Monday, November 18, 2013
Justice Sotomayor calls for Alabama's capital sentencing system to get a "fresh look"
SCOTUS wrapped up its formal November activities with an order list this morning that included two dissents from denials of cert in state criminal cases. SCOTUSblog here reports on these basics:
Among cases the Court declined to hear was a challenge to Alabama’s death sentencing scheme, filed by an inmate who was given such a sentence by the judge even though the jury had voted eight to four against that punishment. Justice Sonia Sotomayor, in a twelve-page dissent most of which was joined by Justice Stephen G. Breyer, said that the Court should take a new look at Alabama’s capital punishment approach. It is now the only state where judges have imposed death sentences contrary to advisory verdicts recommended by juries. In a part of the opinion that Justice Breyer did not join, Justice Sotomayor argued that the Alabama approach may violate a string of modern Court rulings enhancing the role of juries in the sentencing process. She wrote as the Court denied review in Woodward v. Alabama (13-5380).The Court’s denial of review in two other cases drew dissenting opinions or separate statements by Justice Samuel A. Alito, Jr. One was Rapelje v. McClellan (12-1480), a test of federal courts’ power in habeas cases to defer to summary rulings by state courts in criminal cases. Justice Antonin Scalia joined the Alito dissent in that case.
The case concerning Justice Alito has more to do with habeas review than sentencing issues, but the case concerning Justice Sotomayor has to be right in the wheel-house of sentencing fans. Here is how Justice Sotomayor's dissenting opinion (which has a graph in the middle) gets started and concludes:
The jury that convicted Mario Dion Woodward of capital murder voted 8 to 4 against imposing the death penalty. But the trial judge overrode the jury’s decision and sentenced Woodward to death after hearing new evidence and finding, contrary to the jury’s prior determination of the same question, that the aggravating circumstances outweighed the mitigating circumstances. The judge was statutorily entitled to do this under Alabama law, which provides that a jury’s decision as to whether a defendant should be executed is merely an “advisory verdict” that the trial judge may override if she disagrees with the jury’s conclusion. In the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts. Since Alabama adopted its current statute, its judges have imposed death sentences on 95 defendants contrary to a jury’s verdict. [FN1] Forty-three of these defendants remain on death row today. Because I harbor deep concerns about whether this practice offends the Sixth and Eighth Amendments, I would grant Woodward’s petition for certiorari so that the Court could give this issue the close attention that it deserves....[FN1] A list of these 95 defendants sentenced to death after a jury verdict of life imprisonment is produced in an appendix to this opinion. By contrast, where juries have voted to impose the death penalty, Alabama judges have overridden that verdict in favor of a life sentence only nine times.
Eighteen years have passed since we last considered Alabama’s capital sentencing scheme, and much has changed since then. Today, Alabama stands alone: No other State condemns prisoners to death despite the considered judgment rendered by a cross-section of its citizens that the defendant ought to live. And Apprendi and its progeny have made clear the sanctity of the jury’s role in our system of criminal justice. Given these developments, we owe the validity of Alabama’s system a fresh look. I therefore respectfully dissent from the denial of certiorari.
"The Jurisprudence of Death and Youth: Now the Twain Should Meet"
The title of this post is the title of this notable new article by Janet Hoeffel now available on SSRN. Here is the abstract:
The Supreme Court recently married its "death is different" death penalty jurisprudence and its burgeoning "children are different too" jurisprudence to apply Eighth Amendment death penalty jurisprudence to juvenile non-death sentences in Graham v. Florida and Miller v. Alabama. This Article argues that the (practically non-existent) jurisprudence of juvenile transfer should travel further down this comparative road paved by the Court and insist that juvenile transfer proceedings be subject to the same scrutiny exercised over capital punishment proceedings. While Eighth Amendment process need not be literally incorporated into juvenile transfer proceedings, it should be adopted through the Due Process Clause.
The parallels between the death penalty and juvenile transfer are striking. Both involve a decision to expose a person to the most severe set of penalties available to the relevant justice system: a death sentence for adults in adult court; a transfer to adult court for youth in juvenile court. The decision to send an adult to his death is a decision to end his life; the decision to send a juvenile to adult court is a decision to end his childhood. Both decisions signify a life not worth saving, and therefore, both decisions are to apply to the "worst of the worst." As a result of the finality and seriousness of their consequences, both processes should require the strictest of procedures for reliable imposition of those consequences.
While the Court’s jurisprudence on procedures for imposing death is not a model, the Court has, at least, worked both to narrow who is subject to the death penalty and to reduce the potential for arbitrary and capricious imposition of death through procedures for guided discretion. The lessons learned in that context can be applied to improve juvenile transfer procedures that allow transfer of a child to adult court based on the unfettered and arbitrary discretion of a judge or, worse, a prosecutor. Furthermore, death penalty jurisprudence applied in capital cases, and as applied in Graham and Miller, leads to the conclusion that juvenile transfer laws allowing automatic transfer of a child to adult court, without an individualized consideration, violates due process.
