signing off on a plea deal granting probation for Michael David Miller, a rapist with numerous alleged victims. (Weir told The Marshall Project that Miller’s crime would have been difficult to prove before a jury, and his office pursued Miller more aggressively than other jurisdictions where accusations were made.)

The ads were paid for by a political action committee linked to billionaire George Soros, who is actually trying to bolster the campaigns of reformers (Soros, through a spokesman, declined to comment). Soros’s chosen candidate, Jake Lilly, is running his own, separate ads promoting reform; he calls for treatment for people with addiction and mental health issues. Weir, the incumbent being attacked, is broadly in agreement; he has promoted the use of specialty courts to divert drug offenders from jail time. Lilly spoke out against the Soros-funded ads that were designed to help him. “I don’t approve of the tone,” he told a local reporter. “I don’t approve of the negativity.”

November 2, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Tuesday, November 01, 2016

Two new Washington Post commentaries making federal sentencin reform sound (way too) easy

The "In Theory" section of the Washington Post now has posted two notable new commentaries about prison reform.  Here are the authors, full titles and links:

Here is how the second of these two commentaries gets started:

When our next president enters the Oval Office, she or he will be faced with two questions: First, how to make a mark as president ? Second, how to break through gridlock in Congress?

Prioritizing reducing our prison population is one way to achieve both goals. Most Republicans and Democrats agree: Mass incarceration devastates communities of color and wastes money.  Even Hillary Clinton and Paul Ryan see eye-to-eye. Committing to such reform in the first 100 days would make a lasting and imperative change.

Regular readers will not be surprised to know I support the spirit and much of the substance of these two commentaries.  But the "can-do" talk and the direct or indirect suggestion that this kind of reform should be "easy for the next president" really seem to me to miss the mark.  After all, Prez Obama and House Speaker Paul Ryan and current Senate Judiciary Chair Chuck Grassley all right now largely "see eye-to-eye" on the importance of "reducing our prison population."  And yet, despite diligent work by lots and lots of folks on the federal reform front for more than two years now, Congress has so far been unable to get any kind of significant criminal justice reform bill to the desk of Prez Obama. 

Though I know the 2016 election is certain to disrupt the existing political status quo, I do not know if anything that happens at the voting booth next week can make it that much easier for the folks inside the Beltway to find their way to turn all sorts of talk into actual statutory reforms.  I sure hope advocates like those who authored these commentaries keep talking up the importance of making criminal justice reform a priority in 2017.  But, as I have been saying for too many years already, I am not counting any federal sentencing reform chickens until they are fully hatched.

November 1, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Is California's parole reform initiative, Prop 57, among the most important and consequential sentencing ballot issues?

The question in the title of this post is prompted in large part by this recent Los Angeles Times article headlined "Why Gov. Jerry Brown is staking so much on overhauling prison parole." Here are excerpts (with my emphasis added for later commentary):

Few California voters likely know much, if anything, about the state Board of Parole Hearings — from the qualifications of the 12 commissioners to their success in opening the prison gates for only those who can safely return to the streets.  And yet Gov. Jerry Brown’s sweeping overhaul of prison parole, Proposition 57, is squarely a question of whether those parole officials should be given additional latitude to offer early release to potentially thousands of prisoners over the next few years. “I feel very strongly that this is the correct move,” Brown told The Times in a recent interview. “I’m just saying, let’s have a rational process.”

Prosecutors, though, contend the governor’s proposal goes too far after several years of trimming down California’s prison population to only the most hardened criminals. They believe the parole board, whose members are gubernatorial appointees, already is swinging too far away from being tough on crime. “They are recommending release of people we never would have expected would have occurred so soon,” said Los Angeles County Dist. Atty. Jackie Lacey. “I’m concerned about people who really haven’t served a significant amount of time.”

In some ways, Proposition 57 is a proxy for a larger battle over prison sentences.  There are sharp disagreements between Brown and many district attorneys over the legacy of California’s decades-long push for new and longer mandatory sentences, a system in which flexibility is often limited to which crimes a prosecutor seeks to pursue in court.  The warring sides have painted the Nov. 8 ballot measure in the starkest of terms, a choice for voters between redemption and real danger.  “We’re dealing with deep belief systems,” Brown said.

Proposition 57 would make three significant changes to the state’s criminal justice framework. It would require a judge’s approval before most juvenile defendants could be tried in an adult court — reversing a law approved by California voters in 2000.  Critics believe prosecutors have wrongly moved too many juveniles into the adult legal system, missing chances for rehabilitation.

What’s most in dispute are two other Proposition 57 provisions, either of which could result in adult prisoners serving less time than their maximum sentences. Brown tacked those two provisions onto the juvenile justice measure in January.  One would allow an expansion of good-behavior credits awarded by prison officials; the other gives new power to the state parole board to allow early release of prisoners whose primary sentences were not for “violent” crimes.

In an interview last week, the governor argued that his ballot measure would add a dose of deliberative thought to a process too often driven by elected district attorneys playing to the white-hot politics of sensational crimes. “Do you want the hurly burly of candidates, running for office, being the decision makers in the face of horrible headlines?” Brown asked. “Or would you rather have a quiet parole board, not now but 10 years later, deciding what's right?”

The governor’s plan, which amends the state constitution, would only allow parole after a prisoner’s primary sentence had been served — applying only to the months or years tacked on for additional crimes or enhancements.  And like the current system, a governor could override any parole board decision to release a prisoner.

Critics, though, think the parole board is already too eager to approve releases. Greg Totten, district attorney of Ventura County, said he believes parole board members are judged by how many prisoners they release.  “We don't have confidence that the parole board will consider our concerns about public safety or the crime victims' concerns,” Totten said.  “Those hearings have become much more adversarial than they originally were.”  Totten and other prosecutors warn that an influx of new requests for early release would overload parole board commissioners and send too many cases to their deputy commissioners, state civil servants whose decisions are made outside of public hearings.

Prosecutors and Brown have sparred mightily over the assertion that Proposition 57 would only expand parole opportunities for “nonviolent” felons, a term used prominently in the ballot measure’s official title and summary. In truth, the description only means that new parole opportunities wouldn’t apply to prisoners sentenced for one of 23 defined violent crimes in California’s penal code. That list includes crimes most voters would expect to see there, such as murder, sexual abuse of a child and kidnapping.  But in many ways, the list is porous.  Not all rape crimes, for example, are designated as “violent.” Prosecutors insist prisoners serving time for as many as 125 serious and dangerous crimes would be eligible for parole under Brown’s ballot measure.  Not surprisingly, the campaign opposing Proposition 57 is replete with images of felons who prosecutors allege could be released if the measure becomes law....

Brown, whose effort is supported by probation officers and leads in most every recent statewide public poll, suggests two overarching motivations. One is the specter of potential federal court-ordered prison releases, less likely now that massive prison overcrowding has abated after efforts to reduce penalties for less serious crimes and divert low-level offenders to county jails.  Still, the governor insists that Proposition 57 is a more thoughtful way to reduce the prison population than what could some day be chosen by federal judges.

The other, to hear him tell it, is an effort to undo some of what he did in the 1970s in pushing California toward more fixed, inflexible sentences for a variety of crimes. Brown said he now believes that many convicted felons are best judged not at the time of sentencing, but once they have had a chance to change their lives. “It allows flexibility,” the governor said. “I think this case is irrefutable to anyone with an open mind.”

The sentences I have highlighted above provide some account for why I think the Prop 57 vote is potentially so important, and not just in California. If California voters strongly support this parole reform initiative (and do so, perhaps, will also supporting the preservation of the death penalty in the state), elected official in California and perhaps other states may start to feel ever more comfortable that significant non-capital sentencing reforms have significant public support even during a period in which a number of prominent folks are talking a lot about an uptick in crime.  It also strikes me as quite significant that Gov Brown is still talking about the impact of the Supreme Court's Plata ruling about California prison overcrowding and justifying his reform efforts on these terms.

