Sentencing Law and Policy

"Plea Bargains that Waive Claims of Ineffective Assistance -- Waiving Padilla and Frye"

The title of this post is the headline of this notable and timely new article by Nancy King now available via SSRN.  Here is the abstract:

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary.  I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.

I am looking forward to finding time to read this article, in part because I have seen a number of federal plea agreements than include express waivers of the right to effective representation during plea bargaining.  I have not given much thought to the constitutional status of these plea terms, but I have long thought it ethically questionable for prosecutors to demand such terms in plea agreements and for defense attorney's to urge defendants to accept such a waiver without also advising the defendant to consider seeking outside advice as to whether he can and should accept such a term in any proposed plea deals.

This view is informed by professional conduct rules (such as this one) which often require a lawyer to recommend a client seek another independent lawyer's advice before waiving potential malpractice claims. Waiving a viable IAC claim seems comparable to waiving a malpractice claim; I think similar professional rules ought to apply to lawyers in this kind of setting, especially since it is the client's liberty and future, rather than just his money, at stake in any dealmaking in any serious criminal cases.

You be the judge: how would you sentence for the missed tax payments of Lauryn Hill?

After a rescheduling and now some important repayments, an interesting and high-profile federal sentencing is on tap for this morning in Newark, New Jersey.  This new Reuters article provides the basics for all would-be federal sentencing judges to ponder in order to answer the question in the title of this post:

Hip hop artist Lauryn Hill, on the eve of her scheduled sentencing on federal tax evasion charges, has paid off the balance of more than $900,000 she owed in back taxes and penalties, her attorney said on Sunday.

The Grammy-winning musician is scheduled for sentencing on Monday in U.S. District Court in Newark, New Jersey on three charges she failed to file tax returns on more than $1.8 million between 2005 and 2007.  She faces up to a year in jail for each charge, but the final sentence is expected to be adjusted based on her repayment of the money, her attorney said.

She owed at least $504,000 in federal back taxes as well as state taxes and penalties that brought the estimated total to more than $900,000.  "Ms Hill has not only now fully paid prior to sentencing her taxes, which are part of her criminal restitution, but she has additionally fully paid her federal and state personal taxes for the entire period under examination through 2009," her attorney, Nathan Hochman, said in an email.

In April, Hill was admonished by U.S. Magistrate Judge Madeline Cox Arleo for failing to make promised payments on her unpaid taxes ahead of her sentencing.  She had expected to raise the money from a new recording contract last fall but only paid $50,000 when she did not complete the expected tracks, her attorney said.

Her attorney said last month that Hill lined up a loan secured by two pieces of real estate. He said on Sunday that the tax repayment came from a combination of sources but did not include funds from any new record sales.

A new single by Hill, her first in several years, called "Neurotic Society," was posted on iTunes on Friday.  She posted a link to the song on the social media site Tumblr on Saturday, writing, "Here is a link to a piece that I was ‘required' to release immediately, by virtue of the impending legal deadline.  "I love being able to reach people directly, but in an ideal scenario, I would not have to rush the release of new music... But the message is still there," she wrote.

Hill's 1998 solo album "The Miseducation of Lauryn Hill" won the singer, a former member of the Fugees, five Grammy awards.

Given that it appears Hill has now made the government whole after her tax evasion crimes, and especially given that she apparently can be and wants to continue to be a productive tax-paying member of society, I believe I would be very eager to give Hill some kind of (harsh?  expensive?) alternative to imprisonment sentence.

For all sort of obvious and not-so-obvious reasons, I think a significant fine plus a (very burdensome?) community service requirement could and should achieve all the congressional purposes of punishment better than a brief stint in prison.

Indeed, I think a creative shaming sentence could perhaps be especially appropriate in a case like this.It might be very beneficial, and I doubt unconstitutional, to require as part of a probation term that Hill write and release a few songs in which she discusses the consequences of failing to pay required federal taxes and/or in which she discusses the pros and cons of her experiences with the federal criminal justice system. 

UPDATE:  This AP story reports on the actual sentencing outcome for the federal tax code re-education of Lauryn Hill.  I will let readers click through so as not to turn this post into a "spoiler" before reading the comments.

Notable new Judge Weinstein opinion on child porn sentencing for juve offender

Over the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here).  The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:

D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).

The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here). 

Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.”  How many judges can say that in any criminal case that is resolved by plea?  Far, far too few. 

Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected.  All concerned are best served by following this course.”

This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).

Boston bombings apparently does not change Massachusetts' legislators perspectives on the death penalty

The conclusion in the title of this post is my take-away from this new Boston Globe article headlined "The death penalty still divides."   Here are excerpts:

The Boston Marathon terrorism attack is stirring renewed talk about restoring the death penalty in Massachusetts, but so far has apparently done little to ease the sharp divide among lawmakers on the issue.

