Monday, June 22, 2015

Interesting statement from Justice Sotomayor on Fifth Circuit approach to plain-error sentencing review

As noted in this post today (and this prior post from last week) about recent SCOTUS activity, sentencing fans like me eagerly awaiting big Supreme Court rulings in the Johnson Armed Career Criminal Act case and the Glossip lethal execution drug case have to keep waiting at least a few more days for a decision.  But, truly hard-core sentencing fans got a smidgen of unexpected love from Justice Sonia Sotomayor through this brief statement in Carlton v. US concerning how the Fifth Circuit applies plain-error review.  Here are excerpts which provide the context:

The District Court enhanced petitioner Roy Carlton’s sentence based on a factual inaccuracy introduced into the sentencing record by the Government.  The United States Court of Appeals for the Fifth Circuit refused to review Carlton’s appellate challenge to the enhancement, relying on Circuit precedent holding that factual errors are never cognizable on plain-error review.  For the reasons that follow, I believe the Fifth Circuit’s precedent is misguided....

The doctrine of plain error follows from the recognition that a “rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with . . . the rules of fundamental justice.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted). And in all the years since the doctrine arose, we have never suggested that plain-error review should apply differently depending on whether a mistake is characterized as one of fact or one of law.  To the contrary, “[w]e have emphasized that a per se approach to plain-error review is flawed.”  Puckett v. United States, 556 U.S. 129, 142 (2009) (internal quotation marks omitted).  The Fifth Circuit’s wooden rule that factual mistakes cannot constitute plain error runs counter to these teachings....

Given its inconsistency with the governing text and longstanding precedent, it is little wonder that no other court of appeals has adopted the per se rule outlined by the Fifth Circuit in Lopez....  All agree the District Court improperly relied on testimony Anderson never gave.  But in the Fifth Circuit — and only the Fifth Circuit — that mistake cannot be reviewed and possibly corrected.  As a result, Carlton may spend several additional months in jail simply because he was sentenced in Alexandria, Louisiana, instead of Alexandria, Virginia.

For all these reasons, I conclude that Lopez’s categorical rule is unjustified. Nevertheless, I reluctantly agree with the Court’s decision to deny certiorari in this case.  The Solicitor General informs us that the Fifth Circuit is at times inconsistent in its adherence to Lopez.  When that sort of internal division exists, the ordinary course of action is to allow the court of appeals the first opportunity to resolve the disagreement. I hope the Fifth Circuit will use that opportunity to rethink its approach to plain-error review.

June 22, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Notable new study on 56 failed capital cases in North Carolina over past 25 years

CDPL-REPORT_-smaller-image-e1434556853262As detailed in this local article, headlined "Report: NC prosecutors sometimes push for death penalty in flimsy cases," a notable new report about capital prosecutions in the Tar Heel State was released this morning. Here are the basics:

Fending off a capital murder charge can cost falsely accused defendants money, jobs, homes and their health, according to a report released by the Durham-based Center for Death Penalty Litigation.

The center studied 56 cases from 1989 to 2015 in which the death penalty was threatened as a potential punishment, but the charges were either dropped or the person charged was acquitted at trial. The results suggest that prosecutors sometimes use the threat of the state's most severe penalty when their evidence is the weakest, said Gerda Stein, a spokeswoman for the center. "They believe they have the right person," Stein said. "The problem is, they don't have enough evidence."

The center's report suggests the death penalty is used to bully defendants into accepting plea deals or to extract confessions from witnesses.

North Carolina has not executed a criminal defendant since 2006 as lawsuits over the method of execution and the now-repealed Racial Justice Act have kept the state from moving forward. During that time, there have been high-profile exonerations of death row inmates, including the recently pardoned Leon Brown and his half-brother, Henry McCollum.

Less well known are cases like that of Leslie Lincoln, who was accused of her mother's 2002 murder. She was implicated in part by faulty DNA evidence. Ultimately, she was found not guilty at trial, but she struggled with the aftermath of spending three years in jail and another two years on house arrest. She lost her job, savings and home and suffered from anxiety and depression after the acquittal, according to the report....

The center distributed embargoed copies of its report last week. One of those who reviewed a copy was former Supreme Court Justice Bob Orr, who says he does not oppose the death penalty but is troubled by its uneven application. "I think one of the points the report stresses is the leverage that comes with trying somebody and potentially pursuing the death penalty," Orr said. "It is sometimes the weakest cases, the ones where you don't have the strong evidence, that there seems to be an inclination to try to move forward with the death penalty."

The report doesn't suggest specific fixes to the issue. The center is one of a number of groups that has argued for the elimination of the death penalty altogether.

Orr said that, if the state is going to continue having capital punishment, it needs to do more to ensure a fair system. Both prosecutors and the defense attorneys for indigent defendants need better funding, he said, and he suggested the state ought to somehow centralize the decision on whether the death penalty is pursued, taking it out of the hands of prosecutors who might use the threat of capital punishment as tactical leverage. "That would make for a fairer, more even-handed, dispassionate decision-making process," he said.

The title of this new report is "On Trial for their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina," and it can be accessed via this link.  That link also provides this summary of report's main findings about the 56 North Carolina cases it studied:

• The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally.  Had the defendants been charged non-capitally, all that money could have been saved.  (This conservative figure does not take into account the additional prosecution and incarceration costs in capital cases.)

• Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.

• The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.

• By the time they were cleared of wrongdoing, many defendants lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed.  They received no compensation after they were cleared of charges.

• Serious errors or misconduct played a role in many cases.  The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.

June 22, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

SCOTUS rules 5-4 against government in two criminal procedure cases

The Supreme Court, back in action this morning, issued two notable split decisions in favor of individuals asserting rights against local or state criminal justice powers.  Here is an abridged (slightly modified) account of the SCOTUSblog early coverage of these rulings (with links):

The opinion in Kingsley v. Hendrickson is here.

This case arises out of an incident in a Wisconsin jail. Kingsley was waiting for trial on a drug charge when he got into a dispute with jail officers, who handcuffed him, forcibly removed him from his cell, and later used a taser on him. Kingsley then filed a lawsuit, alleging that jail officials had used excessive force. The question before the Court was what standard of review should apply to an excessive force claim by a pretrial detainee.

The Court ruled in favor of Kingsley, holding that courts should apply an objective test – the same Fourth Amendment excessive force test that applies to people who have not been arrested.  Vote is 5-4.  Under Section 1983, a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim.

Scalia dissents, joined by Chief and Thomas, and Alito dissents as well.

 

The opinion in Los Angeles v. Patel is here.

The question in this case was whether a Los Angeles ordinance that required hotel owners to keep registries of guests, and allowed officers to search them without any suspicion is unconstitutional under the Fourth Amendment.  The Court the ordinance facially unconstitutional. Statute is facially unconstitutional because it fails to provide motel owners with an opportunity for pre-compliance review.

Sotomayor is writing. Decision of the Ninth Circuit is affirmed.  This is a strong decision for Fourth Amendment lovers.

June 22, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"Justice Kennedy practically invites a challenge to solitary confinement"

The title of this post is the headline of this Los Angeles Times article which effectively reviews the remarkable (off-point) concurrence penned by Justice Kennedy in last week's SCOTUS ruling in a Davis v. Ayala.  Here are excerpts:

Supreme Court Justice Anthony M. Kennedy, in an unusual separate opinion in a case, wrote that it may be time for judges to limit the use of long-term solitary confinement in prisons.  His comments accompanying a decision issued Thursday marked a rare instance of a Supreme Court justice virtually inviting a constitutional challenge to a prison policy.

“Years on end of near-total isolation exacts a terrible price,” he wrote.  He cited the writings of Charles Dickens and 19th century Supreme Court opinions that recognized “even for prisoners sentenced to death, solitary confinement bears ‘a further terror and a peculiar mark of infamy.’”

Sentencing judges and the high court have largely ignored the issue, Kennedy said, focusing their attention on questions of guilt or innocence or on the constitutionality of the death penalty.  “In a case that presented the issue, the judiciary may be required,” he wrote, “to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”

Amy Fettig, an attorney for the ACLU’s National Prison Project, said Kennedy's comments came as a welcome surprise.  “It’s a remarkable statement.  The justice is sending a strong signal he is deeply concerned about the overuse and abuse of solitary confinement,” she said.

States such as Virginia and Texas routinely put death-row inmates in solitary confinement, she said.  “They are automatically placed there.  It has nothing to do with their being violent or their level of dangerousness,” she said.  This month, a federal judge in Virginia is weighing a “cruel and unusual punishment” claim brought by inmates on death row there, she noted.

Kennedy usually joins with the court’s conservatives in cases involving crime and punishment, but he has also voiced concern over prison policies that he deems unduly harsh. These include life terms for juveniles and long mandatory prison terms for nonviolent drug crimes. Four years ago, he spoke for a 5-4 majority that condemned overcrowding in California’s prisons and said it resulted in unconstitutionally cruel conditions....

Kennedy's comments drew a short, but sharp retort from Justice Clarence Thomas. “The accommodations in which Ayala is housed are a far sight more spacious than those in which his victims … now rest.  And, given that his victims were all 31 years or age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth,” Thomas wrote.

June 22, 2015 in Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Sunday, June 21, 2015

"Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective"

The title of this post is the title of this significant new article by Rishi Batra recently posted to SSRN. Here is the abstract:

There is a common perception that judges do not or should not play a role in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged by statute or by case law. This Article briefly summarizes some of the issues with the plea bargaining process, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely.

By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea process. Most importantly, it makes five recommendations for how states can involve judges in the plea process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting.

June 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Saturday, June 20, 2015

Despite statutory repeal, capital defenders say they need to keep representing Nebraska condemned

Some of the challenging issues facing Nebraska lawyers in the aftermath of the state's legislative repeal of the death penalty are on display in this notable local article headlined "John Lotter's lawyers argue they must stay on case because death penalty issue isn't settled." Here are the details:

Legal arguments over Nebraska’s death penalty repeal have quickly emerged in a federal court case involving one of the state’s death row inmates.  Two Kansas City attorneys argued this week that John Lotter’s death sentence was negated by the Nebraska Legislature’s May 27 repeal of capital punishment.

But lawyers Rebecca Woodman and Carol Camp said their client remains under threat of execution while a referendum petition drive attempts to overturn the repeal law and Gov. Pete Ricketts pushes for the lethal injections of Lotter and the nine other men on death row.  For that reason, the attorneys asked to remain assigned to Lotter’s case.

“Although Mr. Lotter asserts that the U.S. and Nebraska Constitutions would bar his execution even if the governor and his group were able to repeal the repeal, it is clear the governor will keep attempting to execute him until the courts definitively say he may not. That moment has not yet arrived,” the attorneys stated in a court brief filed in U.S. District Court in Lincoln.

In response, Assistant Nebraska Attorney General James Smith argued that only the Nebraska Board of Pardons has the authority to commute a death sentence under the state’s Constitution. Smith contended lawmakers passed flawed legislation by including intent language that says the repeal should apply to the existing death row inmates. “If the act was an unconstitutional power grab by the Nebraska Legislature, Lotter’s final death sentence remains in effect,” Smith said in his brief....

Lotter, 44, has spent 19 years on death row for a New Year’s Eve 1993 triple homicide near Humboldt. One of the victims was targeted for being transgender, which inspired the film “Boys Don’t Cry.” Lotter lost his previous appeals before state and federal courts. That makes him and Carey Dean Moore — convicted of killing two Omaha cab drivers in 1979 — the top candidates for execution depending on what happens with the repeal law.

As of now, however, Nebraska lacks the means to carry out an execution. Two of the three drugs required in the state’s lethal injection protocol have expired, and federal officials have said they will block the state’s attempt to import at least one of the drugs.

Woodman and Camp, who work with the Death Penalty Litigation Clinic, pointed out that no other state has executed an inmate after repealing the death penalty. To do so “would represent the sort of random, arbitrary, purposeless extinction of human life that the Eighth Amendment forbids,” they said in their brief. The two have asked U.S. District Senior Judge Richard Kopf to allow them to continue to represent Lotter while the status of the death penalty remains uncertain. They indicated Lotter has been pursuing constitutional claims never before litigated that would invalidate his death sentence.

June 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights"

The title of this post is the title of this interesting and important new article by Sarah French Russell recently posted to SSRN. Here is the abstract:

Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.  Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.”  Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering the courts.

Yet courts and scholars have not addressed a fundamental question: Who is the sentencer? Can a judge decide that a particular juvenile should die in prison or does the Constitution give juveniles the right to require that a jury make that determination?  Courts and state legislatures responding to Miller have assumed that a judge can impose life without parole on a juvenile, as long as the judge has discretion to impose a less severe sentence.  But viewing Miller in light of the Supreme Court’s recent Sixth Amendment jury right jurisprudence raises questions about the role of the jury in these post-Miller sentencing hearings.

In particular, does an Eighth Amendment limit on a sentence operate in the same way as a statutory maximum sentence and set a ceiling that cannot be raised absent a jury finding? If so, a jury must find the facts beyond a reasonable doubt that expose a juvenile to life without parole. Understanding how the Court’s recent Sixth and Eighth Amendment cases interact has broad implications for how sentencing authority is allocated not only in serious juvenile cases but also in our justice system more widely.

June 20, 2015 in Assessing Miller and its aftermath, Blakely in Sentencing Courts, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, June 19, 2015

Split Eleventh Circuit panel discusses reasonableness review at great length

More than a full decade after the Supreme Court's Booker decision, federal circuit courts and judges continue to struggle with their post-Booker responsibility to review sentences for reasonableness.  That struggle is on full display today in the lengthy Eleventh Circuit panel ruling in US v. Rosales-Bruno, No. 12-15089 (11th Cir. June 19, 2015) (available here). The start of Chief Judge Carnes' opinion for the Court provide a crisp outline of the "sole issue" before the appellate court:

This is the second appeal to come before us involving a sentence imposed on Jesus Rosales-Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326.  In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th Cir. 2012) (Rosales-Bruno I).  That error had increased Rosales-Bruno’s advisory sentencing guidelines range to 70 to 87 months, and the district court had sentenced him to 87 months imprisonment.