Sunday, November 17, 2013
"Correcting a Fatal Lottery: a Proposal to Apply the Civil Discrimination Standards to the Death Penalty"
The title of this post is the title of this notable student note by Joseph Thomas now available for download via SSRN. Here is the abstract:
Claims of discrimination in death penalty proceeding receive disparate treatment compared to virtually every other type of discrimination: employment, housing, jury venire, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws. They each use the same process when there is no direct evidence of discrimination -- a burden shifting framework to help present the evidence in an organized manner with a standard of the preponderance of the evidence that must be demonstrated to prove discrimination took place. Dissimilarly, death penalty proceedings are the exception to the rule -- all of the evidence is presented in one stage, without any organization, and the heightened standard of exceptionally clear proof must be demonstrated to prove discrimination took place.
With the use of disparate standards to adjudicate the exact same thing -- claims of discrimination without direct evidence -- makes the process used in the death penalty unconstitutional because with life and liberty at stake, defendants in the death penalty should be afforded more protections, not less. Alternatively, I propose my own standard for handling discrimination cases in the death penalty, based off of the civil standards.
Friday, November 15, 2013
"One death row inmate supporting another in organ-donation fight"
The title of this post is the headline of this notable NBC News report in the wake of Ohio Gov. John Kasich's surprising decision to postpone the execution of child-killer Ronald Phillips to explore if he can donate his organs prior to (or during?) his execution (as first reported here). Here are the details:
An Ohio convict's quest to donate his organs when he's executed is getting support from an Oregon death row prisoner who made a similar bid two years ago. Christian Longo, who was sentenced to die for murdering his wife and three small kids in 2001, told NBC News in an email that he reached out to Ronald Phillips, whose execution was just postponed so his organ-donation offer can be studied.
The "contact was rejected," Longo said. But he's still lobbying for Phillips to be given the chance to give away his organs at death — a proposal that experts say is an ethical and logistical minefield. “With a little bit of careful planning and coordination, lives can be saved from someone who has to die – up to eight lives with organs, and the enhancement of dozens more lives with tissues and tendons,” Longo wrote.
“There is no need to be in a rush to execute Mr. Phillips, who will die regardless. Not when there are so many innocently waiting on transplant lists for healthy donors who may die otherwise. To deny this is a perpetuated tragedy,” Longo said.
Longo's donation offer has been repeatedly turned down by Oregon authorities, and all executions are on hold anyway after Gov. John Kitzhaber declared a moratorium last year....
Medical ethicists say allowing such donations could give juries and judges an incentive to impose the death penalty and that prisoners could be coerced into giving away their organs. Organs are usually removed from people who are brain dead but whose bodies are otherwise functioning, and some experts say it would be impossible to replicate that scenario during an execution.
"The only options for executing someone to obtain vital organs is to either shoot them in the head or chop their head off and have a team of doctors ready to step in immediately," said Arthur Caplan, a professor of medical ethics at NYU Langone Medical Center. Theoretically, he said, the method of execution could be the removal of the organs under anesthesia. "The problem is no doctor is going to do it," he said. "It violates all medical ethics and now you're making the doctor the executioner."
Longo — who has a website and a Facebook page for his campaign, Gifts of Anatomical Value from Everyone — is also pushing states to allow prisoners who are not condemned to donate non-vital organs, like a single kidney. He helped Utah inmates push for a new Utah law, passed in April, that allows them to register as organ donors.
Recent related posts:
- "Kasich postpones execution of inmate who wants to donate organs"
- Some early reactions to Gov. Kasich's surprise decision delay execution to explore organ donation
Is AG Eric Holder going to stay on the job until he truly reforms American criminal justice?
The question in the title of this post is inspired by this new Washington Post article headlined "Reforming justice system is personal goal for Eric Holder Jr." Here are excerpts from the piece:
As the Justice Department seeks new ways to reduce the burgeoning U.S. prison population, its success is likely to depend on community programs such as the one in this small city in America’s heartland.
In the past 11 years, federal prosecutors here have authorized substance abuse treatment and other assistance for more than 100 low-level offenders as an alternative to prison sentences. Eighty-seven have successfully completed the program and, in the process, saved the federal government more than $6 million by sparing it the cost of incarceration....
Justice officials see the program in Peoria as a model for other communities — and central to the criminal justice reforms that Attorney General Eric H. Holder Jr. is moving to implement. In August, at an American Bar Association conference in San Francisco, Holder announced that low-level nonviolent drug offenders with no ties to gangs or large-scale drug organizations would no longer be charged with offenses that impose severe mandatory sentences. He has also introduced policies to reduce sentences for elderly, nonviolent inmates, to find alternatives to prison for nonviolent criminals, and to improve reentry programs to curb repeat offenses.
The announcements have heralded some of the most significant criminal justice policy shifts from the department in years. For Holder — who has said that as a U.S. attorney and judge he saw neighborhoods destroyed by both illegal drugs and the tough-on-crime legislation that has disproportionately affected black men — the issue has been personal.
“Day after day, I watched lines of young people, most often young men of color, stream through my courtroom,” Holder told ex-offenders Thursday during a visit to a St. Louis courthouse, one of a string of stops he is making to promote his reform agenda. “I learned how drug abuse, crime and incarceration can trap people in a destructive cycle. A cycle that weakens communities, tears families apart and destroys individual lives.”...Many of the department’s criminal justice reforms have bipartisan support, and Republican governors in some of the most conservative states have led the way on prison reform. Congress also has shown a renewed interest in reducing the nation’s prison population, including the introduction of a bill this week that would reauthorize the Second Chance Act, which funds grants for programs that support probation, parole and reentry programs across the country.