About a dozen area legislators contacted this past week said their positions on capital punishment — for or against — are largely unchanged in the aftermath of the Marathon bombings on April 15 and the killing of a campus police officer that followed.

The issue briefly captured the spotlight on April 23 with a proposed House budget amendment from Representative James Miceli, a Wilmington Democrat. Miceli’s amendment, identical to a pending bill he filed, would have allowed for the death penalty in cases involving the murder of a law enforcement, court, or correctional officer; or a judge, witness, or others involved in the court process. It would also be available for murders involving torture or carried out as an act of terrorism....

But Representative Ken Gordon, a Bedford Democrat who also represents Burlington and a part of Wilmington, opposes the death penalty, even in such limited cases. Gordon said that the horrific actions of the alleged terrorists had not altered his view. “We don’t have the moral authority to kill our citizens. That’s my position and I don’t make any exceptions.”

Miceli’s amendment was effectively defeated when the House, by a 119-38 vote, agreed to a substitute amendment offered by Representative Eugene O’Flaherty, a Chelsea Democrat, calling for a full study of the measure’s impact on the judicial system. Miceli said his amendment was not prompted by the bombings, noting that he filed it three days before the Marathon. But he said he was surprised that the event did not appear to sway his colleagues. “I felt under the circumstances of what had happened on the 15th, that would even give this more impetus, but it didn’t make any difference,” he said....

Miceli, who would favor a broader capital punishment bill, said he is pushing the more narrowly focused bill because he believes it has a better chance of passing. The death penalty has flared as an issue periodically in Massachusetts since the state abolished it in 1984. In 2005, lawmakers rejected a bill filed by then-governor Mitt Romney that is the same measure Miceli is now pushing.

Representative Jason Lewis, a Winchester Democrat, said he has been a longtime opponent of the death penalty, and the recent events did not change that. “In a horrific event like the Boston Marathon attack, understandably it makes us all question what sort of judgment is appropriate for such evil people who commit attacks like that,” Lewis said. But he said he continues to believe that capital punishment is not the right approach “even in the more narrow situation that Representative Miceli proposed.”

Representative John Keenan, a Salem Democrat, said he opposes the death penalty on principle.  “A case like this certainly tests your ability to stand against it in terms of the magnitude of how heinous the crime was.  Personally, you want to see the person punished. But at the end of the day, killing someone to prove killing is wrong is inappropriate,” he said. He also cited the potential for an innocent person to be executed as a factor....

Representative Jerry Parisella, a Beverly Democrat, called the death penalty “an emotional issue and one I’ve been struggling with for quite a while.  I personally don’t want to make a decision based on one particular event.”  Parisella said he leans against the death penalty due to serious concerns about the potential for executing an innocent person.

I think it is notable that even such a dramatic mass murder has apparently not (yet) significantly impacted public policy perspectives on the death penalty in Massachusetts. As criminal justice fans know too well, legislators are often quick (and, in my view, often much too quick) to start talking about making legislative changes in the wake of one high-profile crime and criminal, whether that involves a parolee gone bad or a firearm misused or lying mom acquitted or a suicide by a suspect. But, providing yet another example of how death is different, it appears that long-standing positions on the death penalty are not likely to be remade in the wake of just one notable crime.

Disappointingly missing in this story are any follow-up questions in light of the reality that it appears that the surviving Boston bomber is likely to be facing the death penalty as part of his federal prosecution. I wish the reporter here had followed up with those representatives who support bringing the death penalty on the books in Massachusetts by asking why their efforts are even needed if and when it appears clear that the feds will be able and likely to bring the death penalty on the table if and when any major murder occurs in the state.

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• Does Boston bombing provide still more support for my federal-only death penalty perspective?
• "Balancing the State and Federal Roles in Boston Bomber Case"
• Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
• "The Boston Bomber Should Face The Possibility Of The Death Penalty"
• How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?

"Guantanamo camp burns through $900,000 a year per inmate"

The title of this post is the headline of this new Reuters article, which gets started this way:

It's been dubbed the most expensive prison on Earth and President Barack Obama cited the cost this week as one of many reasons to shut down the detention center at Guantanamo Bay, which burns through some $900,000 per prisoner annually.

The Pentagon estimates it spends about $150 million each year to operate the prison and military court system at the U.S. Naval Base in Cuba, which was set up 11 years ago to house foreign terrorism suspects. With 166 inmates currently in custody, that amounts to an annual cost of $903,614 per prisoner.

By comparison, super-maximum security prisons in the United States spend about $60,000 to $70,000 at most to house their inmates, analysts say. And the average cost across all federal prisons is about $30,000, they say.

The high cost was just one reason Obama cited when he returned this week to an unfulfilled promise to close the prison and said he would try again. Obama also said that the prison, set up under his Republican predecessor George W. Bush and long the target of criticism by rights groups and foreign governments, is a stain on the reputation of the United States....