On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment.  After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term.  That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment.  The sole issue in this appeal is whether that sentence is substantively unreasonable.

Chief Judge Carnes thereafter has a 50-page explanation for why he thinks the sentence is substantively reasonable.  In turn, Judge Wilson need 40 additional pages to provide a contrary view on the reasonableness of this sentence.  The dissent starts this way:

For illegally reentering the United States, a crime with no statutory minimum and a base Guidelines range of 0–6 months, Rosales-Bruno was sentenced to more than 7 years in prison. In imposing this sentence, the district court more than tripled the upper end of the applicable Guidelines range.  The justifications supporting this major variance are insufficient, and this sentence — the product of a clear error in judgment — is “greater than necessary[] to comply with the purposes set forth” in 18 U.S.C. § 3553.  See United States v. Irey, 612 F.3d 1160, 1187, 1189 (11th Cir. 2010) (en banc). Therefore, I dissent.

June 19, 2015 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?

The question in the title of this post is a question I have raised with some folks over at Crime and Consequences, and this new New York Times article reports that it is one that the Governor of South Carolina might now be thinking a lot about.  The NYTimes article is headlined "Governor Calls for Charleston Shooting Suspect to Face Death Penalty," and here are excerpts:

South Carolina’s governor on Friday called for the 21­ year­old man who is suspected of killing nine people in one of the South’s most historic black churches to face the death penalty.

“This is a state that is hurt by the fact that nine people innocently were killed,” Gov. Nikki R. Haley said, adding that the state “absolutely will want him to have the death penalty.”  The governor, who spoke on NBC’s “Today” show, described Wednesday’s shooting rampage as “an absolute hate crime.”

“This is the worst hate that I’ve seen — and that the country has seen — in a long time,” she said. “We will fight this, and we will fight this as hard as we can.”

Her comments came hours before the suspect, Dylann Storm Roof, a white man who returned to Charleston under heavy guard on Thursday night after his arrest in North Carolina, was expected to go before a judge on Friday afternoon for a bond hearing, where he will hear the charges against him. Mr. Roof, who friends said had a recent history of expressing racist opinions, is widely expected to be prosecuted for murder, an offense that can carry the death penalty in this state. Greg Mullen, the chief of police in Charleston, has called the shooting a hate crime, and Attorney General Loretta E. Lynch said the Justice Department was investigating that possibility....

On Thursday, President Obama spoke of the shooting and lamented what he called the easy access to guns, an issue he has tried and failed to address with legislation. “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries,” Mr. Obama said. He added: “It is in our power to do something about it. I say that recognizing the politics in this town foreclose a lot of the avenues right now. But it would be wrong for us not to acknowledge it. And at some point it’s going to be important for the American people to come to grips with it.”

In the interview on Friday, Ms. Haley, a strong proponent of gun rights, deflected a question about whether the shooting would change her position on the issue. “Anytime there is traumatic situation, people want something to blame. They always want something to go after,” she said. “There is one person to blame here. We are going to focus on that one person,” she added, referring to Mr. Roof....

In downtown Charleston, there was already talk of the long­term anxiety the shooting might stir. “The question that I have is, is it going to happen again?” said Jeremy Dye, a 35­-year-­old taxi driver and security guard from North Charleston who said he knew three people who were killed. “It’s always going to be fear. People in Charleston are going to have that fear now forever. It’s not going to wash away. They’re going to be worried about, ‘O.K., when’s the next church going to get hit?’ ”

Because I share Gov Haley's view that this is the worst hate crime that the country has seen in a long time, and because I am especially eager to figure out how best to recognize and respect the real fear that this incident produces "forever" for so many folks, I think I would answer the question in the title of this post with the answer BOTH.

For many reasons, I think it would send an especially potent and powerful message of condemnation for both South Carolina and the Federal Government to bring capital charges against Dylann Storm Roof. Though I am not sure at this early stage of the investigation if I would want both SC and the feds moving forward with a capital prosecution all the way through a trial at the same time, I am sure that this is a kind of crime comparable in various ways to the Oklahoma bombing that prompted various dual state and federal prosecutions of the perpetrators.  For me, the symbolic value and statement of having capital charges brought against Roof in both state and federal courts is worth seriously considering.

June 19, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (22)

"Vermont's Prison Chief Says It's Time to Decriminalize Drug Possession"

BildeThe title of this post is the headline of this intriguing new article from an independent paper in Vermont.  Here is how the lengthy article gets started:

Vermont Department of Corrections Commissioner Andy Pallito recalled spotting a young woman on a prison tour; he knew she was addicted to heroin, but she wasn't getting treated for it. On another occasion, a former inmate who served five years on a marijuana conviction described his crime to Pallito as "possession of a vegetable."

Pallito has struggled over the years to rein in a DOC budget that has exploded along with the inmate population. All of that has led him to a conclusion shared by few in his field: Pallito believes that possession of all drugs should be decriminalized and that the War on Drugs should be declared a failure, he told Seven Days. The man who supervises Vermont's 1,900 prison inmates believes that many of them shouldn't be behind bars, and that incarceration sets them up for failure.

"Possession of drugs for personal utilization — if somebody is not hurting anyone [else], that should not be a criminal justice matter," Pallito, 49, said in an interview at his Williston office. "I don't think anybody can say that putting somebody with an addiction problem through the corrections system is a good idea."

The DOC commissioner has been following news reports from Portugal, which in 2000 decriminalized all drugs and has since recorded declines in drug abuse and overdose deaths. He's decided it's a brave example that Vermont should emulate. "We should go to the Portugal model, which is to deal with the addiction and not spend the money on the criminal justice system," Pallito said. "We spend so much money on corrections that could be done differently. The only way to do it is spend less on corrections and more on treatment."

Pallito may be the first head of a state prison system to publicly advocate against the prosecution of users of heroin, cocaine and other street drugs. He knows of no one among his peers who has stepped forward. Organizations that question the War on Drugs, such as Law Enforcement Against Prohibition — a group of former and current police officers — have not claimed any state corrections administrators as supporters. "When you're a corrections commissioner, most people think you're tough on crime, law and order, and I am — for certain crimes," Pallito said. He believes that possession of marijuana should be legal, in any quantity. Possession of all other drugs, provided they are in small quantities for personal use, should not result in a criminal charge but rather a small civil fine, along with a mandate to undergo treatment. In essence, he'd treat all drugs in a way that is consistent with Vermont's 2013 marijuana decriminalization law, which stipulates that people found with one ounce or less face a $200 fine but no criminal charge.

Pallito stressed two points: Drug dealers should still face criminal charges. And decriminalization should not happen overnight — there aren't enough drug-treatment providers to handle the effects of such a switch. He would go even further in decriminalizing drug-related activity. The many people who are charged with drug-addiction-related property crimes, such as theft, would not face prison time.

Currently, more than 500 of Vermont's 1,900 inmates are in custody for either property crimes or drug possession. Two of those are being incarcerated for marijuana possession. Freeing such inmates would dramatically reduce the prison population, saving the state several million dollars annually and enabling it to end the controversial program that ships 300 overflow inmates to privately run out-of-state prisons.

Further, Pallito said, decriminalization would allow people to take advantage of effective treatment programs and to avoid criminal convictions that prevent them from rebuilding their lives. "I think you will find a lot of people in the criminal justice system who have been there for a number of years understand its faults most acutely," said Chittenden County State's Attorney T.J. Donovan, who seemed a little taken aback by news of Pallito's stand. "The best policy is front-end work, and Andy sees that, and it's consistent with his progressive ideology."

June 19, 2015 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, June 18, 2015

Criminal law geek overload as SCOTUS clears most (but not most consequential) of its criminal docket

As the posts preceding this one reveals, the US Supreme Court this morning largely ruined my plans to spend much of the next 80 hours obssessing over one of my favorite summer sporting events.  They did so by handing down four "meaty" criminal law opinions, all of which appears to include an array of doctrinal and dicta nuances that likley will prove to be blogworthy in the days ahead.  I will collect here all the prior posts (which have links to the opinions) in order to help those keeping score to see that criminal defendants prevailed in two cases and lost in two cases:

From a way-too-quick assessment of these rulings, I sense that Clark is the biggest deal both as a matter of constitutional jurisprudence and as a matter of day-to-day criminal trial practice. But, because the Confrontation Clause has generally been deemed inapplicable in sentencing proceedings, hard-core sentencing fans might find a lot more of interest in the other rulings.

Also noteworthy, as the title of this post highlights, still outstanding from the Justices are the two cases I have been following most closely this term: Glossip concerning execution protocols and Johnson concerning the constitutionality and application of the federal Armed Career Criminal Act. I have long assumed and expect that we would not get a ruling in Glossip until the very end of the month, and I now am thinking there is a good chance we might get Johnson as early as next week.

June 18, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

SCOTUS unanimously rules for federal defendant on mens rea issue in McFadden CSA case

The US Supreme Court has just handed down its opinion in the Federal criminal case of McFadden v. US, No. 14-348 (S. Ct. June 18, 2015) (available here).  Justice Thomas wrote the opinion for the Court, which garnered no dissents but generated a short concurrence by the Chief Justice.  The Court's opinion begins this way:

The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially similar to those listed on the federal controlled substance schedules, 21 U.S.C. § 802(32)(A), and then instructs courts to treat those analogues, if intended for human consumption, as controlled substances listed on schedule I for purposes of federal law, §813.  The Controlled Substances Act (CSA) in turn makes it unlawful knowingly to manufacture, distribute, or possess with intent to distribute controlled substances. § 841(a)(1).  The question presented in this case concerns the knowledge necessary for conviction under § 841(a)(1) when the controlled substance at issue is in fact an analogue.

We hold that § 841(a)(1) requires the Government to establish that the defendant knew he was dealing with “a controlled substance.”  When the substance is an analogue, that knowledge requirement is met if the defendant knew that the substance was controlled under the CSA or the Analogue Act, even if he did not know its identity.  The knowledge requirement is also met if the defendant knew the specific features of the substance that make it a “‘controlled substance analogue.’” § 802(32)(A).  Because the U. S. Court of Appeals for the Fourth Circuit approved a jury instruction that did not accurately convey this knowledge requirement, we vacate its judgment and remand for that court to determine whether the error was harmless.

June 18, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

SCOTUS rules 5-4 for state capital defendant in Brumfield v. Cain, and 5-4 against state capital defendant in Davis v. Ayala

The US Supreme Court has just handed down its opinion in the state capital case of Brumfield v. Cain, No. 13-1433 (S. Ct. June 18, 2015) (available here). Justice Sotomayor wrote the opinion for the Court, which divided 5-4 on the case.  The Court's opinion begins this way:

In Atkins v. Virginia, 536 U.S. 304 (2002), this Court recognized that the execution of the intellectually disabled contravenes the Eighth Amendment’s prohibition on cruel and unusual punishment.  After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d)(2). Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court.

Justice Thomas authored a lengthy dissent which ends with a picture and starts this way:

Federal collateral review of state convictions interrupts the enforcement of state criminal laws and undermines the finality of state-court judgments. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addresses that interference by constraining the ability of federal courts to grant relief to state prisoners. Today, the Court oversteps those limits in a decision that fails to respect the Louisiana state courts and our precedents.  I respectfully dissent.

------

Just a few minutes later, the US Supreme Court handed down its opinion in the state capital case of Davis v. Ayala, No. 13-1428 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which divided 5-4 on the case. The Court's opinion begins this way:

A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala’s application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit’s decision was based on the procedure used by the trial judge in ruling on Ayala’s objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution’s peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy.  On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt.  The Ninth Circuit, however, held that the error was harmful.

The Ninth Circuit’s decision was based on the misapplication of basic rules regarding harmless error.  Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d).

Justices Kennedy and Thomas wrote interesting off-topic concurrences, which I will discuss in a separate post. More on point is the chief dissent in Ayala authored by Justice Sotomayor, which starts this way:

At Hector Ayala’s trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic jurors. In his federal habeas petition, Ayala challenged the state trial court’s failure to permit his attorneys to participate in hearings regarding the legitimacy of the prosecution’s alleged race-neutral reasons for its strikes. See Batson v. Kentucky, 476 U.S. 79, 97–98 (1986). The Court assumes that defense counsel’s exclusion from these proceedings violated Ayala’s constitutional rights, but concludes that the Ninth Circuit erred in granting habeas relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution’s proffered reasons. I respectfully dissent. Given the strength of Ayala’s prima facie case and the comparative juror analysis his attorneys could have developed if given the opportunity to do so, little doubt exists that counsel’s exclusion from Ayala’s Batson hearings substantially influenced the outcome.

June 18, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

SCOTUS narrows reach of Confrontation Clause via Ohio v. Clark

The US Supreme Court has just handed down its opinion in the state criminal case of Ohio v. Clark, No. 13-1352 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which garnered no dissents but did prompt separate concurrences by Justices Scalia (joined by Justice Ginsburg) and Justice Thomas. The Court's opinion begins this way:

Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town.  A day later, teachers discovered red marks on her 3-year-old son, and the boy identified Clark as his abuser.  The question in this case is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing those statements when the child was not available to be crossexamined.  Because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were admissible at trial.

Notably, Justice Scalia's concurrence reads a lot more like a dissent, as evidenced by this passage early in his opinion:

I write separately, however, to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington, 541 U.S. 36 (2004).  For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “‘indicia of reliability.’”  Ohio v. Roberts, 448 U.S. 56, 66 (1980).  Prosecutors, past and present, love that flabby test.  Crawford sought to bring our application of the Confrontation Clause back to its original meaning, which was to exclude unconfronted statements made by witnesses — i.e., statements that were testimonial.  541 U.S., at 51. We defined testimony as a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact,’” ibid.—in the context of the Confrontation Clause, a fact “potentially relevant to later criminal prosecution,”  Davis v. Washington, 547 U.S. 813, 822 (2006).

June 18, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

New ACLU lawsuit assails public defender system in Idaho

This new AP piece, headlined "ACLU Sues Idaho in Push to Improve Public Defender System," reports on a notable new civil rights lawsuit in the Gem State. Here are the details:

A national civil liberties group has brought its fight to overhaul the criminal defense system for low-income defendants to Idaho with a lawsuit that says the state hasn't done enough to make sure poor people are being fairly represented.

