Wednesday, October 26, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 25, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PART 3: CRIME

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

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

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

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

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

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

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

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

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

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

Monday, October 24, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Autonomy and Agency in American Criminal Process"

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

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

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

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

Sunday, October 23, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, October 22, 2016

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

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

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

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

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

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

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

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

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

Friday, October 21, 2016

New Gallup poll reports notable trends in "tough-on-crime" public polling perspectives

A6rjo7fztki7iz_8fgcxggThis new Gallup item, headlined "Americans' Views Shift on Toughness of Justice System," details the results of its latest annual Gallup poll on on crime and punishment opinions. Here are the highlights:

Americans' views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is "not tough enough" -- down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system's approach as "about right" (35%) or "too tough" (14%).

Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans' views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is "not tough enough." Although considerably higher than in the past, relatively few believe the system is "too tough."

Views of the justice system's toughness vary across racial and political party lines.  The majority of Republicans and Republican-leaning independents say it is "not tough enough" (65%), with most of the rest describing it as "about right" (30%).  Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is "about right" (42%), with the rest dividing about evenly between saying it is "too tough" (22%) or "not tough enough" (29%).

A majority of whites (53%) say the system's handling of crime is "not tough enough," while a third (32%) say it is "about right."  One in 10 whites say the system is "too tough." Nonwhites -- who as a group make up a disproportionate percentage of the U.S. incarcerated population -- are more than twice as likely as whites to say the system is "too tough" (23%).  They are also more likely than whites to say it is "about right" (40%). Meanwhile, 30% of nonwhites say the system's handling of crime is "not tough enough."

Against a backdrop of bipartisan efforts in Congress to reform drug sentencing in 2016, 38% of U.S. adults describe guidelines for sentencing of people convicted of routine drug crimes as "too tough."  A slightly smaller percentage say they are "not tough enough" (34%), while a quarter say they are "about right" (25%).  Fifty percent of Democrats say drug crime sentencing guidelines are "too tough" -- twice as high as the percentage of Republicans (26%) who say the same. Republicans are more likely than Democrats to describe drug crime sentencing as "not tough enough" (47%).

Differences in views between whites and nonwhites are less pronounced on drug crime sentencing guidelines compared with their views of the criminal justice system's handling of crime more generally. Both whites and nonwhites have sizable percentages, ranging from 21% to 39%, of those who describe drug crime sentencing guidelines as "too tough," "not tough enough" or "about right."

Americans' views about the toughness of the criminal justice system have clearly shifted in recent decades, with less than a majority now saying the system is "not tough enough" and more Americans describing it as "about right" or "too tough." Although more than in the past believe the system is overly tough, this view is still held by a relatively small minority. U.S. adults are much more likely, however, to describe drug crime sentencing guidelines as "too tough" compared with their opinions of the system's handling of overall crime, and this is the case among both racial and political party groups.

The folks over at Crime & Consequences have these two notable posts discussing these new Gallup data (though I cannot help but note they did not comment on other recent Gallup polling data reporting record-high majoritarian support for the legalization of marijuana):

October 21, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

"Status Courts"

The title of this post is the title of this notable new paper by Erin Collins now available via SSRN. Here is its abstract:

This article identifies and analyzes a new type of specialized “problem-solving” court: status courts. Status courts are criminal or quasi-criminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls.  They differ from other problem-solving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic “problem” to be “solved.”  In fact, status courts aim to honor the offender’s experience and strengthen the offender’s association with the characteristic used to sort him or her into court.

The article positions status courts as a troubling development in the evolution of problem-solving justice, in particular, and criminal justice reform, generally.  It reveals that status courts institutionalize the notion that certain offenders, by virtue of their inclusion in a particular status group, deserve better treatment than others.  This “moral sorting” provides an expressive release that may, counterintuitively, disincentivize widespread systemic reform.

And yet, while status courts present cause for concern, they also advance a positive, and possibly transformative, notion: that some individuals commit criminal offenses, at least in part, because of the influence of external factors beyond their control. In this way, status courts challenge the retributive notion that criminal offenders are wholly independent, rational actors and counterbalance the othering effect of many current criminal justice practices.  As the rise of retributive ideals played a prominent role in ramping up the penal machinery over the past few decades, embracing the more contextual, complicated conceptualization of the criminal offender status courts advance can temper the tendency to overincarcerate.

October 21, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, October 20, 2016

Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter

The latest controversially lenient sexual offense sentencing garnering social and traditional media attention comes from Montana, and this Washington Post article provides some of the notable details under the headline "Father who ‘repeatedly raped his 12-year old daughter’ gets 60-day sentence. Fury erupts." Here are excerpts:

In the case of Judge John McKeon, as of early morning Wednesday, almost 20,000 people had signed a Change.org petition calling for his impeachment for the 60-day sentence he gave a Glasgow, Mont., man who pleaded guilty to repeatedly raping his prepubescent daughter. “A father repeatedly raped his 12-year old daughter,” Deputy Valley County Attorney Dylan Jenson said during an Oct. 4 sentencing hearing. “It’s time to start punishing the judges who let these monsters walk our streets,” read the petition.

Prosecutors had recommended a mandatory 25-year sentence, 100 years with 75 suspended, which is what state law calls for. Instead, though, Judge McKeon handed down a far lighter sentence: a 30-year suspended prison sentence, which means the man will only serve it if he fails to meet the conditions of his probation.

Among those conditions, which McKeon called “quite rigorous,” was the requirement for the man to register as a sex offender, the Glasgow Courier reported. He also cannot access pornography and has limited access to the Internet. In addition, the man will serve 60 days in jail, but McKeon gave him credit for the 17 days he already served, meaning he’ll only spend another 43 days in jail....

In most of these controversial cases, the judges under siege tend to remain silent. What makes McKeon’s case unusual is that he has chosen to defend himself in public. In an email to the Associated Press, McKeon said he had several reasons for handing down the seemingly light sentence.

The judge claimed that news coverage obscured state law by failing to mention an exception to the mandatory 25-year prison sentence. According to McKeon, the law allows those arrested for incest involving someone under 12 years old to avoid prison if a psychosexual evaluation finds that psychiatric treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.” The judge wrote this is one of Montana’s attempts “to encourage and provide opportunities for an offender’s self-improvement, rehabilitation and reintegration back into a community.”

In the note to the AP, McKeon also referenced letters written to him by the victim’s mother and grandmother. Both letters requested the convicted man not be sentenced to prison. The victim’s mother, who walked in on the man sexually abusing her daughter, wrote that the man’s two sons love him and she wanted his “children have an opportunity to heal the relationship with their father,” according to McKeon.

The victim’s grandmother echoed this, calling the man’s behavior “horrible” but stating that the man’s children, “especially his sons, will be devastated if their Dad is no longer part of their lives.”

For all these letters defending the convicted man, though, Deputy Valley County Attorney Dylan Jensen told the AP that no one spoke on behalf of the victim, a 12-year-old girl, at Friday’s sentencing hearing. The petition to impeach McKeon highlighted this fact. “No one spoke on behalf of the 12 year old child at trial,” it read. “No one. The victim was not given justice, but instead will have to live with the fear that she still has to face her rapist in their community. ”

McKeon’s email concluded, “All district judges take an oath to uphold the Constitution and laws of this state. These constitutional provisions and laws include certain fundamental legal principles that apply at sentencing, including a presumption of innocence for unproved criminal allegations, the varying sentencing policies and the government’s burden to counter evidence supporting an exception to mandatory sentence.”...

McKeon, who has served as a Montana state judge for 22 years, is retiring next month, according to the Associated Press. Considering that an impeachment in Montana, according to the National Center for State Courts, requires a “two-thirds vote of the house of representatives and [a] convict[ion] by a two-thirds vote of the senate,” the point is fairly moot — there simply isn’t enough time to impeach him.

October 20, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

"The United States needs a defender general"

The title of this post is the headline of this interesting new commentary authored by Andrea Lyon, who is the dean at Valparaiso University Law School. She joined the school in July 2014. Here are excerpts:

At a time when nearly every political constituency agrees that we have over-incarcerated and over-criminalized our country, one question arises: Why did non-partisan recognition of this issue take so long? It’s no secret that we incarcerate a higher number of people per capita than any other first-world nation....

There has been no voice at the policy table for the accused, incarcerated and paroled. We have an attorney general of the United States. We have a solicitor general of the United States. The only lawyer that is enshrined in the United States Constitution is referenced in the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to … the Assistance of Counsel for his defence.” Yet, the defense is not, and has not been a part of policy decisions regarding criminal justice matters. There is currently no office to represent criminal justice interests at the executive level the way that the attorney general does....

All over the United States indigent defense is in crisis. There are too many cases and insufficient resources to properly staff offices and prepare cases. Too often, the result is that we find out, sometimes decades after the fact, the wrong person was in prison, or perhaps executed. A defender general would know how the defense would be impacted by laws in ways that the prosecution and judiciary don’t anticipate. There could be real input for legislatures about the likely consequences of passing certain statutes, and to help prevent expensive and ineffectual decisions....

We have seen Secretary Hillary Clinton decry over-criminalization and mass incarceration and acknowledge her husband’s part in it. Had President Clinton been presented with a defender general’s analysis, he might have chosen a different path.

How would this work? As far as I know there is no similar office internationally. Israel has a chief public defender for the entire country, and that job is to run the defense attorney function for the indigent in that country. Vermont’s public defender system is called by that name. Some other states, such as Kentucky and Wisconsin, have statewide indigent defense systems. There is certainly recognition of the importance of representation of the accused in many countries, including our own.

What is not clear, though, is a national recognition of the need for a defense policy voice that is regularly included in the conversations that Congress and the executive branch have about these issues. Both branches can and do turn to the attorney general for her input on statutory and other concerns. The solicitor general also serves as an ongoing resource, but there isn’t an office that can represent the concerns of the defense, their families and their communities. Defendants and defense attorneys need a representative at the executive level who can collaborate on major policy issues, establish national and statewide standards, and coordinate training efforts within the criminal justice system. This is a crucial voice that should be a regular part of the executive discourse and an ongoing resource for indigent defense.

This defender general’s office should be created immediately. It should be appropriately staffed and liaisons created with each of the states and territories. The defender general should command the same respect and stature that the offices of the attorney general and solicitor general command, and the defender general would ensure that all of those interested in criminal justice have a seat at the table.

October 20, 2016 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Georgia completes its seventh execution of 2016, bringing national execution total for year to 17

While many traditionally active death penalty states, such as Ohio and Oklahoma, have had their machineries of death inoperative in 2016 because of problems with lethal injection drugs or protocols, Georgia has had a record-setting peach of a year when it comes to carrying out executions.   This CBS/AP story reports on the latest Peach State execution and provides a little numerical and historical context for it:   

A man convicted of killing an Atlanta police officer and wounding a second officer with an AR-15 rifle was executed late Wednesday, becoming the seventh inmate put to death in Georgia this year. Gregory Paul Lawler, 63, was pronounced dead at 11:49 p.m. at the state prison in Jackson after he was injected with the barbiturate pentobarbital.  He was convicted of murder in the October 1997 slaying of Officer John Sowa and of critically wounding Officer Patricia Cocciolone.