I have previously highlighted in this post why I think an Oklahoma ballot initiative on sentencing reform is similarly worth watching very closely. (That post from September was titled "Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms.") I expect that next week's post-election coverage of criminal justice issues will focus particularly on the results of big death penalty and marijuana reform votes. But I believe folks distinctly concerned about modern mass incarceration should be sure to examine and reflect upon the outcomes of these two non-capital, non-marijuana reform ballot initiatives in California and Oklahoma.

November 1, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Monday, October 31, 2016

"Defendant in U.S. opioid kickback case claims constitutional right to smoke pot"

The title of this post is the headline of this notable new argument about a notable motion filed in federal district court case. Here are the details:

A U.S. ex-pharmaceutical sales representative accused of paying kickbacks to induce doctors to write prescriptions for an opioid drug is asserting he has a constitutional right to continue smoking marijuana so he can remain clear-headed for his defense.

In a filing Friday, lawyers for Jeffrey Pearlman asked a federal judge for the U.S. District Court in Connecticut to modify his bail conditions so that he can continue using marijuana that was prescribed to him by a New Jersey doctor to help him kick his opioid addiction.  "Forcing him off the medical marijuana and forcing him to return to addictive opioids would impair his Sixth Amendment right to participate fully in his defense and his Fifth (Amendment) right to due process," his attorneys Michael Rosensaft and Scott Resnik of Katten Muchin Rosenman LLP wrote.

The novel request is one of only at least three such attempts in a federal court to permit the use of medical marijuana.  It is possibly the only motion of its kind to assert a Sixth Amendment defense that the failure to permit medical marijuana use could re-trigger an opioid addiction and impede a person's ability to participate in his own defense....

A variety of state laws have legalized marijuana for medicinal use, but federal law still prohibits it. The drug is classified as a Schedule I substance, meaning it is addictive and serves no medical purpose. Many opioids, by contrast, fall under Schedule II, meaning they are addictive, but have medical uses.

Pearlman, a former Insys Therapeutics, was charged criminally in September for allegedly arranging sham speaker programs designed to encourage medical professionals to write prescriptions for a fentanyl spray.  His lawyers say Pearlman became addicted to opioids used to treat severe back and leg pain and the drugs made him "foggy" and unable to think clearly.

After being prescribed marijuana in August, they said, his pain has subsided and he is able to "think more clearly."  Whether the judge will grant Pearlman's request remains to be seen.  Two defendants in other federal courts previously lost their bids to continue using medical marijuana, though the facts and circumstances in those cases were different.

In this case, the U.S. Attorney's Office has not opposed the request.  A spokesman for the office declined to elaborate further.

There are so many drug war ironies baked into this story, I am not sure I know where to start my fuzzy commentary on the highlights of this case. For now, I will be content to note the remarkable fact that the U.S. Attorney's Office's has here not opposed a request by a federal fraud defendant to be able to break federal drug laws while on bail.

October 31, 2016 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Terrifically timed Northwestern JCLC symposium to ask "The Death Penalty's Numbered Days?"

Sent_yearI am so very fortunate and pleased and excited that at the end of next week — and less than 100 hours after the most significant and consequential elections for the future of the American death penalty — I am going to have a chance to participate in this amazing symposium being put on by Notherwestern Law's Journal of Criminal Law and Criminology.  The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers.  Here is how the web coverage introduced the event while also providing this quote from a notable recent SCOTUS dissent:

The Journal of Criminal Law and Criminology, with the significant support of the Irving Gordon Symposia Fund, is proud to announce the upcoming symposium, entitled "The Death Penalty's Numbered Days?"  Since the 1970's, the existence and implementation of the death penalty has changed and evolved, as has the way the legal system and its various actors view and talk about the issue.  This symposium, which includes a diverse group of some of the foremost scholars on the death penalty, will explore recent developments and attempt to provide a prognosis on the future application of the death penalty in the United States.  Attendees will be eligible for up to 5 CLE credits, and no registration is necessary.  Please direct any questions to our Symposium Director, Erica Stern, who can be reached at ebstern@nlaw.northwestern.edu.

Friday, November 11, 2016, 9:00 a.m. - 5: 00 p.m.

Thorne Auditorium, Northwestern University School of Law, 375 E. Chicago Avenue, Chicago, IL 60611

“Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court's view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. . . . The circumstances and the evidence of the death penalty's application have changed radically since then. Given those changes, I believe that it is now time to reopen the question.” ~ Justice Stephen Breyer, Dissenting Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015).

Though I am not yet sure about exactly what I will have say at this event, one theme I will be eager to stress in my comments is my strong belief that modern "evidence" concerning "the death penalty's application" actually suggests that this punishment is being imposed much more reliably and much less arbitrarily since President William J. Clinton left office.

As this DPIC chart and data reveal, during the William J. Clinton years (from 1993 to 2001), the United States averaged over 280 death sentences annually nationwide.  Over the course of the next eight years (the George W. Bush years), the annual number of death sentences imposed throughout the United States declined by about 50% down to around 140 death sentences per year.  And, over the last eight years (the Barack H. Obama years), we have seen yet another 50% reduction in annual death sentences imposed as we approach a BHO-term average of around 70 death sentences per year.  The year 2015 hit a remarkable historic low of only 49 total death sentences imposed nationwide, and I believe 2016 is going to see a similar or even smaller number of total death sentence once the year's accounting gets completed.

For a bunch of reasons I hope to explain at this symposium, Justice Breyer's sincere concerns about death sentences being often imposed arbitrarily and unreliably seem to me to have been especially trenchant when he was first appointed to SCOTUS.  At that time, states throughout our nation were imposing, on average, five or six death sentences every week.  Fast forward more than two decades, and the evidence of death sentencing reveals that, circa 2016, states throughout the nation are now imposing less than a single death sentence every week.  I strongly believe our death sentencing systems have become much, much more reliable and much less arbitrary as we have gotten much, much more careful about how gets subject to capital prosecution and about who ultimately gets sent to death row.

October 31, 2016 in Criminal justice in the Obama Administration, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Miller/Montgomery GVR produces some separate opinion SCOTUS sparring

At the end of this morning's (otherwise uneventful) SCOTUS order list are a pair of separate opinions in Tatum v. Arizona, No. 15-8850, discussing the decision by the full Court to issue this order: "The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Appeals of Arizona, Division Two for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016)."

Justice Sotomayor authored this lengthy concurrence which makes this point at the outset:

The petitioners in these cases were sentenced to life without the possibility of parole for crimes they committed before they turned 18. A grant, vacate, and remand of these cases in light of Montgomerypermits the lower courts to consider whether these petitioners’ sentences comply with the substantive rule governing the imposition of a sentence of life without parole on a juvenile offender.

JUSTICE ALITO questions this course, noting that the judges in these cases considered petitioners’ youth during sentencing. As Montgomery made clear, however, “[e]ven if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates theEighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op.,at 16–17) (internal quotation marks omitted).

On the record before us, none of the sentencing judges addressed the question Miller and Montgomery require a sentencer to ask: whether the petitioner was among the very “rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 577 U. S., at ___ (slip op., at 17).

Justice Alito's shorter dissent, to which Justice Sotomayor is responding, was joined by Justice Thomas. It starts this way:

The Court grants review and vacates and remands in this and four other cases in which defendants convicted of committing murders while under the age of 18 were sentenced to life without parole.  The Court grants this relief so that the Arizona courts can reconsider their decisions in light of Montgomery v. Louisiana, 577 U. S. ___ (2016), which we decided last Term.  I expect that the Arizona courts will be as puzzled by this directive as I am.

In Montgomery, the Court held that Miller v. Alabama, 567 U. S. ___ (2012), is retroactive. 577 U. S., at ___ (slip. op., at 20).  That holding has no bearing whatsoever on the decisions that the Court now vacates.  The Arizona cases at issue here were decided after Miller, and in each case the court expressly assumed that Miller was applicable to the sentence that had been imposed.  Therefore, if the Court is taken at its word — that is, it simply wants the Arizona courts to take Montgomery into account — there is nothing for those courts to do.