“Rather than incarcerating repeat offenders in the same families generation after generation, we can put our taxpayer dollars to better use to break this vicious cycle and turn lives around,” Sen. Rob Portman (R-Ohio), a former prosecutor and one of the bills sponsors, said in a statement.
Efforts to reduce the prison population have drawn criticism from some lawmakers, who are skeptical that new policies will reduce crime. “I am skeptical,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the chamber’s Judiciary Committee, said at a a hearing last week. “Reducing prison sentences will bring prisoners out on the street sooner. The deterrent effect of imprisonment would be reduced. Many so-called nonviolent drug offenders have violent records. Some of these released offenders will commit additional crimes.”...
In a Philadelphia courtroom earlier this month, the attorney general watched more than a dozen drug offenders in a “reentry” program report to a judge to discuss their personal and work situations. Officials there said the program, which provides parenting classes, vocational training and job opportunities, has saved $1.5 million in annual incarceration costs because fewer ex-offenders are being sent back to prison. The national revocation rate for ex-offenders who are not in such programs is 47 percent; the rate among participants in the seven-year-old Philadelphia program is about 20 percent.
During his stops Thursday, Holder met with judges and pretrial service officers and watched as a district court judge encouraged ex-offenders to overcome their drug addictions and stay out of prison. He spoke emotionally to a group about how his nephew struggled to overcome drug addiction.
Inside a federal courthouse in St. Louis, he watched a ceremony in which ex-offenders graduated from an intensive recovery program called EARN (Expanding Addicts’ Recovery Network). “I look at you all and I see myself,” he said. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”
“Some of them didn’t catch the same breaks,” the nation’s top law enforcement official said. “Some had to deal with drug issues. . . . I know that everyone makes mistakes — everyone. Including me. And that’s why I wanted to be here today to tell you in person how proud I am that each of you has decided not to let your mistakes define you and not to make excuses, but to make the most of the opportunities that you’ve been given.”
Right after President Obama's re-election, as noted in this post from last November, AG Holder was talking about staying on as AG for only "about a year" into this second Presidential term. But that year has now passed, and I have heard very little new buzz about AG Holder moving on. And, if he is truly committed to engineering significant and lasting criminal justice reform, I think he may need (at least) the next three years to really have a chance to get this done.
November 15, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, November 14, 2013
"Misconstruing Graham & Miller"
The title of this post is the title of this notable new piece by Cara Drinan now up at SSRN. Here is the abstract:
In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes. An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears. After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court’s mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.
November 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Wednesday, November 13, 2013
"Kasich postpones execution of inmate who wants to donate organs"
The title of this post is the headline of this breaking news story reporting some surprising news coming from Ohio this afternoon. Here are details:
Wowsa. I have to catch my breath and think about this a lot before I am sure how to react. While I do so, I look forward to hearing reactions from both the pro and anti death penalty crowd in the comments.
In an unprecedented move, Gov. John Kasich has postponed the execution of Akron child-killer Ronald Phillips scheduled for Thursday to determine if his organs can be harvested. It has been rescheduled for July 2, 2014.
In a statement released this afternoon, Kasich halted Phillips’ execution “so that medical experts can assess whether or not Phillips’ non-vital organs or tissues can be donated to his mother or possibly others.”
“Ronald Phillips committed a heinous crime for which he will face the death penalty. I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said.
Phillips, 40, was sentenced to die for the 1993 beating, rape and murder of three-year-old Sheila Marie Evans, the daughter of his girlfriend at the time. The governor said if Phillips “is found to be a viable donor to his mother or possibly others awaiting transplants of non-vital organs, such as kidneys, the procedures would be performed and then he would be returned to Death Row to await his new execution date.”
Phillips asked earlier this week if he could donate his organs to his mother or others, but the Ohio Department of Rehabilitation and Correction rejected his request.
Tuesday, November 12, 2013
Sixth Circuit upholds dismissal of indictment with new mandatory minimum charge based on on prosecutorial vindictivenessLast week, in a decision I have been meaning to blog about given recent blog debate over federal prosecutorial discretion, the Sixth Circuit upheld a district court's decision to dismiss an indictment in a child pornography downloading case based on prosecutorial vindictiveness. The ruling in US v. LaDeau, No. 12-6611 (6th Cir. Nov. 4, 2013) (available here), highlights my concern about the potential misuse of federal prosecutorial charging discretion, while also revealing that judges are not without some mechanisms to try to check prosecutoral abuses of power. Here is how the unanimous panel ruling in LaDeau starts:
Defendant Daniel Bruce LaDeau was indicted on a single count of possessing child pornog raphy, in violation of 18 U.S.C. § 2252A(a)(5)(A). This charge prescribed a sentencing range of zero to ten years’ imprisonment. Subsequently, LaDeau moved to suppress the evidence that he had any such materials in his possession. After the district court granted LaDeau’s motion to suppress, the government sought and obtained a superseding one-count indictment charging LaDeau with a conspiracy offense based on evidence that had been in the government’s possession since before the initial indictment. But rather than charging LaDeau in the superseding indictment with conspiring to possess child pornography, the government chose to charge him with conspiring to receive child pornography — a charging decision that subjected LaDeau to a five-to-twenty-year prison term instead of the previously applicable statutory range of zero to ten years. Defendant LaDeau then moved to dismiss the superseding indictment. The district court agreed with LaDeau that the government’s decision to change to a receipt theory warranted a presumption of prosecutorial vindictiveness, inasmuch as there was a realistic likelihood that LaDeau was being charged with a more serious offense in retaliation for his successful suppression motion. Concluding that the government had not rebutted the presumption of vindictiveness, the district court dismissed the superseding indictment. The government filed this appeal. Because the district court did not abuse its discretion in dismissing the superseding indictment, we affirm.