The American Civil Liberties Union contends state officials have known for several years that overwhelming case loads, underfunded budgets and a patchwork system that varies county by county prevent defendants from receiving adequate legal representation guaranteed by the U.S. Constitution.

Idaho officials, including the governor and attorney general, declined to comment Wednesday on a case that continues a national push for the ACLU....

The organization has brought similar lawsuits in several states recently, reaching settlements in New York and Washington after the U.S. Justice Department intervened on the ACLU's behalf and state officials agreed to sweeping reforms.

The Idaho case names four plaintiffs who say they've spent months in jail without speaking to their court-appointed attorneys or that their cases weren't properly reviewed, and the organization is seeking class-action status so the case will apply to all low-income defendants in the state.  The filing asks a state judge to order Idaho officials to implement a better system....

Lawmakers and a special Criminal Justice Commission have examined the issue, but the ACLU says meaningful changes haven't been made.  For their part, legislators created the Idaho Public Defense Commission last year.  Members have been asked to create standards, training programs and a data collection system and to keep lawmakers informed about any problems.  The ACLU says that's not enough. "Astoundingly, the State failed yet again in the recently concluded 2015 legislative session to fund or improve its public-defense system," ACLU-Idaho attorney Ritchie Eppink wrote in the lawsuit.

Members of the Public Defense Commission were named as defendants in the lawsuit, along with Republican Gov. C.L. "Butch" Otter and the state.  Ian Thompson, the commission's executive director, declined to comment on the case, though he said members will discuss it during a meeting Thursday.

A copy of the ACLU lawsuit can be accessed at this link via the ACLU website.

June 18, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Wednesday, June 17, 2015

Federal district judge declares unconstitutional Minnesota sex offender civil commitment program

As reported in this AP piece, today brought a big (but not entirely unexpected) federal court ruling concerning constitutional challenges to Minnesota's civil commitment program for sex offenders. Here are the basics:

A federal judge has ruled that Minnesota's sex offender treatment program is unconstitutional, but has deferred any immediate action to await further proceedings on a remedy.  U.S. District Judge Donovan Frank largely sided with the more than 700 residents who were civilly committed to the Minnesota Sex Offender Program after they completed their prison sentences.

Their lawyers argued during a nearly six-week bench trial in February and March that the program is unconstitutional because nobody has ever been fully discharged from it, even those thought to be at low risk of committing new crimes. The state says it has improved the program, including moving more patients through treatment and perhaps toward provisional release.

Frank is calling on Minnesota government's top leaders to personally appear in court to help come up with an alternative structure to a sex offender confinement program. Frank listed Gov. Mark Dayton, House Speaker Kurt Daudt and Senate Majority Leader Tom Bakk among those he wants to take part in a remedies phase that will start on Aug. 10. Frank says stakeholders must fashion a suitable remedy to avoid having the entire program be eliminated and resulting in the release of civilly committed offenders currently in secure facilities.

In Wednesday's ruling, the judge lays out more than a dozen conditions for a restructured program, including that less-restrictive alternatives be implemented and new evaluation and discharge procedures be developed. Throughout his 76-page ruling, Frank says elected officials have been reluctant to modify the indefinite confinement of more than 700 sex offenders out of political fear. But Frank says "politics or political pressures cannot trump the fundamental rights" of those in the program. He stressed that the U.S. Constitution "protects individual rights even when they are unpopular."

Gov. Mark Dayton says there won't be immediate changes to the Minnesota Sex Offender Program in response to a federal judge's ruling that it's unconstitutional. In a statement that was released Dayton said, "We will work with the Attorney General to defend Minnesota's law."

Dan Gustafson, the attorney who brought the class action suit on behalf of the Minnesota Sex Offender Program clients said he is not surprised by the judge's ruling. He said that he advised his clients to be patient because the remedies will take time to create and not all of the clients will be getting out.

The full 76-page ruling, in a case that still clearly is nowhere close to finished, is now available at this link.

June 17, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Constitution Project gets 130 former judges, prosecutors and law enforcement officials on letter advocating for SSA

Download (6)As reported here by The Constitution Project, "former judges and prosecutors from across the country are urging Congress to adopt the Smarter Sentencing Act."  Specifcally, The Constitution Project organized "130 former judges, prosecutors and law enforcement officials" to sign this notable letter "delivered to members of the House and Senate Judiciary Committees on June 16."

As The Constitutional Project notes, included among "those signing the letter are Judge William S. Sessions, former director of the FBI; former state attorneys general from Illinois, Pennsylvania, Tennessee and Virginia; and former state Supreme Court justices from Florida, Georgia, Mississippi, Montana and Texas."  And here is how the letter gets started:

As former judges, prosecutors and law enforcement officials, we write to express our support for critical reforms to federal sentencing contained in the Smarter Sentencing Act of 2015 (SSA), S.502/H.R.920.  This bill is an important step in promoting public safety and addressing unintended and expensive consequences of existing federal sentencing laws.

Nationwide, law enforcement has made significant progress in curbing violent crime in our communities.  At the federal level, we trust Congress to address the parts of our sentencing policies that are simply not working.  Presently, mandatory minimum drug sentences unnecessarily apply to a broad sweep of lower level offenders.  These include low-level, nonviolent people whose involvement in the offense is driven by addiction, mental illness, or both.  Drug offenders are the largest group of federal offenders sentenced each year, now comprising nearly half of the federal prison population. Moreover, individuals most likely to receive a mandatory minimum sentence were street-level dealers, not serious and major drug dealers, kingpins, and importers.  Indeed, of the 22,000 federal drug offenders last year, only seven percent had a leadership role in the crime and 84 percent did not possess or use guns or weapons.  The U.S. Sentencing Commission and other experts have found little deterrent value in sentencing low-level offenders to lengthy mandatory minimum prison terms.

Additionally, over the past three decades, our spending on federal incarceration has increased by over 1100 percent.  Despite this massive investment by taxpayers, federal prisons are now at 128 percent of their capacity, undermining staff and inmate safety and prisoner rehabilitation, as well as reducing the resources available for law enforcement and crime prevention. Incarceration and detention costs have nearly doubled over the last ten years, with the Bureau of Prisons’ (BOP) budget at its current level of $7.2 billion in the President’s Fiscal Year 2016 budget request.  As a nation, we are expending enormous amounts of money, but failing to keep pace with our growing prison population.

Maintaining the status quo in federal sentencing policy is both fiscally imprudent and a threat to public safety.  We are deeply concerned that spending on incarceration has jeopardized funding for some of our most important law enforcement priorities.  The BOP budget now accounts for approximately a quarter of the U.S. Department of Justice’s (DOJ) discretionary budget, potentially undermining other DOJ law enforcement priorities. Indeed, in 2014, the BOP’s budget grew at almost twice the rate of the rest of the Department of Justice.  With more resources going to incarcerate nonviolent offenders, funding for federal investigators and prosecutors is threatened. U.S. Attorneys’ Offices and the Drug Enforcement Administration have already lost hundreds of positions and resources for state and local law enforcement have significantly decreased.  Law enforcement will continue to maximize its resources to keep our communities safe, but Congress created our sentencing scheme and needs to act to help solve these problems

June 17, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

As Gov Jindal talks up sentencing reform and medical marijuana in Iowa, should we wonder what "The Donald" has to say on these issues?

The question in the title of this post captures some notable news from the GOP campaign trail this week.  The seemingly more serious news is discussed in this NOLA.com article, headlined "Bobby Jindal talks medical marijuana, sentencing reform with The Des Moines Register."  Here are the details from that report:

Gov. Bobby Jindal doubled down on his commitment to sign two pieces of state legislation related to marijuana during a video interview with The Des Moines Register. "We are going to sign both bills. They've made it through the process. They are going to make to my desk in the next few days," Jindal told The Des Moines Register....

Jindal backs legislation to establish a framework for access to medical marijuana in Louisiana. Technically, medical marijuana has been legal in the state for years, but there's never been rules written to regulate growing, prescribing or dispensing it. The new law, should Jindal sign it, would set up those regulations. "Look, if it is truly tightly controlled and supervised by the physicians, I'm ok with that," Jindal said.

The governor also said he would approve a bill that reduces maximum sentences allowed for many types of marijuana offenders. As governor, Jindal said he has increased penalties for people who violent offenders -- sex crime perpetrators and others -- but is in favor of reducing penalties for people who commit nonviolent crimes. "At the federal level, I think there is a bipartisan effort to look at sentencing reform. I think that makes sense," Jindal said.

But, perhaps unsurprisingly, a decision by a high-profile individuals to throw his hat in the GOP presidential ring has garnered the most media attention this week. And this ABC News report highlights some reasons why Donald Trump's views on sentencing and marijuana reform may really be consequential in the coming months:

[T]here’s a slice of voters, not insignificant in the Republican primary race, who despise Washington and politicians more broadly. Every candidate likes to try to channel that, but none bring the bluster that Trump does.... Trump is a sideshow, but one whose act will spill on to the main stage, particularly if he earns a debate invitation or three....

From Facebook: “In the 24 hour period between 12:01 a.m. ET June 16 and 12:01 a.m. ET June 17, 3.4 million people on Facebook in the U.S. generated 6.4 million interactions (likes, posts, comments, shares) related to Donald Trump and his announcement. Note: over the last 90 days, conversation about The Donald has been generated by an average of about 39,000 unique people per day.”

June 17, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Monday, June 15, 2015

Ron Paul at Townhall: "Death Penalty is Big Government at Its Worst"

Former Texas congressman Ron Paul has this notable new anti-death penalty commentary now up at Townhall.  Here are excerpts:

Nebraska's legislature recently made headlines when it ended the state's death penalty. Many found it odd that a conservatives-dominated legislature would support ending capital punishment, since conservative politicians have traditionally supported the death penalty. However, an increasing number of conservatives are realizing that the death penalty is inconsistent with both fiscal and social conservatism.  These conservatives are joining with libertarians and liberals in a growing anti-death penalty coalition.

It is hard to find a more wasteful and inefficient government program than the death penalty.  New Hampshire recently spent over $4 million dollars prosecuting just two death penalty cases, while Jasper County in Texas raised property taxes by seven percent in order to pay for one death penalty case!  A Duke University study found that replacing North Carolina's death penalty would save taxpayers approximately $22 million dollars in just two years....

Despite all the time and money spent to ensure that no one is wrongly executed, the system is hardly foolproof.  Since 1973, one out of every ten individuals sentenced to death has been released from death row because of evidence discovered after conviction. The increased use of DNA evidence has made it easier to clear the innocent and identify the guilty.  However, DNA evidence is not a 100 percent guarantee of an accurate verdict. DNA evidence is often mishandled or even falsified.  Furthermore, DNA evidence is available in only five to 10 percent of criminal cases.

It is not surprising that the government wastes so much time and money on such a flawed system. After all, corruption, waste, and incompetence are common features of government programs ranging from Obamacare to the TSA to public schools to the post office.  Given the long history of government failures, why should anyone, especially conservatives who claim to be the biggest skeptics of government, think it is a good idea to entrust government with the power over life and death?...

As strong as the practical arguments against the death penalty are, the moral case is much stronger.  Since it is impossible to develop an error-free death penalty system, those who support the death penalty are embracing the idea that the government should be able to execute innocent people for the "greater good."  The idea that the government should be able to force individuals to sacrifice their right to life for imaginary gains in personal safety is even more dangerous to liberty than the idea that the government should be able to force individuals to sacrifice their property rights for imaginary gains in economic security.

Opposition to allowing the government to take life is also part of a consistent pro-life position.  Thus, those of any ideology who oppose abortion or preemptive war should also oppose the death penalty. Until the death penalty is abolished, we will have neither a free nor a moral society.

I cannot help but wonder if Ron Paul's son, Senator and GOP Prez-candidate Rand Paul, shares these (conservative?) perspectives on the death penalty and might even espouse some anti-death-penalty sentiments on the campaign trail in the future.

June 15, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

SCOTUS grants cert on a federal prisoner (re)litigation case

The Supreme Court started the week by granting review in two cases, one of which concerns prisoner rights and restrictions.  The case is Bruce v. Samuels, and this SCOTUSblog page provides this account of the question presented:

Whether, when a prisoner files more than one case or appeal in the federal courts in forma pauperis, the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), caps the monthly exaction of filing fees at 20% of the prisoner's monthly income regardless of the number of cases or appeals for which he owes filing fees.

June 15, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Sunday, June 14, 2015

Fascinating account of how "how neoliberalism lies at the root of the carceral state"

LogoThe always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform."  The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:

Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings.  So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations.  Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”

This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate.  But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.

For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can.  Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....

[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities.  The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.

That discretion could be turned toward lenience.  President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency.  Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007).  The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association.  For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.

Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions.  Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....

Alleviating the root causes of poverty and inequality will take a long time.  In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.

I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.

June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

"Will Nebraska’s Death Penalty Come Back?"

The title of this post is the headline of this new New York Times editorial. The substance of the editorial makes clear that the NYTimes' answer to the question is "We sure hope not!". Here are excerpts:

In a sensible, humane move last month, Nebraska lawmakers abolished the state’s death penalty by a 30­to­19 vote that crossed party lines and overrode a veto by Gov. Pete Ricketts. These lawmakers aren’t renegades; an April poll by the American Civil Liberties Union of Nebraska found that 58 percent of Nebraskans supported alternatives to the death penalty, like life without parole.

Now comes the counterattack. A new group called Nebraskans for the Death Penalty has started a petition drive, supported by Mr. Ricketts, to put the issue directly before voters in 2016. Last week, they got the support of the Nebraska Sheriffs’ Association, which claimed, as Mr. Ricketts has, that public safety depends on the state’s ability to kill certain inmates.