It is possible that what the majority wants is for the lower courts to reconsider the application of Miller to the cases at issue, but if that is the Court’s aim, it is misusing the GVR vehicle.  We do not GVR so that a lower court can reconsider the application of a precedent that it has already considered.

UPDATE: After having a chance to review these opinion, I think it now fair to assert that the GVRs here are really based on the substantive expansion of Miller's Eighth Amendment rule in Montgomery.  That reality, in turn, allows me to point to my recent  commentary, titled "Montgomery's Messy Trifecta," and say simply "I told ya"!

October 31, 2016 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, October 30, 2016

"Florida’s prisons waste money and lives"

The title of this post is the headline of this notable lengthy new editorial by the Florida Times-Union, from which come these excerpts:

Wasting money, wasting lives — that’s the motto of Florida’s prison system. Oh, it’s not official, but it’s the reality. Florida’s refusal to attack its criminal justice problems has enshrined us in the backwater of prison reform despite numerous indications that Gov. Rick Scott would address these concerns.

Florida spends too much money, rehabilitates too few prisoners and leaves its citizens no safer than other states like Texas and Georgia that have instituted common-sense reforms. “There’s no state plan to do anything, and the status quo is leaving us even further behind,” says Deborrah Brodsky of the Project on Accountable Justice. “This state simply overrelies on things that don’t work.”

Although some changes have been made in the six years since Scott took office, there has been little comprehensive reform. That’s surprising to prison reform advocates who initially thought the new governor was a staunch advocate. Scott had commissioned a 263-page transition report from a team of hand-picked experts on the Department of Corrections before he took office in 2011.

When negotiating his first budget, the governor did make fiscal changes to make the Department of Corrections more efficient in his incoming budget. Advocates believed he would follow through by enacting the kinds of reforms that had reduced prison budgets in other states. Instead, the governor’s first budget showed not reforms but the elimination of 1,690 Department of Corrections jobs — including 619 corrections officers — the closure of two prisons and transferring 1,500 inmates to private facilities. Since then, he has since refused to embrace reform in the adult prisons, although he has made substantial positive changes within the juvenile system.

There are many proven changes Florida must make to reverse its course. These range from revisiting how the courts sentence people for drugs to how juveniles are treated in the system. Marc Levin, the director of the Center for Effective Justice in Texas, told the Times-Union editorial board his state has already made strides in reforming the Lone Star state’s system. He suggested four areas deserving of immediate attention in Florida.

Alter the use of direct file of juveniles into the adult prison system....

Readjust mandatory minimum sentences....

Change pre-trial procedures....

Adjust state felony theft thresholds....

In 2010, Scott’s transition team noted that prison reform was needed. “Our team found that DOC is broken,” the report concluded, noting that the Legislature had ignored pleas for modernization and reform. The report listed multiple excellent ideas whose combined mission was to reform the prison system, reduce recidivism, decrease the number of repeat offenders, ease ex-offenders transition back to the community and save taxpayers money.

What’s happened since then? Very little. Scott seems to have forgotten his own transition team’s report on the need for prison reform, and the Legislature has failed to press for changes. It’s time Florida paddles itself out of the backwater of prison reform.

October 30, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Mizzou State Representative wants to consider showing repeat sex offenders to execution chamber

As reported in this local article, headlined "State Rep. wants death penalty as option for repeat sex offenders," a local elected official has a notable idea for punishing certain sex offenders. Here are the details:

It’s the one issue in Jefferson City that State Representative Randy Pietzman says nobody likes to talk about. “This is not a popular topic to talk about if you’re just trying to get re-elected,” he said.  But that’s not going to stop him from tackling it head on because he says it concerns the safety of every Missouri child. “We need to change something. We need to do something to curb this problem,” he said.

And it’s especially relevant for Lincoln County, where the Republican is running unopposed for his second term this November. The rural county, about an hour to the northwest of St. Louis, has a disproportionately high number of sex offenders and sex crimes against children. “If you compare us with other counties in the surrounding area, per capita, we have substantially more sex offenders,” said Detective Sean Flynn with the Lincoln County Sheriff’s Office. “There’s something attracting them here,” Pietzman said.

But whatever the reason for the unwanted popularity, it’s having an impact on multiple levels. “It seems these crimes are impacting people across the socioeconomic spectrum,” Flynn said.... “It’s impacted the department in a way that my time is monopolized by this. Really, we’re at the point where we need more people to investigate,” Flynn said.

And some in law enforcement go a step further to say the situation might be beyond repair. Captain Michael Merkel with the Lincoln County Sheriff’s Office said, “I don’t think stopping it is an option. I think slowing it down is something we could do.”  One way of going about that, he said, is to strengthen the penalties statewide for what’s considered to be some of the most heinous crimes imaginable. “It’s not acceptable that somebody can pass a bad check and be punished more harshly than someone who has victimized a child,” Merkel said.

Capt. Merkel also suggests improving their ability to investigate child sex crimes. Right now, detectives in Missouri can only interview juvenile victims if their parents give permission.  And the problem?  “What we run into is we have a parent or family member who’s a suspect.  And they’re the only ones who can authorize the interview,” Merkel explained.

It’s a loophole in state law that Rep. Pietzman said could help his county, and the state, if it was closed. “We’re talking about our kids. If the punishment doesn’t match the crime, then it’s going to keep continuing,” he said.

That’s why, following our initial report, Pietzman is working on a number of reforms, including one that would make the death penalty a possible punishment for repeat offenders. “That seems cruel when you think about it," he said, "but you got to think about what these guys have done. We’re talking about grown men having sex with kids as young as 3- or 4-years-old.”

There are several cases and states that have pushed for similar measures, but capital punishment in America right now is almost exclusively reserved for the crime of murder. Pietzman said at the very least, he hopes to start a conversation in the legislature that some in law enforcement say is long overdue.

I am eager to help State Representative Randy Pietzman start this conversation about making repeat sex offenders eligible for the death penalty. The first critical point in such a conversation, however, has to be about the Supreme Court's Kennedy ruling which seemingly declared the death penalty unconstitutional for any and all crimes of rape. An argument might be developed that the Kennedy ruling applied formally addressed a first-offense child rapist, and so perhaps a capital statute focused on only the worst of the worst repeat child rapists could be legally viable (and, of course, because Eighth Amendment doctrines evolve perhaps Eighth Amendment precedents have less stare decisis force).

Also important to consider here is the concern expressed by Capt. Merkel about challenges he faces investigating child sex crimes. I suspect and fear that making some sex offenders eligible for the death penalty could actually end up aggravating rather than mitigating this problem as family members fearing a capital prosecution may be uniquely unwilling to cooperate with authorities.

October 30, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (30)

New York Times editorial highlights disaffinity for felon disenfranchisement

This morning's New York Times has this little new editorial headlined ""Agreed: Serve Your Time, Cast Your Ballot." Here is its text:

The bitterly fought presidential campaign has underscored yet again that conservative and liberal Americans are deeply divided on just about every aspect of social policy.

So it is surprising to find widespread agreement on one issue. A national survey released last week by PRRI, a nonpartisan opinion research organization, shows that Americans think people who have committed felonies and paid the price for their crimes should be able to vote.

Laws in a dozen states will bar more than three million people with felony convictions from voting on Nov. 8 — even though they have completed their prison sentences, probation or parole.

Three-quarters of all Americans believe that these people deserve the right to participate in democracy, and that support reaches across the political spectrum to include clear majorities of Republicans, Democrats, conservatives, moderates and liberals.

October 30, 2016 in Collateral consequences, Who Sentences? | Permalink | Comments (1)

Saturday, October 29, 2016

"Constitutional Liberty and the Progression of Punishment"

The title of this post is the title of this notable new paper authored by Robert Smith and Zoe Robinson now available via SSRN. Here is the abstract:

The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants.  This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse.

This Article challenges these assumptions.  It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause.  The Court’s contemporary Eighth Amendment jurisprudence — with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments — reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess.

Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment.  Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty.  Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences and the prolonged use of solitary confinement.