The cost argument could be a potent weapon at a time of running budget battles between Obama and the Republican-controlled House of Representatives, and of across-the-board federal spending cuts that kicked in in March. The "sequestration" as it is known, is due to cut some $109 billion in spending up to the end of September and has cut government services small and large.

Just one inmate from Guantanamo, for example, is equivalent to the cost of 12 weeks of White House tours for the public - a treasured tradition that the Secret Service says costs $74,000 a week and that has been axed under sequestration.

A single inmate is also the equivalent of keeping open the control tower at the Northwest Arkansas Regional Airport for 45 months. That control tower, another victim of cuts, costs $20,000 per month to run.

The $900,000 also matches the funding for nearly seven states to help serve home delivered meals to the elderly. Sequestration has cost Meals on Wheels a median shortfall of $129,497 per state, the organization says.

I do not blog much about GTMO because the inmates held there have not be duly convicted and sentenced. That said, I think it is notable just how high the price tag seems to be on keeping that facility in operation.

How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?

Long time readers know that I am a fan of the federal Crime Victims' Rights Act, 18 U.S.C. § 3771, because it gives express recognition of key rights of participation for federal crime victims and provides means for enforcement of these rights. Also, as the title of this post suggests, the CVRA is potentially a law professor's dream because of the many challenging legal issues that necessarily arise if and whenever there is a major federal crime with lots of obvious (and not-so-obvious) victims who might make claims under the CVRA.

In this post on the night of the capture of Dzhokar Tsarnaev, I quickly flagged a few legal issues the CVRA might raise in his federal  prosecution.  But especially with new buzz about a possible plea deal to take the death penalty off the table for Tsarnaev following the appointment of federal defender Judy Clarke, I wanted to talk through some CVRA concerns a bit more fully.

First, consider the definition of who has rights under the CVRA: section (e) of 3771 states "the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense."  Tsarnaev has already been formally charged with the federal offense of using a weapon of mass destruction resulting in death and using an explosive device in the malicious destruction of property.  Even if we only focus on bodily harm and property harm, there were obviously hundreds of persons at the Boston Marathon finish line who were "directly and proximately harmed" (and severely harmed) by Tsarnaev's federal offenses.  All those sent to the hospital and so many others on the scene when the two bombs exploded clearly have statutory rights under the CVRA now (though I doubt many, if any, have lawyers (yet) working to help them know and understand their CVRA rights).

Moreover, psychological harm also surely "counts" under the CVRA. This means many thousands of persons in Boston (and perhaps tens of millions of persons throughout the US) could at least reasonably claim to have been "directly and proximately harmed" by the Boston bombings.  I wonder if any persons claiming psychological harm might at some point assert they have significant statutory rights under the CVRA now in the prosecution of Tsarnaev.

Second, consider some key statutory rights set forth in the CVRA: section (a) of 3771 states that a crime victim has, inter alia, a "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing,..." and a "reasonable right to confer with the attorney for the Government in the case."  And, notably, section (c) states that officials "engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, [their CVRA] rights" and that the "prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to [their CVRA] rights.

Because plea negotiations are not conducted as part of "any public proceeding," the Boston bombing victims would not under the CVRA have a right to "be reasonably heard" during the negotiations.  But, of course, any court proceeding to formally enter any plea will be a public proceeding, which means every obvious (and not-so-obvious) victims here would have a right to urge a judge to accept (or reject) any plea deal arranged by the parties in this case.

Perhaps even more significantly right now, I would assert that a fair reading of the CVRA places a duty on DOJ officials to make "their best efforts" to confer with at least some (many?  most?  all?) of the Boston victims whenever there is serious consideration of any plea deal to take the death penalty off the table.  Prosecutors also would seem to have a duty under the CVRA to let the Boston bombing victims know that they can (and should?) seek help from an attorney when considering these matters.

Criticially, crime victims have never been thought to have a constitutional right to an appointed attorney, and the CVRA plainly does not create a statutory right to an attorney for crime victims.  Consequently, I fear that many (most?  all?) of the Boston bombing victims may ultimately get little professional help in securing the potential benefits of the important statutory rights set forth in the CVRA.  And maybe in a case in which a federal offense has arguably produced many millions of crime victims, perhaps we have to recognize that, for practical if not principled reasons, there may always be significant functional limits on the rights of even the most sympathetic of crime victims.

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• Does Boston bombing provide still more support for my federal-only death penalty perspective?
• "Balancing the State and Federal Roles in Boston Bomber Case"
• Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
• "The Boston Bomber Should Face The Possibility Of The Death Penalty"

Democrats kill death penalty reform proposals in California

As reported in this local article, "legislation to shorten death penalty appeals in California, and bring back the gas chamber, has been rejected by a state Senate committee." Here are the details:

The bill, sponsored by the California District Attorneys Association, was defeated by the Public Safety Committee on Tuesday on a party-line 5-2 vote.