The Georgia Supreme Court said in a statement Wednesday it had unanimously denied defense requests to halt the execution, originally set for 7 p.m.  Defense attorneys later appealed to the U.S. Supreme Court, which also declined to stop the execution late Wednesday night.

Lawler didn’t make a final statement and refused an offer of a prayer.  Then he lay on the gurney with his eyes closed as the lethal drug flowed, taking several deep breaths and yawning before becoming still.  Cocciolone arrived in a wheelchair and sat in the front row of the witness area, as did Fulton County District Attorney Paul Howard, whose office prosecuted Lawler.

The seven executions in Georgia this year are the most in a calendar year in the state since the death penalty was reinstated nationwide in 1976.  Georgia executed five inmates last year and five in 1987.

Georgia is one of five states that have carried out executions this year for a total of 17 nationwide.  Texas has executed seven inmates, while Alabama, Florida and Missouri have executed one apiece.

October 20, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

GOP Gov explains how sentencing reform has "Georgia's criminal justice system smarter, fairer, more effective and less costly, while in no way sacrificing public safety"

This Washington Times commentary, headlined "Georgia’s story of redemption: Criminal justice reform is saving lives and preserving families, is authored by Georgia's Republican Governor Nathan Deal. Here are excerpts:

When I took office in January 2011, Georgia was in the midst of a criminal justice system crisis.  The state’s prison population and incarceration budget had doubled in the previous two decades and taxpayers were spending $1 billion per year to keep tens of thousands of inmates behind bars.  The recidivism rate hovered at 30 percent for adults and 65 percent for juveniles, indicating that efforts to rehabilitate offenders were not working as they should have been.

To address this crisis, I established a task force to examine reform initiatives that eventually led to the creation of accountability courts, improvements to the juvenile justice system and expanded efforts to facilitate a smoother re-entry process for returning citizens.  The Georgia General Assembly used these recommendations to enact two rounds of reforms in 2012 and 2013 that have made Georgia’s criminal justice system smarter, fairer, more effective and less costly, while in no way sacrificing public safety.  These reforms were approved with overwhelming bipartisan consensus in the Georgia General Assembly.

Since then, Georgia has seen a decrease of about 10.3 percent in the state’s prison inmate population, from roughly 60,000 to about 53,800.  Before reform initiatives had been enacted, Georgia’s inmate population was projected to grow by 8 percent in the ensuing five years, presenting taxpayers with an additional $264 million bill in that time frame.  Not only did we shred that price tag, but we were also able to forgo the construction of two additional prisons as a result of effective reforms.

The cost to incarcerate one adult offender is about $18,000 per year, which is far more expensive than an addiction rehabilitation program or mental health counseling — so it makes fiscal sense to seek alternatives to prison for nonviolent offenders whenever feasible.  Without the sentencing alternatives of the state’s 105 accountability courts, which give offenders a second chance and an opportunity to reverse the cycle of failure, thousands of nonviolent offenders with underlying addiction and mental health issues would likely be in prison.  Beyond fiscal considerations, criminal justice reform is essential to providing the successful rehabilitation to prevent former offenders from becoming repeat offenders.  Perhaps most important of all, these reforms have the long-term potential to positively change the dynamics of families, as crime is often generational....

Georgia’s criminal justice reforms have saved hundreds of millions of taxpayer dollars and will continue to do so. At the same time, we have saved lives and preserved families, and that’s what is important.

October 20, 2016 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Wednesday, October 19, 2016

Is Florida really going to conduct full post-Hurst resentencings for hundreds of condemned murderers?

The question in the title of this post is prompted by this local article headlined "Death penalty ruling could mean new sentencing for 386 murderers in Florida."  Here are excerpts:

The Florida Supreme Court’s decision last week to require unanimous jury votes for executions has thrown the state’s death penalty into disarray. In a Friday ruling in Hurst vs. Florida, the justices eliminated part of Florida’s death sentencing laws, but lawyers and legislators disagree about what comes next.

Some say that it could lead to sentences being thrown out for nearly 400 convicted murderers awaiting execution at Florida State Prison, and that it may cripple the state’s death penalty long term. Others say the only thing that has changed is that a jury must now vote unanimously in favor of the death penalty. What’s clear is this: Even with the case decided, Florida’s legal fights over capital punishment are far from over.

Death-row defense lawyers say the Hurst decision leaves Florida without a functioning death penalty until the state Legislature can convene and rewrite the law. “This is so big,” said Martin McClain, a Broward County lawyer who represents death-row inmates appealing their sentences. “I don’t know of a way to overstate the significance.”

But legislative leaders say that such action won’t be necessary. “With Friday’s ruling, imposing the death sentence will require a unanimous verdict with or without legislative action,” said Katie Betta, a spokeswoman for Senate President-designate Joe Negron, R-Stuart. “In the past, the Senate has been supportive of the unanimous verdict requirement.”

Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, which represents the 20 state attorneys, agrees that no legislative action is necessary. “The death penalty is certainly still legal in Florida,” he said. “The procedure is what the Supreme Court reacted to.”

The court’s ruling has raised other questions about how the state should handle the 386 inmates on death row under old sentencing rules that have since been thrown out. The Supreme Court has not indicated which inmates could be eligible to have their sentences changed. Even the most experienced death-row defense lawyers don’t know what to expect. McClain said he thinks the court will issue a ruling about which cases are going to be treated like that. “Until we have that sort of broad picture,” McClain said, “we’re kind of stuck waiting.”

Some death-row inmates — including Timothy Lee Hurst, convicted of killing a co-worker in Pensacola in 1998 — will have new sentencing hearings. The court will bring in a new jury to hear evidence and decide whether Hurst should be executed or sentenced to life in prison. But not all death penalty cases are the same. So it’s possible the court could decide that certain kinds of cases are eligible for a re-sentencing and others are not.

For example, the court could throw out sentences from time periods when the death penalty laws were overturned as unconstitutional, or they could only allow a new jury for death-row inmates who raised certain complaints in their appeals. But Maria DeLiberato, a defense lawyer with the Capital Collateral Regional Counsel in Tampa, warns that could be seen as an “arbitrary and capricious” enforcement of the law and raise new allegations that Florida’s death sentences flout the U.S. Constitution’s ban on cruel and unusual punishment.

She’s hopeful that the court would allow all inmates a new sentencing hearing, not just some of them. The state attorneys worry about the high costs of a small wave of re-sentencing hearings, let alone 386 cases. “We do not have the manpower to do that,” said Jacobs. “We’d have to get assistance to do that from the Legislature.”

October 19, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13)

Terrific Marshall Project review of notable (but lower-profile) criminal justice initiatives going to voters in various states

18702169.548e53c77fc3cThe always great work done by the folks at The Marshall Project continues be especially helpful for election-season coverage through its "Crime On The Ballot" series which keeps tabs on the "ballot measures and races — beyond Washington — that could shape criminal justice."   And this week brought this new piece on state ballot initiatives headlined "It’s Not Just Pot and the Death Penalty: Four important ballot measures you probably haven’t heard of."  I recommend the extended piece in full, and here are excerpts:

High-profile state ballot measures on contentious issues like the death penalty, guns and pot are closely watched as indicators of the national mood.  But this election season also brings less-noticed proposals that may have more far-reaching effects.  Here are four ballot measures in six states that could serve as laboratories for other states.

Shortening Time Served for Nonviolent Felonies: California

California has a long history of putting criminal justice policy on the ballot: the state’s infamous “Three Strikes” law was strengthened by a ballot initiative in 1994; then, with voters’ appetite for mass incarceration on the wane, the law was partially repealed by another initiative in 2012.  In 2014, voters downgraded several major felonies to misdemeanors — most notably, possession of heroin and other illegal drugs. Now, with the state under a federal mandate to reduce its prison population, Californians will consider a constitutional amendment to make certain prisoners eligible for earlier release.

Under the current law, sentences for many felonies can be “enhanced” with additional prison time if the person committing the crime is classified as a gang member, for example, or has other felony convictions on his record. Under the state’s “determinate sentencing” provision, prisoners must serve their entire term, enhancements and all. Proposition 57 would undo that requirement for those whose crimes are classified as “nonviolent,” making prisoners eligible for parole after they’ve served the full term for their primary crime.  The proposition also creates a system of early-release credits that inmates can earn by participating in education and rehabilitation programs....

Bail Reform: New Mexico

When someone is accused of a crime in New Mexico, the law requires he or she be sent home under “the least restrictive conditions necessary to reasonably assure both the defendant’s appearance in court and the safety of the community.”  In other words, jail should be a last resort, reserved for the most dangerous defendants or those most likely to flee.  But that’s rarely what happens, says Charles Daniels, Chief Justice of the state’s Supreme Court. “Everybody has just grown so used to this notion that if you are accused of a crime, you have to pay somebody some money to get out of jail.  Our judges have just gotten so used to putting a price tag on your presumption of innocence,” he says.

Research from around the country shows that tens of thousands of people are routinely held in jail for low-level offenses because they don’t have small sums of money to make bail.  Daniels has spearheaded an effort to overhaul the state’s bail system; a ballot measure this November would amend the state constitution to include a rule that no one should be held in jail solely because they can’t afford bail — and would make it harder for defendants to get out if they are dangerous.  In almost every state, people accused of crimes have a “right to bail”: Regardless of how dangerous the defendant, or how serious a flight risk, a judge can’t hold anyone outright.  Instead, judges who want a defendant held set a too-high bail amount that they hope the defendant can’t afford. “It’s a shell game,” says Daniels.  The ballot measure would remove “right to bail”, and the constitution would be amended to say judges can deny bail if, after a hearing, they feel someone is too dangerous to be released....

Writing Victims' Rights Into the Constitution: North Dakota, South Dakota, and Montana

Three states this November will vote on an almost identical ballot measure that would create sweeping new protections for crime victims.  Called “Marsy’s Law,” “this is an equal rights campaign to strengthen victims’ rights so they’re equal to rights that criminal offenders have,” according to Jason Glodt, a former prosecutor managing the campaign in South Dakota.  Marsy’s Law is named for Marsalee Nicholas, who was killed by her boyfriend in 1983.  A week after her murder, her mother “walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer.  She had no idea that he had been released on bail,” according to the Marsy’s Law website.

The amendments would require that victims be notified at every major step of the criminal justice process, one of more than a dozen new rights, including the right to withhold records, the right to refuse to be deposed or interviewed, and the right to speak at hearings.  The amendments would also broaden the definition of “victim”; in some states, like North Dakota, current victim protection laws are only triggered in the case of a serious crime like assault or murder.  Under Marsy’s Law, “victim” would include those who had their purses snatched — and their “spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship."...

De-Felonizing Drug Possession: Oklahoma

By its own count, Oklahoma has the second-highest incarceration rate in the country (after Louisiana), and the highest rate of incarcerated women.  Seventy-five percent of those behind bars are there for nonviolent offenses — most commonly, drug offenses.  Two ballot measures poised to pass this November aim to change that.  The first, SQ 780, would downgrade simple drug possession from a felony to a misdemeanor, and raise the “felony theft threshold” —the dollar value of a stolen item that triggers felony rather than misdemeanor charges — from $500 to $1000.  A corresponding measure, SQ 781, directs cost savings generated by SQ 780 into a special fund that would pay for mental health and substance abuse services.  The measures are backed by a coalition of both right- and left-leaning organizations, including the ACLU and the Family Policy Institute of Oklahoma.Local sheriffs and prosecutors warn that without the threat of felony charges, prosecutors lose the leverage they need to compel people to participate in drug court, accept plea deals, or to testify in other cases.  Sheriffs fear that all these new misdemeanor arrests will simply shift overcrowding in prisons to the jails.