To put the proposed referendum on the ballot, death penalty supporters have about three months to get signatures from 5 percent of registered voters, or about 58,000 Nebraskans. If they can get 10 percent, state law will put the ban on hold until the voters have a chance to weigh in. Whether the effort succeeds will depend in large part on how much money death penalty supporters can muster; paying people to go door to door asking tens of thousands of voters for their signatures doesn’t come cheap. In addition to supporting the referendum, Mr. Ricketts is insisting that he still has the legal authority to execute the 10 people remaining on Nebraska’s death row, on the grounds that the Legislature cannot alter an existing sentence. Lawmakers, however, say they have eliminated all executions. Whatever the courts may decide on this question, it remains unclear whether the state even has the means to carry out these killings....

[T]he votes of the Nebraska Legislature show that when lawmakers across the political spectrum can have an open, honest and informed debate on the issue, capital punishment is quickly exposed for the immoral, ineffective, arbitrary and costly practice that it is.

Prior related posts:

June 14, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Saturday, June 13, 2015

How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?

The Supreme Court Term is winding down, and we might get a ruling as early as this coming wee in the (re)argued case Johnson v. US concerning the (un)constitutionality of the Armed Career Criminal Act.  As federal sentencing fans should know, there seem to be a real chance that Justice Scalia will convince enough of his colleagues to strike down ACCA as unconstitutionally vague.

Helpfully, Leah Litman has already authored an article, "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality", about some of the legal issues that might follow from a big constitutional ruling in Johnson.  But the question in the title of this post is focused on the practical question of just how many current federal prisoners serving ACCA sentences of 15 or more years could seek to benefit from ACCA.  

This helpful new "Quick Facts" report from the US Sentencing Commission indicates that in Fiscal Year 2014 roughly 10% of 5,500 federal firearm offenders were sentenced under ACCA to an average sentence of 188 months in prison.  Assuming that these numbers are typical for firearm sentencing in each of the last dozen years, we can then extrapolate to estimate that there may be as many as 7,000 current federal prisoners serving ACCA sentencing term.

Critically, though, even if the Supreme Court were to declare ACCA's residual clause unconstitutionally vague, that ruling alone would not necessarily impact all (or perhaps even most) of current ACCA prisoners.  Sentencing judges in many (maybe most) cases sentenced under ACCA likely did not rely on the residual clause of the statute to find enough triggering prior offenses to require the application of the severe ACCA sentence.  Among the uncertainties which could flow from a big ACCA ruling in Johnson  is whether other parts of the ACCA statute and prior convictions based on other parts of the ACCA statute are still valid if one ACCA clause is struck down as unconstitutionally vague.

Some related prior posts:

June 13, 2015 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, June 12, 2015

"Marijuana & Ohio: Past, Present, Potential"

The title of this post is the title of the lengthy research report that was formally released (and extensively discussed) yesterday at the Ohio Marijuana Policy Reform Symposium which I help organize yesterday.  The report and related information about Marijuana Policies of Ohio Task Force that released the report can be found at this webpage.

The report is much longer and more data-heavy than anything else previously written about marijuana reform in Ohio, but this AP article discussing its findings also highlights why the report has also become the subject of criticism.  The AP piece is headlined "Economics of effort to legalize pot in Ohio in crosshairs," and here are excerpts:

A Republican prosecutor who is heading a task force on marijuana legalization in Ohio said the analysis of potential impacts released by his group Thursday presents a balanced look at the issue, a claim questioned by the state auditor.  Hamilton County Prosecutor Joe Deters was asked to chair the Marijuana Policies of Ohio Taskforce by ResponsibleOhio, the group advancing a legalization amendment toward the November ballot.

He said ResponsibleOhio has allowed experts on his task force the editorial freedom to put together a “straightforward assessment” of how legalization might affect law enforcement, public safety, public health and Ohio’s overall economy.  “Our report doesn’t make recommendations, and it doesn’t pull any punches,” Deters said.  “We’ve made a concerted effort to remain objective, take an even-handed approach and lay out both the good and the bad of legalization.”

The report estimates legalization would create 34,791 jobs in Ohio representing $1.6 billion in labor income in connection with nearly $7 billion in output from the cultivation, extraction, processing and sale of marijuana.  The report said research shows legalization doesn’t lead to drastic increases in crime, in adult or teen marijuana use, or in workplace injuries -- a finding Auditor Dave Yost called rosy at best.

“There are unquestionably going to be health and safety impacts,” Yost, an opponent of legalizing marijuana, said.  “This task force was stacked like a BLT. Really, in 30 days? This debate has been going on for 50 years and they did a comprehensive study in 30 days?”

The report came the same day a committee of the Ohio Constitutional Modernization Commission was reviewing draft language that would amend Ohio’s constitution to ban changes to the constitution that create monopolies or further the economic interests of select individuals. It comes partly in reaction to a piece of ResponsibleOhio’s proposal that would establish 10 grow sites, some of which investors have already purchased.

Because I spent all of yesterday at the Ohio Marijuana Policy Reform Symposium talking about this Taskforce report, I am not going to add extra commentary here yet (though lots will follow before too long at Marijuana Law, Policy and Reform).  But I am hopeful that the report can help advance public information and understanding as the debate over marijuana reform heats up in Ohio and nationwide in the months ahead.  Indeed, a letter from the Chair of the Taskforce, Hamilton County Prosecutor Joe Deters, stresses this point at the front of the document:

The question of changing Ohio’s approach to marijuana policy may soon be put before voters -- most likely on the November 2015 ballot.  The rapid pace of change in marijuana policy across the country, however, has made it difficult to keep up with the experiences, research, and practices occurring in different states. Political arguments from all sides of this debate have made it even more challenging to separate fact from opinion....

Ohio cannot afford to make decisions about marijuana policy and law based on unsubstantiated and often unsupported talk on both sides of the issue. Ohioans need and deserve an honest and in-depth assessment of the positive and negative impacts that ending marijuana prohibition may have, so they can make up their own minds....

I look forward to continuing this important discussion throughout Ohio in the coming weeks and months.

June 12, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

"'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics"

The title of this post is the title of this notable new paper authored by Ira Mark Ellman and Tara Ellman recently posted on SSRN. Here is the abstract:

This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case.

The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies.  Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.

June 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, June 11, 2015

Nebraska sheriffs vote unanimously to support effort to resuscitate state's death penalty

As reported in this local article, headlined "Nebraska sheriffs group backs petition efforts to reinstate death penalty," a notable group of law enforcement officials have made a notable statement about death penalty reforms in Nebraska. Here are the details:

The Nebraska Sheriffs’ Association has voted unanimously to back a petition aimed at restoring the death penalty. The group met on Wednesday morning in Grand Island at the Nebraska Law Enforcement Training Center.

“It’s important because of the public safety issue,” said Grant County Sheriff Shawn Hebbert, who is president of the sheriffs’ association. “The death penalty works as a deterrent to protect our guards and our people who work in corrections, as well as our deputies,” he said.

More than 30 sheriffs from across Nebraska attended the association meeting on Wednesday. They were strongly against the Legislature’s 32-15 vote on LB268, which repealed the death penalty. Gov. Pete Ricketts vetoed LB268, but the Legislature countered with a 30-19 vote to override the veto.

That action is contrary to the beliefs of the majority of Nebraskans, the sheriffs said. “It’s been unanimous across the state ... that we need to keep the death penalty, and I think that shows the strength of our organization and the backing and support we have in the organization that we have to protect the public,” Hebbert said on Wednesday.

Not only did the association members support backing the petition drive led by Nebraskans for the Death Penalty, but Hebbert said many of the sheriffs in attendance will be carrying the petitions in their home counties. Pierce County Sheriff Rick Eberhardt said a lot of people outside the state lobbied to “impose their will on the state of Nebraska.” The petition is Nebraskans’ opportunity to take that back.

“What’s really sad is that most people are working, taking care of their kids, and they don’t want to have to pay $50,000 a year per head for ... guys on death row for 30 to 40 years,” he said. “That’s a lot of money, a lot of college educations, a lot of trips to the hospital, pay off a mortgage.” The death penalty repeal lets criminals sit around watching TV, getting “three hots and a cot,” Eberhardt said. “Guys in Afghanistan don’t have it that good.

“They get free legal, free medical and free room and board for the rest of their lives,” he said. “Is it really free? Absolutely not — I’m paying for it. My kids are going to be paying for it. My grandkids are going to be paying for those guys.”...

The petition drive would need about 58,000 valid signatures to place the death penalty on the November 2016 general election ballot. It needs about 115,000 signatures by August to keep the Legislature’s repeal of the death penalty from going into effect.

“The initial goal is to get enough signatures to keep the law, the repeal, from going into effect, and the secondary goal is to turn it over to a vote of the people,” Hebbert said.

Although not all 93 Nebraska counties were represented at the sheriffs’ association meeting, Hebbert said the vote itself by the association’s executive board was representative. “As president of the sheriffs’ association, I’ve been in contact with most of the sheriffs across the state, and I haven’t heard anybody who is not for this petition drive and turning this over to a vote of the people,” Hebbert said. “I have not talked to any sheriff who is not for the death penalty.”

In part because I am a very big fan of direct democracy and in part because I think political campaigns focused on the death penalty often do a pretty good job of informing the citizenry about all the complicated and controversial realities that surround death penalty administration, I am strongly rooting for the folks in Nebraska troubled by the recent legislative repeal of capital punishment to succeed in bringing this issue before the voters. Indeed, the mere fact that a serious effort is being made to get this issue before the voters has already helped make Nebraska a much more interesting and important death penalty state than it has ever been in the past, and these Cornhusker stories should be especially interesting to watch for both pro- and anti-death penalty advocates in the months ahead.

Recent related posts:

June 11, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Charles Samuels, head of Federal Bureau of Prisons, announces plans to retire

As reported on this webpage for the Federal Bureau of Prisons, late last week "Director Charles E. Samuels, Jr. announced his plans to retire before the end of the year."  Here is an excerpts from the letter he sent to communicate his plans to staff:

I am incredibly proud of the things we have accomplished working together during my tenure to continue the tradition of meeting our mission and maintaining correctional excellence to protect the American public. I offer many thanks and appreciation to all staff.

During the past 3-1/2 years we emphasized and enhanced staff safety, promoted partnership between labor and management throughout the entire agency, signed a Collective Bargaining Agreement, established an annual Diversity and Inclusion day to recognize the importance of all staff, established the Inmate Model Programs Catalog and increased evidenced-based reentry programs, including specialized programs for female offenders. We also modified the Residential Release Center Statement of Work to ensure the delivery of Bureau approved evidenced-based cognitive behavioral therapy programs, successfully implemented Prison Rape Elimination Act standards, expanded the Reduction in Sentence (compassionate release) criteria, requested an independent assessment and review of the Bureau's restrictive housing policies and procedures, established reintegration and mental health units, increased our repatriation efforts to support Federal Prison Industries, and ensured transparency with our stakeholders and the media, managed our institutions at near record levels of crowding and contributed to record declines in our population for the first time in 34 years. As a result of our combined efforts, rates of assaults dropped as low as they have been in decades. In addition, we extended our work beyond the prison walls to collaborate with representatives in the communities to which inmates are returning and to strengthen families through meaningful inmate visitation with children.

I joined this agency as a correctional officer, determined to make a positive difference; I leave knowing that there are thousands of dedicated and hardworking staff who are equally committed to the same goal. As I have repeated time and again, staff are the Bureau of Prisons, and there are no better staff, anywhere. I cannot adequately express my thanks to all of you for the incredible work you do every second, minute, and hour each and every day to protect and support one another, the inmates in our custody, and the American people. Your jobs are not easy, and you rarely get the recognition you greatly deserve. You carry out our mission with integrity and professionalism, while risking your lives every time you walk through the Sallyports of our 121 prisons around the country.

June 11, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (0)

Wednesday, June 10, 2015

"Invisible Women: Mass Incarceration's Forgotten Casualties"

The title of this post is the title of this notable new paper authored by Michele Goodwin now available on SSRN. Here is the abstract:

This Essay fills an important gap in social and legal policy literature, addressing the intersection of sex and mass incarceration as a serious blind spot in legal analysis. It considers two works, James B. Jacobs’ The Eternal Criminal Record, and Alice Goffman’s On The Run to make important contributions to the literature.  Among its claims, it argues that Black lives should matter to human research.

In Part I, it critiques Goffman’s book as fitting within a paradigm that pays too little attention to ethical standards and moral considerations involving Black human research subjects.  This is particularly relevant in light of Goffman’s hunger for one of her primary research subject’s “killer to die.”  It argues that cognitive bias — perceiving poor, African American human subjects as already marginal, blinds researchers to appreciating the harms in which they may expose their subjects.  Part II turns to the missing narrative of women and mass incarceration in the U.S. It sheds light on and analyzes the complex patterns that frame women’s subjugation to law enforcement — issues absent in On The Run.  Part III analyzes the extra-legal and collateral consequences of policing women, including felony disenfranchisement, loss of housing, and the chilling impacts on their children. It unpacks, what Professor James Jacobs terms, the eternal criminal record, and teases out findings in his compelling new book of the same name.

June 10, 2015 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

"American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime"

The title of this post is the title of this intriguing new paper authored by Mark Fondacaro and Megan O'Toole now available via SSRN.  Here is the abstract:

A recent National Academy of Sciences Report explored the drivers of the fourfold increase in incarceration rates in the United States and provided a firm recommendation for significant reduction in incarceration rates.  Policy makers representing the entire political spectrum are now publicly airing their views on the need for reform.  Although public sentiment is generally favorably disposed toward reform in the abstract, when confronted with specific examples of crime, they tend to favor more punitive, retributive responses to crime.  Retributive justifications for punishment that are deeply ingrained in our culture and our legal system as well as our biological and psychological make-up are a major impediment to constructive reform efforts.

However, recent advances in research across neurobiological, psychological, and social levels of analysis suggest that following our retributive impulses to guide legal decision making and criminal justice policy is not only costly and ineffective in reducing crime, but unjust and increasingly difficult to justify morally.  This article will draw on a body of research anchored in social ecological models of human behavior to argue for more forward-looking, consequentialist responses to crime that aim at the individual prevention of criminal behavior in the least restrictive and most cost effective manner at both the front- and back-ends of our criminal justice system.

June 10, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

Should bail reform be a key component of sentencing reform efforts?