Backers of SB779, including its author, state Sen. Joel Anderson, R-Alpine (San Diego County), said the bill would speed up executions in California, which have been blocked by court orders since 2006.  It was introduced following the narrow defeat in November of a ballot measure to repeal the state's death penalty law.

The bill would have limited most condemned prisoners to one round of appeals in the state court system and another in federal court.  Other provisions would have eliminated public review of regulations on execution procedures, barred disclosure of the suppliers of drugs used in executions and authorized a new method of gas chamber executions.

California's last execution by cyanide gas was in 1993.  A federal judge ruled a year later that the gas chamber at San Quentin caused excruciating pain and violated the constitutional ban on cruel and unusual punishment.

Lethal injections at the prison were halted in 2006 when another federal judge ruled that the executions, carried out by poorly trained staff in a dimly lit chamber, posed an undue risk of a prolonged and agonizing death.  The court-imposed moratorium is likely to remain in place at least through 2013 as the state tries to validate new regulations and cope with a shortage of execution drugs.

"Proposals would legalize marijuana in Ohio"

The title of this post is the headline of this article that caught my eye this morning in my own local paper.  Here are the basics of the story:

As poll numbers show Ohioans are growing increasingly comfortable with the idea of marijuana use, a Youngstown Democrat wants to give people the chance to make the drug fully legal in Ohio.

Rep. Robert F. Hagan has made a few attempts over the years to persuade his colleagues to allow for the use of medical marijuana in Ohio, and each effort has died a quiet death. A spokesman for Speaker William G. Batchelder, R-Medina, declined to comment on the pair of proposals Hagan introduced yesterday.

One is a bill that would allow patients with certain chronic conditions such as cancer or sickle-cell anemia to use marijuana for treatment.  Eighteen other states have approved similar measures. “In addition to the studies that show marijuana to be a valuable treatment option for chronic pain, nausea and seizure disorders, I have heard countless stories of how cannabis has made a difference in the lives of people who are sick or dying,” Hagan said.

His other proposal, modeled after an amendment recently passed in Colorado, would ask voters to approve allowing people 21 or older to purchase and use marijuana.  The drug could be sold only by state-licensed establishments and would be subject to a 15 percent excise tax.  “With billions upon billions spent on the war on drugs with little progress to show for it, it is time for more-sensible drug policy in this country,” Hagan said, arguing that the revenue could help restore cuts to education and local governments.

It takes a three-fifths vote for the legislature to put an issue on the ballot.  A recent Saperstein Associates poll of more than 1,000 Ohioans for The Dispatch found that legalizing medical marijuana was overwhelmingly favored, 63 percent to 37 percent, but making pot completely legal was opposed by a 21-point margin.  Martin D. Saperstein, head of the Columbus polling firm, noted that surveys in other states are finding growing acceptance of legalizing marijuana, especially if it would be regulated and taxed.

As I will be blogging about in the coming months, in the Fall I will be teaching a seminar at my law school titled "Marijuana Law, Policy and Reform."  Because Ohio is still a fairly conservative state socially, I doubt talk of marijuana reforms will be much more than talk over the next few years. But I am pleased to see the talk getting started, and it will be especially interesting to watch here whether and how public opinion may change as more and more states move forward with marijuana reform experiments.

Nebraska legislature sends "Miller fix" bill to governor

As reported in this local article, headlined "Lawmakers pass new sentencing limits for juveniles," a bill responsive to new Eighth Amendment doctrine which modifies the sentencing options for young killers has been passed by Nebraska's legislature.  Here are the details:

With the bill (LB44), juveniles could be sentenced to a minimum 40 years to life, with eligibility for parole after 20 years. Judges could continue to use discretion on life sentences for young people who commit first-degree murder.  And they could sentence a youth to more than the minimum.

The bill grew out of the state's need to act on a June U.S. Supreme Court ruling that indicated states must provide some meaningful opportunity for release based upon demonstrated maturity and rehabilitation.  The courts would have to consider mitigating factors in sentencing, such as age, maturity and home environment, including previous abuse of the juvenile.

LB44 passed final reading Thursday on a 38-1 vote.  Lincoln Sen. Danielle Conrad was the lone vote against it. "I just felt like the mandatory minimums were too extensive, particularly when we are talking about juveniles," she said.

But there are good aspects of the bill, Conrad said.  "And I appreciate the hard work and compromise that the committee and the sponsors and other members diligently worked on."...

The bill doesn't address retroactive action for those inmates who committed their crimes as juveniles and are serving life sentences.  Judiciary Committee Chairman Brad Ashford has said the courts would have to address that.  If signed by the governor, those men and women serving mandatory life sentences could file requests to have their sentences reviewed.

I have plans this summer to write an article explaining why I think, both as a matter of law and as a matter of policy, all significant changes to sentencing rules and procedures ought to be presumptively retroactive rather than presumptively non-retroactive (subject to constitutional limits/problems). Consequently, I think court should presume retroactivity in a setting like this one when it appears a legislature has opted not to address whether a new sentencing statute should be retroactive and has punted the issue to the courts to fill in this legislative gap.