The measures come at a time when Oklahoma has been contemplating criminal justice reform (spurred, in part, by a budget crunch caused by falling oil prices). In April, Gov. Mary Fallin signed a package of bills aimed at shrinking the prison population, including one that reduces mandatory minimums for drug possession and one that broadens the use of drug courts and community sentencing.  The state is also undergoing a Justice Reinvestment process; a task force researching the drivers of the state’s incarceration rate will submit an additional series of recommended bills next year.  The success of those bills is staked, to a certain extent, on these ballot initiatives.

October 19, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Tuesday, October 18, 2016

Oregon Gov pledges to continue moratoriaum on executions if elected to a new term

As reported in this local article from Oregon, headlined "Brown to maintain death penalty moratorium," the chief executive in the Beaver State is promising not to execute those laws calling for excutions of condemned murderers. Here are the details:

The governor plans to continue a state moratorium on capital punishment that would extend through her upcoming term if elected, a spokesman said Monday morning. "Gov. Kate Brown has made clear her personal opposition to the death penalty and her support of the current moratorium on Oregon executions," spokesman Bryan Hockaday told The Oregonian/OregonLive.

Former Gov. John Kitzaber announced the moratorium two weeks before the scheduled 2011 execution of Gary Haugen, who then sought to speed his execution after waiving all appeals.  After Brown took over the state's top office in February 2015, she said she would continue the stoppage of public executions until further study.

"Gov. Brown directed her General Counsel to conduct a review of the policy and practical implications of Oregon's capital punishment law," Hockaday said. "Though no executions are imminent, Gov. Brown will continue the death penalty moratorium, because after thoroughly researching the issues, serious concerns remain about the constitutionality and workability of Oregon's capital punishment law." Hockaday declined to immediately release, pending a records request, any study or records related to how the governor made her decision.

Reasons for her decision include the "uncertainty of Oregon's ability to acquire the necessary execution drugs required by statute," Hockaday said by email. "Looking nationally, America is on the verge of a sea change both by legislation and, more profoundly, through court decisions. The past few years have already seen a major shift in the landscape on capital punishment law, and Gov. Brown expects more changes are on the horizon."

Oregon voters approved the death penalty in 1984, and the state and U.S. Supreme Courts have repeatedly upheld its legality. Oregon's death row has 34 prisoners, all of whom stay in their cells 23 hours a day. In the past five decades, the state executed two men -- both in the 1990s. Those men had essentially volunteered for the death penalty after waiving their rights to appeal before their deaths.

Clatsop County District Attorney Josh Marquis, an outspoken supporter of the death penalty in Oregon, a month ago met with Brown counsel Ben Souede about the issue. After hearing the news Monday, Marquis said he was seething. "If she really believes the death penalty is so wrong, then she should have the guts to commute all those sentences," Marquis said.

If she were to take that extraordinary step, Marquis said about six or seven prisoners on death row could be released to the public within a year because they would qualify for an immediate parole hearing. He said those prisoners were sentenced after voters approved the death penalty and before the state adopted life sentences without parole in the early 1990s.

No executions may be imminent, Marquis argued, but at least three cases are pending in Oregon where defendants face aggravated murder charges, which bring a death penalty sentencing option if convicted. Brown's announcement could make it easier for defense attorneys to persuade jurors not to impose the death penalty, he said.

October 18, 2016 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Highlighting how death is different when it comes to SCOTUS dissents from denial of certiorari

Adam Feldman has this notable new post at the Empirical SCOTUS blog titled "Dissents from Denial of Cert (2010-2015)." The whole post is an interesting read for SCOTUS aficionados, but these concluding passages struck me as especially noteworthy (though not all that unsurprising) for sentencing fans:

Justices Thomas and Sotomayor are also the only Justices that have at least one dissent from denial for each Term in this set. Additionally, Justices Thomas, Alito, and Breyer all have clear upswings in their charts.  Is this due to frustration with the rest of the Justices’ choice of case selection? Is it to put certain cert denials in the spotlight?

Some additional clarity is shed by examining the issues at the heart of the denied petitions. Five of Justice Breyer’s six authored dissents from denial for this period and all four from 2015 came in death penalty cases.  A majority of Justice Sotomayor’s dissents come from death penalty cases as well and all stemmed from criminal matters.  As the Court dealt with several capital cases in 2015 and has several more on the 2016, perhaps these Justices that routinely vote against the death penalty seek greater reform on this issue, are attempting to spotlight specific cases they feel were unjustly decided by the lower courts, or are conveying alternative ways for lawyers to frame these such issues in their arguments.

Justices Alito and Thomas’ dissents are from cases composed of a more varied set of issues ranging from First Amendment and discrimination concerns to criminal matters in the form of habeas corpus relief.  Absent from their dissents are any capital cases. While it is difficult to read too much into this lack of a clear pattern, these Justices’ general trends towards more such dissents is notable.  The next Justice confirmed to the Court and the effect that this Justice has on the Court’s choice of cases will inevitably have a deep and prolonged impact on this form of behavior from all Justices, as the new ninth Justice will have a large say in what cases the Court hears as well as in the Court’s merits decisions.

October 18, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, October 17, 2016

Federal judge troubled by how Philadelphia DA is dealing with post-Miller resentencing

This interesting local article, headlined "Federal judge blasts Philly DA's 'juvenile lifers' policy," highlights the continued struggle in some quarters to give meaningful effect to the Supreme Court's Eighth Amendment ruling in Miller v. Alabama more than four years later.  Here are excerpts:

The Philadelphia District Attorney's office has conceded that a judge resentencing "juvenile lifers" may impose a minimum sentence lower than the 35 years the office has been offering in such cases.

The possibility was raised Monday as the office agreed to move ahead with resentencing for Kempis Songster, 44, serving life without parole for a murder he committed in 1987 at age 15.  An openly frustrated U.S. District Judge Timothy J. Savage — who had ordered a new sentence for Songster four years ago, and again in August with a 120-day deadline — said the office's policy of offering all inmates the same deal for a new sentence was inconsistent with a U.S. Supreme Court ruling that had put back into play about 300 murder cases in Philadelphia involving juveniles.

Savage's Aug. 17 order had urged resentencings in which a judge would have discretion to impose "individualized, proportionate sentences," take into consideration an inmate's rehabilitation, and impose a maximum of life only in "the rarest of permanently incorrigible" cases.

"Here's the problem that I have," Savage told Assistant District Attorney Susan Affronti on Monday.  "If you're saying you have all these offers out, it seems you're treating all of these folks the same way — 35 years to life.  I don't get that. That to me appears to show a lack of due diligence, of looking at each case individually.  I understand you want to do this for policy reasons. Maybe because it looks good."

Songster's case and others are back in the courts as a consequence of Montgomery v. Louisiana, a U.S. Supreme Court decision in January that made retroactive the court's ban on automatic life-without-parole sentences for juveniles. The ruling affects about 2,300 cases nationwide, about 500 of which are in Pennsylvania - including about 300 in Philadelphia.

Affronti, accompanied by Tariq el-Shabazz, one of District Attorney Seth Williams' top deputies, agreed to drop the appeal of Savage's order directing Songster to be resentenced as well as its request for a stay of the 120-day time frame. Savage's earlier ruling had questioned the district attorney's reliance on parole as the means of release by leaving maximum life sentences in place....

Bradley Bridge of the Defender Association of Philadelphia, who is handling many of the "juvenile lifer" cases, said the district attorney's dropping of its appeal was significant because it left Savage's opinion in place. "His vision of what is a lawful sentence is substantially different than the prosecutor's view of what is a lawful sentence," Bridge said. "The prosecutor has now conceded that Judge Savage wins. They're not challenging him on it."

Up until now, Williams has offered about 60 defendants plea agreements of 35 years to life, which, Savage previously noted, in effect passes the decision on release over to the parole board, which has approved the release of a handful of defendants in the oldest of the cases. Williams' office has argued that allowing parole in these cases was an acceptable way to comply with the Supreme Court ruling. Savage wrote in an earlier ruling, however, that a sentence with a maximum of less than life had to be considered by the resentencing judge. The life maximum should be ordered only in rare cases, but was allowable, he said.

Affronti acknowledged that the office had not been willing to offer a negotiated new sentence of less than 35 years to life for those were were 15 to 17 at the time of their crime, which is the current sentence set by Pennsylvania for first-degree murder involving a juvenile defendant 15 and older, set after the Supreme Court invalidated sentences of life without parole. Pennsylvania law also now allows for a more lenient sentence of 25 to life for juveniles who were younger than 15 at the time of the crime.

Affronti said the D.A.'s office would continue to use the new Pennsylvania law as a guideline for offers to the lifers, even though it does not legally apply retroactively, because "I believe a 15-year-old that commits first-degree murder in 1974 should be treated the same as a 15-year-old in 2016." The state Supreme Court ruled, however, that that new penalty could not be applied retroactively - a ruling sought by the commonwealth to avoid reopening these cases at all, prior to the U.S. Supreme Court retroactive ruling.

October 17, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"How the Sentencing Commission Does and Does Not Matter in Beckles v. United States"

The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Luke Beasley. Here is the abstract:

This Essay considers how significant the differences between the Armed Career Criminal Act and the Sentencing Guidelines are to one question the Supreme Court is poised to address in Beckles v. United States -- namely, whether a rule invalidating the so-called "residual clause" in the Sentencing Guidelines applies retroactively to cases on collateral review.  This Essay collects evidence from resentencings that have occurred after courts have found the Guidelines' residual clause invalid.  These resentencings have resulted in defendants receiving significantly less prison time. 

The extent to which a rule invalidating the Guidelines' residual clause affects defendants' sentences -- often significantly -- justifies revisiting defendants' sentences because whatever finality interests exist in the defendants' sentences are outweighed by the effects that a rule invalidating the Guidelines' residual clause has on the amount of prison time defendants serve.  The Supreme Court should also not hesitate to make a rule invalidating the Guideline retroactive because the Sentencing Commission decided not to make retroactive an amendment deleting the Guideline's residual clause.  The Commission never investigated how difficult it would be to make that amendment retroactive.