Monday, November 11, 2013
Two notable SCOTUS criminal law arguments (with federal mandatory minimums at issue)
The Supreme Court Justices could have perhaps benefited from this long weekend by hanging out with my terrific first-year Criminal Law students because they return to work on Tuesday to hear two interesting cases raising classic issues relating to the basic doctrines of substantive criminal law. thanks to Congress, though, these issue arise for SCOTUS with severe mandatory minimum sentencing terms hanging in the balance.
SCOTUSblog, of course, is the place to go for a quick primer on Burrage v. United States and Rosemond v. United States, and here are the links and introduction for the argument previews now posted there:
Law school hypos about criminal law mens rea by Rory Little
At 10:00 a.m. on Tuesday, November 12, the Court will consider a philosophical question that has troubled the criminal law for centuries: what mens rea (mental state) is required to prove “aiding and abetting” liability? The question in Rosemond v. United States arises under 18 U.S.C. § 924(c), the federal law that provides significant mandatory minimum imprisonment terms for carrying, using, brandishing, or discharging a firearm during and in relation to a narcotics offense. Arguing for petitioner Justus Rosemond, seeking to overturn his conviction, will be John P. Elwood, a former Assistant to the Solicitor General who is now a partner in the Washington, D.C., office of Vinson & Elkins. Arguing for the federal government will be Assistant to the Solicitor General John F. Bash.
Crime and death’s cause By Lyle Denniston
At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on the proof that federal prosecutors must offer to get an enhanced prison sentence for a drug dealer when a customer who bought heroin died. Arguing for the convicted Iowa man in the case of Burrage v. United States will be Angela L. Campbell, of the Des Moines law firm of Dickey & Campbell. Arguing for the federal government will be Benjamin J. Horwich, an assistant to the Solicitor General.
How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?On Veterans Day, I always find myself thinking about veterans who, after serving our country in the military and thereby supporting of our nation's commitment to liberty and freedom, return home and discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems. This Daily Beast piece, headlined "From PTSD to Prison: Why Veterans Become Criminals," highlights that there are now probably hundreds of thousand of veterans in America's prison and jails:
In 2008 the RAND Corporation surveyed a group of veterans six months after their return. It found that almost one in five had either PTSD or major depression. In recent years rates of substance abuse and suicide among veterans have also ticked steadily upward.
A certain number of veterans suffering from mental-health issues will, invariably, end up in jail or prison. After Vietnam, the number of inmates with prior military service rose steadily until reaching a peak in 1985, when more than one in five was a veteran. By 1988, more than half of all Vietnam veterans diagnosed with PTSD reported that they had been arrested; more than one third reported they had been arrested multiple times. Today veterans advocates fear that, unless they receive proper support, a similar epidemic may befall soldiers returning from Iraq and Afghanistan.
No one knows how many veterans are incarcerated, but the most recent survey, compiled by the Department of Justice’s Bureau of Justice Statistics in 2004, found that nearly one in 10 inmates in U.S. jails had prior military service. Extrapolated to the total prison population, this means that approximately 200,000 veterans were behind bars.
As the title of this post highlights, I would like to see President Obama go beyond the usual symbolic gestures and use his historic clemency powers to salute at least a few veterans in federal prison with commutations that would create just a bit more physical liberty and honor a few more veterans with pardons that would free offenders from the enduring collateral consequences of a federal criminal conviction.
This effective recent op-ed by Mark Osler, headlined "Clemency is a task for people and institutions of faith; It should also be a task for the president, but he seems unwilling or unable to use his powers," starts by noting why, sadly, I am not expecting the President to step up to the clemency plate today or anytime soon:
President Obama is, by a wide margin, the stingiest president in modern times in his use of the pardon power. He seems unwilling or unable to use this simple constitutional tool, even as both conservative and progressive commentators are criticizing the federal government’s overincarceration of nonviolent offenders. A simple way to alleviate that problem would be to commute (shorten) the most egregious of these sentences using the pardon power.
Some recent and a few older posts concerning federal clemency practices:
- "How to Awaken the Pardon Power"
- New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
- "Clemency Reform: We're Still Waiting"
- "Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process"
- Will Prez Obama's clemency record ever match his inaugural rhetoric?
- "Why Has Obama Pardoned So Few Prisoners?"
- "Barack the Unmerciful: Obama's amazingly stingy clemency record"
- New York Times editorial assails Prez Obama's considerable clemency failings
- "Obama Has Granted Clemency More Rarely Than Any Modern President"
- Updated numbers on President Obama's disgraceful clemency record
- Noting President Obama's (still) stingy clemency record
- ProPublica reveals more ugliness in federal clemency process
- "A no-pardon Justice Department"
- Effective USA Today coverage of President Obama's clemency stinginess
- "Obama should exercise the pardon power"
- NYTimes op-ed assailing Obama's pathetic pardon practices
"Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate ReviewThe title of this post is the title of this notable new paper authored by Briana Rosenbaum now available via SSRN. Here is the abstract:
Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy. As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises. These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency.