Ever the sentencing obsessive, I tend to not focus too much attention on various aspects of criminal procedure that impact case processing before a defendant is formally convicted.  But this new New York Times article, headlined "When Bail Is Out of Defendant’s Reach, Other Costs Mount," provides a useful reminder of the significant role that bail prolicies and procedures have on all other aspects of criminal case processing.  Here is the start of the lengthy piece, with one particularly important line highlighted:

Dominick Torrence, who has lived in this city all his life, has a long rap sheet for dealing drugs but no history of violence.  So when he was charged with disorderly conduct and rioting on April 28, a night of unrest after Freddie Gray was fatally injured in police custody, he was shocked to learn the amount he would need to make bail: $250,000, the same amount as two of the officers facing charges over Mr. Gray’s death.

Although a bail bondsman would charge only a fraction of that, normally 10 percent, for many defendants $25,000 is as impossible a sum as $250,000.  “That’s something you get for murder or attempted murder,” Mr. Torrence, 29, said from Baltimore Central Booking. “You’re telling me I have to take food out of my kid’s mouth so I can get out of jail.”

He spent a month in jail on charges that would later be dropped.  Defense lawyers, scholars and even some judges say the high bail amounts set for some Baltimore protesters highlight a much broader problem with the nation’s money­based bail system.  They say that system routinely punishes poor defendants before they get their day in court, often keeping them incarcerated for longer than if they had been convicted right away.  “It sets up a system where first there’s the punishment, and then there’s the opportunity to go to court for trial,” said Paul DeWolfe, the Maryland state public defender.

Though money bail is firmly entrenched in the vast majority of jurisdictions, the practice is coming under new scrutiny in the face of recent research that questions its effectiveness, rising concerns about racial and income disparities in local courts, and a bipartisan effort to reduce the reliance on incarceration nationwide.

Colorado and New Jersey recently voted to revamp their bail systems, while in New Mexico last November, the State Supreme Court struck down a high bail it said had been set for the sole purpose of detaining the defendant. This year, the Department of Justice weighed in on a civil rights lawsuit challenging bail amounts based on solely on the charge, calling them unconstitutional. In several states, including Connecticut, New York and Arizona, chief justices or politicians are calling for overhauls of the bail system.

The money bail system is supposed to curb the risk of flight by requiring defendants to post bond in exchange for freedom before trial. But critics say the system allows defendants with money to go free even if they are dangerous, while keeping low-­risk poor people in jail unnecessarily and at great cost to taxpayers.

For those who cannot afford to post bail, even a short stay in jail can quickly unravel lives and families.  Criminal defendants are overwhelmingly poor, many living paycheck to paycheck, and detention can cause job losses and evictions.  Parents can lose custody of their children and may have a difficult time regaining it, even when cases are ultimately dropped.  And people in jail who are not guilty routinely accept plea deals simply to gain their freedom, leaving them with permanent criminal records.

The United States leads the world in the number of pretrial detainees, according to a report by the National Institute of Corrections, an agency of the Department of Justice.  An estimated half a million people are in the country’s jails on any given day because they cannot make bail.  And even bail amounts much lower than those routinely seen in Baltimore can be prohibitive.

The sentence I have emphasized above surely correct based on anecdotal accounts from defendants and defense attorneys, but I would be especially interested to know if any serious and rigorous empirical work has been done to assess just how many non-guilty defendants (and/or defendants who could raise reasonable defenses at a trial) may take plea deals because they could not make bail and because a public defender tells the defendant they would necessarily serve a lot longer while awaiting trial AND face an even more sentence if they end up convicted after a trial. In turn, especially because even low-level criminal history can lead to significant sentencing enhancements in any future case, these bail issues and consequences may ripple through modern sentencing systems in a number of ways.

June 10, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Tuesday, June 09, 2015

"Support for the Death Penalty May Be Linked to Belief in Pure Evil"

Images (1)The title of this post is the headline of this interesting new Smithsonian article, and here are excerpts:

The reasons behind someone's sense of a just punishment are varied and murky, with a swell of psychological research pointing toward responses to race, sexuality and other hot-button issues. But according to recent research, another fundamental factor may be at play: whether someone believes in the existence of pure evil. A new study by psychologists Russell Webster and Donald Saucier confirms a rising correlation between an individual’s belief in pure evil and their support for harsher punishments, no matter the lifestyle or outward characteristics of the confessed criminal.

“At the extreme levels of criminal perpetration, people who believe in pure evil might not be looking for a situational factor that may have been at play there,” says Saucier, associate professor of psychological sciences at Kansas State University. “They’ll just say, ‘You know what? That person did something horrible, which makes that person evil. They are a demon, and we need to get rid of them.’”

Previous studies showed that stereotypically evil traits increase a perpetrator’s demonization in the eyes of their peers. Recently published in the journal Psychology and Individual Differences, the latest work also assesses specific recommendations for punishing a criminal, “given that the public often has a crucial role in recommending punishment via conventional criminal justice systems,” write authors Webster and Saucier in their paper.

“We were interested in how people thinking about the nature of humanity would impact how they treat them, to boil it down to a nutshell,” Saucier says. “So if you thought that there was a possibility for pure good in other people, what would that look like? And if there was a possibility for pure evil in people, what would that look like?”

The study’s 212 participants — all of them general psychology students at Kansas State University — were first asked to complete a survey determining the extent to which, on a continuum, they believed pure evil already existed in the world. The authors differentiated “pure evil” from behavioral scientists’ typical definition of evil, which centers on unprovoked and intentional harm, Webster says, by adding an emphasis on the sadistic motivations of the wrongdoer. The influence of religion on belief in pure evil wasn’t explored in this study.

Participants were then asked to read a supposedly real newspaper article printed in the Kansas City Star detailing a local murder. In one version of the article, the criminal was assigned stereotypically evil traits, such as an interest in the occult, donning all-black attire and taunting children. In the other version, the criminal was assigned milder traits, like an interest in camping and a focus on family life. In both versions, the criminal confessed to the murder.

The authors assessed the participants’ reaction to the crime using a common tool for measuring attitudes called the Likert-type scale, focusing specifically on how much they demonized the wrongdoer and their feelings of retribution. Finally, the authors questioned participants on their support for jail time, eligibility for parole and the death penalty. To control for the variability in participants’ knowledge of the criminal justice system, all pertinent terms were defined.

“What we basically found is that as they believe more in pure evil, they’re more likely to support things like the death penalty, but it went through mechanisms like thinking the person was a demon and feeling the need to have retribution on them,” Saucier says. “So we were kind of looking at what connects the belief to the outcome.”

But while participants generally recommended tougher sentences for the stereotypically evil perpetrator, greater belief in pure evil alone predicted whether someone demonized the criminal and called for harsher punishment, regardless of the murderer's character traits. “If they believed in pure evil, it didn't matter the characteristics. They were more likely to support the death penalty or life in prison," says Saucier. "The belief in pure evil overrode our stereotypically evil person."

June 9, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5)

You be the federal defense attorney: would you urge Dennis Hastert to cut a plea deal?

I often highlight and review high-profile cases by urging readers to place themselves in the shoes of a judge facing a tough sentencing decision or a prosecutor having to recommend a specific sentence.  But, as the title of this post connotes, now I am urging folks to think about how the attorneys for former House Speaker Dennis Hastert ought to approach (sentencing?) discussions with their client and their adversaries.  This lengthy Politico account of the Hastert charges and proceedings by Josh Gerstein provides all the needed background and includes these excerpts: 

After more than a week in seclusion, former House Speaker Dennis Hastert pleaded not guilty Tuesday to two criminal charges that he violated federal banking law and lied to the FBI as they investigated his alleged agreement to pay $3.5 million in hush money to cover up a past transgression.

Hastert, who became the longest-serving Republican speaker before the GOP lost the House in 2006, was released after entering the plea in front of U.S. District Judge Thomas Durkin at an afternoon hearing which raised questions about whether Durkin will continue or the case will be reassigned to another judge.

Hastert, 73, looked much as he did during the height of his power, slightly stooped and with a shock of gray hair as he trudged into the packed courtroom clad in a dark pinstripe suit and blue tie. He stood in front of the judge’s bench throughout the roughly 15-minute hearing, softly answering the judge’s questions — usually with a “Yes, sir.”

Hastert’s lead defense attorney, Tom Green, spoke for the former speaker when it came time to offer a plea. “The defendant enters a plea of not guilty to both counts of the indictment, your honor,” Green said....

At Tuesday’s hearing, the defense waived a formal reading of the indictment, which alleges Hastert agreed to pay $3.5 million to an unnamed individual and forked over $1.7 million of that before the charges were filed. Nearly $1 million of that was withdrawn from the former speaker’s bank accounts in increments of $10,000 after bankers warned him that larger donations would trigger reports to the authorities, the indictment claims.

Prosecutors said little during the session, but when the judge asked for details of the potential penalties, Block noted Hastert could face up to five years in prison and a $250,000 fine on each of the two felony counts. However, judges usually impose sentences in accordance with federal guidelines that call for more lenient punishment for offenders with no serious criminal record.

A plea deal, if there were to be one, could also reduce Hastert’s sentence. Many criminal defense lawyers believe such a deal is probable because a jury is not likely to look favorably on a defendant trying to cover up alleged sexual abuse of a student.

One of the charges brought against Hastert — structuring cash transactions to avoid federal reporting requirements — is unpopular among defense lawyers and libertarians because it can render routine cash banking transactions in increments of just under $10,000 illegal even if the reason for the cash payments or withdrawals is lawful. Critics contend that prosecutors use the structuring law to bring charges or force guilty pleas from defendants when the government lacks proof to make a case for drug trafficking or tax evasion. Some judges have reacted skeptically when the feds have brought cases in which there is no charge that the underlying conduct was illegal.

The nature of Hastert’s reported relationship with the acquaintance who allegedly received the hush money is unclear, but experts say the statute of limitations in Illinois for a criminal prosecution on sexual abuse from the 1970s expired long ago.

Hastert, who as speaker was once second in line to the presidency, resigned his House seat in 2007 after he lost the speaker’s post due to the Democrats’ victory in 2006. He is the highest-ranking current or former federal official to face criminal prosecution since Vice President Spiro Agnew resigned in 1973 and pleaded guilty to a felony tax evasion charge.

June 9, 2015 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (9)

Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dsyfunctional death penalty

This local article, headlined "House panel voices disapproval of Wolf's death penalty stance," reports that some Pennsylania legislators are finally motivated to do something about the state's dysfunctional capital punishment system. Unfortunately, they only seem motivated so far to make an inconsequential political statement rather than actual try to fix the state's broken system. Here are the basics:

The House Judiciary Committee overwhelmingly approved a resolution that is intended to send a message to Gov. Tom Wolf that it strongly disapproves of the reprieves he has granted that delayed the execution of two convicted murderers. The resolution, approved by a bi-partisan 19-8 vote on Monday, now goes to the full House for consideration, which could occur as soon as Wednesday.

Wolf in February signed an executive order imposing a moratorium on carrying out the death penalty until he has had time to study a Senate-commissioned Pennsylvania Task Force and Advisory Committee on Capital Punishment and its recommendations are satisfactorily addressed. That study is due out later this year.

The executive order so far has resulted in reprieves being granted to Terrence Williams, who was convicted of two murders as a teen-ager in 1984, and Hubert Michael, who was convicted of killing 16-year-old Trista Eng in 1993. Both death row inmates have exhausted their appeals.

The resolution, if approved by the House, would do nothing to change those reprieves, but rather states that the House believes those actions by Wolf are unconstitutional.

"This is about whether or not the laws of Pennsylvania will be carried out. The governor has said he wants to study capital punishment. It does not give him the right to ignore existing laws," said Rep. Mike Vereb, R-Montgomery, a death penalty proponent who sponsored the resolution. Following the House Judiciary Committee's approval of a resolution condemning Gov. Tom Wolf's temporary moratorium on executions, Vereb explains he and the governor are of different minds on the subject of the death penalty. Vereb said justice delayed is justice denied to victims....

Rep. Brandon Neuman, D-Washington, ... said Vereb's concerns would be more appropriately expressed in an amicus brief to the pending lawsuit filed by Philadelphia District Attorney Seth Williams that is before the state Supreme Court over this issue. "This is a matter that I believe needs to be handled and is being handled in the judiciary branch," Neuman said....

Committee Chairman Ron Marsico, R-Lower Paxton Twp., read a letter from Eng's family sent to the governor last week. In it, the family of the York County murder victim stated, "You stand in the way of thousands of victims who seek justice." Marsico added, "We owe it to the victims to pass this resolution."

I generally agree with the basic sentiment that justice delayed is justice denied, but that very sentiment makes me wish that the Pennsylvania legislature would do more to addresss death penalty administration than just pass resolutions. As noted here, even before Gov Wolf's moratorium, the Keystone State had not carried out an execution in more than 15 years and "according to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions."

In light of this ugly legal history, nearly all of which pre-dates Gov Wolf's election, I think the Pennslyvania House owes a lot more to victims than just passing a seemingly inconsequential resolution. Any and all serious proponents of the death penalty in the Pennsylvania legislature should feel duty-bound to conduct the hard work involved in fixing and making operational a broken capital system. But, because politic rhetoric so often matters more than policy fixes, I fear justice delayed and justice denied will remain the Keystone capital characteristic.

June 9, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Monday, June 08, 2015

Can any significant federal prison sentence truly be "reasonable" for any of the Kettle Falls Five marijuana defendants?

Download (2)The question in the title of this post is a serious question I have in light of the remarkable federal marijuana prosecution that reaches sentencing in Washington state later this week.  The case involves the so-called "Kettle Falls Five," a group of medical marijuana patients subject (somewhat mysteriously) to aggressive federal criminal prosecution.  Regular readers may recall prior posts about the case; this new lengthy Jacob Sullum Forbes piece, headlined "In A State Where Marijuana Is Legal, Three Patients Await Sentencing For Growing Their Own Medicine," provides this review and update:

During their trial at the federal courthouse in Spokane last March, Rhonda Firestack-Harvey and her two fellow defendants—her son, Rolland Gregg, and his wife, Michelle Gregg—were not allowed to explain why they were openly growing marijuana on a plot in rural northeastern Washington marked by a big green cross that was visible from the air. According to a pretrial ruling, it was irrelevant that they were using marijuana for medical purposes, as permitted by state law, since federal law recognizes no legitimate use for the plant. But now that Firestack-Harvey and the Greggs have been convicted, they are free to talk about their motivation, and it might even make a difference when they are sentenced next Thursday.