A few of many related prior posts and related materials:

October 17, 2016 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Interesting lengthy dissent from SCOTUS cert denial from Justice Sotomayor joined (only) by Justice Ginsburg

There is a bit of interesting news with today's otherwise dull SCOTUS order list in the form of a lengthy dissent from the denial of certiorari penned by Justice Sotomayor and joined by Justice Ginsburg.  The dissent in Elmore v. Holbrook is available here, and it gets started and ends this way:

Petitioner Clark Elmore was convicted of murder in 1995 and was sentenced to death.  His court-appointed lawyer, who had never tried a capital case before, knew that Elmore had been exposed to toxins as a young adult and that he had a history of impulsive behavior.  A more experienced attorney encouraged Elmore’s lawyer to investigate whether Elmore had suffered brain damage as a young man. Instead of doing so — indeed, instead of conducting any meaningful investigation into Elmore’s life — Elmore’s lawyer chose to present a one-hour penalty-phase argument to the jury about the remorse that Elmore felt for his crime.  As a result, the jury did not hear that Elmore had spent his childhood playing in pesticide-contaminated fields and had spent his service in the Vietnam War repairing Agent Orange pumps.  The jury did not hear the testimony of experts who concluded that Elmore was cognitively impaired and unable to control his impulses. The jury heard only from an assortment of local judges that Elmore had looked “dejected” as he pleaded guilty to murder, not from the many independent witnesses who had observed Elmore’s searing remorse.

The Constitution demands more.  The penalty phase of a capital trial is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U. S. 280, 304 (1976).  It ensures that a capital sentencing is “humane and sensible to the uniqueness of the individual.”  Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). Elmore’s penalty phase fell well below the bare minimum guaranteed by the Constitution.  His lawyer acted deficiently in choosing a mitigation strategy without fully exploring the alternatives and in failing to investigate the mitigation strategy that he did choose to present. And had the jury known that Elmore — who had never before been convicted of a crime of violence and felt searing remorse for the heinous act he committed — might be brain damaged, it might have sentenced him to life rather than death.

This Court has not hesitated to summarily reverse incapital cases tainted by egregious constitutional error, particularly where an attorney has rendered constitutionally deficient performance. See, e.g., Hinton v. Alabama, 571 U.S. ___ (2014) (per curiam); Sears v. Upton, 561 U.S. 945 (2010) (per curiam); Porter v. McCollum, 558 U.S. 30 (2009) (per curiam). This case plainly meets that standard. For that reason, I respectfully dissent from the denial of certiorari....

All crimes for which defendants are sentenced to death are horrific. See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 14); id., at ___ (THOMAS, J., concurring) (slip op., at 6–10).  But not all defendants who commit horrific crimes are sentenced to death.  Some are spared by juries.  The Constitution guarantees that possibility: It requires that a sentencing jury be able to fully and fairly evaluate “the characteristics of the person who committed the crime.” Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).  That guarantee is a bedrock premise on which our system of capital punishment depends, and it is a guarantee that must be honored — especially for defendants like Elmore, whose lives are marked by extensive mitigating circumstances that might convince a jury to choose life over death.  Only upon hearing such facts can a jury fairly make the weighty — and final — decision whether such a person is entitled to mercy.  I respectfully dissent from the denial of certiorari.

UPDATE: In the comments, Cal. Prosecutor highlights this notable new post by Kent Scheidegger at Crime & Consequences to provide more context for understanding this lengthy dissent from a SCOTUS cert denial.  Here is how that post gets started and ends:

The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore.  Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial.  If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief?  That court has certainly had no difficulty ruling in favor of murderers in past capital cases.  It is one of the country's more criminal-friendly forums.  If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?

There is, of course, more to the story.  After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office....

Defending people who have committed horrible crimes is not easy.  Frequently tough choices must be made.  If the defendant is sentenced to death, as people who commit horrible crimes frequently are and should be, the capital appeal defense cult stands ready to say that the trial lawyer was incompetent for taking the path that he did at each fork in the road, regardless of which one he took.

October 17, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Thoughtful look into fairness/bias concerns with risk-assessment instruments like COMPAS

A group of Stanford professors and students have this thoughtful new Washington Post commentary headlined "A computer program used for bail and sentencing decisions was labeled racist. It’s actually not that clear." The piece is a must-read for everyone concerned about risk-assessment technologies (which should be everyone).  Here are excerpts:

This past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm.

The algorithm, called COMPAS, is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, this newspaper’s Wonkblog weighed in, and even the Wisconsin Supreme Court cited the controversy in its recent ruling that upheld the use of COMPAS in sentencing.

It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm — or human decision-maker — can ever be.

The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: defendants who are defined as medium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4.

We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Fla. (See the end of the post, after our names, for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent).

Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants who scored a seven on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it....

But ProPublica points out that among defendants who ultimately did not reoffend, blacks were more than twice as likely as whites to be classified as medium or high risk (42 percent vs. 22 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.

Here’s the problem: it’s actually impossible for a risk score to satisfy both fairness criteria at the same time.... If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur.

It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of seven for black defendants should mean the same thing as a score of seven for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment.

But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether — shifting to, say, electronic monitoring so that no one is unnecessarily jailed.

COMPAS may still be biased, but we can’t tell. Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools.

Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.

Algorithms have the potential to dramatically improve the efficiency and equity of consequential decisions, but their use also prompts complex ethical and scientific questions. The solution is not to eliminate statistical risk assessments. The problems we discuss apply equally to human decision-makers, and humans are additionally biased in ways that machines are not. We must continue to investigate and debate these issues as algorithms play an increasingly prominent role in the criminal justice system.

Some (of many) prior related posts on use of risk-assessment technologies:

October 17, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences? | Permalink | Comments (0)

Saturday, October 15, 2016

Federal inmate refuses Prez Obama's commutation

This USA Today article, headlined "Obama grants clemency to inmate — but inmate refuses," reports on a notable response by one federal inmate to receiving clemency. Here are the interesting details and some historical context:

When President Obama announced a program to grant executive clemency to drug offenders given long mandatory sentences, Arnold Ray Jones did what more than 29,000 federal inmates have done: He asked Obama for a presidential commutation. And then, after it arrived on Aug. 3, he refused to accept it.

Jones’ turnabout highlights the strings that come attached to an increasing number of Obama’s commutations: In this case, enrollment in a residential drug treatment program — which has been a condition of 92 of Obama commutation grants. Jones is the first to refuse that condition.

If Jones had agreed to complete the the program, he would be out in two years. He still has six years left on his original 2002 sentence for drug trafficking, but Jones may be counting on getting time off for good behavior, which would have him released in April 2019 — eight months longer than if he had accepted the commutation. ​Jones, 50, is in a low-security federal prison in Beaumont, Texas.

The unusual rejection came to light last week, when Obama commuted the sentences of 102 more federal inmates. With the 673 previous commutations granted, the total should have been 775 — but the White House accounting had only 774. At about the same time, the Department of Justice updated its online record of Obama's commutations and updated Jones' entry with the notation: "condition declined, commutation not effectuated."

The White House and the Justice Department declined to talk about the specifics of the case. But inmate records that Jones submitted as part of his court case show that he used crack cocaine weekly in the year before his arrest, and that drug treatment programs he's completed in the past have been unsuccessful. The Bureau of Prisons describes its Residential Drug Abuse Program as its most intensive treatment program, where offenders are separated from the general population for nine months while participating in four hours of community-based therapy programs each day.

Jones' mother said Thursday that she was excited about the news of Obama's commutation and wasn't aware that it was rejected. "I don’t know about him declining or anything. I'm looking for my son to come home," said Ruth Jones, of Lubbock, Texas.

Unlike pardons, which represent a full legal forgiveness for a crime, commutations can shorten a prison sentence while leaving other consequences intact. And as Obama has increased his use of commutations in his last year in office, he's also gotten more creative in adapting the power to fit the circumstances of each case. Unlike the more common "time served" commutations, which release a prisoner more or less immediately, many of his commutations since August have been "term" commutations, which have left prisoners with years left to serve on their sentences.

At the same time, Obama has also begun to attach drug treatment as a condition of many of those commutations, beginning with Jones' class of 214 inmates on Aug. 3 — the single largest grant of clemency in a single day in the history of the presidency.

That day, White House Counsel Neil Eggleston — who advises the president on commutation applications — explained the new drug treatment condition in a blog post on the White House web site. "For some, the president believes that the applicant’s successful re-entry will be aided with additional drug treatment, and the president has conditioned those commutations on an applicant’s seeking that treatment," Eggleston wrote. "Underlying all the president’s commutation decisions is the belief that these deserving individuals should be given the tools to succeed in their second chance."

Since Aug. 3, 22% of the commutations Obama has issued have required drug treatment.

Conditional pardons and commutations have been part of presidential clemency almost since the beginning. Presidents have used that power to induce prisoners to join the military, leave the United States or even — in the case of President Warren Harding's pardon of socialist Eugene Debs — that the clemency recipient travel to Washington to meet him. President Bill Clinton imposed conditions in 34 cases, usually insisting on drug testing....

But even with conditions, it's extremely rare for a recipient to reject clemency outright once it's granted. P.S. Ruckman Jr., a political scientist who has cataloged 30,642 presidential clemency actions dating back to President George Washington, has found just 16 clemency warrants returned to the president unaccepted.

Take President Herbert Hoover's 1930 commutation of Romeo Forlini, an Italian man serving a seven-year sentence after being caught by the Secret Service selling fraudulent Italian bonds. That commutation was granted "on condition that he be deported and never return to the United States." Forlini rejected that condition, and two weeks later Hoover granted him a full, unconditional pardon. "There's a guy who played his cards right," Ruckman said. (Alas, Forlini was arrested in New York in 1931 trying to pull off a similar scam on an undercover detective.)

October 15, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."

The title of this is the title of this timely and astute New Jersey Law Journal commentary authored by (former federal prosecutor) Steven Sanders. I recommend the piece in full, and here are excerpts from its beginning and ending:

In late June, the Supreme Court granted certiorari in Beckles v. United States, 136 S. Ct. 2510 (2016).  Beckles actually raises three questions, but only two of them are pertinent here: (1) is the "residual clause" of the U.S. Sentencing Guidelines' career offender provision void for vagueness under Johnson v. United States, 135 S.Ct. 2551 (2014); and (2) can a defendant whose Guidelines sentence became final before Johnson issued nonetheless invoke Johnson's new rule in a motion filed under 28 U.S.C. §2255.  In its recently filed merits brief, the government argues that the answer to question (1) is "yes," but that Beckles and thousands like him have no legal remedy because the answer to question (2) is "no."

The government's non-retroactivity argument in Beckles represents a total reversal of the position it took before the en banc Eleventh Circuit only one month before Johnson issued. And that reversal seems to stem from the government's concern about the costs the justice system would incur from conducting resentencings for prisoners who very likely would receive lower sentences were they afforded a remedy.  The government's belief that the costs of dispensing justice outweigh the benefits (i.e., less prison time for thousands of people the government acknowledges have been over-sentenced) is eye-opening, to say the least.  That it has broadcast that belief in a Supreme Court brief is downright disturbing....

In sum, the government's retroactivity position in Beckles seems more like a belated attempt at damage control than a principled effort to apply the law consistently across a set of similarly situated defendants.  The government would do well to heed Solicitor General Frederick Lehmann's powerful observation — now inscribed on the walls of the Department of Justice — that "[t]he United States wins its point whenever justice is done its citizens in the courts." See Brady v. Maryland, 373 U.S. 83, 87 & n.2 (1963).