The deferential approach to federal sentence appeals is in sharp contrast to the approach in England, where the appellate court conducts de novo review of sentencing law and policy to develop a common law of sentencing that is independent of the English sentencing guidelines. The English model of appellate review suggests a new way to design the role of appellate courts in the federal system: from bodies that merely enforce guidelines to further consistency of sentencing outcomes, to bodies that develop sentencing law to further consistency of sentencing approach.
In this paper, I explore the primary functional, institutional, and normative arguments behind the resistance to robust appellate review in the federal appellate courts and study the English model as a means of evaluating these critiques. Ultimately, I suggest that the federal courts of appeals borrow England’s “mixed deference approach” to sentence appeals, including de novo review of sentencing law and principles. Doing so will promote greater sentencing consistency without either over-enforcement of the Guidelines or unwarranted encroachment of sentencing discretion.
Sunday, November 10, 2013
Reviewing the continuing challenges for states seeking to continue with lethal injectionThis New York Times piece, headlined "Executions Stall as States Seek Different Drugs," reports on the latest mechanical challenges for those states seeking to keep their machineries of death running despite new difficulties and old litigation surrounding lethal injection drugs and protocols. Here are excerpts:
Florida ran out of its primary lethal-injection drug last month and relied on a new drug that no state had ever used for an execution. At Ohio’s next scheduled execution, the state is planning to use a two-drug combination for the first time. Last month in Texas, Michael Yowell became that state’s first inmate executed using a drug made by a lightly regulated pharmacy that usually produces customized medications for individual patients.
The decision by manufacturers to cut off supplies of drugs, some of which had been widely used in executions for decades, has left many of the nation’s 32 death penalty states scrambling to come up with new drugs and protocols. Some states have already changed their laws to keep the names of lethal-drug suppliers private as a way to encourage them to provide drugs.
The uncertainty is leading to delays in executions because of legal challenges, raising concerns that condemned inmates are being inadequately anesthetized before being executed and leading the often-macabre process of state-sanctioned executions into a continually shifting legal, bureaucratic and procedural terrain....
“We have seen more changes in lethal injection protocols in the last five years than we have seen in the last three decades,” said Deborah W. Denno, a professor at Fordham Law School and a death penalty expert. “These states are just scrambling for drugs, and they’re changing their protocols rapidly and carelessly.”
All 32 states with legalized executions use lethal injection as their primary option for executions. Of the more than 250 executions since 2008, all but five were done with lethal injections.
Facing increasing pressure and scrutiny from death penalty opponents, manufacturers of several drugs used in lethal injections — including sodium thiopental and pentobarbital — over the past few years have ceased production of the drugs or required that they not be used in executions. Looking for alternatives, state prison systems have been more eager to try new drugs, buy drugs from new sources, keep the identities of their drug suppliers secret and even swap drugs among states.
A week before the execution of a convicted murderer, Arturo Diaz, in September, Texas prison officials received two packages of pentobarbital from the Virginia Department of Corrections, at no charge; the state with the country’s second-busiest death chamber acting as ad-hoc pharmacy to the state with the busiest.
Several states have turned to compounding pharmacies, which are largely unregulated by the Food and Drug Administration and overseen primarily by the states. They have traditionally made specialized drugs, for instance, turning a medication into a cream or gel if a patient has trouble swallowing pills.
In Missouri, the availability of drugs and litigation have slowed the pace of executions. There have been two since 2009. “We are going to continue to be affected by these pharmaceutical company decisions time and again, unless the death penalty states can find a pharmaceutical product that has some supply stability around it,” said Chris Koster, the attorney general in Missouri, which dropped plans to use the anesthetic propofol after the European Union threatened to limit exports of the drug if it was used in an execution.
The drug shortages and legal wrangling have led some officials to discuss older methods of execution. In July, Mr. Koster suggested that the state might want to bring back the gas chamber. Dustin McDaniel, the attorney general in Arkansas, which has struggled with its lethal-injection protocol, told lawmakers the state’s fallback method of execution was the electric chair. Mr. Koster and Mr. McDaniel said they were not advocating the use of the gas chamber or the electric chair, but were talking about the possible legal alternatives to an increasingly problematic method for states.
“No state has had any success with getting their hands on the cocktail that has heretofore been relied upon,” Mr. McDaniel said. He said that lawyers for the state are trying to navigate the appeals process in death penalty cases while knowing that “if the legal hurdles were magically to go away, we are in no position to carry out an execution in this state.”
Saturday, November 09, 2013
"Drug policy: Moral crusade or business problem?"
The title of this post is the headline of this notable recent Detroit News op-ed by law prof Mark Osler. Here is how it gets started:
Slowly, Americans are beginning to realize what a mess our “War on Drugs” has been. We have spent billions of dollars and prosecuted millions of people, all to little real effect. Michigan has been front and center in this sad drama.