Federal drug agents raided the marijuana garden, which was located outside Firestack-Harvey’s home near Kettle Falls, in 2012. In addition to the three defendants who are scheduled to be sentenced next week, the U.S. Attorney’s Office for the Eastern District of Washington charged Firestack-Harvey’s husband, Larry Harvey, and a family friend, Jason Zucker. Dubbed the Kettle Falls Five, all had doctor’s letters recommending marijuana for treatment of various conditions, including gout, anorexia, rheumatoid arthritis, degenerative disc disease, and chronic pain from a broken back. Last February prosecutors dropped the charges against Harvey because he has terminal cancer. Zucker, who had a prior marijuana conviction, pleaded guilty just before the trial and agreed to testify against the other defendants in exchange for a 16-month sentence, which was much shorter than the 15-year term he could have received in light of his criminal history....

In the end, after hearing testimony for five days and deliberating for one, the jurors acquitted the defendants of almost all the charges against them, which could have sent them to prison for 10 years or more. “They all saw what was going on,” Telfeyan says. “They understood what the facts were, and they came back with a verdict exactly consistent with what actually happened, which was just a family growing medical marijuana for their own personal use.”

The jury rejected allegations that the defendants distributed marijuana and conspired to do so, that they grew more than 100 plants (the cutoff for a five-year mandatory minimum) over the course of two years, that they used firearms (the Harveys’ hunting guns) in connection with a drug crime (another five-year mandatory minimum), and that Firestack-Harvey maintained a place (i.e., the home she shared with her husband) for the purpose of manufacturing and distributing marijuana. The one remaining charge — cultivation of more than 50 but fewer than 100 plants — does not carry a mandatory minimum penalty, which gives Rice broad discretion when he sentences Firestack-Harvey and the Greggs next Thursday. He can even consider the reason they were growing marijuana.

“But for state-sanctioned medical prescriptions authorizing each member of the family to grow 15 marijuana plants, this family would not be before the Court today,” the defense says in a sentencing memo filed last week [available here]. “Due to the exemplary contributions each family member has made to this society, their lack of criminal records, and the unique role state-sanctioned medical authorizations played in this case, Defendants respectfully seek a probationary sentence with no incarceration.”

The federal probation office recommended sentences of 15 to 21 months, while the prosecution is seeking 41 to 51 months [gov sentencing memo here], based mainly on allegations that were rejected by the jury, including cultivation in 2011 as well as 2012.  To give you a sense of how realistic the government’s assumptions are, it estimates that each plant grown in 2011 produced more than a kilogram of marijuana. As the defense notes, that figure “flies in the face of both empirical reality and legal precedent,” since “numerous courts have recognized that a marijuana plant cannot yield anywhere near 1 kilogram of usable marijuana.” At one point in its sentencing memo, the prosecution even claims the defendants somehow managed to produce “1000 kilograms per plant.” I assume that’s a typo, but who knows? The government also thinks the 2012 harvest should be measured by the weight of the plants, including leaves, stems, water, and clinging dirt.

The prosecution’s insistence that Firestack-Harvey and the Greggs deserve to spend at least three and a half years in prison is puzzling, as is its willingness to posit super-productive, science fictional marijuana plants in service of that goal. But this case has been a puzzle from the beginning.

I assume that this federal prosecution started because federal authorities thought the defendants here were doing a whole lot more than what the feds were able to prove in court.  For that reason, I can sort of understand why the feds started this prosecution way back in early 2012.  But now, three years later, with the defendants acquitted on most charges (and now with lots of persons selling lots of recreational marijuana within the state), I have a very hard time understanding just how the feds can think a lengthy prison sentence is "not greater than necessary" for these defendants in light of the nature and circumstances of the offense and the history and characteristics of these defendants.

I have in the excerpt above links to the parties' sentencing briefs, and I sincerely seek input on the question in the title of this post in light of some of the arguments made thereing.  Notably, the government's sentencing memo is only focused on dickering over the applicable guideline range; it does not appear to make any formal arguments for a signficant prison sentence in light of all the 3553(a) sentencing factos that judges now must consider after Booker.  So I suppose it is still possible that even the government will, come the actual sentencing later this week, acknowledge that this remarkable case does not justify any significant federal prison sentence for any of the defendants with no criminal history.  But if the government seeks a prison term, and if the judge imposes a prison term, I would be ready and eager to argue on appeal for these defendants that such a punishment cannot possibly be reasonable in light of all the sentencing commands Congress put into 3553(a).

Prior related posts:

June 8, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

SCOTUS grants cert on a federal case concerning restraining assets for hiring defense counsel and denies cert in notable gun case

The Supreme Court started its work this morning with this order list that include a grant of certiorari in one federal criminal case, Luis v. US.  This SCOTUSblog page provides this account of the issue the case presents:

Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

In addition, at the end of the orders list, the Justices denied cert in a gun case from San Francisco, which prompted a lengthy dissent by Justice Thomas (joined by Justice Scalia). Here is how that dissent begins:

“Self-defense is a basic right” and “the central component” of the Second Amendment’s guarantee of an individual’s right to keep and bear arms.  McDonald v. Chicago, 561 U. S. 742, 767 (2010) (emphasis deleted).  Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it “ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of selfdefense.”  District of Columbia v. Heller, 554 U. S. 570, 630 (2008).  Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it.  Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.

As I have noted in lots of prior posts in the wake of the Heller and McDonald rulings, if it is really true that "Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document," a lot of laws criminalizing and severely punishing mere gun possession by those with a distant criminal past might be constitutionally suspect.  But this dissent from Justice Thomas, which garnered only one additional Justice, confirms my belief that the majority of the Supreme Court does not really agree that the Second Amendment works just like most other rights protected by the Constitution.

June 8, 2015 in Gun policy and sentencing, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (2)

Extended profile of judge strugging with extended mandatory minimum federal drug sentences

Download (1)The Washington Post has this lengthy article discussing the sentencing struggles of US District Judge Mark Bennett. The piece is headlined "Against his better judgment: In the meth corridor of Iowa, a federal judge comes face to face with the reality of congressionally mandated sentencing." Here are excerpts from the first part of the piece:

U.S. District Judge Mark Bennett entered and everyone stood. He sat and then they sat. “Another hard one,” he said, and the room fell silent. He was one of 670 federal district judges in the United States, appointed for life by a president and confirmed by the Senate, and he had taken an oath to “administer justice” in each case he heard. Now he read the sentencing documents at his bench and punched numbers into an oversize calculator. When he finally looked up, he raised his hands together in the air as if his wrists were handcuffed, and then he repeated the conclusion that had come to define so much about his career.

“My hands are tied on your sentence,” he said. “I’m sorry. This isn’t up to me.”

How many times had he issued judgments that were not his own? How often had he apologized to defendants who had come to apologize to him? For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses. Those mandatory penalties, many of which require at least a decade in prison for drug offenses, took discretion away from judges and fueled an unprecedented rise in prison populations, from 24,000 federal inmates in 1980 to more than 208,000 last year. Half of those inmates are nonviolent drug offenders. Federal prisons are overcrowded by 37 percent. The Justice Department recently called mass imprisonment a “budgetary nightmare” and a “growing and historic crisis.”

Politicians as disparate as President Obama and Sen. Rand Paul (R-Ky.) are pushing new legislation in Congress to weaken mandatory minimums, but neither has persuaded Sen. Charles E. Grassley (R-Iowa), who chairs the Senate Judiciary Committee that is responsible for holding initial votes on sentencing laws. Even as Obama has begun granting clemency to a small number of drug offenders, calling their sentences “outdated,” Grassley continues to credit strict sentencing with helping reduce violent crime by half in the past 25 years, and he has denounced the new proposals in a succession of speeches to Congress. “Mandatory minimum sentences play a vital role,” he told Congress again last month.

But back in Grassley’s home state, in Iowa’s busiest federal court, the judge who has handed down so many of those sentences has concluded something else about the legacy of his work. “Unjust and ineffective,” he wrote in one sentencing opinion. “Gut-wrenching,” he wrote in another. “Prisons filled, families divided, communities devastated,” he wrote in a third.

And now it was another Tuesday in Sioux City — five hearings listed on his docket, five more nonviolent offenders whose cases involved mandatory minimums of anywhere from five to 20 years without the possibility of release. Here in the methamphetamine corridor of middle America, Bennett averaged seven times as many cases each year as a federal judge in New York City or Washington. He had sentenced two convicted murderers to death and several drug cartel bosses to life in prison, but many of his defendants were addicts who had become middling dealers, people who sometimes sounded to him less like perpetrators than victims in the case reports now piled high on his bench. “History of family addiction.” “Mild mental retardation.” “PTSD after suffering multiple rapes.” “Victim of sexual abuse.” “Temporarily homeless.” “Heavy user since age 14.”

Bennett tried to forget the details of each case as soon as he issued a sentence. “You either drain the bathtub, or the guilt and sadness just overwhelms you,” he said once, in his chambers, but what he couldn’t forget was the total, more than 1,100 nonviolent offenders and counting to whom he had given mandatory minimum sentences he often considered unjust. That meant more than $200 million in taxpayer money he thought had been misspent. It meant a generation of rural Iowa drug addicts he had institutionalized. So he had begun traveling to dozens of prisons across the country to visit people he had sentenced, answering their legal questions and accompanying them to drug treatment classes, because if he couldn’t always fulfill his intention of justice from the bench, then at least he could offer empathy. He could look at defendants during their sentencing hearings and give them the dignity of saying exactly what he thought.

“Congress has tied my hands,” he told one defendant now. “We are just going to be warehousing you,” he told another. “I have to uphold the law whether I agree with it or not,” he said a few minutes later.

June 8, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

"Does failed execution attempt mean Ohio prisoner can avoid death penalty?"

The question in the title of this post is both the headline of this Columbus Dispatch article and the notable novel constitutional question facing the Ohio Supreme Court this week.  Here is the backstory:

Ohio’s unusual pending death-penalty case, involving an inmate the state already tried but failed to execute, will be argued on Tuesday before the Ohio Supreme Court. Attorneys for Romell Broom contend that the state would be guilty of unconstitutional double jeopardy if it tries to execute him a second time. They said in a court filing that the state’s contention that their client didn’t suffer physically during a botched execution on Sept. 15, 2009, “ignores the unnecessary psychological suffering Broom endured during two hours of lawless chaos."

Representatives for Attorney General Mike DeWine counter that what happened on Sept. 15, 2009, wasn’t a failed execution but a breakdown in the lethal-injection process, and a new execution should proceed. They argue that the U.S. Constitution doesn’t promise that executions will be pain-free and that what happened to Broom wasn’t unconstitutional “cruel and usual punishment.”

The attempted execution of Broom, 59, on Sept. 15, 2009, was called off by Gov. Ted Strickland after a prison medical team spent two tense hours unsuccessfully trying to attach IV lines for lethal injection. The execution was rescheduled but never took place because Broom’s public defender attorneys filed numerous appeals.

Broom was convicted and sentenced to death for abducting, raping and stabbing to death 14-year-old Tryna Middleton of Cleveland as she walked home from a football game on Sept. 21, 1984. All evidence in the case, including DNA test results, showed Broom was the girl’s killer.

Thus, the failed execution, and not Broom’s guilt or innocence, will be the focus of oral arguments at 9 a.m. on Tuesday before the Ohio Supreme Court. Broom’s case is unique in Ohio’s modern capital-punishment history, being one of only two known cases nationally in which an execution was halted after it began. The other one was Willie Francis, a 17-year-old killer who died on the second try in Louisiana’s electric chair on May 9, 1947, having survived a botched execution a year earlier.

June 8, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, June 07, 2015

"Expunging America's Rap Sheet in the Information Age"

The title of this post is the title of this notable new paper by Jenny Roberts now available via SSRN. Here is the abstract:

As the Wall Street Journal recently put it, “America has a rap sheet.”  Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line.  At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life.  The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.

States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered.  The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age.  Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record.  The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.

This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.

June 7, 2015 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (2)

Saturday, June 06, 2015

"Ditch the Geezer Judges" ... and consider RoboJudges?

The title of this post is the headline of this provocative new OZY commentary authored by Shannon Sims. Here are excerpts: 

Nobody said life is fair, but here’s a fair question: Why are so many judges so old? Here’s another: Should they be?

Conventional wisdom has it that wielding the gavel takes years upon years of lawyerly practice. Judging by that standard, the U.S. federal bench must be very effective, indeed: About 12 percent of the nation’s 1,200 federal judges are 80 or older, according to a 2010 survey by ProPublica.  Eleven were over the age of 90, almost three times as many 20 years before.  Other things that happened over those 20 years: the Internet. Plus smartphones, Twitter, Facebook, hacking, legal weed, etc., etc., etc.  Plus dementia and senility, for some. On issues of the day, like privacy or hacking, can older judges possibly keep up?

Unsurprisingly, the judges themselves have excellent arguments why age rules.  Richard Posner, a relatively spry 76, argues that it has to do with the American common law system, which is based on precedent: “The more a judicial system adheres to stare decisis (precedent), the older its judges will be on average,” he writes in his book Aging and Old Age.  Judge Posner may well be right — we don’t much want to get into an argument with a man who’s been throwing down from the 7th Circuit since we were a fetus — but we must point out another, far more prosaic reason our federal judiciary is so old: Federal judges have lifetime tenure. And in jurisdictions where judges face mandatory retirement at, say, 70, they’ve mounted campaigns to raise the limit to 80, citing their experience and a huge case backlog.