A few of many related prior posts and related materials:

October 15, 2016 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Friday, October 14, 2016

In twin post-Hurst rulings, the Florida Supreme Court concludes capital sentencing requires jury unanimity

I was not planning to blog anymore today as I continued participating in this terrific symposium. But big death penalty rulings by the Florida Supreme Court changed my plans. This local report, headlined "Florida Supreme Court rules death penalty juries must be unanimous," provides the basics:

"We conclude that the Sixth Amendment right to a trial by jury mandates that under Florida's capital sentencing scheme, the jury — not the judge — must be the finder of every fact, and thus every element, necessary for the imposition of the death penalty," the court wrote in a 5-2 ruling, with Justices Charles Canady and Ricky Polston dissenting.

Their ruling comes just months after the U.S. Supreme Court found Florida's death penalty law unconstitutional because juries played only an advisory role in recommending life or death. The court said in that case, known as Hurst vs. Florida, Florida's system was a violation of a defendant's right to a jury trial.

Florida lawmakers responded by rewriting the state law, requiring a 10-2 vote of a jury to send someone to death. The new law also requires juries to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences.

In a separate ruling in the case of Perry vs. Florida, also issued Friday, the Florida Supreme Court found the new statute cannot apply to cases still pending in which prosecutors are seeking the death penalty. That leaves the state legislature with the task of having to again rewrite the statute to comply with the court's ruling. It is unclear how soon that might happen or whether prosecutors could then continue to seek the death penalty in pending cases....

The court's opinions did not address the issue of whether their findings would apply retroactively. Florida has 385 inmates on death row. It was not clear how many prisoners will be entitled to new sentencing hearings. The retroactivity issue will likely be decided by two other cases — Lambrix vs. Florida and Asay vs. Florida — still pending before the state Supreme Court.

Attorney General Pam Bondi's office has said that as many as 43 death row inmates could get life sentences without parole or new sentencing hearings as a result of the Hurst decision. Those 43 inmates are those who are entitled to automatic post-Hurst reviews of their cases under the state Constitution. Of those cases currently before the court, Bondi's office argued, death sentences should be carried out.

Howard Simon of the ACLU of Florida, which intervened in the case, said he was not surprised by the court's decision: "This is what we have been warning the Legislature about for years. The Legislature can complain all they want about the court's running the government, but when the Legislature ignores the warnings from the court, they should not be surprised by this ruling."

He said that it is not clear if every inmate on death row will be entitled to a new sentencing trial. "Now I think it's a moral issue,'' he said. "If someone was sentenced to death by less than an unanimous it is unconscionable to put them to death now without a unanimous verdict."

I fear I will not get a chance to read these opinions in full until well into the weekend, but here are links to the full opinions. I would be grateful to hear from readers about what they consider especially important aspects of these rulings:

Hurst vs. Florida, No. SC12-1974 (Fla. Oct. 14, 2016) (available here)

Perry vs. Florida, No. SC16-547 (Fla. Oct. 14, 2016) (available here)

October 14, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Rethinking Punishment: Sentencing in the Modern Age"

Tlrfall16The title of this post is the title of this terrific Temple Law Review symposium taking place today at Temple Law School which I have the pleasure of attending and participating in. Here is the formal description of the event:

This Symposium will gather scholars, practitioners, and judges to offer a contemporary perspective on criminal punishment and highlight alternative punishment programs and reformation efforts. The Hon. L. Felipe Restrepo, Circuit Judge, Third Circuit Court of Appeals and the Hon. Timothy R. Rice, Magistrate Judge, Eastern District of Pennsylvania, will give a keynote address focusing on the Eastern District of Pennsylvania’s Reentry Court Program. In addition to the keynote address, the Symposium will consist of three panels – “Prosecuting in the New Age,” “Defending the Convicted: Effective Sentencing Advocacy,” and “The Sentenced: Stopping the Punishment Cycle.”

The full symposium schedule is here, and readers may not be too surprised to learn that I am slated to speak on Panel 2. I was not planning to blog while participating in this event, but the first two speakers on the Panel 1, "Prosecuting in the New Age," inspired me to get on-line. Specifically, the first two speakers were Judge Risa Ferman, a long-serving Montgomery County prosecutor who just recently became a trial court judge, and George Mosee, Jr., the First Assistant Philadelphia District Attorney. And here are two notable quote (of many) from these two notable speakers:

I found both these quotes coming from state/local prosecutors (and many other similar things they had to say) quite interesting and telling, and it highlights for me some of the many ways in which "the Modern Age" for criminal justice is so much different than it was just a decade ago and especially from two decades ago. It also reinforces my strong view that it is only a matter of time before we will be getting significant sentencing reform at the federal level in some form no matter who is formally in charge in the years ahead. Indeed, for my last post before I get ready to speak, I will close with the fitting words of my favorite Literature Nobel Prize winner:

Come writers and critics who prophesy with your pen
And keep your eyes wide the chance won't come again
And don't speak too soon for the wheel's still in spin
And there's no tellin' who that it's namin'
For the loser now will be later to win
For the times they are a' changin'!
 
Come senators, congressmen please heed the call
Don't stand in the doorway don't block up the hall
For he that gets hurt will be he who has stalled
There's a battle outside and it's ragin'
It'll soon shake your windows and rattle your walls
For the times they are a' changin'!

October 14, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Remembering notable pre-modern moment of great concern over California capital case

Caryl_Chessman_Time_magazineThis local article from California discussing a new play, headlined "'Chessman' explores crucial moment for Brown family, California death penalty," spotlights a California capital case more than a half-century ago that generated widespread attention. Here are excerpts from the article:

Buck Busfield is pondering the finer points of one of the most important phone calls in California political history. It was Feb. 18, 1960, the eve of the long-delayed execution of Caryl Chessman. A 21-year-old Jerry Brown, recently departed from the seminary and now a student at UC Berkeley, called his father, then-Gov. Pat Brown, asking him to grant a reprieve for the condemned inmate.

Across the world, millions awaited the fate of a man they had taken up as the poster boy for ending the death penalty. The freighted decision tore at Pat Brown, whose Catholic faith taught him that execution was immoral.

At the moment, however, Busfield is more concerned about the type of telephone Jerry would have used. During a recent rehearsal for “Chessman,” a new play about the case debuting this week at the B Street Theatre, director Busfield asked his stage manager whether they could hang a phone on the wall for the pivotal scene....

“Chessman” [is] a side project of political consultant Joe Rodota. The production attempts to capture the international, O.J. Simpson-like frenzy and divisiveness that surrounded Chessman for more than a decade, while also asking the audience to look beyond its cast of iconic California figures to a family split by a deeply personal, ethical dilemma.

It also strives to keep a neutral distance and a historical sheen on one of California’s most inflammatory political issues, just as voters are weighing two November ballot measures on capital punishment: one to abolish it and one to expedite the process. “This is not a documentary for or against the death penalty,” Rodota said....

Caryl Chessman was 27 and already a convicted felon when he was found guilty in 1948 of a series of robberies and rapes around Los Angeles. The “Red Light Bandit,” as the perpetrator was dubbed, had visited lovers’ lanes pretending to be a policeman and mugged couples in their cars.

On several occasions, Chessman took the young women back to his vehicle and sexually assaulted them. Under California’s since-discarded “Little Lindbergh Law,” named for the kidnapping and murder of aviator Charles Lindbergh’s infant son, Chessman was sentenced to death for kidnapping with bodily harm, though he had killed no one.

Chessman maintained his innocence and continued to fight his conviction. By 1954, he had been on death row for six years, longer than anyone in California history until that point. The unusual delay for his execution was gaining notice, and it would soon explode into sensation with the publication that year of his first memoir, written secretly and smuggled out of prison.

Translated into more than a dozen languages and adapted into a movie, “Cell 2455, Death Row: A Condemned Man’s Own Story” captured the public’s imagination with its searing and brutal dispatch from inside San Quentin State Prison....

The controversy also came at a relative highwater mark for opposition to the death penalty, when Americans were about evenly split on the issue. This allowed Pat Brown to openly grapple over Chessman’s fate without committing “automatic political suicide,” the biographer Rarick noted at a recent panel on the case.

Because Chessman had prior felonies, Pat Brown could not commute his sentence without the approval of the California Supreme Court, which voted 4-3 to uphold the conviction. Chessman was going to die.

But the night before the execution was scheduled to proceed, Jerry Brown called his father urging him to grant a 60-day reprieve and pursue a moratorium on the death penalty in the Legislature. As Pat recounted in “Public Justice, Private Mercy,” he believed there was not “one chance in a thousand” that lawmakers would act. “Then Jerry said, “But Dad, if you were a doctor and there was one chance in a thousand of saving a patient’s life, wouldn’t you take it?’

“I thought about that for a moment. You’re right, I finally said. I’ll do it.” For his decision, Pat Brown received a slew of negative responses – and a 16-page letter from a “surprised and grateful” Chessman.

With his usual aplomb about the social significance of his case – “the burning hope that my execution would lead to an objective reappraisal of the social validity or invalidity of capital punishment” – Chessman suggested that Brown put forth a proposal excluding him from the mercy granted to others, if it would persuade the Legislature to end the death penalty. “I do not overstate when I say I gladly would die ten thousand gas chamber deaths if that would bring these truths into hearts and minds of those who make our laws,” he wrote.

Lawmakers, however, had little interest in taking such a decisive step, particularly in an election year. Brown’s bill to abolish the death penalty was quickly swatted down in the Senate Judiciary Committee after a lengthy and highly publicized committee hearing.

Chessman was eventually gassed to death on May 2, 1960, his ninth scheduled execution date. The story appeared on the front page of newspapers from Italy to Brazil. Pat Brown ultimately believed he suffered greatly for his choice, blaming it in part for his loss to Ronald Reagan while running for a third term in 1966.

October 14, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Thursday, October 13, 2016

Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty

In this post earlier this year, I noted the significant new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).   And in this post a couple of months ago, I highlighted the new big project and first part of a report from the the FPP providing an in-depth look at how the death penalty is operating in the handful of counties still actively using it.  The second part of this report has now been released under the title "Too Broken to Fix, Part II: An In-depth Look at America’s Outlier Death Penalty Counties," and it is available at this link. Here is its introduction:  

As we noted in Part I of this report, the death penalty in America is dying.

In 2015, juries only returned 49 death sentences — the fewest number since the death penalty was reinstated in 1976.  Of the 31 states that legally retain the death penalty, only 14 — or less than half — imposed a single death sentence in 2015.  When we look at the county level, the large-scale abandonment of the death penalty in the country becomes even more apparent.  Of the 3,143 county or county equivalents in the United States, only 33 counties — or one percent — imposed a death sentence in 2015. Just 16 — or one half of one percent — imposed five or more death sentences between 2010 and 2015.  Among these outliers, six are in Alabama (Jefferson and Mobile) and Florida (Duval, Hillsborough, Miami-Dade, and Pinellas)—the only two states that currently permit non-unanimous death verdicts.  Of the remaining 10 counties, five are located the in highly-populated Southern California region (Kern, Los Angeles, Orange, Riverside, and San Bernardino). The others include Caddo Parish (LA), Clark (NV), Dallas (TX), Harris (TX), and Maricopa (AZ). As Justice Stephen Breyer noted in his 2015 dissent in Glossip v. Gross, “the number of active death penalty counties is small and getting smaller.”