"Gideon's Shadow"

The title of this post is the title of this notable new piece by Justin Marceau, which is available via SSRN. Here is the abstract:

The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right -- that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights -- this essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.

This piece now joins my list of must-read pieces providing a provocative perspective during a period that has included lots of Gideon celebrations now that the decision is 50 years old. Here are links to posts noting other articles and commentary in this milieu:

• "Race and the Disappointing Right to Counsel"
• "Gideon Skepticism"
• "The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)
• Did Gideon enable the war on drugs, the sentencing severity revolution and modern mass incarceration?

A big day and big new realities for criminal justice in Maryland

As reported in this Washington Post article, headlined "O’Malley to sign death penalty repeal and scores of other bills today," two big national criminal justice reform stories are finding expression in one day of bill signing in Maryland. Here are the basics:

Maryland Gov. Martin O’Malley plans to sign more than 250 bills on Thursday, including legislation to repeal the death penalty, allow undocumented immigrants to get driver’s licenses and legalize medical marijuana....

The bills were among those passed in an extraordinarily busy 90-day legislative session that ended last month. A final batch of bills is scheduled to be signed May 16.

With the governor’s signature Thursday, Maryland will become the sixth state in as many years to end capital punishment. Under the legislation, which O’Malley championed, death sentences would be replaced with life in prison without the possibility of parole.

The Catholic Church, which advocated for repeal, is planning to celebrate the signing by lighting up the Baltimore Basilica overnight. The landmark is the first Catholic cathedral in the United States.

MDPetitions, com, a conservative group, is expected to announce soon whether it will launch a petition drive to force a statewide vote on the death penalty repeal. If the group were to collect enough signatures, the law would be put on hold pending the outcome of a November 2014 referendum.

The legislation legalizing medical marijuana limits distribution to academic medical centers, which will be required to monitor patients and publish their findings.

Legislative analysts say it is unlikely that dispensing of the drug would begin before 2016. It is also unclear how many institutions might choose to participate. Two of the state’s most prominent — the University of Maryland Medical System and Johns Hopkins University — have been reluctant to get involved.

But supporters of the measure have hailed it as a significant step toward a compassionate treatment option for people with such illnesses as cancer and multiple sclerosis. Eighteen states and the District have enacted similar laws.

DOJ review confirms government waste and mismanagement of BOP's handling of compassionate release

Public policy groups have long criticized the many terrible ways in with the federal Bureau of Prisons (BOP) administered the authority Congress provided it for the early release of prisoners in dire condition. Most notably, late last year, as discussed here, Human Rights Watch and Families Against Mandatory Minimums today released a major report criticizing the poor administration of the federal compassionate release program. Today, this big new report from the Justice Department's Office of Inspector General confirmed what critics have long said. Here are key excerpts from the final portion of the report:

We concluded that an effectively managed compassionate release program would result in cost savings for the BOP, as well as assist the BOP in managing its continually growing inmate population and the resulting capacity challenges it is facing.  We further found that such a program would likely have a relatively low rate of recidivism.  However, we found that the existing BOP compassionate release program is poorly managed and that its inconsistent and ad hoc implementation has likely resulted in potentially eligible inmates not being considered for release.  It has also likely resulted in terminally ill inmates dying before their requests for compassionate release were decided.  Problems with the program’s management are concentrated in four areas.

First, the BOP’s regulations and Program Statement do not establish appropriate medical and non-medical criteria for compassionate release consideration and do not adequately define “extraordinary and compelling” circumstances that might warrant release....

Second, the BOP has failed to put in place timeliness standards at each step of the review process....

Third, the BOP does not have procedures to inform inmates about the compassionate release program....

Fourth, the BOP does not have a system to track all compassionate release requests, the timeliness of the review process, or whether decisions made by institution and regional office staff are consistent with each other or with BOP policy....

The BOP also does not track the time it takes to process requests and has no formal or standard means of determining the date the review process begins.  Consequently, the BOP cannot monitor its process effectively.  This is especially problematic for inmates with terminal medical conditions, and we found that 13 percent of inmates whose requests had been approved for compassionate release by a Warden and Regional Director died before a decision was made by the BOP Director....

Further, the BOP does not maintain cost data associated with the custody and treatment of inmates who may be eligible for compassionate release.  Despite this lack of data, the BOP reported to Congress that it could save $3.2 million by expanding the compassionate release program....

Finally, we found the rate of recidivism for inmates approved and released through the existing compassionate release program to be low compared with the overall rate for federal inmates released into the community.