But why not have younger judges fill the gap? For years, in jurisdictions from India to France to Brazil, you could go straight from law school to a judgeship. Pass the judge test? You’re in. In Brazil, for example, meeting a 20-something judge in the streets at Carnaval is still not particularly remarkable.  We couldn’t say the same for most of our bench, save for, of course, the Notorious R.B.G. It’s true that in civil law countries, judges need not have years of experience in case law to draw an informed decision — they just consult the legal code. But even so, it’s worth remembering that even in our common-law system, clerks — recently graduated from law school — draft opinions. Why wouldn’t a few years of such intensive training compensate for the absence of life years?

Would younger judges be better?  Emanuel Bonfim, a Brazilian magistrate judge, says young blood “oxygenizes the system and lends a multigenerational dynamism to the judiciary.” He should know: He became a judge at just 23.  Today, he’s the president of the association of magistrate judges of the state of Pernambuco at 46, an age that he points out “would only mark the beginning of a judicial career in the U.S.” In countries dogged by corruption like Brazil, young judges might offer another benefit: Ostensibly, they’re more independent.

I have now updated the title of this post based on another provocative new OZY commentary, this one authored by Sean Braswell and headlined "All Rise for Chief Justice Robot!" Here are excerpts:

[W]ith the Supreme Court about to issue its long-awaited decisions on gay marriage and Obamacare, the question is, will we be rising for Judge Robot, instead of Justice Roberts, someday? After all, if being an appellate judge, as Roberts suggests, is really just a matter of calling balls and strikes — interpreting a statute, reasoning from precedent, or applying the law in a limited, mechanical fashion — then the gig looks increasingly ripe for automation, something that could be performed better by a computer, and without political or personal bias, age or infirmity, or ugly confirmation battles.  Other professions, from factory workers to stockbrokers, have learned that the better the world gets at simulating the outcome of your labors, the more redundant you start to appear.  Could the nation’s highest court, along with any appellate court charged with reviewing the application of the law instead of determining the facts, be fairer and more faithful to our founders if a modern-day version of HAL were striking the gavel?...

[W]hat Roberts’ umpire metaphor and other confirmation performances really appeal to is the public’s fear of bias — a desire to constrain judicial discretion and ensure neutrality as far as possible.  Thomas Jefferson himself shared this fear; he advocated ending “the eccentric impulses of whimsical, capricious designing man” and letting “the judge be a mere machine.”...

Whatever your constitutional philosophy, Justice Robot offers the promise of justice that is truly blind, that objectively applies the law equally to all citizens without error, bias or ideology. And yet, the question lingers.  Even if we are capable of building a judge that is, in Jefferson’s words, a “mere machine,” do we really want to?

June 6, 2015 in Who Sentences? | Permalink | Comments (13)

How has, can, should and will marijuana reform impact the work of defense attorneys?

The question in the title of this post is the central topic of a presentation I am honored to be giving today at the Cuyahoga Criminal Defense Lawyers Association's annual meeting.  

As is often true when I speak to a group of experienced defense attorneys, I expect I will learn more from the assembled participants than I am likely to teach them.  But, in part because Ohio has not (yet) reformed its marijuana laws in any way, I am cautiously hopeful I can give the group some useful insights about the inevitability of legal and practical uncertainties, especially in the criminal law arena, as to what really happens in a state after it formally repeals blanket marijuana prohibition in some way.

Based on case rulings, policy reports and conversations with lawyers in the field in states like Colorado, I have a general sense of various possible answers to the multi-dimensional query in the title of this post.  But I would be especially eager to hear from any and all persons in reform states if they have distinctive experiences or thoughts in reaction to my question.

Cross-posted at Marijuana Law, Policy and Reform

June 6, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Friday, June 05, 2015

Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"

Love_margaret_02_crop2_MA31053191-0003Regular readers know I have given lots of space this week to coverage and criticism of federal clemency efforts.  I am pleased to continue now with a guest post via former Pardon Attorney Margaret Love, which she sent my way under the title "A Modest Proposal to Expedite the Administration's Clemency Initiative":

Mark Osler’s post in this space on June 4 ("Another View on Clemency Project 2014") recounts his unsuccessful efforts several years ago to persuade the Administration to establish a presidential commission, similar to the one that handled cases of Vietnam draft evaders and deserters during the Ford Administration, to review and recommend clemency relief for the thousands of prisoners serving prison sentences imposed more than a decade ago that are now generally considered far too severe.  He suggests that the reason the Administration chose not to follow this path relates to its doubt that Congress would fund such an effort. Instead, the Justice Department chose to address the problem of excessive sentences by asking a consortium of private organizations to manage it through the volunteer efforts of the private bar.

We will never know whether Professor Osler’s commission idea would have worked, or whether lack of funding was the reason it was rejected.  But it does appear that the structure put in place instead to manage the Administration's clemency initiative has (in his words) “struggled with the overwhelming number of cases (over 30,000) referred to it.”

It did not help that the Administrative Office for U.S. Courts sharply limited the role that Federal Public Defender Organizations could play in the clemency initiative, by declaring that CJA funds could not be spent on clemency representations.  Many, including myself, believe that the sentencing expertise and advocacy of the Federal Defenders is critical to implementing the sort of large scale program of sentence reduction the Administration evidently had in mind.

But there is another approach that might have been taken by the Administration that would have ensured a central role for the Federal Defenders.  This approach, which might still be taken, would make extraordinary sentence reduction the responsibility of the federal courts as well as of the President.  Bringing cases back to court would not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could achieve the same result as executive clemency, through court proceedings where CJA appointments are clearly authorized.  And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale are possible.

Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13.  Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include terminal illness, a physical or medical condition that diminishes a person’s ability to provide self-care in a prison environment, the death or incapacitation of a child’s only caregiver, and any other reason that may be determined to be “extraordinary and compelling” by the Director of BOP. It is noteworthy that several of the organizations represented on the Clemency Project 2014 steering committee are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “the defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.”

Less than two years ago BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive. See Program Statement 5050.46, as amended (August 12, 2013).  Accordingly, there is no reason why BOP could not determine, with or without an amendment to ¶ 1B1.13, that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by the Deputy Attorney General as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President through the Office of the Pardon Attorney.

There are in addition other reasons why it would be appropriate to supplement the clemency initiative with a statutory sentence reduction initiative implemented through the courts, including a general preference for a judicial decision-maker under federal sentencing law and policy, and for a congressionally authorized approach over an extra-legal use of executive power. Most scholars agree that clemency ought always to be a second choice where the law provides a remedy for sentencing unfairness or undue severity, as it does in this case.  See, e.g., Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 Fed. Sent. Rptr. 119, 124 (2001) (“Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining – with reasons – whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations.”)

Traditionally, the Federal Defenders have played a central role in proceedings involving judicial consideration of sentence reduction under § 3582(c)(2) where guideline ranges have been lowered, even though there is no constitutional right to counsel in such proceedings.  They are key players in the massive effort to reduce sentences now underway under the so-called “Drugs Minus Two” guidelines amendment. There is no reason why the Defenders should not play a similar role in judicial sentence reduction proceedings under § 3582(c)(1).  There does not appear to be any relevant difference between the two types of proceedings as far as the discretionary appointment power in 18 U.S.C. § 3006A(a)(2) is concerned. In the interests of judicial economy, these proceedings might even be combined.

All it would take to make this happen would be a resolve on the part of the Department of Justice to use this statute for the purpose it was originally intended.

Augmenting the Administration’s sentence reduction program through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would accomplish the Administration’s goals in reducing unduly severe sentences, while at the same time regularizing sentence reduction through the courts pursuant to statute.  It would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power.

Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) "we can do the job ourselves."  Now I would ask the new DAG the same question.

Some prior related posts:

June 5, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Q: What do the Hamilton County Prosecuting Attorney and the Vicente Sederberg Professor of Marijuana Law and Policy have in common?

A: They are both featured speakers at the Ohio Marijuana Policy Reform Symposium taking place June 11, 2015 at The Ohio State University.

As I have noted before, my own Ohio has lately become a hot state for dynamic conversations about marijuana reform.  And I have had the honor and privilege of helping bring together an interesting groups of speakers for what should be an informative and interest event next week at my own Moritz College of Law. This registration page provides more information about some of the speakers and provides a brief preview:

The Marijuana Policies of Ohio Taskforce, chaired by Hamilton County Prosecutor Joe Deters, will present the findings of its comprehensive research at a symposium on June 11 hosted at The Ohio State University Moritz College of Law. The Taskforce’s research report assesses and analyzes proposed marijuana legalization initiatives in four key areas - public safety and law enforcement, the economy, public health, and regulatory impact. The symposium will also include a panel discussion with national recognized experts in marijuana policy and law.

A press briefing will precede the event. For more information, please contact Kathy Berta at kathy @ rstrategygroup.com 

As of this writing, there is no charge for attending this event, but space in the auditorium can get limited so I highly encourage everyone interested in attending to pre-register via this webpage ASAP.

June 5, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Imagining a domestic Marshall Plan to rebuild communities after ending the drug war

For many reasons, it is way too early to say the long national war on drugs is over or even that there has been a significant retrenchment of the war at the federal level.  Nevertheless, given the apprarent waning public support and clearly waning criminal justice resources being devoted to this war, it is not too early to start making plans for how best to frame national, state and local policies and priorities when this war ends.  To that end, I have been talking up in some of my classes and lectures the idea of a "Marshall Plan" afte the drug war, and I was pleased and excited when visiting Harvard Law School a few months ago to leasr that some others were thinking along these lines as well.

In particular, David Harris and Johanna Wald, who help run the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, have robustly embraced the notion of a modern domestic Marshall Plan as evidence by this new op-ed they authored for the Boston Globe. The piece is headlined "Proposing a Houston/Marshall Plan for domestic policy," and here are excerpts:

On June 5, 1947, Secretary of State George Marshall spoke to a crowd of 15,000 at Harvard University’s commencement. In a surprise announcement, he unveiled plans for the United States government to rebuild a Europe devastated by almost a decade of war. In simple straightforward language, he declared that this massive effort — which came to be known as the Marshall Plan — “is directed not against any country or doctrine but against hunger, poverty, desperation and chaos...” The Marshall Plan is largely credited with restoring confidence and hope along with local economies in Europe. It remains a testament to the power of American fortitude and ingenuity.

Sixty-eight years later, Marshall’s words carry a surprisingly potent punch — albeit in response to a very different kind of “war”; one that we have been waging for decades against our own communities of color. During the past year, the curtain has been pulled back, revealing the maze of punishment, fear, and surveillance that traps so many individuals, particularly young men, living in these communities. They attend underresourced schools that expect them to fail and drop out. Police function as a hostile, occupying force, frequently hunting them down, and subjecting them to humiliating arrests and stop-and-frisk practices. They even lack recreational outlets....

Make no mistake about it. These communities did not simply “evolve.” They exist in their current state because of very deliberate educational, transportation, housing, and economic policy choices. These include investing in highways over subways, creating policies that transfer good jobs to areas beyond the reach of public transportation, redlining practices that keep families of color from moving into higher opportunity neighborhoods, and allocating scarce education dollars on surveillance and police rather than on libraries and laboratories. Each choice closes off one more exit out of the maze, and keeps residents stumbling into dead ends.

“The remedy lies in breaking the vicious circle,” stated George Marshall in the speech. Indeed. We propose to create a new Houston/Marshall Plan (named after civil rights giants Charles Hamilton Houston and Thurgood Marshall), focused on helping communities restore themselves after decades of intentional disinvestment.  This new Houston/Marshall Plan will advance strategies, innovations, and solutions designed by those living and working in these neighborhoods.  It is their voices that have been routinely ignored or silenced in public policy discussions.  It will promote public health perspectives that favor recreational, day care and health centers, diversion programs that allow mothers to stay with their children, treatment for addictions, and job training instead of more police, more prosecutions, and more prisons.  It will highlight promising models for building affordable housing units near these jobs, and for creating school cultures that expect students to succeed instead of treating them like criminals-in-waiting.  For those who decry the costs of this rebuilding, we point to the economic and public safety benefits that all of us will reap from investments in communities and lives too long neglected.

June 5, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Is Missouri becoming the "new Texas" when it comes to death penalty administration?

Enhanced-27540-1433442100-4The question in the title of this post is prompted by two notable new stories showing some notable new details about how the Show Me state (1) has recently become a new national leader in actually carrying out death sentences, and (2) now seems well positioned to complete more executions in the near future than any other state.  This lengthy Mashall Project piece focused on capital defense in Mizzou provides this background: 

[Jennifer Herdon's] condemned clients were convicted of monstrous crimes, but at least a few presented powerful issues for appeal. Among them were a man diagnosed as schizophrenic who hallucinated clouds of flies and insisted on never speaking aloud the number “between 31 and 33”; a man so intellectually impaired that, as a child, he couldn’t understand hide-and-seek and who, at age 16, functioned like someone age 4-to-7; and a man whose claim of innocence was sufficiently compelling to convince a journalism class to dive into the case.

In the past two years, while much of the country has retreated from the death penalty, Missouri has gone the opposite direction. It has accelerated executions – last year, tying Texas for most in the country, with 10 – to such an extent that the “capital defense bar is in crisis,” according to a letter written to the Missouri Supreme Court by four members of an American Bar Association death-penalty assessment team.

Those four members – two law professors, a retired state appellate judge, and the chairman of the Missouri State Public Defender Commission – wrote in March that a mere “handful” of attorneys have represented most of the state’s executed inmates, despite the “notoriously lengthy and complex” nature of capital appellate work, coupled with “the emotional toll of losing client after client.” The team recommended that for attorneys handling capital appeals to be able to do their jobs adequately, the execution dates for clients should be staggered by at least six months.

Herndon, starting in November 2013, had five clients executed in just 15 months. In all, she’s had seven clients executed since 2003. And she has another execution scheduled next week. Herndon may be the most extreme example of how Missouri’s quickened pace of executions is swamping the defense bar, but she is not alone. Last year, six attorneys in addition to Herndon had multiple clients executed.

That list would have been longer if not for a stay granted by the U.S. Supreme Court before Mark Christeson’s scheduled execution in October. Christeson’s two attorneys, who had represented another inmate executed earlier in the year, missed a crucial filing deadline, not even meeting with their client until six weeks after it had passed. “Cases, including this one, are falling through the cracks of the system,” more than a dozen former state and federal judges wrote in a brief.