In this two-part report, we have endeavored to figure out what makes these 16 counties different by examining how capital punishment operates on the ground in these outlier death-sentencing counties. In Part II, we highlight Dallas (TX), Jefferson (AL), San Bernardino (CA), Los Angeles (CA), Orange (CA), Miami-Dade (FL), Hillsborough (FL), and Pinellas (FL) counties.

Our review of these counties, like the places profiled in Part I, reveals that these counties frequently share at least three systemic deficiencies: a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion. These structural failings regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities.

This is what capital punishment in America looks like today. While the vast majority of counties have abandoned the practice altogether, what remains is the culmination of one systemic deficiency layered atop another.  Those who receive death sentences do not represent the so-called “worst of the worst.”  Rather, they live in counties with overzealous and often reckless prosecutors, are frequently deprived access to competent and effective representation, and are affected by systemic racial bias.  These individuals are often young, and many have significant mental impairments. Some are likely innocent.  This pattern offers further proof that, whatever the death penalty has been in the past, today it is both cruel and unusual, and therefore unconstitutional under the Eighth Amendment.

Prior related posts:

October 13, 2016 in Death Penalty Reforms, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

Wednesday, October 12, 2016

"Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States"

2016-10-usa-coverThe title of this post is the title of this lengthy new Human Rights Watch report. Here is part of the report's summary introduction:

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.

There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.

The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.

October 12, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

"The Challenges of 'Improving' the Modern Death Penalty"

I had the opportunity and honor of speaking at a Duke Law School symposium about the death penalty earlier this year, and the follow-up essay has now been published and can be accessed here via SSRN. The essay has the same title as the title of this post, and here is the SSRN abstract:

In his dissent in McCleskey v. Kemp, Justice William Brennan turned a famous phrase that has long resonated with criminal justice reformers. In upholding Georgia’s capital sentencing system, the majority expressed concern about Eighth Amendment claims based on statistics revealing racial disparities in the application of the death penalty, fearing that such claims “would open the door to widespread challenges to all aspects of criminal sentencing.” Justice Brennan lamented that “on its face, such a statement seems to suggest a fear of too much justice.”

Disconcertingly, almost everyone seriously involved in debates over the modern administration of death penalty seemingly has a fear of too much capital justice. This essay seeks to explain this practical reality of modern death penalty advocacy in order to spotlight the problems it necessarily creates for any sustained efforts to improve the modern death penalty. By unpacking the fear of too much capital justice among capital punishment’s active supporters and ardent opponents, this essay seeks first to expose an enduring disconnect between lay interest and insider advocacy concerning death penalty reform, and second to explain my pessimistic concern that even moderate and modest efforts to improve the modern administration of capital punishment may, more often than not, constitute something of a fool’s errand.

After discussing these dynamics surrounding modern capital punishment advocacy and reform, this essay closes by admitting uncertainty concerning what enduring lessons should be drawn from my observations for the future of the death penalty in the United States. It may be tempting to conclude simply that it would be far wiser for existing death penalty jurisdictions to try to end, rather than just mend, their modern capital punishment systems. But in an effort to provide a silver lining to what may otherwise seem like a dark story, this essay concludes by noting some unique potential benefits for American criminal justice systems when capital jurisdictions try (and fail) to achieve “too much justice” in their death penalty systems.

October 12, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

You be the judge: what sentence for mother and grandmother who delivered deadly heroin to teen?

The question in the title of this post is prompted by this disturbing AP story headlined "Mom, grandma face sentencing in teen's heroin death at hotel." Here are the depressing details:

The mother and grandmother of a teen who died from a heroin overdose at an Ohio hotel are scheduled to be sentenced for giving the 16-year-old the drugs that killed him.  Prosecutors say the grandmother delivered the drugs that her daughter and a friend used with the teen at a hotel in suburban Akron.

Investigators say Andrew Frye was found dead last April in a chair inside the hotel room that was littered with syringes and drug paraphernalia.

Both his mother, Heather Frye, and grandmother, Brenda Frye, pleaded guilty to involuntary manslaughter and other charges last month.  Prosecutors say Brenda Frye got the heroin from her boyfriend who pleaded guilty to heroin possession.

This prior story about the guilty pleas entered last month reports that the mother, Heather Frye, is 31 years old and the grandmother, Brenda Frye, is 52 years old.  With those additional details, I am now genuinely interested in and eager to hear from readers about what they think would be a fair and effective sentence for these two individuals.

October 12, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, October 11, 2016

"Could Atticus Finch get elected?"

ToKillMockngbrd_150PyxurzThe question in the title of this post is the headline of this notable new commentary authored by Kevin Burke, who is a state trial judge in Minnesota and past president of the American Judges Association. Here are excerpts:

Atticus Finch, the fictional lawyer in “To Kill a Mockingbird,” passionately believed in justice. He didn't like criminal law, yet he accepted the appointment to represent Tom Robinson, an African-American man charged with raping a young white girl. The story, set in Maycomb County, Alabama, in the early 1930s, portrays a lawyer who felt that the justice system should be colorblind. Had Atticus Finch run for office after the trial, could he have been elected?

A web video from the Republican National Committee darkly portrays Democratic vice presidential nominee Sen. Tim Kaine as having “protected the worst kinds of people” on death row as a defense attorney.  The video features Lem Tuggle, whom Kaine defended on rape and murder charges. Tuggle was eventually executed. The video also focuses on Richard Lee Whitley, who was executed despite what the Richmond Times-Dispatch described as “about 1,000 hours of largely free legal work” on Kaine's part.  We admire Atticus Finch, so why is it that Kaine’s defense of death penalty defendants is treated differently?

Representing unpopular clients has a long tradition in the American legal system.  John Adams represented British soldiers accused of murder in the 1770 Boston Massacre. Before agreeing to represent the British soldiers (who were that era’s terrorists), Adams worried about his reputation.  Yet, he said of his experience, “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.”  John Adams was elected president of the United States.  In an age of 24-hour cable, Willie Horton ads, and internet-driven misinformation, could Adams be elected president today?

Paul Clement was a superstar appellate lawyer in the Bush administration.  After resigning as solicitor general of the United States, he joined King & Spalding as a partner. Clement agreed to represent the Republican majority in the U.S. House of Representatives to defend the Defense of Marriage Act, the law that federally defined marriage as between one man and one woman.  Shortly thereafter, King & Spalding withdrew from the case, and Clement promptly resigned from the firm to continue his representation. He said, "Representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters." Clement’s decision to leave his firm had a notable defender: Attorney General Eric Holder.  Holder said, “In ... representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best ... [the] criticism, I think, was very misplaced.”

“Mr. Clement’s statement misses the point entirely,” Richard Socarides, president of Equality Matters, wrote in The New York Times. “While it is sometimes appropriate for lawyers to represent unpopular clients when an important principle is at issue, here the only principle he wishes to defend is discrimination and second-class citizenship for gay Americans.”

Paul Clement will likely never run for public office, but there are those who speculate Clement may someday be nominated for the U.S. Supreme Court.  The confirmation process has become quite partisan.  Would it be fair to deny him confirmation because of his representation of a client and defense of a ban on gay marriage?

In 2014, the Senate rejected the nomination of Debo Adegbile to be chief of the Civil Rights Division of the Justice Department. Adegbile's nomination was rejected because as an executive of the NAACP Legal Defense Fund, he worked on a series of briefs made on behalf of Mumia Abu-Jamal, who was convicted of killing a Philadelphia police officer in 1991. Every Republican senator voted against Adegbile and several Democrats joined them.  “I made a conscientious decision [to vote against Adegbile] after talking to the wife of the victim,” Democratic Sen. Joe Manchin told reporters.  After talking with gay victims of discrimination would it be appropriate for a senator to vote against Paul Clement?...

Edward Bennett Williams was among the greatest trial lawyers of the last century. He represented a slew of unpopular clients, including Jimmy Hoffa, organized crime figures Sam Giancana and Frank Costello, as well as Sen. Joe McCarthy. In a speech given to the New York State Bar Association, Williams argued there was an epidemic of “guilt by client,” and warned of the “insidious identification” that would scare off lawyers from standing by the unpopular and degraded. Williams said, “When a doctor takes out Earl Browden's appendix, nobody suggests that the doctor is a Communist [Browden was the head of the American Communist Party]. When a lawyer represents Browden, everybody decides that lawyer must be a Communist, too.”...

Not every lawyer has the skill to represent a person facing the death penalty, nor the skill to argue before the Supreme Court. The video suggests you should not vote for Kaine because he had that skill, but should we embrace the demagoguery of the video used against him? This is not an issue about lawyers’ ethics; it is about what each of us wants from the American system of justice.

John Ferguson was executed after he tricked his way into a woman’s home and bound, blindfolded, and then shot eight people. Six of them died. While under indictment for those crimes, Ferguson murdered two teenagers on their way to church. What kind of lawyer would defend John Ferguson? The lawyer was Chief Justice John Roberts.

October 11, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (7)

Fascinating SCOTUS per curiam summary opinion stresses that Eighth Amendment still limits victim testimony in capital cases

The Supreme Court's order list this morning includes a little and very interesting summary opinionin Bosse v. Oklahoma, No. 15-9173 (S. Ct. Oct. 11, 2016) (available here). The order rules in favor of Shaun Michael Bosse, who was convicted and sentence to death by a jury "of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children." Here is the per curiam Bosse ruling account of the problem below and its consequences:

Over Bosse’s objection, the State asked three of the victims’ relatives torecommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P. 3d 1203, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals.

“[I]t is this Court’s prerogative alone to overrule one of its precedents.” United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. Ledbetter, 933 P.2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U. S. 236, 252–253 (1998).

The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban.  The state court erred in concluding otherwise. 

The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law. See Brief in Opposition 14–15. Those contentions may be addressed on remand to the extent the court below deems appropriate.

Justice Thomas (joined by Justice Alito) added this one paragraph concurring opinion:

We held in Booth v. Maryland, 482 U. S. 496 (1987), that the Eighth Amendment prohibits a court from admitting the opinions of the victim’s family members about the appropriate sentence in a capital case. The Court today correctly observes that our decision in Payne v. Tennessee, 501 U.S. 808 (1991), did not expressly overrule this aspect of Booth.  Because “it is this Court’s prerogative alone to overrule one of its precedents,” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997), the Oklahoma Court of Criminal Appeals erred in holding that Payne invalidated Booth in its entirety.  In vacating the decision below, this Court says nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations. I join the Court’s opinion with this understanding.

October 11, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"Slave Narratives and the Sentencing Court"

The title of this post is the title of this interesting new paper authored by Lindsey Webb available via SSRN (and which certainly serves as an interesting scholarly "chaser" after watching the new documentary 13th). Here is the abstract:

The United States incarcerates a greater percentage of its population than any other country in the world.  Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.

This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing.  In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist.  As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether.  As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons — not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole.  Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African American and Latino people in significant and damaging ways.

In examining how invoking conditions of confinement at sentencing engages defense attorneys as advocates and abolitionists, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives.  Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions.  Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.

October 11, 2016 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Monday, October 10, 2016

Is supposedly "tough-on-crime" GOP Senator (and former federal prosecutor) Jeff Sessions actually not-so-tough on sexual assault?