Some recent related posts:

• New report assails (lack of) compassionate release in federal system
• NY Times editorial laments lack of compassionate release

Intriguing final (sentencing) chapter in landmark SCOTUS Fourth Amendment case

Via this post at The BLT, which is titled "Man in Landmark Supreme Court GPS Case Pleads Guilty," we find out today that Antoine Jones' success in convincing the Supreme Court to declare his warantless GPS tracking to be an unconstitutional search in the end allowed him to secure a plea deal with a sentence of only 15 years in prison rather than his original federal LWOP term.  Here how:

Facing his fourth trial, the man at the center of a landmark U.S. Supreme Court ruling on GPS tracking pled guilty today to a drug conspiracy charge and was sentenced to serve 15 years in prison.

Antoine Jones was arrested in 2005 and charged with participating in a drug trafficking ring in the Washington area. Jones will receive credit for time already served, meaning he'll spend an additional seven years in jail.  After he is released, U.S. District Judge Ellen Segal Huvelle sentenced him to five years of supervised release and 200 hours of community service.

"I think you can teach other people how to stay out of trouble," Huvelle said to Jones during today's hearing. Huvelle has handled the case from the beginning.  "It's been a long haul, Mr. Jones," she said.

Jones stood trial three times. His first trial ended in a mistrial in 2007. He was found guilty at the second trial and received a life sentence, but the U.S. Court of Appeals for the D.C. Circuit vacated that conviction after finding the government violated his Fourth Amendment rights through the warrantless use of a Global Positioning System tracking device.

Last year, the U.S. Supreme Court affirmed the D.C. Circuit's ruling, meaning prosecutors couldn't use the GPS data at trial.  The government had used the information to link Jones to a drug house in Maryland.  During the course of the investigation, the authorities never saw Jones personally handle any drugs.

Following a third trial earlier this year, in which Jones represented himself, the jury split and Huvelle declared a mistrial.  The government announced shortly after that it planned to seek a fourth trial.

Following today's hearing, Assistant U.S. Attorney Darlene Soltys declined to discuss details of the plea negotiations, except to confirm that Jones continued to represent himself.  She also declined to comment on the resolution of the case....

Jones, who waived his right to appeal, requested Huvelle recommend he be placed in a federal prison near Atlanta, where he has family.  Huvelle agreed to make the recommendation; the Federal Bureau of Prisons will make the final decision about his placement.

Huvelle urged Jones to do something "legitimate" with his life after serving his time in jail.  She pointed out that some of the jurors thought Jones performed well as his own lawyer and that he had wasted his talents.

New big Human Rights Watch report assails placing juve sex offenders on registries

As reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:

Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author.  "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."

The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries.  One of the boys, from Flint, Mich., killed himself even after being removed from the list....

The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said.  "Many have a hard time finding — and keeping — a job, or a home."

According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....

Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries.  Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.

According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries.  Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.

The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....

Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.

"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...

Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul.  "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said.  "That's more important than the registry."

The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:

This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

The question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

"The Boston Bomber Should Face The Possibility Of The Death Penalty"

The title of this post is the headline of this notable new op-ed published today in Forbes and authored by (frequent SL&P blog commentor) William Otis.  Here are excerpts from this piece:

Dzhokhar Tsarnaev and his brother murdered three people at the Boston Marathon, and grossly mutilated dozens more.  The brother was killed in a shootout with police.  The question is what justice Dzhokhar should face.  The answer, as the Justice Department apparently understands, is a jury empowered to consider the death penalty....

Wanting justice is not wanting vengeance.  It is for this reason that our most honored Presidents — Washington, Lincoln and FDR — not only supported but used the death penalty. President Obama supports it.  At least three-fifths of Americans likewise support it.  Liberal New York Sen. Chuck Schumer says he supports it for the Boston killer.  This is not because these people are bloodthirsty or revenge-driven.  It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes.

But that’s not the end of it.  Contrary to a typical abolitionist claim, the death penalty is a deterrent, as the majority of scholarly studies has found.  Anecdotal evidence tells us the same thing; California Sen. Diane Feinstein once recounted the story of a robber who left his gun at home for fear that, if he used it, he could face a death sentence....

While the are some cases in which a reasonable person could think we’ve got the wrong guy, this is not one of them.  There is simply no sane account in which Dzhokhar Tsarnaev didn’t do it.

Some have voiced racial objections to the death penalty.... But that has no bearing in this case in any event, since neither Tsarnaev nor his victims is a member of a race that has historically suffered discrimination.  The legacy of Jim Crow simply does not exist in this case.

The central reason to keep the death penalty available is graphically illustrated here.   The crime was unbelievably sinister, cruel and sadistic; the victims, including an eight year-old, numerous; the perpetrator unrepentant; and his guilt not open to question by any reasonable person.  A society without the moral confidence to use the ultimate punishment in such a case has all but announced that it has no moral confidence at all.