October 29, 2016 in Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

SCOTUS takes up Booker/mandatory sentencing issue and two sex-offender collateral-consequences cases

I had a spectacular afternoon mostly off-line yesterday: I heard Sandy Levinson talk about his book on the Federalist Papers; I talked with my 1L students about a famous criminal case after an infamous disaster; I spoke at lengthy to a reporter about the prospects for federal criminal justice reform in 2017; I had great happy hours conversations with students, friend and family, followed by a spectacular burger at my favorite local gastropub; and I managed to stay awake for (most of) one of the all-time great modern World Series games.

What I did not manage to do until this morning, however, was remember that SCOTUS yesterday had a conference to consider new cases for its docket.  Helpfully, this SCOTUblog post reports on the five SCOTUS cert grants on the last Friday in October 2016, and three of the cases are sure to be worth sentencing fans' attention.  Here are the three grants as described by Amy Howe from SCOTUSblog, organized by me in order of "importance" for those most obsessed with modern sentencing systems: 

The facts of Dean v. United States read like a “true crime” novel, involving robberies of drug dealers in the Midwest. Levon Dean, the defendant in the case, was convicted under the Hobbs Act, a federal law that makes it a crime to “obstruct, delay, or affect commerce” through a robbery.  The justices today declined to review Dean’s challenge to his Hobbs Act convictions, but they agreed to weigh in on a separate question: the scope of a federal trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the Section 924(c) conviction.  Dean argued that the district court had the authority to impose a very short sentence — as little as one day — for his Hobbs Act convictions, to take into account the much longer sentence required by Section 924(c), but the lower courts disagreed.

Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor.  Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket.  The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law.  The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old.  The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.”  The lower courts agreed with the federal government, but now the Supreme Court will decide.

October 29, 2016 in Collateral consequences, Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Thursday, October 27, 2016

Prez Obama grants sentence commutations to 98 more federal offenders

Chart_102616_commutationsAs reported in this new USA Today article, "President Obama granted 98 more commutations to federal inmates Thursday, bringing the total for this year to 688 — the most commutations ever granted by a president in a single year." Here is more:

In all, he's now shortened the sentences of 872 inmates during his presidency, more than any president since Woodrow Wilson. The actions were part of Obama's extraordinary effort to use his constitutional power to rectify what he sees as unduly harsh sentences imposed during the "War on Drugs." Through a clemency initiative announced in 2014, he's effectively re-sentenced hundreds of non-violent drug dealers to the sentences they would have received under today's more lenient sentencing guidelines....

But while Obama's commutation grants get most of the attention, he's also been quietly denying a record number of commutations at the same time — a function of the unprecedented number of applications submitted through the clemency initiative. On Oct. 6, for example, the White House announced that Obama granted 102 commutations. It wasn't until a week later that the Justice Department updated its clemency statistics to reveal that he had denied 2,917 commutation petitions on Sept. 30.

Some advocates for inmates say there's not enough transparency about why some get clemency while others wait. "We want answers for the families who are still waiting for their clemency," said Jessica Jackson Sloan, national director of the pro-clemency group Cut 50. "There needs to be more communication about why people are being denied."

As of Oct. 7, Obama has granted just 5.5% of commutation applications — still more than many of his predecessors. President George W. Bush granted just 0.1% of commutation applications that reached his desk, but was more generous with full pardons at this point in his presidency.

"While there has been much attention paid to the number of commutations issued by the president, at the core, we must remember that there are personal stories behind these numbers," White House Counsel Neil Eggleston wrote on the White House web site. "These are individuals -- many of whom made mistakes at a young age — who have diligently worked to rehabilitate themselves while incarcerated." Eggleston said 42 of the inmates who had received commutations were serving life sentences.

Sixty-three of the inmates granted presidential mercy on Thursday will still have two years or more to serve on their sentences, part of a recent White House strategy of issuing deferred "term" commutations instead of the more common time-served commutations. The longest of those: David Neighbors, a 34-year-old man from Evansville, Ind., whose 2008 life sentence for cocaine trafficking Obama commuted to 30 years. That means he has up to 22 more years left to serve.

And 42 of the commutations granted Thursday have strings attached. As part of an increasing practice of attaching conditions to his commutations, Obama required inmates with a documented history of drug use to enroll in a residential drug treatment program before being released.

The full statement from White House Counsel Neil Eggleston is available at this link, which is also the source for the graphic reprinted above.

October 27, 2016 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"Consolidating Local Criminal Justice: Should Prosecutors Control the Jails?"

The title of this post is the title of this interesting new essay authored by Adam Gershowitz now available via SSRN. Here is the abstract:

Most observers agree that prosecutors hold too much power in the American criminal justice system.  Expansive criminal codes offer prosecutors wide discretion to charge defendants with a huge number of offenses.  And stiff authorized punishments provide prosecutors with leverage to pressure defendants to plea guilty.  As a result, prosecutors hold most of the plea bargaining cards.  Massive prosecutorial power has resulted in mass incarceration.

I do not disagree with the conventional wisdom that prosecutors hold too much power. However, absent drastic legislative and judicial change, it will be nearly impossible to substantially reduce prosecutors’ power and discretion. As such, this essay offers the counter-intuitive proposal that we should give prosecutors more, not less, power and responsibility.

This essay argues that states should change their nearly uniform policy of having sheriffs run local jails. Instead, we should place local prosecutors in charge of their local jails.  While sheriffs would remain responsible for safety and discipline, prosecutors should be charged with all of the logistical responsibility for checking inmates in and out of the facilities and with handling the overall budgets.

Putting prosecutors in charge of the jails would take a bite out of the “correctional free lunch” in which prosecutors impose sentences but do not have to internalize the financial costs of their decisions.  Put simply, prosecutors would have to pay for and live with their misdemeanor charging and sentencing decisions.  Consolidating local criminal justice might also have spillover effects that encourage prosecutors to reduce the sentences they seek in felony cases.

October 27, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Looking into nuanced reality of death penalty perspectives in deep blue California

The always interesting Charles Lane has this interesting new Washington Post opinion piece headlined ""Most Americans don’t like the death penalty, right? Wrong." Here are excerpts:

You’d think Proposition 62, a referendum to abolish California’s death penalty and replace it with life without parole, including for the 749 current occupants of death row, would win easily on Nov. 8.  Democrats dominate this state; their 2016 national platform advocated an end to capital punishment. Former president Jimmy Carter, left-populist icon Sen. Bernie Sanders (I-Vt.), the state’s major labor unions and 38 newspaper editorial boards are urging a “yes” vote.

California’s death row costs millions to maintain but the state has only executed 13 people since restoring capital punishment in 1978, mainly due to lengthy appeals processes, including recent successful challenges to its lethal-injection protocol. “Replace the Costly, Failed Death Penalty,” read the yellow-and-black “Yes on 62” sign I saw planted in a well-kept Brentwood yard.

And yet, 12 days before Election Day, Prop 62’s prospects are uncertain.  Of five statewide polls since Sept. 1, only one, a Field Poll, showed Prop 62 ahead, 48 percent to 37 percent.  Measures that poll below 50 percent tend not to win, even if they are leading, according to Field Poll director Mark DiCamillo.  Meanwhile, four other polls showed “no” up by an average of 50 to 37.  Survey USA, which has polled on Prop 62 twice, predicts flatly that it is “headed for defeat” — just like a similar anti-death-penalty measure that lost 52 to 48 in the state in 2012.

Prop 62 faces various local political headwinds — including competition for financial resources, and public attention, from more than a dozen other ballot measures, such as marijuana legalization and Gov. Jerry Brown’s pet project, parole reform.  Given Prop 62’s potential impact — in one stroke, it would reduce America’s total death-row population of 2,905 by 26 percent — the debate about it is remarkably low-profile. There are next to no ads on TV; the Brentwood yard sign was the only one I saw in three days on the West Coast.

The main lesson, though, has to do with public opinion about the death penalty, which is much more nuanced than media coverage generally reflects....