The provocative question in the title of this post is my reaction to seeing these two new (right-leaning-source) stories about comments made last night by Alabama GOP Senator (and former US Attorney) Jeff Sessions:

From RedState here, "Senator Jeff Sessions Unsure Whether Grabbing Women by Their Genitals is Sexual Assault"

From the Weekly Standard here, "Jeff Sessions: Behavior Described by Trump in 'Grab Them by the P---y' Tape Isn't Sexual Assault"

One of many notable aspects of GOP Prez candidate Donald Trump's campaign has been the fact that his three most-prominent political surrogates are all former US Attorneys: Chris Christie was US Attorney for New Jersey from 2002 to 2008, Rudy Giuliani was US Attorney for the Southern District of New York from 1983 to 1989, and Jeff Sessions was US Attorney for the Southern District of Alabama from 1981 to 1993.  I have long assumed that this notable troika of US Attorneys advising Trump has played a significant role in Trump's effort to brand himself as the "law-and-order" candidate.

As regular readers surely know, I often have a number of different perspectives on a number of crime and punishment issues than do many current and former US Attorneys.  As I also hope readers also realize, I always have had a significant amount of respect for the professional honesty and personal integrity of current and former US Attorneys.  But Senator Sessions' statements reported above (as well as some other actions by Chris Christie and Rudy Giuliani in recent weeks and months) has really dealt a significant blow to my continued ability to have continued respect for the professional honesty and personal integrity of at least some former US Attorneys.

UPDATE: This local article reports on Senator Sessions' effort to clarify his remarks under the headline, "Sen. Jeff Sessions denies dismissing Trump's lewd video comments: 'Crystal clear' sexual assault unacceptable."

October 10, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (94)

Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade

I had the great fortune of having the Assistant Chief Counsel for Ohio Governor John Kasich come speak to my OSU Moritz College of Law Sentencing Class about the decade-long litigation in Ohio over the state's various lethal injection protocols (which, as this post explains, is now poised to kick into yet another new phase).  With that class freshly in mind, I was intrigued to see this notable new local AP story headlined "Death penalty stalls in Mississippi."  Here are excerpts:

With sprawling litigation over Mississippi’s use of execution drugs now scheduled to stretch into 2017, the state could go five years without executing a death row inmate. That would be the longest gap between executions in Mississippi in 15 years.

Mississippi has executed 21 people, all men, since the death penalty resumed. That includes a 13-year gap between the 1989 execution of Leo Edwards and the 2002 execution of Tracy Edwards.  During that time, executions stalled out over concerns about adequate legal representation for the condemned.  That’s also when Mississippi switched it execution method from the gas chamber to lethal injection.  Multiyear gaps remained even after 2002, but the state picked up the pace, executing 11 people in a 25-month span ending in 2002.  Then, just as it became routine, the death penalty sputtered out.

That halt is in some ways a tribute to lawyer Jim Craig.  He’s tying state government in knots fighting Mississippi’s plan to use a new drug to render prisoners unconscious before injecting additional drugs to paralyze them and stop their hearts.   Craig, of the MacArthur Justice Center, says the litigation isn’t aimed at overturning the death penalty in Mississippi, only at seeking a better way of executing people.  But he’s doing a good job of keeping his clients alive.

On behalf of Richard Jordan, Ricky Chase and Charles Ray Crawford, Craig argues Mississippi can’t use midazolam as a sedative because it doesn’t meet state law’s specification for an “ultra-short-acting barbiturate” Until 2012, the state used pentobarbital. But drug makers have choked off supplies of the drug for executions.

Midazolam doesn’t render someone unconscious as quickly as a barbiturate. Craig argues midazolam leaves an inmate at risk of severe pain during execution, violating the U.S. Constitution’s prohibition on cruel and unusual punishment. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma’s use of midazolam, but Craig’s lawsuit is based in part on his claims about Mississippi state law. He’s also trying to reopen other issues surrounding midazolam.

One part of Craig’s legal offensive is a federal challenge to the drug’s use. U.S. District Judge Henry T. Wingate had issued a preliminary injunction freezing executions, but executions didn’t resume when appeals judges lifted the freeze in July. Last month, Craig and lawyers for Attorney General Jim Hood extended that lawsuit into next year, setting a trial for May. Craig rates it unlikely that the state Supreme Court will green-light executions with that case unresolved. “They aren’t stayed automatically,” Craig said. “But I think the Mississippi Supreme Court will respect the federal process and thus will not set execution dates while the federal case is active.”

To aid that case, Craig is also fighting Missouri, Georgia and Texas in court, arguing they must say who’s still supplying them with pentobarbital, so he can argue Mississippi has alternatives to midazolam and could return to its old drug. Mississippi said it destroyed all its pentobarbital and can’t get more.

There are also three cases before the Mississippi Supreme Court. Crawford is challenging the state’s ability to execute him with a drug compounded from raw ingredients, how other states are likely getting pentobarbital. Meanwhile, Jordan and Gerald Loden are fighting use of midazolam based on the barbiturate requirement.

Hood says he’s working to resume executions, but acknowledges Craig’s efforts are gumming the works. “The Mississippi Supreme Court’s resolution of those pending petitions will determine when any executions will be re-set,” Hood said in a statement. “Any delay in the federal lawsuit has been the result of the Jordan plaintiffs’ strategic decisions.”

October 10, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Coming SCOTUS argument "week" (lasting one day) should still be of interest to criminal justice fans

At Crime & Consequences here, Kent Scheidegger briefly explains why this week the "US Supreme Court has a one-day argument week": "Monday is a legal holiday, Columbus Day. No arguments are scheduled for Wednesday, which is Yom Kippur. So it's all about Tuesday." Kent also has this brief and interesting accounting of the two criminal cases to be heard by SCOTUS tomorrow:

The main action, for our purposes, is Peña-Rodriguez v. Colorado, asking whether the Constitution requires an exception to the time-honored rule that you can't impeach a jury verdict by calling the jurors to testify as to what was said during deliberations.  CJLF's brief, written by Kym Stapleton, is here.  Our press release is here.

Manrique v. United States is a technical question about restitution.  The Question Presented, as drafted by counsel for defendant, occupies an entire page and is a fine example of how not to write a Question Presented.   However, the fact that the Court took it anyway is an example of why that may not matter as much as some of us think.

For those eager for a more details review of what these cases are about, factually and legally, here are case links and more fulsome previews via SCOTUSblog:

Manrique v. United States, No. 15-7250: Argument preview: Can an appellate court consider a challenge to the amount of a restitution award as part of an appeal of the underlying sentence? 

Pena-Rodriguez v. Colorado, No. 15-606: Argument preview: Justices to consider racial bias in jury deliberations

October 10, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, October 09, 2016

"Betterman v. Montana and the Underenforcement of Constitutional Rights at Sentencing"

The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN. Here is the abstract:

This past Term, in Betterman v. Montana, the U.S. Supreme Court took up the question whether the Sixth Amendment’s speedy trial guarantee applies to sentencing proceedings. In a unanimous opinion by Justice Ginsburg, the Court held that it does not.  Perhaps in order to achieve unanimity, Betterman left open important questions, which may ultimately allow defendants, at least in some situations, to demand a speedy sentencing.  But, as this short commentary explains, Betterman represents an unfortunate example of the courts’ tendency to underenforce constitutional rights at sentencing.

October 9, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, October 08, 2016

Reviewing the nature and stakes for death penalty ballot initiatives in three states

This lengthy new AP article, headlined "Repeal or Reform? Death Penalty Voter Decisions for 3 States," provides a useful rundown of the capital punishment issues coming before voters next month in three states. Here is how the article gets started:

California's dysfunctional death penalty faces a fate in November that seems fitting: voters can put it out of its misery, or fix it so it does what it promises. The state is among three where voters will make decisions on capital punishment. California's ballot initiatives — one would repeal capital punishment, the other would speed up appeals so convicted murderers are actually executed — are fueled by those who agree only that the current system is broken, leaving murder victims' kin grieving and the condemned languishing on death row.

Meanwhile, voters in Nebraska will be asked whether they want to reinstate the death penalty and Oklahoma residents will decide whether to make it harder to abolish it.

In California, more than 900 convicted murderers have been sent to death row since 1978 — but only 13 have been executed in the state. Many more have died of natural causes and no one has been put to death in more than a decade after a judge ordered an overhaul to the state's lethal injection procedure.

The votes for the three states come amid an evolution for capital punishment in the U.S. Executions have mostly been in decline since the turn of the century and last year reached their lowest level in 25 years, with 28 prisoners killed. Capital punishment has been either legislatively or judicially repealed in eight states since 2000, according to Robert Dunham, executive director of the Death Penalty Information Center.

October 8, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Friday, October 07, 2016

Am I crazy to actually be expecting a marijuana (or drug war/opioid) question during Sunday's town-hall Prez debate?

Especially because neither marijuana reform nor the opioid epidemic came up during the the first Prez debate (or the VP debate), I am actually anticipating that these topics will be raised in some way during the town-hall debate scheduled for this coming Sunday.  As regular readers of my Marijuana Law, Policy and Reform blog might guess, I think the very best question to ask the candidates could link these topics.  Specifically, here is the question I would love to see asked on Sunday:

"Given the evidence emerging from a number of early studies that opioid use and abuse has generally been reduced in those states that have reformed their marijuana laws, will you commit your Administration in its first 100 days to move federal law away from blanket marijuana prohibition?"

I welcome readers to suggest their own questions on these topics in the comments (and recent posts at my other blog provides plenty of ideas for all sorts of possible questions):

October 7, 2016 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Thursday, October 06, 2016

Great Supreme Court Fellows opportunity for all current and future sentencing researchers/advocates

I am pleased and honored to again have been requested by the Office of the Counselor to the Chief Justice of Supreme Court of the United States to promote the Supreme Court Fellows program.  These links and information about the program were sent my way by the Counselor's Office to make sure this opportunity gets all the attention (and applicants) that it merits:

We are grateful for your continued assistance in promoting the Supreme Court Fellows Program on the Sentencing Law & Policy Blog, and in particular flagging the placement opportunity at the U.S. Sentencing Commission.  As our description of placements indicates, the Fellow at the Sentencing Commission will participate in professional teams conducting policy, legal, and social science research on the cutting edge of criminal sentencing reform.  The breadth of the Commission’s work and its relatively small size provide the Fellow with both a wide-ranging exposure to criminal law and opportunities for active participation in addressing sentencing issues.  One quarter of the Fellow’s time will be set aside for research and writing of a publishable scholarly work on a topic in criminal or sentencing law.

The Supreme Court Fellows Program website contains detailed information about the Program as well as the online application.  Fellows become employees of the federal courts and receive salaries equivalent to GS-13/1 of the government pay scale at the applicable locality rate — currently $92,145.

We very much appreciate anything you can do to call the fellowship to the attention of strong candidates, as well as others who might help us identify them.  Our recruiting is targeted to current or recent law clerks who are exploring careers in academia or public service. The application deadline for 2017-18 fellowships is November 4, 2016.

October 6, 2016 in Who Sentences? | Permalink | Comments (0)

Prez Obama commutes 102 more federal prison sentences

I just saw via various news sources that President Obama issued 102 more commutations this afternoon.  This blog post by the White House counsel reports the basics, and here is how it gets started:

Today, President Obama granted commutations to another 102 individuals who have demonstrated that they are deserving of a second chance at freedom.  The vast majority of today’s grants were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws. With today’s grants, the President has commuted 774 sentences, more than the previous 11 presidents combined.  With a total of 590 commutations this year, President Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.