To say that the jury should be empowered to consider the death penalty for Tsarnaev is not necessarily to say it should be imposed.  There may be mitigating circumstances, not presently in sight, that would warrant a lesser sentence.  It is the genius of the jury system that it takes cases one at a time.  But it is for exactly that same reason that we should not take the death penalty off the table in advance, before all the facts -- possibly mitigating, and possibly even more damning -- are known.

Though not explicitly stated by Bill Otis in this Forbes commentary, I perceive an implicit suggestion here that it would only be proper in this case for a federal jury after a transparent in-court sentencing hearing, and not for a federal prosecutor via an unexplained back-room plea deal, to decide what the proper punishment for Dzhokhar Tsarnaev.  And via this post at Crime & Consequences, titled "No Quick and Dirty Deals," Bill Otis makes a bit more explicit why he thinks it would, at least right now, be inappropriate for prosecutors "to take capital punishment off the table in exchange for Tsarnaev's cooperation."  Bill concludes his C&C post this way: "In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do."

For a host of reasons, I largely agree with Bill in this instance that the final punishment for Dzhokhar Tsarnaev should ultimately be decided by a jury (or a judge). My principal reason for this view in this is because I believe all sentencing decision-making should be as deliberative, open and transparent as possible, and that final sentencing outcomes should result from adjudicative judgements made by neutral judicial-branch actors rather than via opaque bargains and unreviewable policy decisions made by executive branch officials.

While I am pleased that, in this "high-stakes" setting, Bill Otis sees the value of judicial branch actors having ultimate sentencing authority, I am disappointed and somewhat confused why he has a different view when prison sentences are at issue. Specifically, in long comment exchange to a post about reform of federal mandatory minimums, Bill expressed great concerns about letting judges select final sentencing outcomes on the record according to federal sentencing law rather than letting prosecutors make this decision behind closed doors based on their charging and bargaining instincts.  

Dare I suggest it is only because Bill Otis likes the potential outcome of judicial-branch sentencing (rather than executive branch sentencing) in the Tsarnaev case that he now is keen to assert that prosecutors should not take a particular sentencing option off the table?  (For the record, I think it is fine for Bill Otis (or anyone else) to believe/decide that he will always favor whichever sentencing decision-maker is likely to be harsher (or softer).  But I hope he (and others) recognizes that such a position --- whether driven by a desire for consistent sentencing harshness or sentencing leniency --- necessarily prioritizes a substantive commitment to certain kinds of sentencing outcomes, and suggests that certain substantive sentencing ends always justify whatever procedural means are needed to get there.

Some related recent posts:

• Horrific crime with uncertain responsibility and uncertain punishment on Patriots' Day in Boston
• Can the new media help identify the two persons the FBI are seeking in the Boston bombings?
• Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev
• Does Boston bombing provide still more support for my federal-only death penalty perspective?
• "Balancing the State and Federal Roles in Boston Bomber Case"
• Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev

US Sentencing Commission names new executive director

I am very pleased to report, as detailed in this official press release, that a former law school classmate of mine has now been named as the next staff director of the US Sentencing Commission.  (Apparently, the fact that Harvard Law School lacked any kind upper-level sentencing course in the early 1990s did not unduly retard the professional development of some of its students).  Here are the details:

The United States Sentencing Commission announced the appointment of Kenneth P. Cohen as its new Staff Director, succeeding Judith W. Sheon. Cohen has served as the Commission’s General Counsel since February 2007 and previously served as its Director of Legislative Affairs.  His appointment becomes effective on June 2, 2013....

Cohen graduated with highest distinction from the University of Virginia in 1988 and cum laude from the Harvard Law School in 1993.  Previously he served as a credit analyst for Chemical Bank in New York, and he was an associate at the Washington D.C. law firm of Covington & Burling from 1993 to 1997.  He also served at the Commissi on as an attorney advisor to then-commissioner Judge Deanell Tacha, and he served on detail as counsel to Senate Judiciary Committee Chairman Arlen Specter from 2005 to 2006.

The same press release also notes another notable recent new hire on the USSC: "The Commission also last month added Noah D. Bookbinder as Director of Legislative and Public Affairs.  Bookbinder previously served as Chief Counsel for Criminal Justice for the Senate Judiciary Committee, where he worked from 2005 to 2013, and as a Trial Attorney for the United States Department of Justice’s Public Integrity Section from 1999 to 2005.   He graduated summa cum laude from Yale University in 1995 and with distinction from Stanford Law School in 1998 and served as a law clerk to United States District Judge Douglas Woodlock."

Might the Gov of Virginia soon be a federal criminal defendant?

The question in the title of this post is prompted by this new Washington Post piece, headlined "FBI looking into relationship between McDonnells, donor."   Here are the basics:

FBI agents are conducting interviews about the relationship between Virginia Gov. Robert F. McDonnell, his wife, Maureen, and a major campaign donor who paid for the food at the wedding of the governor’s daughter, according to four people familiar with the questioning.