Long-term Gallup trends suggest that the very high support for the death penalty of the mid-1990s — up to 80 percent one year — was an anomaly, probably a reaction to the soaring violent crime rates of the time.  Now that crime has fallen, Gallup’s pro-death-penalty majority is reverting to historical norms; it may go lower still, unless this year’s spike in violent crime turns into a wave.  

Another new Gallup survey intriguingly shows decreasing punitive sentiment: 45 percent say the justice system is “not tough enough” on crime, down 20 points since 2003.  Meanwhile, 50 percent believe the death penalty is applied “fairly,” and 67 percent say it is imposed either “the right amount” or “not often enough.”

Gallup asks about capital punishment for “murder.” In 2013 and 2015 Quinnipiac interestingly asked whether “murder during acts of terrorism” should be punished by life without parole or death. Both times, about three-fifths said “death” — remarkably high, given that offering life without parole as an alternative usually reduces the number of poll respondents opting for capital punishment.

A rough summary of most Americans’ views of the death penalty might be: “Yes, though it depends.” It depends on what’s going on in society. It depends on the specific crime. It depends on whether you’re asking me in the abstract, as a juror or as a voter.

The very fact the Prop 62 campaign focused on what spokesman Jacob Hay calls a “cost-effectiveness message” implies that categorical moral opposition cannot command a majority, even in a deep-blue state. And two can play at the cost-effectiveness game. California’s pro-death-penalty forces, led by prosecutors and police unions, are promoting Proposition 66, which would deal with the system’s notorious backlog not by abolishing executions but by facilitating them, through streamlining the appeals process.

Both conflicting measures might lose, essentially perpetuating the status quo; California would continue having whatever satisfaction comes with sentencing people to death, without whatever risks come from actually executing them. Also, both might get a majority — Californians could vote yes and no on the death penalty — in which case the one with the most votes becomes law, and the nation’s largest death row would start shrinking, one way or the other.

UDPATE: This new Los Angeles Times opinion piece strikes similar notes under the headline "Despite optimism by abolitionists, the death penalty isn't on the ropes – yet." - ‎9 hours ago‎

October 27, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Wednesday, October 26, 2016

Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?

It has now been more than full three years since then-Attorney General Eric Holder made his historic speech to the American Bar Association (reported here and here) about excessive use of incarceration in the United States.  In that speech, AG Holder announced the US Justice Department's "Smart on Crime" initiative while making the case that "too many Americans go to too many prisons for far too long and for no good law enforcement reason" and that "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable." At the time, and subsequently as a result of officials' comments (including 2015 remarks by then AG Holder and 2016 statements by now AG Loretta Lynch and Deputy AG Sally Yates), much has been made about the impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of federal drug offenders.

But recently, as the question in the title of this post suggests, I have been thinking about, and wondering if there is a good way to assess, the possible impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of white-collar offenders.  Critically, as I have noted to a number of courts in a number of ways in a number of settings, DOJ's public "SMART on CRIME" materials uses a lot of language that applies to, and should impact, how non-violent white-collar offenders are sentenced.  For example, DOJ has stressed the importance of alternatives to incarceration for all non-violent offenders while advocating a "shifting away from our over-reliance on incarceration" to reflect the reality that "[f]or many non-violent, low-level offenses, prison may not be the most sensible method of punishment." And AG Holder's speech was not only focused on drug offenses or offenders when he emphasized excessive incarceration "comes with human and moral costs that are impossible to calculate," and when he stressed that "the judiciary [can] meet safety imperatives while avoiding incarceration in certain cases."

Notably, as some links above highlight, DOJ officials have in 2015 and 2016 documented and promoted how DOJ's "Smart on Crime" initiative has impacted the case processing and sentencing of federal drug offenders.  But, perhaps unsurprisingly in these political times, DOJ officials have not said a word (at least that I have seen) about how DOJ's "Smart on Crime" initiative might be impacting white-collar cases (or really any other non-drug cases).

Against that backdrop, I took another look this week at recent US Sentencing Commission data published through its great Quick Facts series on Theft, Property Destruction, & Fraud and Tax Fraud.  These two reports seem to cover, roughly speaking, the pools of white-collar cases I have in mind that might be readily impacted by "Smart on Crime" talk about reduced reliance on lengthy terms of imprisonment.  And, perhaps significantly, two notable parallel sentencing "trends" were reported in these USSC documents:

These two data notes are not, of course, conclusive qualitative proof that DOJ's "Smart on Crime" initiative has had a big impact on federal white-collar sentencing outcomes in recent years.  But it does suggest something is helping to "move the sentencing needle" in these kinds of cases in recent years.  Relatedly, I would love to hear in the comments or some other way any and all reports (dare I say "qualitative" evidence) from white-collar sentencing practitioners concerning whether they think what AG Holder said and DOJ did as part of its "Smart on Crime" initiative back in 2013 is having a continual tangible impact on case processing and sentencing in non-violent fraud and other white-collar cases.

October 26, 2016 in Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Famous "war on drugs" voice now voicing support for marijuana reform: any questions?

This new MarketWatch article, headlined "War on drugs spokesman now supports marijuana legalization," gives me an excuse to flag an iconic 1980s public service announcement while reporting on its new symbolic significance:

The voice behind one of the war on drugs’ most iconic ads has cast a vote to legalize marijuana. During the height of the ’80s war on drugs that gave rise to the “Just Say No” campaign, actor John Roselius stared in an antidrug TV ad for the Partnership for a Drug-Free America. The ad featured Roselius frying an egg in a skillet to portray what happens to the brain while using drugs.

Roselius, who is now 72, recently told Colorado-based Rooster Magazine he voted “yes” on California’s Adult Use of Marijuana Act, or Prop 64, which would legalize and regulate the use and sale of the plant to adults. “I’m 100% behind legalizing it, are you kidding? It’s healthier than alcohol,” Roselius told the publication.

And he’s not alone. Just ahead of the Nov. 8 election — in which five states will vote on legalizing the recreational use of marijuana and four will vote on legalizing medical marijuana—a Gallup poll shows that 60% of Americans support legal marijuana use. That’s the highest percentage of support recorded in the 47-year trend, with support rising among all age groups in the past decade.

That follows a separate poll by Pew Research earlier in the month which found 57% of Americans support legalization. “The topline number obviously bodes well for the marijuana measures on state ballots next month,” said Tom Angell of Marijuana Majority, an organization tasked with educating people and fighting for marijuana legalization. “More politicians — presidential candidates included — would do themselves a big favor to take note of the clear trend and then vocally support legislation catering to the growing majority of Americans who support modernizing failed marijuana policies.”

Roselius told Rooster Magazine he’d smoked marijuana in the ’60s, and that when he made the ad, he knew it didn’t fry the brain like an egg.

The war on drugs has been one of the most scrutinized and debated policies to come out of the Reagan era. Drug dealers were cast as violent villains and were blamed for devastating some of America’s cities. Incarceration rates shot higher and disproportionately affected men of color.

The cannabis industry has since fought back against that portrayal, calling for an end to arrests for nonviolent marijuana-related offenses. Roselius’ vote to legalize marijuana in California could help push one of the most important states in the movement to the forefront.

Of course, if you do have question about these matter, my blog Marijuana Law, Policy and Reform has a lot more coverage.  And, with that intro and a good excuse now, here is a review of some recent posts there (many of which are the fine work of my relatively new co-blogger):

October 26, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

"Democratizing Criminal Law: Feasibility, Utility, and the Challenge of Social Change"

The title of this post is the title of this new paper authored by Paul Robinson now available via SSRN. Here is the abstract:

The notion of “democratizing criminal law” has an initial appeal because, after all, we believe in the importance of democracy and because criminal law is so important – it protects us from the most egregious wrongs and is the vehicle by which we allow the most serious governmental intrusions in the lives of individuals. Given criminal law’s special status, isn’t it appropriate that this most important and most intrusive governmental power be subject to the constraints of democratic determination?