At the root of this failure is a simple error: We have treated narcotics as an issue of morality rather than business. Our efforts have been focused on punishing relatively minor actors through mass incarceration rather than on the very different goal of shutting down drug businesses. A starting point as we reconsider our efforts should be the simple recognition that narcotics trafficking is first and foremost a business.
That means that we need to put business experts in charge of the effort to close down narcotics businesses. This change might make all the difference.
A business expert, for example, would know enough to identify a proper measure of success or failure. The only real way to know if narcotics interdiction is working isn’t how much cocaine is piled up in a bust, or how many people we lock up. Rather, the best measure is an economic one: the price of narcotics on the street. If we are successful at restricting supply, the price should go up (given a rough consistency of demand). Hiking the price is important. We have learned from cigarettes that raising the price of something addictive reduces usage rates. Still, governments continue to measure success by narcotics seized, arrests made, and sentences imposed rather than the street value of illegal drugs.
Similarly, no knowledgeable businessperson would use an analytical device like the system we have in place to rank-order the importance of narcotics defendants, where the weight of drugs those defendants possess is usually used as a proxy for culpability. If you have a lot of drugs on you, you get a high sentence. In reality, important figures in narcotics organizations don’t possess drugs at all — that is left to mules, street dealers, and low-level managers. Given this false proxy, it shouldn’t be surprising that our prisons are stuffed full of mules, street dealers and low-level managers. Who keeps the profit is a better gauge of responsibility and culpability. That’s how a business works.
A businessperson would also realize the futility of sweeping up low-wage labor in an effort to close down a business. Or, for that matter, grabbing inventory periodically (which we do via drug seizures) or occasionally seizing profits (which we do when we forfeit drug dealer’s homes or cars). In real life, the way to shut down a business is to curtail cash flow, because without that there can be no labor hired, no inventory produced, and no profit generated. Conversely, so long as cash flow exists (or credit, which drug dealers generally can’t obtain), labor, inventory, and profit can be replaced. Yet, the one thing we do not focus on is cash flow, which we could capture through forfeitures. We keep the money, the business fails, and drug dealers are out of work rather than in prison.
Wednesday, November 06, 2013
Unanimous Supreme Court of New Hampshire upholds state's first modern capital conviction (with proportionality review to follow)As reported in this AP piece, "New Hampshire's top court upheld the sentence of the state's only death row inmate, clearing the way for a convicted cop killer to become the first person executed in New Hampshire since 1939." Here are more of the basics:
Michael Addison, 33, was convicted of gunning down Michael Briggs in 2006 as the 35-year-old Manchester police officer was attempting to arrest him on a string of armed robbery charges. The high court's unanimous ruling came nearly a year after it heard unprecedented daylong arguments in the first death penalty appeal to come before it in 50 years....
Of all 22 issues raised by Addison's lawyers on appeal, the justices concluded, "We find no reversible error."
The Supreme Court will next schedule arguments on its fairness review — weighing Addison's sentence against those meted out in 49 cases around the country between 2000 and 2009 in which a police officer was shot in the line of duty.
Addison's lawyers objected to the scope of the comparison, saying it ignores the only other New Hampshire capital case in recent history. That case involved a wealthy white man — John Brooks — who plotted and paid for the killing of a handyman he thought had stolen from him. Brooks was spared a death sentence in 2008 — the same year Addison was sentenced to die....
Attorney General Joseph Foster said the magnitude of the court's 243-page ruling is appropriate given the magnitude of the loss suffered by the Briggs' family. He did not comment on the ruling itself, noting that aspects of the case remain pending.
Briggs was 15 minutes from the end of his shift on Oct. 16, 2006, when he and his partner — both on bicycle patrol — confronted Addison in a dark alley. Jurors found that Addison shot Briggs in the head at close range to avoid arrest. Addison was later convicted of going on a violent rampage in the days before Briggs' death, including two armed robberies and a drive-by shooting....
The last person executed in New Hampshire was Howard Long, an Alton shopkeeper who molested and beat a 10-year-old boy to death. He was hanged — still a viable form of execution in New Hampshire if lethal injection is not possible.
As the AP piece revelas, the massive ruling in NH v. Addison (available here) does not conclusively affirm the defendant's death sentence. Here is why, as the NH Supreme Court explains in the introduction to its lengthy opinion:
With respect to the issues raised by the defendant on appeal, we find no reversible error. Accordingly, we affirm the defendant’s conviction for capital murder. Furthermore, we conclude that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor, and that the evidence was sufficient to support the jury’s findings of aggravating circumstances. We note that our review of the defendant’s sentence is not yet complete. Only after additional briefing and oral argument on comparative proportionality under RSA 630:5, XI(c) will we conclude our review of the defendant’s sentence of death, at which time we will issue a further opinion.
Senate Judiciary hearing focused on federal prisons and "Cost-Effective Strategies for Reducing Recidivism"This motning, Tuesday November 6, 2013 at 10am, as detailed at this official webpage, there will be Hearing before the United States Senate Committee on the Judiciary titled "Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism." Here is the official agenda/hearing list:
- Charles E. Samuels, Jr.,Director,
- John E. Wetzel, Secretary, Pennsylvania Department of Corrections
- Representative John Tilley, Chair, Judiciary Committee, Kentucky House of Representatives
- Nancy G. La Vigne, Ph.D., Director, Justice Policy Center, The Urban Institute
- Matt DeLisi, Ph.D., Professor and Coordinator, Criminal Justice Studies, Iowa State University
- Dr. Jeffrey Sedgwick, Managing Partner and Co-Founder Keswick Advisors
I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the few hours.