Paul Litton, a University of Missouri law professor and one of the four signatories on the letter from the ABA’s death-penalty assessment team, says: “With the executions happening month after month after month, and with so few attorneys handling these cases, the workload is just overwhelming.”

On Tuesday, Herndon and her co-counsel filed a request for a stay of execution for Richard Strong, scheduled to be executed June 9. The motion’s basis was their workloads, in particular Herndon’s. The motion says that when Herndon’s last client was executed in February, she put in more than 225 hours, “knowing that much more should have been done …” For the pending execution, she has 20 banker’s boxes of materials to review. Herndon “is struggling to fulfill her duties,” the motion says.

“Mr. Strong is at least entitled to a ‘fair fight.’  Such is impossible when defense counsel come in bloody and bruised, while the government has a seemingly endless supply of fresh reinforcements …,” the motion says.

Meanwhile, as now highlighted by this notable new Buzzfeed article (from which I got the graphic here), it would appear that Missouri has figured out some way to get all the execution drugs they could possibly need even as other states struggle mightily in this arena. The Buzzfied piece carries this full headline: "Missouri Is Mysteriously Building A Massive Stockpile Of Execution Drugs: Missouri now has enough drugs for 16 lethal injections. But how? The drugs often used in executions generally have a short expiration date." Here is an excerpt:

State officials changed drug suppliers in February 2014, after their previous supplier, the Apothecary Shoppe, was sued for, among other things, selling execution drugs when it wasn’t licensed to do so in Missouri. Until February 2014, Missouri’s drug stockpile hovered around zero, presumably because the compounded drugs expired so quickly. Since changing drug suppliers, however, the state’s drug supply has exploded, according to records obtained by BuzzFeed News.

With FDA-approved suppliers either discontinuing the manufacture of pentobarbital or enacting stringent guidelines to prevent states from getting ahold of their drugs, it led some capital attorneys to believe the state is resorting to veterinary pentobarbital — something that would be much easier to find, but illegal to use on humans.

When two attorneys, Cheryl Pilate and Lindsay Runnels, approached the Department of Corrections, officials refused to say whether the drug is veterinary. “The response has been very evasive,” Pilate said. “We made several requests about the use of veterinary drugs, and instead of getting the response of “Of course we would never use a veterinary drugs,” they [were] refusing to say.”

When BuzzFeed News asked the state’s corrections department whether the state is using veterinary drugs in executions, spokesperson David Owen said, “No.” Owen would not answer any questions about how the state could be holding onto drugs for so long, given the short shelf life of compounded drugs. Gov. Jay Nixon’s Office would not answer questions, either, and a spokesperson with Attorney General Chris Koster’s office declined to comment.

“It’s the ease with which they’re getting it,” Pilate said. “Other states are having serious problems getting ahold of their drugs. Why not Missouri?”

June 5, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Thursday, June 04, 2015

Latest polling data shows diminished death penalty support

This new ABC News article, headlined "New Low in Preference for the Death Penalty," reports on the lastest interesting poll data concerning death penalty views. Here are the details:

A majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls. Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty - the fewest in polls dating back 15 years....

Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That's down sharply from 80 percent in 1994. Clearly there's remaining ambivalence; when offered the option of life imprisonment with no chance of parole, 29 percent of death penalty supporters prefer the alternative....

Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....

Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.

There's also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that's generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.

Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It's 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It's 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.

June 4, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

Professor Mark Osler's informed perspective on recent federal clemency developments

09fbbcfProfessor Mark Osler is rightly considered one of the most informed and effective sentencing reform advocates, especially in the arena of clemency.  Thus I was very pleased when he wrote to me as a follow-up to my recent posts about recent federal clemency developments and provided some lengthy reflections he has titled "Another View of Clemency Project 2014."  Here are Mark's informed and important insights: 

In the fall of 2012, I gathered together four students, a passel of handwritten letters pleading for help, and a bunch of Margaret Colgate Love articles and created the nation's first clinic focused on federal commutations. The project has turned out to be wonderful as a teaching model; my students get to learn the core legal skill of building a narrative and advocating for a client in a process relatively free of procedural snares. It also has propelled me into the simmering debate over the Obama administration's clemency policy.

Of course, for most of the Obama presidency it wouldn't be very accurate to call the way clemency was handled as a "policy." For the most part, it appears, they simply lopped over the failed guidelines and rules of his predecessor rather than work to revive this key Constitutional power. This failure represents a troubling lack of focus in a president who (1) has properly decried the disparate incarceration of black men through the War on Drugs, and (2) came to politics as a Constitutional Law professor.

At the same time I was starting my clemency clinic, I also began to advocate for a vigorous, short-term project to use the pardon power to help those prisoners serving long sentences under mandatory minimums and sentencing guidelines on crack cocaine that were amended in 2010, but not made retroactive. With Nkechi Taifa and others, I met four times with administration officials and urged them to follow the example of President Ford, who granted clemency to nearly 15,000 Vietnam-era draft evaders and deserters in just one year. Ford did this by convening a special commission outside of the Justice Department, and that commission left behind a remarkable report full of good advice. I even left a copy of the Ford Presidential Clemency Commission Report with those Obama advisors after a meeting in the Vice President's imposing office in the Eisenhower Building.

The Obama administration did not take our advice, but they did announce a very different short-term commutation initiative -- the Clemency Project 2014, which put in the hands of five non-profit groups the shepherding of worthwhile cases towards clemency. My hunch -- and it is only a hunch -- is that this course was chosen because the administration did not think that it could get the money needed to fund a Ford-style Clemency Board through the House of Representatives. The recent Marino Amendment (which seeks to bar the use of funds for the Clemency Project 2014 or for augmenting the Pardon Attorney's office) passed by the House on June 3rd shows that there was a sound basis for that fear.

As has been well-documented, the Clemency Project 2014 has struggled with the overwhelming number of cases (over 30,000) referred to it. If there is blame in that, I should share it. Though I am not affiliated with any of the five groups in charge, I have taken an active role in training pro bono lawyers for Clemency Project 2014, have tried to rally other law schools to the cause, and have taken on several cases myself. Obviously, the structure of this project is not the one I proposed, but it is the one that we have, and through the end of the Obama administration probably represents the best chance for a historic use of the pardon power by this President. It is unlikely that this administration will suddenly — in the next year and a half — repair its relationship with the House to the point where new funding for clemency reform can be found. The toxic dynamic that probably skunked my proposal is still at work.

Professor Berman has suggested that wealthy clemency proponents like the Kochs could go far in re-making the process if they were to invest their money in reform. I think he is right. There are two areas where those resources could be used efficiently. The first is by investing in the debate over who should be the next president. Sadly, we only talk about clemency in the political realm when it goes wrong (i.e. in the last days of Bill Clinton's presidency or Haley Barbour's governorship). We should be actively asking candidates what they would do with clemency when they are running for office, and urging them towards reform. Rachel Barkow and I have, for example, argued that the next administration should shift permanently to a process centered on a review board outside of the Department of Justice, and others have promoted similar ideas. The "Supernova Federal Clemency Institute" research group Professor Berman proposes is worthwhile — but probably most worthwhile (especially with Koch backing) if it is focused on the 2016 election and the first days of a new presidency.

Beyond that advocacy, it would be wise to devote private-funding resources to the Clemency Project 2014 itself, in two ways. First, the project has a devoted and talented but threadbare staff, and that has a cost. There are few resources available to CP14 to screen cases before sending them out to lawyers, for example, and that is a problem that can be solved with money and more bodies. Second, it would help to have full-time lawyers working as advocates on these cases as specialists, as they would be much more efficient than the pro-bono generalists who often have to learn federal sentencing law from scratch. In collaboration with NYU's Center on the Administration of Criminal Law and others, I am working to do exactly that. The more money we raise, the more lawyers can be hired. But... it has to happen fast. The window is closing, and the election season is already upon us.

Some prior related posts:

June 4, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, June 03, 2015

Notable application of Padilla by Fifth Circuit even after judicial deportation warning

The Fifth Circuit yesterday in US v. Batamula, No. 12-20630 (5th Cir. June 2, 2015) (available here), engaged in an extended and interesting discussion of a Padilla claim. The opinion's conclusion highlights why Padilla fans will also like this panel ruling:

For these reasons, we conclude that a judge’s statement at the guilty plea proceeding that deportation is “likely” is not dispositive of whether a petitioner whose counsel failed to advise him regarding the immigration consequences of his plea can demonstrate prejudice as a result therefrom.  Batamula thus is not foreclosed from challenging his guilty plea under Padilla solely because the district court notified him that deportation following the service of his sentence is “likely,” and the district court erred in holding to the contrary. The record is currently insufficiently developed for us to apply the fact-intensive, totality of the circumstances prejudice analysis necessary to determine whether Batamula is entitled to relief on his Sixth Amendment claim.  We therefore REVERSE and REMAND for further proceedings consistent with this opinion.

June 3, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Bifurcation Nation: Strategy in Contemporary American Punishment"

The title of this post is the title of this notable new paper by Christopher Seeds now available via SSRN. Here is the abstract:

Important recent work by penal scholars recognizes the need to study the interplay between federal and state initiatives and between state and local structures.  But the sociology of punishment has been less cognizant of late of the importance of studying the relation between the divergent treatment of high-level and low-level offenses and offenders as a means of understanding those federal, state or local approaches to penality. By one conventional view, the divergent policy trends for violent and nonviolent offenders are unrelated operations working at different ends of an ambivalent carceral spectrum; by another emergent perspective, the increasing decarceration of low-level offenders marks a general shift away from mass incarceration that has yet to extend to serious offenders and offenses.

This paper suggests that, rather than a unidirectional force or mere ambivalent mix of old and new, contemporary sentencing policy is better understood as a bifurcation strategy — one that responds uniquely to the new dilemmas and new constraints presented by a moment we might call, with cautious optimism, late mass incarceration.

June 3, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

New Deputy AG suggesting every too-long federal prison sentence hurts public safety

This recent NPR piece, which provide a mini-profile on the new Deputy Attorney General, Sally Yates, has a headline and some quotes that might be effectively utilized by defense attorneys to argue that any unduly long federal prison sentence damages national public safety.  The piece is headlined "No. 2 At Justice Warns Growing Prison Budget Detracts From Public Safety," and here are excerpts:

Prosecutors usually spend their energy putting criminals behind bars — not urging their release. But racial disparities in the system and the huge costs of locking up so many people are pushing some government officials to call for a new approach. One of them is the woman who now runs day-to-day operations at the Justice Department. Sally Yates says she's hardly soft on crime: "I'm a career prosecutor."...

"I've been at this for 27 years now," Yates says. "I believe that it's really imperative that we do everything we can to keep our communities as safe as possible but to do that in a way that is just and fair."

The Senate confirmed Yates last month as deputy attorney general. She's using her new platform as the second in command at the Justice Department to warn the expanding prison budget has begun to threaten public safety.

The federal government spends $7 billion a year to incarcerate about 200,000 inmates. That's money she says that could pay for more FBI agents and local police. "We know that it's the cop on the street that's one of the most important things to be able to keep our communities safe. But yet over the past decade, there's been a 40 percent reduction in the grant money that's available for cops on the street," Yates says.

New Justice Department estimates obtained by NPR suggest the situation will only get worse over the next decade. If nothing changes, the projections say authorities will need to take tens of millions of dollars that could have been devoted to community policing and local law enforcement, and instead, pour that money into federal prisons. "It is simply not sustainable for us to continue at the present rates that we are now of our incarceration levels," she says.

Yates is taking that message to Capitol Hill. She wants members of Congress to dial back long mandatory prison sentences for nonviolent drug criminals. Red States like Texas and Georgia launched efforts to overhaul their justice systems years ago. Now a left-right coalition of groups from the ACLU to Koch Industries is advocating for a smarter approach at the federal level too....

The Obama administration says it has reduced both the violent crime rate and the number of people going to prison. Former Attorney General Eric Holder, one of Yates's main supporters, crowed about the data in a speech last year: "This is the first time, the first time that these two critical markers have declined together in more than 40 years."

June 3, 2015 in Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Tuesday, June 02, 2015

California agrees to model new lethal injection protocol on whatever SCOTUS says is good enough

As reported in this local piece, headlined "California death penalty: state agrees to propose execution method,"  a state with a remarkable inability (and disinclination?) to get its machinery of death operational has now agreed that the Supreme Court's latest review of lethal injection will provide a script for its next efforts.  Here are the details:

California's death penalty system, dormant for nine years, might soon move slowly toward resuming executions. As part of a court settlement reached on Tuesday, the state's corrections department agreed to unveil a new execution method by the fall that will be tied to the outcome of a U.S. Supreme Court ruling expected sometime this month in a challenge to Oklahoma's lethal injection protocol.

While California is still far from executing one of the 750 condemned killers on death row, the development marks movement on the issue for the first time in years. There are at least 17 inmates on death row who have exhausted their legal appeals and would be eligible for execution dates.

State prison officials resolved a lawsuit filed last year by the families of victims of condemned killers who argued the state has a legal obligation to implement an execution method. A Sacramento judge earlier this year found the state should be required to move forward in a case brought by two families, including former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were murdered 31 years ago by a man now on death row. Death penalty supporters have accused state leaders such as Gov. Jerry Brown and Attorney General Kamala Harris of dragging their feet in getting executions back on track. The state has not had an execution since 2006 as a result of legal challenges to its lethal injection method.

Several years ago, the courts invalidated one state effort to revise its three-drug execution method, prompting California to explore switching to a single lethal drug as other states have done. But the state had not made progress until Tuesday's settlement.

The Supreme Court is expected to clarify the legality of lethal injection methods in the case out of Oklahoma, which still has a three-drug procedure. Deborah Hoffman, spokeswoman for the California corrections department, confirmed that the prison system, which has been developing its regulations, will submit its new execution method within 120 days of the Supreme Court's ruling.

Lawyers for the families said it "made sense" for California to await that ruling. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he expects the state to adopt a single drug method using a sedative he maintains can be obtained. However, states around the country, including California, have encountered problems securing supplies of execution drugs because drug manufacturers have refused to sell the drugs to prisons.

June 2, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)