The agents have been asking associates of the McDonnells about gifts provided to the family by Star Scientific chief executive Jonnie R. Williams Sr. and actions the Republican governor and his wife have taken that may have boosted the company, the people said.

Among the topics being explored, they said, is the $15,000 catering bill that Williams paid for the 2011 wedding of McDonnell’s daughter at Virginia’s historic Executive Mansion.  But questions have extended to other, previously undisclosed gifts from Williams to Maureen McDonnell as well, they said.

The interviews, at which Virginia State Police investigators were present, began in recent months as an outgrowth of a federal investigation of securities transactions involving Star Scientific, which produces a dietary supplement called Anatabloc.  The company disclosed that probe in a regulatory filing last month, saying it had received subpoenas from the U.S. attorney’s office for the Eastern District of Virginia.

Now, federal officials are trying to determine whether to expand that investigation into a broader look at whether McDonnell or his administration took any action to benefit Star Scientific in exchange for monetary or other benefits, according to the four people familiar with the interviews.  It is unclear whether the probe will be broadened.

"D.C.’s Race Disparity in Marijuana Charges Is Getting Worse"

The title of this post is the headline of this notable recent commentary by Rend Smith appearing in Washington's City Paper.  Here are excerpts (with links from the original):

[D]ozens of marijuana activists converged on the National Mall to celebrate 4/20 and push for the drug's legalization.  If photos and videos are any indication, most of the attendees were white.  As a black man, I find their efforts laudable and hearteningly altruistic. D.C.'s campaign against marijuana is racist. If it wasn't, District marijuana enforcement would look a lot less abominable.

In 2010, I wrote about how Jon Gettman, a public policy professor at Shenandoah University, pored through the city's 2007 marijuana arrest records to discover the District had arrested more pot offenders per capita than any other jurisdiction in the country. Gettman also found that the overwhelming majority of pot miscreants the city went after that year — 91 percent — was black.

... In 2007, a black person was eight times more likely to be arrested for a District marijuana offense than a white person, even though researchers have exposed what any college pot dealer can tell you from the comfort of his Barcalounger: Members of both racial groups consume cannabis at nearly equal rates.

D.C.'s dope divide is just as striking when you zoom out.  According to arrest numbers obtained from the Metropolitan Police Department and crunched by a statistician, between 2005 and 2011, D.C. cops filed 30,126 marijuana offense charges.  A staggering number of those — 27,560, or 91 percent — were filed against African-Americans. Only 2,097 were filed against whites.

Blame-the-victim folklore contends that pot-arrest asymmetries, which show up in various cities around the country, are about blacks smoking outside and getting their pot on street corners.  Recent studies contradict that.  And if D.C.'s shameful pot disparity was about anything but racial bias, we'd see it narrowing.

Instead, though the number of black and white pot charges filed fluctuated from year to year, reefer charges filed against blacks rose 6 percent and declined 10 percent for whites between 2005 and 2011.

Over the last decade, the federal city's black population has wavered as its white population shot up.  If municipal pot arrests were impartial, that should have equaled more white potheads learning what the inside of a squad car looked like as arrests of black potheads became scarcer.  Latinos, moving into the city in steady if not overwhelming numbers, for instance, saw their pot arrests rise 40 percent between 2005 and 2011, from 93 pot charges to 153.

Also, at a time when weed has become another chic amenity, there's a good chance that the city's affluent whites have most of D.C.'s stash. Last year, Washingtonian ran a gleeful article about the massive amount of weed rambling through D.C.'s elite neighborhoods courtesy of drug-dealing stroller moms and tony pot-delivery services....

The only politician explicitly working to address the dope divide is longshot at-large D.C. Council candidate Paul Zukerberg, who's made marijuana decriminalization part of his platform.  He attributes the disparity to cops using stop-and-frisk powers on young black males. "In D.C., we’re giving young people twice as many marijuana arrests as high school diplomas," he writes on his website.

Other D.C. politicians I contacted, like Mayor Vince Gray, wouldn't comment on the matter or didn't return messages.  But when I mentioned the dope divide to Police Chief Cathy Lanier (who told the Washington Post she’d tried weed as teen) during an email exchange last year, the top cop seemed concerned.  “Broad statement,” she wrote. “Mixed feelings on enforcement here...”  When I tried to get Lanier to say more, she referred me to her spokesperson, who told me that MPD doesn't insert itself into politics.

"Is 100 Years a Life Sentence? Opinions Are Divided"

The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak.  Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling.  Here are excerpts from the column:

If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison.  That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.

One is formal. The court may have meant only to bar sentences labeled “life without parole.”  On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....

The other way to understand the decision is practical.  If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.

The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question.  Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16.  He was sentenced to 89 years.  Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.”  An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.

Mr. Henry is black and was born in 1989.  The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it.  “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.

That is a reasonable question.  But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one.  “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said.  It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....

The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds.  Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task.  “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote.  “If the Supreme Court has more in mind, it will have to say what that is.”