Here at The Atlantic, Andrew Cohen sets out "5 Questions for Federal Prisons Chief When He Comes to Capitol Hill"
Election outcomes in Nov 2013 keep up marijuana reform momentum
Though it would be unwise jump to too many conclusions based on off-year election results, these headlines reporting on results concerning various marijuana initiative in various jurisdictions suggest a continuing affinity for responsible reform and sensible regulation of maijuana laws, policies and practices:
From Colorado here, "Colorado voters approve new taxes on recreational marijuana"
From Maine here, "Portland voters legalize marijuana; The ‘Yes’ vote wins in a landslide, claiming 67 percent of the tally with many of the precincts reporting"
From Michigan here, "Voters in three more Michigan cities pass marijuana decriminalization proposals"
Practically speaking, the Colorado vote is probably the most important and consequential, as it ensures a significant tax revenue stream now flowing from marijuana legalization in the Mile High state. But politically speaking, the voting outcomes in Maine and Michigan, though most symbolic, could still prove important if (and when?) more politicians on both side of the aisle in the northeast and upper midwest see that there could be political upsides in 2014 and beyond from supporting responsible reform and sensible regulation of maijuana laws, policies and practices.
Cross-posted at Marijuana Law, Policy and Reform.
Tuesday, November 05, 2013
"Looking for Answers on Overcrowded Prisons"The title of this post is the headline of this notable new AP article coming from Philadelphia. The piece is primarily about federal corrections and re-entry issues, as well as on-going work of AG Eric Holder and the Department of Justice. Here are excerpts:
Some ex-offenders here report to federal court twice a month so that judges can gauge their progress, from drug testing and parenting classes to education and job training. It's an attempt to address a stubborn problem: nearly 25 percent of offenders released into federal supervision were rearrested for a new offense within five years, according to the Administrative Office of the U.S. Courts. Another 14 percent violate the conditions of their supervision.
Attorney General Eric Holder is taking a look at the Philadelphia program Tuesday to call attention to an overburdened prison system and the high incidence of repeat criminals, the first of three such visits to promote innovative crime prevention initiatives. Holder will visit St. Louis and Peoria, Ill., on Nov. 14.
"The common thread of these programs is that it is very difficult to get out of a cycle of crime without proper rehabilitation," Holder said in an interview. "We should not be surprised" at high repeat offender rates "when we see people with education deficits, social deficits and we warehouse them and then just put them back into the same environment that they left."...
Seven years ago, federal judges in the Eastern District of Pennsylvania created a federal re-entry court that focuses on ex-criminal offenders with a significant risk of returning to a life of crime. The goal of the program is to place participants on a path to employment rather than a cycle of crime. Those who successfully complete the 52-week program can reduce their court-supervised release by a year. It aims to cut Philadelphia's high violent crime rate by addressing the social, family and logistical issues confronting ex-offenders when they return to society.
Of 186 participants in the Supervision to Aid Re-Entry, or STAR, initiative over the past seven years, 142 have successfully completed the program or remain in it. In a new change designed to keep ex-offenders on the right track, STAR will provide some participants with federal housing assistance under a federal voucher program.
"For every dollar we invest in programs like these we are going to save much more" in prison costs, an outcome that will enable spending limited law-enforcement resources on other priorities, Holder said.
While Philadelphia's program deals with high-risk offenders, the program in St. Louis is aimed at helping low-level drug offenders remain drug-free and the effort in Peoria, Ill., substitutes drug treatment for jail time for low-level drug offenders.
In all, 73 of 79 participants in the Peoria program have successfully completed it. The program operated by the U.S. Attorney's office, a federal court, the probation office and defense lawyers is designed for defendants whose criminal conduct was motivated by substance abuse. The Justice Department says over $6 million has been saved through the program — money that otherwise would have been spent on putting the defendants behind bars....
Federal prisons are operating at nearly 40 percent above capacity and almost half of the prisoners are serving time for drug-related crimes. Many of them have substance use disorders. In addition, some 9 million to 10 million prisoners go through local jails each year. "We cannot simply prosecute or incarcerate our way to becoming a safer nation," Holder told the American Bar Association in August. "To be effective, federal efforts must also focus on prevention and re-entry."
SCOTUS unanimously reverses Sixth Circuit on Sixth Amendment habeas case in Burt v. TitlowThe Supreme Court wasted no time wasting a Sixth Circuit ruling that ruling in favor of a state habeas petitioner, issuing today a reversal in Burt v. Titlow, No. 12-414 (S. Ct. Nov. 5, 2013) (available here). Here is how the opinion for the Court by Justice Alito gets started:
When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17). In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attorneys, the Sixth Circuit’s decision must be reversed.
Both Justice Ginsburg and Justice Sotomayor have written short opinions in Burt v. Titlow in order to articulate their views of what the Court's opinion does not mean.
Based on a very quick review, it seems this ruling should be viewed more as a bit of habeas review error-correction rather than a significant new precedent about the Sixth Amendment's reach or application. But all habeas practitioners ought to give this a very close read to see if there might be more "there there" than immediately meets the eye.