While he will continue to review cases on an individualized basis throughout the remainder of his term, these statistics make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process. Beyond the statistics, though, are stories of individuals who have overcome the longest of odds to earn this second chance.  The individuals receiving commutation today are mothers and fathers, sons and daughters, and in some cases grandparents.  Today, they and their loved ones share the joy of knowing that they will soon be reunited.

October 6, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Noting the tide starting to turn in litigation challenging sex offender residency restrictions

The Marshall Project has this notable new article on a notable new development concerning sex offender residency restrictions.  The article is headlined "Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic."  Here is how it gets started:

Mary Sue Molnar estimates that she gets at least five calls a week from Texans on the sex offender registry who can’t find a place to live. Numerous towns around the state have passed ordinances prohibiting those on the list from residing within a certain distance — anywhere from 500 to 3,500 feet — of a school, park, daycare facility or playground. In some towns, that’s almost everywhere.  “We’ve got people living in extended-stay motels,” says Molnar, who runs the sex-offender-rights group Texas Voices for Reason and Justice. “We’re in a crisis mode.”

Molnar and her allies have considered lobbying the Legislature to ban these ordinances, but they’ve found lawmakers unreceptive in the past to any bill perceived to benefit sex offenders. So she decided to go to court.  Molnar enlisted a small army of parents and siblings of sex offenders to compile a list of towns with such ordinances, and assembled research showing that the rules can actually make the public less safe.  She enlisted Denton lawyer Richard Gladden.  He was already representing Taylor Rice, who as a 20 year-old had sex with a 14 year-old he met online and now, after his conviction for sexual assault, was legally barred from living with his parents because their house was too close to a high school’s baseball field.

Gladden had found a 2007 opinion by then-attorney general (now governor) Greg Abbott saying that towns with fewer than 5,000 residents — which fall into a particular legal category in Texas — are not authorized by the state to enact such restrictions on their own.  Gladden sent letters threatening lawsuits to 46 city councils.  Within two months, half of them had repealed their ordinances.  Gladden and Molnar are currently suing 11 of the remaining towns.  Restrictions on where registered sex offenders can work, live, and visit vary widely from state to state and city to city.

Over the last few years, Molnar and her counterparts in other states have come to the same conclusion: Politicians aren’t going to help them. “Who wants to risk being called a pedophile-lover?” says Robin van der Wall, a North Carolina registrant on the board of the national group Reform Sex Offender Laws.  So the activists have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.

Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.

Their legal strategies are proving effective. This past August, the 6th U.S. Circuit Court of Appeals invalidated a Michigan law that retroactively applied various restrictions to people convicted before the laws were passed. Judge Alice Batchelder wrote that the law “has much in common with banishment and public shaming.” Since 2014, state and federal judges have struck down laws restricting where sex offenders can live in California, New York and Massachusetts.  In addition to the Texas lawsuits, there are ongoing legal battles over registries and restrictions associated with them in Illinois, Wisconsin, Louisiana, Alabama, Colorado, Nevada and, Idaho, among other states.

October 6, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Texas completes first US execution in nearly three months and only third since April

As noted in this post last month, titled "A not-so-deadly summer: only one US execution from Memorial Day to Labor Day," and as detailed on this DPIC executions page, there was almost a quasi-moratorium on executions throughout the United States this past summer as there was only one completed execution in the months of June, July and August.  But yesterday a mini-de-facto execution moratorium in the US ended thanks to, as reported here, Texas finally getting around to giving a lethal injection to a man who slaughtered his neighbors 13 years ago and then sought out his death sentence.  Here are the details:

An East Texas man who pleaded guilty to killing a neighbor couple during a shooting rampage 13 years ago and said he wanted to be put to death for the crime was executed Wednesday evening. Barney Fuller Jr., 58, had asked that all his appeals be dropped to expedite his death sentence.

Fuller never made eye contact in the death chamber with witnesses, who included the two children of the slain couple. Asked by Warden James Jones if he had any final statement, Fuller responded: “I don’t have anything to say. You can proceed on, Warden Jones.”

Fuller took a deep breath as Texas Department of Criminal Justice officials injected a lethal dose of pentobarbital into each arm, then blurted out: “Hey, you fixin’ to put me to sleep.” He took a couple of breaths, then began snoring. Within 30 seconds, all movement stopped.

Fuller was pronounced dead 38 minutes later, at 7:01 p.m. CDT. The time between when the drug was injected and when he was pronounced dead was somewhat longer than normal. “Each person is unique in how his body shuts down,” prison agency spokesman Jason Clark said, explaining the extended time.

Fuller became the seventh convicted killer executed this year in Texas and the first in six months in the nation’s most active capital punishment state.

Fuller surrendered peacefully at his home outside Lovelady, about 100 miles north of Houston, after a middle-of-the-night shooting frenzy in May 2003 that left his neighbors, Nathan Copeland, 43, and Copeland’s wife, Annette, 39, dead inside their rural home.  The couple’s 14-year-old son survived two gunshot wounds, and their 10-year-old daughter escaped injury because Fuller couldn’t turn the light on in her bedroom.

Court records show Fuller, armed with a shotgun, a semi-automatic carbine and a pistol, fired 59 shots before barging into the Copeland home and opening fire again. He had been charged with making a threatening phone call to Annette Copeland, and the neighbors had been engaged in a 2-year dispute over that. The Reuters news agency reports the gun was an AR-15 assault weapon and that the Copelands had also complained to police that Fuller had shot their dog, according to court documents.

Fuller pleaded guilty to capital murder. He declined to appear in court at his July 2004 trial and asked that the trial’s punishment phase go on without his presence. He only entered the courtroom when jurors returned with his sentence. Last year, Fuller asked that nothing be done to prolong his time on death row. “I do not want to go on living in this hellhole,” he wrote to attorney Jason Cassel.

A sheriff’s department dispatcher who took Annette Copeland’s 911 call about 1:30 a.m. on May 14, 2003, heard a man say: “Party’s over, bitch,” followed by a popping sound. Annette Copeland was found with three bullet wounds to her head. On Wednesday evening, one of her sisters who watched Fuller die said as she left the death chamber: “Party’s over, bastard.”

Cindy Garner, the former Houston County district attorney who prosecuted Fuller, described him as mean and without remorse. “It’s not a cheerful situation,” she said of the execution. “I just regret that this little, plain, country, nice, sweet family — bless their heart — moved in next door.”

Fuller’s execution was only the 16th in the U.S. this year, a downturn fueled by fewer death sentences overall, courts halting scheduled executions for additional reviews, and some death penalty states encountering difficulties obtaining drugs for lethal injections.

October 6, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

Wednesday, October 05, 2016

"Victim Impact Statements and Expressive Punishment in the Age of Social Media"

The title of this post is the title of this new paper available via SSRN and authored by Erin Sheley. Here is the abstract:

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body.  Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds.

This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications.  I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

October 5, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3)

Leading VP candidates talk a bit (encouragingly?) about criminal justice reform their only debate

There was a little discussion of policing, sentencing and criminal justice reform at last night's vice presidential debate, and I found most notable the fact that the GOP's VP candidate Mike Pence at one point said plainly and without reservation "We need criminal justice reform."  (The Democrats' GOP VP candidate Tim Kaine also talked, somewhat unsurprisingly, about the death penalty when asked how his personal faith created challenges for him in make political decisions.)  Perhaps even more important than the Gov Pence's simple statement that we "need" criminal justice reform was this further explanation of what he meant in this Q&A with the debate moderator (with my emphasis added):

QUIJANO: Your fellow Republican, Governor Pence, Senator Tim Scott, who is African-American, recently spoke on the Senate floor. He said he was stopped seven times by law enforcement in one year.... He said, "I have felt the anger, the frustration, the sadness, and the humiliation that comes with feeling like you're being targeted for nothing more than being just yourself." What would you say to Senator Scott about his experiences?

PENCE: Well, I have the deepest respect for Senator Scott, and he's a close friend. And what I would say is that we -- we need to adopt criminal justice reform nationally. I -- I signed criminal justice reform in the state of Indiana, Senator, and we're very proud of it.

I worked when I was Congress on a second chance act. We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice.

These statements reinforces my belief that, once we get fully through this election cycle, there is a really good chance that the still-growing bipartisan consensus supporting some form of federal statutory sentencing reform will finally be able to get some form of some bill through both houses of Congress and to the desk of the new President.  Of course, who wins seats in Congress and who is the new Prez and VP will certainly significantly impact what ends up in a federal statutory sentencing reform bill that gets to the desk of the new Prez.  But now hearing GOP's VP candidate Pence talking up the "need" to adopt criminal justice reform "nationally" has me now distinctly (and foolishly?) optimistic that some kind of statutory reforms will be signed into law sometime during the next Congress.

For more background on what both leading VP candidates have said and done on the criminal justice reform front, I recommend this new Huffington Post article headlined "Here’s How Tim Kaine And Mike Pence Measure Up On Criminal Justice: The two vice presidential candidates have pushed for similar criminal justice policies at times." 

October 5, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Making an election-season case to end felon disenfranchisement

Today's New York Times has this timely editorial headlined "The Movement to End Racist Voting Laws." Here are excerpts:

This year, state laws will bar nearly six million Americans with criminal convictions from voting in the presidential election. About 4.4 million of those are people who are not in prison but are still denied the right to vote.  While felon disenfranchisement laws have a history in many parts of the country, the harshest are found in the South, where they were central to the architecture of Jim Crow.

These laws date to the late 19th and early 20th centuries, when states in the former Confederacy — from Texas to Florida — set out to reverse the effects of the 15th Amendment, which guaranteed African-Americans the right to vote.  Felony voting restrictions formed the foundation of this effort, but the Southern states quickly reinforced barriers to voting with poll taxes, literacy tests, white-only primaries, registration restrictions, and exemptions for whites from measures created to keep blacks from voting.

Poll taxes and literacy tests were swept away after the Voting Rights Act of 1965.  But disenfranchisement of people with criminal records remained, and it is just beginning to attract the attention it deserves.  Last week, for example, Gov. Jerry Brown of California signed a bill granting voting rights to people convicted of felonies who are being held in county-run jails.  In Virginia, Gov. Terry McAuliffe is battling with the legislature over his plan for restoring the voting rights of tens of thousands of former inmates.

Also last week, black citizens who were denied the vote in Alabama brought a federal lawsuit challenging the state’s disenfranchisement statute, a move that has started a broader discussion about the racist origins of such laws and their devastating effect on African-American communities.  In 1901, Alabama’s constitutional convention — convened for the purpose of establishing “white supremacy in this state” and staving off the “menace of Negro domination” at the ballot box — expanded an existing disenfranchisement law to include any offense “involving moral turpitude.”  Among the disqualifying offenses were vagrancy, adultery and wife beating, which were more likely to be prosecuted against blacks....

That many states continue to view people who have served time in prison as unfit to vote is a stain on the idea of democracy.  The Alabama law and its history display this shameful truth.

October 5, 2016 in Collateral consequences, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)