But perhaps the initial appeal of this grand principle must give way to practical realities.  As much as we are devoted to democratic ideals, perhaps the path to a better society is one that must recognize inherent weaknesses in the system of democratic action, which necessarily relies upon the judgments of common people.  Perhaps, when dealing with things as important as doing justice and preventing crime, we must look instead to experts, such as criminologists and moral philosophers.  Perhaps the path to a better society is one that, in this instance, should skirt democratic preferences as needed?

More specifically, consider some of the realities that might derail a movement toward democratizing criminal law: First, perhaps there is no such thing as a shared community view of justice on which to base a criminal law, but simply an endless list of individual disagreements.  There can be no such thing as a criminal code that reflects community views if there is no such thing as a community view. Second, even if there were a shared community sense of justice, perhaps it is brutish and draconian, something born of anger and suspicion and not something that even the people themselves feel should be enshrined in public principles of liability and punishment.  Third, even if community views of justice are in fact enlightened, something that people would be proud to enshrine in public law, perhaps they are not the path to a society with less crime.  That is, perhaps the path to effective crime control is not through justice -- either the community’s view of it or the moral philosopher’s view -- but through more instrumentalist crime-control mechanisms, such as general deterrence or incapacitation of the dangerous.  And finally, even if relying upon the community’s views of justice did turn out to be a mechanism of effective crime-control, wouldn’t such a system condemn us to live under the status quo of current community views, when history teaches us that a society can improve itself and the lives of its members only by moving ever forward in refining its judgments of justice?

Thus, this brief essay will take up these four questions: Is there any such thing as the community’s views of justice? Are the community’s views of justice brutish and draconian? Why should a criminal law concerned with crime-control care what the community thinks is just? Should the criminal law ever deviate from the community’s shared judgments of justice?

October 26, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Two interesting reviews of the (in)application of Graham and MIller in two states

In my upper-level sentencing course, we are now discussing the past, present and future of Eighth Amendment jurisprudence placing limits on the imposition of prison terms.  Of course, this discussion now culminates in a review of the Supreme Court's recent work in Graham v. Florida and Miller v. Alabama and their continuing fallout.  Conveniently, just this past weekend, two different newspapers in two different states published these two articles on how that fallout is playing out: 

This passage from the first of these articles highlights some reasons why, even years after Graham and Miller were decided and required resentencing of certain juvenile offenders, most of these offenders are still going to be spending many decades in prison before even having a chance at release:

In striking down these harsh sentences, the Supreme Court “obviously was concerned, No. 1, about locking kids up and throwing away the key,” said Marsha Levick, Philadelphia attorney and co-founder of the Juvenile Law Center. “The court was very clear that it believes kids are truly different.”  Indeed Justice Elena Kagan has written that, “given all that we have said … about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

But in Courtroom 12, Circuit Judge John H. Skinner was unmoved.  Despite hundreds of hours of legal work, stacks of documents and a morning of arguments, the judge told Thomas, “I haven’t really changed my mind at all as far as what you should get in this case.”

So Thomas, the youngest child in a tight-knit military family, was sentenced again to 40 years.  This time, there will be a review in front of a judge and chance for release after 15 years, a provision that brings the penalty into compliance with state law.

Scenes like this one in a Jacksonville suburb are playing out around the state and across the country as judges resentencing juvenile offenders continue to issue lengthy sentences that advocates say defy the intent of the Supreme Court.

It will take years for the courts to work through the 58 Duval County homicide cases in which the juveniles’ original sentences have been deemed unconstitutional. Preparing for a resentencing hearing is intensive, and an area where the case law is constantly evolving.

But if the results from some of the earliest resolved Jacksonville cases are any indication, judges will continue to hand down long punishments. In the nine cases in which teens were first sentenced to life for childhood crimes that weren’t murder, seven of the defendants will be 60 or older when they are released.

October 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, October 25, 2016

Latest USSC data suggest prison savings now exceeding $2 billion from "drugs -2" guideline amendment retroactivity

The US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated October 2016, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through September 30, 2016, and for which court documentation was received, coded, and edited at the Commission by October 20, 2016."

The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782, the so-called "drugs -2" guideline amendment, retroactive, now 29,391 federal prisoners have had their federal drug prison sentences reduced by an average of over two years. So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers around $2.1 billion dollars.

As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing evidence that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and taxpayer costs of the federal government. Perhaps more importantly, especially as federal statutory sentencing reforms remained stalled in Congress and as Prez Obama continues to be relatively cautious in his use of his clemency power, this data provide still more evidence that the work of the US Sentencing Commission in particular, and of the federal judiciary in general, remains the most continuously important and consequential force influencing federal prison populations and sentencing outcomes.

October 25, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (27)

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

The title of this post is the title of this notable report authored by Joanna Shepherd and Michael S. Kang which I learned about via an email from The American Constitution Society for Law and Policy. Here is the text of that email, which provides a summary of the report's contents:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. That’s according to independent research sponsored by the American Constitution Society for Law and Policy (ACS).  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

The report, Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases, is a compilation of data from over 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013.  Researchers found that the more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to rule in favor of criminal defendants; and justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the Citizens United decision.

“The amount of money spent in state judicial elections has skyrocketed and the results of that spending are clear.  The flood of interest group money set free by Citizens United are endangering what should be impartial judicial decision-making and putting the fundamental constitutional rights of every American at risk,” said ACS President Caroline Fredrickson. “The data show that the television campaign ads this money buys put a thumb on the scale in criminal cases, and undermine the promise of equal justice that is a cornerstone of our democracy.”

Skewed Justice, by Dr. Joanna Shepherd and Dr. Michael S. Kang, both law professors at Emory University, follows the report Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, published by ACS in 2013.  That report, authored by Professor Shepherd, revealed the growing influence of contributions on state supreme court judges. While the majority of media attention is focused on the United States Supreme Court, elected judges at the state level handle more than 90 percent of the United States’ judicial business.  This gives money and advertising huge influence in American democracy.  Beginning in the 1990s, and accelerating in almost every election cycle since, judicial elections have become more competitive and contentious, and campaign spending on these elections has skyrocketed, the research finds. Incumbent judges almost never lost their reelection bids during the 1980s, but by 2000 their loss rates had risen higher than those of congressional and state legislative incumbents. 

UPDATE: A helpful reader realized that this ACS-sponsored study is actually not so new, as it was first released a couple tears ago. I now assume ACS was promoting it anew (and led me to think it was new) because the report is extra-timely during a big elections season.

October 25, 2016 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Great back-and-forth discussion at RealClearPolicy over crime policy ideas "that should guide the next presidential administration's agenda"

The folks at RealClearPolicy have started putting together this terrific series of timely commentaries under the heading "Policies for the Next Administration." The introduction starts this way:

During an election cycle characterized by bombast, sound bites, and sensationalism, it’s easy to forget what we, as voters, are being asked to decide: What are the best policies for our country? What concrete proposals and legislative frameworks should guide the next presidential administration?

We at RealClearPolicy are creating a conversation among the partisans to help answer that question. In this special series, we’ve asked 12 leading authorities from both Left and Right to make their best case for the policy ideas that should guide and influence the next administration. Between now and Election Day, we will publish 24 articles, focusing on 12 major policy issues from differing points of view — from education policy and economic growth to health-care reform and energy policy — including a response by each author to the opposing position and a recommended reading list. This is a rare chance to hear top thinkers try out their best policy ideas — and respond to the strongest objections — in a public forum leading up to the election.

The series so far has covered four issue, and I was very pleased to see the third issue covered was "Crime" and it was covered via these entries:

PART 3: CRIME

In Part 3, Heather Mac Donald, Thomas W. Smith fellow at the Manhattan Institute, squares off against Danyelle Solomon, Director of Progress 2050 at the Center for American Progress:

Heather Mac Donald, "Telling the Truth About Crime and Policing."

Danyelle Solomon, "Time to Fix Our Failing Criminal-Justice System."

Heather Mac Donald and Danyelle Solomon, "Mac Donald v. Solomon: The Authors Respond."