When and how will SCOTUS take up Miller retroactivity issues?The question in the title of this post is promoted by this local piece reporting on reactions to the Pennsylvania Supreme Court's decision last week (reported here) that its state teens given mandatory LWOP before the US Supreme Court's Miller ruling should not get any retroactive benefit from that decision. Here is an excerpt:
There seems little reason to doubt SCOTUS will be taking up this issue before too long. But when and how is a real interesting question, not only because the facts of the case taken up by the Justices could influence the public and legal discourse, but also because arguments about Miller retroactivity could (and I think should) prompt some reconsideration and modification of Teague habeas review jurisprudence.
Nicholas White was 17 when a judge sentenced him to life in prison without parole for killing his father, Robert Grant White, 43, in 1998 in their home along Route 356.
Last year, the Supreme Court declared such sentences unconstitutional, saying they amount to cruel and unusual punishment. But the Pennsylvania Supreme Court last week ruled, 4-3, that the opinion does not apply retroactively to cases such as White's that were final before June 2012.
The decision means White and more than 450 Pennsylvania inmates, including as many as 40 from Allegheny County, are not eligible for resentencing. “I can't believe that it's fair — that if your sentence came down one day, you get nothing, and if it came down the next day, you get a new hearing,” said Marc Bookman, director of the Atlantic Center for Capital Representation in Philadelphia.
“But there is a silver lining here, and that is that the Pennsylvania Supreme Court does have another round of review, and that is with the U.S. Supreme Court,” said Turtle Creek attorney David Chontos. He represents Jeremy Melvin, 26, of McKeesport, who was 16 in 2005 when a Mercer County judge sentenced him to life without parole for killing a counselor at George Junior Republic, a private residential juvenile treatment center.
Several legal experts said the case likely is bound for the Supreme Court, because Iowa, Mississippi and Illinois deemed the high court's ruling retroactive, although Pennsylvania, Minnesota, Michigan and Florida have said it is not.
Monday, November 04, 2013
"Use of tough federal sentencing laws varies widely nationwide"The title of this post is the headline of this notable new Los Angeles Times article, which carries this subheading: "Some U.S. attorneys have begun to ease up on policies that have led to lengthy sentences for low-level drug criminals. But change has been slow for others." Here are excerpts from the piece:
Under mandatory sentencing laws, it has become a not-so-hidden fact of life in federal courthouses that prosecutors — not judges — effectively decide how long many drug criminals will spend behind bars. The result has been federal prisons packed with drug offenders.
But Atty. Gen. Eric H. Holder Jr. is now trying to steer the Justice Department away from the get-tough policies that have led to lengthy sentences for what one judge called the "low-hanging fruit" in the drug war — dime-a-dozen addicts and street dealers.
Prosecutors have considerable discretion under the laws. If they cite the amount of drugs seized in the charging document, that can trigger the mandatory minimum; if they leave it out, it doesn't. For offenders with prior drug convictions, prosecutors can file a so-called 851 motion, named after a section in the federal code that automatically doubles a sentence — or makes it mandatory life.
Although the mandatory laws were supposed to lead to uniformity, statistics show huge variations across the country in how often prosecutors use them. Holder has instructed prosecutors to avoid using these powerful weapons against lower-level, nonviolent offenders, but, even so, they retain the authority to decide which small players get a break and which get slammed....
In the two months since Holder issued his new policy, some U.S. attorneys ... have begun to pull back, according to judges and attorneys. "We had some terribly harsh sentences," said Randy Murrell, federal public defender in the northern district of Florida. "It's gone on for years, and no one had the courage and gumption to change it. I do think they are changing the policy now."
But elsewhere, change has been slower in coming. "We are hopeful that this will loosen up some of the policies, but we have certainly not seen it yet," said Jonathan Hawley, the federal public defender in central Illinois, another district with a history of tough prosecutions.
A study by the U.S. Sentencing Commission found that more than 47% of all drug defendants in Iowa's southern federal court district ended up with mandatory minimum sentences in 2010 — the third-highest rate in the country. In the northern district, it was more than 40%, the sixth-highest rate. There's even greater inconsistency in the use of 851 motions. In Iowa, they landed on about 80% of eligible offenders, according to sentencing commission data. In bordering Nebraska, the figure was 3%.
In a recent opinion, [Judge Mark] Bennett criticized the Justice Department for the "jaw-dropping, shocking disparity" in how prosecutors wielded the motions. He called the process "both whimsical and arbitrary, like a Wheel of Misfortune."
Some say prosecutors will be reluctant to give up a powerful tool to break open cases — the ability to threaten recalcitrant witnesses with a long federal sentence if they don't play ball....
One federal judge in Brooklyn, N.Y., said Holder's policy didn't go far enough to rein in prosecutors who routinely wielded 851 sentence enhancements as a "2-by-4 to the forehead" to force defendants to accept plea deals. If the Justice Department "cannot exercise its power … less destructively and less brutally, it doesn't deserve to have the power at all," wrote District Judge John Gleeson, a former prosecutor, in a sentencing opinion last month.
A few prior related posts:
- AG Holder to announce new charging policies to avoid some drug mandatories
- US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinion
- US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas
- Don't federal mandatory minimums preserve a lawless (and perhaps discriminatory) "luck-of-the-draw system" of sentencing?