There is so much that is interesting and effective in this back-and-forth that I am just going to encourage everyone to read the commentaries in full and also urge readers to share in the comments their views on the most important crime policy ideas to guide the next Administration.

UPDATE: I just notices that Andrew King over at Mimesis Law has this extended new commentary criticizing what both Heather Mac Donald and Danyelle Solomon say in these dueling commentaries. Here is how his commentary on the commentaries starts and finishes:

Crime has been a big issue in this presidential campaign. But the issues of crime swirling around the campaign has not been about policy—it’s been about the candidates. Hillary Clinton has had her email issues, and the detestable-yet-legal bribery surrounding the Clinton foundation. Donald Trump has been accused of sexual assault, and he has threatened his critics with re-criminalizing libel.

Besides caring a lot about who knows what about Aleppo, the debates and the recent campaigning has been relatively free of policy discussions. In an effort to interject some policy into the political dialog, Real Clear Polics asked Heather McDonald and Danyelle Solomon to discuss crime policy and represent the right and left respectively. Perhaps, not surprisingly to J.D.s who do policy work for think tanks, they begin with hyperbole....

The next President will have to budget for a trillion dollars and set policy for tens of thousands prosecutors, special agents, and support staff. And there are serious criminal law issues right now that deserve careful consideration. But it doesn’t look like either candidate will be the President to do that. The only solace is that we get to pick one of them. In the meantime, we can expect more of each side talking past the other.

October 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Monday, October 24, 2016

Is the death penalty in the United States really "nearing Its end"?

The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End."  Here is the full text of the editorial:

Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year.  The signs of capital punishment’s impending demise are all around.

For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month.  While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.

At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.

Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.”  But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.

Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.

In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned.  A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.

In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)

While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.

The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.

I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback."  That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing."  That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018.  That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application.  That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime.  And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.

I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States.  The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional.  But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.

October 24, 2016 in Baze and Glossip lethal injection cases, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Autonomy and Agency in American Criminal Process"

The title of this post is the title of this intriguing new short paper now available via SSRN authored by the always intriguing David Sklansky. Here is the abstract:

This is an essay about the interaction of two assumptions that shape the way fairness is pursued in American criminal procedure.  The first assumption is that fairness is best advanced through a series of procedural rights that defendants can invoke or waive at their discretion.  The second assumption is that the choices made by defense attorneys can fairly be attributed to their clients.

The first of these assumptions reflects a strong national commitment to individualism; the second reflects a heavy reliance on lawyers to safeguard defendants’ interests.  Both reflect a deeply rooted distrust of government.  Each of these two assumptions is defensible, and each relates to fundamental aspects of the national political culture.  Taken together, though, they have narrowed what fairness means in American criminal adjudication; they combine with a kind of negative synergy, making each harder to defend than it might be without the other.

October 24, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, October 23, 2016

California judge imposes prison term of 1,503 years(!?!) on father who repeatedly raped daughter

As reported in this local article, a state judge in California gave new meaning to the term "mass incarceration" by imposing a prison sentence on a rapist that will not be completed until the year 3519.  Here are the details:

Fresno prosecutor Nicole Galstan asked a judge on Friday to sentence Rene Lopez to 1,503 years in prison for raping his teenage daughter over a four-year period, ending in 2013.  Judge Edward Sarkisian Jr. agreed, sentencing the 41-year-old Lopez to the longest-known prison sentence in Fresno Superior Court history.

It stands in stark contrast to recent high-profile sentencings in sexual assault cases such as six months for ex-Stanford swimmer Brock Turner and, just this week, 60 days for a Montana man convicted of felony incest for raping his 12-year-old daughter.

In announcing the punishment, Sarkisian told Lopez he violated a position of trust, engaged in violent conduct and is a “serious danger to society.” Sarkisian also noted that Lopez had never shown remorse and has blamed his daughter for his predicament.

Lopez, who sat shackled in the courtroom, sat silently, never acknowledging his daughter, who told Sarkisian that she feared her father. (The Fresno Bee does not name victims of sexual abuse.) “When my father abused me, I was young. I had no power, no voice. I was defenseless,” said the daughter, who now is 23 years old. She also told the judge that her father never has shown remorse for her pain and suffering....

In September, a jury found Lopez guilty of 186 felony counts of sexual assault, including dozens of counts of rape of a minor.  Galstan said the victim was first sexually abused by a family friend.  But instead of the father protecting his daughter, “he chose to turn her into a piece of property and use her to satisfy his sexual needs,” the prosecutor told the judge.

The victim was raped two to three times a week from May 2009 to May 2013.  Galstan said it ended only when the girl got the courage to leave him. Even then, her father would drive by her new home and later leave love songs on her message machine, the judge said....

At Friday’s hearing, Sarkisian read the date of each felony count, which included Lopez raping his daughter on Christmas and other holidays.  Before he announced the sentence, Sarkisian said Lopez turned down two plea deals. Before his preliminary hearing, if he had admitted his guilt, prosecutors would have recommended 13 years in prison. Lopez rejected the offer. Then before his trial, he was offered 22 years in prison if he admitted his guilt. Lopez declined that offer, saying he should be released from jail for the time he already had served, Sarkisian said.

“He ruined her teenage years and made her feel like it was her fault,” Galstan said in arguing for the maximum sentence.

Lopez, who did not testify in his trial, wrote in a letter to the judge that he didn’t get a fair trial and that his daughter lied on the witness stand. “It’s hearsay,” he says in the letter.  But Sarkisian told him that he received a fair trial and that the evidence was overwhelming.  In addition to the victim’s testimony, jurors heard entries from her diary in which she chronicled her father’s crimes against her, Galstan said.  And when she got pregnant from her father, he paid for the abortion, the judge said.

In addition to the prison sentence, Sarkisian said Lopez will have to register as a sex offender.

Though this defendant was convicted of extreme crimes that justified an extreme sentence, the decision of the prosecutor to seek and the judge to impose a term of 1,503 years in prison strikes me as silly and arguably counterproductive to the goal of helping all victims of sexual assault feel vindicated by the criminal justice system.  It is silly, I think, to impose upon a defendant a crazy-long-impossible prison sentence just for symbolic effect, just as a restitution sentence of, say, "one trillion, zillion, billion dollars" would be silly.  And this crazy-long-impossible prison sentence could, at least indirectly, make other victims of sexual assault whose victimizers were given much shorter sentences feel as though their harms were not entirely vindicated in their cases.

UPDATE: Over at his blog Simple Justice, Scott Greenfield has this effective new post titled "Rape, Incest And Retribution" to highlights how this case takes us from "the sublime to the ridiculous" as we reflect on what this case represents against the backdrop of other recent controversial sexual assault cases in California and Montana. In addition to recommending this post in full, I also recommend the comments there (as well as this funny button Scott provides if his post hurts your feelings).

October 23, 2016 in Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)

Supreme Court of Louisiana declares 99-year term without parole for juve armed robber violates Graham

The Supreme Court of Louisiana issued an interesting and significant unanimous ruling last week in Morgan v. Louisiana, No. 2015-KH-0100 (La. Oct. 19, 2016) (available here).  Here is how the opinion gets started:

A jury found the defendant, Alden Morgan, committed the offense of armed robbery at age 17.  Following return of the guilty verdict, the district court sentenced him to 99 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.  After being denied relief on direct review, the defendant filed a motion to correct an illegal sentence in light of recent developments in Eighth Amendment jurisprudence pertaining to the sentencing of juveniles.  Specifically, the defendant relied on Graham v. Florida, 560 U.S. 48 (2010), wherein the United States Supreme Court concluded that a sentence of life without the possibility of parole for a nonhomicide offense committed when the defendant was a juvenile constitutes cruel and unusual punishment.  We granted the defendant’s writ application to determine whether the defendant’s 99-year sentence is an effective life sentence and is, therefore, illegal under the Supreme Court’s decision in Graham.  For the reasons that follow, we hold that a 99-year sentence without parole is illegal because it does not provide the defendant “with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75.  Accordingly, we amend the defendant’s sentence to delete the restriction on parole eligibility and direct the Department of Corrections to revise the defendant’s prison masters according to the criteria in La. R.S. 15:574.4(D) to reflect an eligibility date for consideration by the Board of Parole.

What makes the Morgan opinion especially blogworthy is the short concurring opinion authored by Justice Crichton, which reads as follows:

“I do solemnly swear that I will support the constitution and laws of the United States and the constitution and laws of this state. . .” La. Const. art. X, § 30.

These words, which each justice of this Court affirmed upon taking office, which all Louisiana lawyers affirm, and which the District Attorney also affirms, reflect our solemn duty as members of the judiciary and the broader judicial system to uphold the constitutions of the United States and Louisiana.  Despite the clear mandate of the United States Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), the Orleans Parish District Attorney has taken the stunning position that this defendant does not face the functional equivalent of life imprisonment and that he would have — in the year 2082 and at age 101 — a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75.  Even worse, the District Attorney has invited this state’s high court to join him in this constitutionally untenable position that directly conflicts with a line of United States Supreme Court cases rolling back excessive punishment of juvenile offenders.  See Graham, supra, Roper v. Simmons, 543 U.S. 551 (2005), Miller v. Alabama, 567 U.S. -- (2012).  This position would, in my view, violate our oath of office insofar as it would contravene the Supreme Court’s pronouncements and, therefore, also violate the Supremacy Clause.  U.S. Const. art. VI, cl.2.  See State ex rel. Barrabino v. Henderson, 283 So. 2d 764, 766 (La. 1973) (Tate, J., concurring) (“The United States Constitution as interpreted by that court is binding upon every court in this land, including the Supreme Court of Louisiana. . . .”).  See also generally La. Rules of Prof. Conduct R. 3.1, 3.3.

Relatedly, I emphasize that the district attorney has an awesome amount of power in our justice system, which encompasses the “entire charge and control of every criminal prosecution instituted or pending in his district,” including the determination of “whom, when, and how he shall prosecute.”  La. C.Cr.P. art. 61.  As such, a prosecutor’s responsibility is as “a minister of justice and not simply that of an advocate.”  Model Rules of Prof’l Conduct R. 3.8 cmt[1] (Am. Bar. Ass’n 1983).  See also State v. Tate, 171 So. 108, 112 (La. 1936) (noting that the district attorney “represents the State, and the State demands no victims.  It seeks justice only, equal and impartial justice. . . .”).  Given both this power and responsibility, the District Attorney should seek to uphold the integrity of his office by declining to take positions that, as reflected by the 7-0 decision in this case, contravene federal constitutional law.

October 23, 2016 in Assessing Graham and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Anyone eager to predict the exact results of Nebraska Referendum 426, the state's "Death Penalty Repeal Veto Referendum"?

Images (15)Practically and politically, the most important vote this fall concerning the present and future of the death penalty will be taking place in California where voters will weigh in on competing initiatives offering to end or to mend capital punishment in the state.  But as highlighted effectively by this recent Marshall Project article, there are notable death penalty ballot questions before voters in two other states.  This article, headlined "Three States to Watch if You Care About the Death Penalty: Nebraska, Oklahoma, and California will test the prospects of abolition," provides an astute review of all the measures and it ends this way:

Pew’s national poll numbers aside, the death penalty for years now has been a regional punishment, not a national one, largely confined to the South and West, where skirmishes over its application will continue to play out the way we see it this election.  A mixed verdict on the four measures won’t change the national narrative reflected in the latest polls. But if the death penalty is restored in Nebraska, protected in Oklahoma, and expedited in California, we’ll know there are clear popular limits to the abolitionist movement.  And if voters choose to keep the death penalty dead in Nebraska, kill it in California and leave it be in Oklahoma, the latest poll numbers will look more like a trend. Either way, these local battles, and not some grand pronouncement from the Supreme Court in Washington, are how the future of capital punishment will be decided.

There has been a good bit of (not-so-clear) recent polling on the death penalty issues in California, and Kent Scheidegger at Crime & Consequence unpacks the latest polling in this new post speculating that the "mend-the-death-penalty" initiative might win in a landslide.  Meanwhile, I cannot find any recent polling from Nebraska on its Referendum 426, the state's "Death Penalty Repeal Veto Referendum."  That reality has prompted the question in the title of this post, along with this notable new local article from the Cornhusker state headlined "Catholic Church intensifies effort to abolish Nebraska’s death penalty."

I am inclined to predict that Nebraska voters will end up reversing the repeal of the death penalty in the state.  This prediction is based not only on Nebraska's status as a solid "red state," but also on the reality that pro-capital-punishment forces in the state have significant resources and a high-profile leader thanks to Gov. Pete Ricketts. (This recent article discusses some recent campaign funding realities under the headlined "Gov. Ricketts gives another $100,000 — for a total of $300,000 — to pro-death penalty group.")  

For a variety of symbolic and practical reasons, I think the exact voting percentages on Referendum 426 could be nearly as important as which side prevails.  If the vote end up reasonably  close either way (e.g., if the winning side gets less than 60% of the vote), I suspect the losing side can and will suggest that it could have prevailed with more resources and more time to educate voters.  But if one side wins big after this issue has been garnering attention in the state, I think the vote will be (perhaps rightly) viewed by national advocates as a very  clear indication of what folks in the heartland think about the present and future of capital punishment.

Helpfully, some media in Nebraska are do their part seeking to educate voters as revealed by these links to special coverage:

October 23, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, October 22, 2016

UCLA School of Law looking for Executive Director of new Criminal Justice Program

I am intrigued and pleased that a colleague from the UCLA School of Law reached out with a request to post the following description of a notable new position that might be of interest to readers and application directions:

The UCLA School of Law is seeking a highly energetic individual with significant criminal justice policy and/or legal practice experience to be the Executive Director of a newly established Criminal Justice Program (“Program”).  The Program will support research on criminal justice issues, expand criminal justice policy engagements both in Los Angeles and nationally (and even internationally), and create new high-level training and pro bono opportunities for students to work in criminal justice. In light of that mission, the Executive Director will have a diverse range of responsibilities and opportunities.

The Executive Director is responsible for a broad range of academic and administrative functions related to criminal justice law activities and programs at UCLA School of Law. The Executive Director will plan and oversee all aspects of the Program in collaboration with the Faculty Director of the Program and other relevant law school administrators. The Executive Director will work closely with the Faculty Director of the Program and members of the criminal law faculty to support and expand research, interdisciplinary study, policy analysis, and teaching (including clinical teaching) about criminal justice at UCLA School of Law.  The Executive Director will advance the criminal law curriculum and develop and expand skills and clinical course offerings.  The Executive Director will also organize symposia and other academic activities related to criminal justice. The Executive Director will also maintain UCLA’s public profile in these areas through a mix of writings in the popular press and in periodicals read by practicing attorneys, as well as through conference presentations and comparable public events; and raise money to support the Program, for example by submitting grant applications, strengthening existing donor relationships, and exploring new potential donor relationships.

The Program is by design a dynamic one, and the new Executive Director will ultimately have significant discretion to grow the Program and its initiatives creatively. Naturally, the day-to-day work of the Executive Director will feature substantial interaction with UCLA faculty and students. But success in this position will also require meaningful public engagement that can maintain and expand the Program.

Minimum requirements include an excellent academic record; a J.D. or equivalent advanced degree from a U.S. school; and significant criminal justice policy and/or legal practice experience. The salary and level of appointment will be commensurate with qualifications and experience. This is a year-round, academic, non-tenure track position with an expected start date of June 1, 2017.

Confidential review of applications, nominations and expressions of interest will begin immediately and continue until an appointment is made.  To ensure full consideration, applications should be received by Friday, November 18, 2016 but will be considered thereafter until the position is filled. Please apply online at https://recruit.apo.ucla.edu/apply/JPF02613 by submitting a cover letter, resume, and the names and addresses of at least three professional references.

The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy see: UC Nondiscrimination & Affirmative Action Policy (http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct).

October 22, 2016 in Who Sentences? | Permalink | Comments (0)