Wednesday, May 27, 2015

Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto

As reported in this local article, the "death penalty has been repealed in Nebraska."  Here is how:

In a historic vote Wednesday, senators voted 30-19 to override a veto from Gov. Pete Ricketts. The bill (LB268) had passed a week ago on a 32-15 vote. 

Ricketts had worked hard in the last week to get senators to flip their votes.  He needed three to change their minds, but only two -- Sens. Jerry Johnson of Wahoo and John Murante of Gretna -- changed their votes to sustain the veto.

"This is it," said Sen. Ernie Chambers of Omaha as he entered the legislative chamber to begin the debate on a motion to override the veto.  Chambers has offered a bill to repeal the death penalty 40 times in his tenure of the Legislature.  In 1979, Chambers won legislative approval of death penalty repeal, but the bill fell victim to a veto by Gov. Charles Thone.

Nebraska lawmakers debated more than two hours Wednesday on a motion to override Gov. Pete Ricketts' veto of a death penalty repeal bill.  "Once we take this step, there is not going to be a falling apart of this state," Omaha Sen. Ernie Chambers said at the start of discussion on the floor of the Legislature.  "This building will not implode."

The historic significance of the event attracted a large group of onlookers, legislative staffers and media watched as debate began at 1:30 p.m....  Miriam Thimm Kelle, sister of Rulo murder victim James Thimm, was among onlookers in the legislative chamber Wednesday.  Thimm's murderer, Michael Ryan, died this week on death row.  Kelle has lobbied in support of abolishing the death penalty.

On Tuesday, Vivian Tuttle, whose daughter Evonne Tuttle was killed in the Norfolk bank robbery, joined the governor at a press conference to ask senators to sustain the veto. "I want justice for my grandchildren," she said. "I want justice for all the other families."

May 27, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"Will Mike Huckabee's Forgiveness of Joshua Duggar Extend to Other Youthful Offenders?"

The question in the title of this post is the headline of this provocative Huffington Post commentary authored by Steve Drizin. Here are excerpts: 

I confess that I had never heard of Josh Duggar before Friday. I never watched TLC's 19 Kids and Counting show, never knew that Duggar was the eldest son of the Duggar family clan which includes ten boys and nine girls, never knew that Duggar worked for the Family Resource Council, the influential conservative Christian lobbying group. Mr. Duggar's name didn't register with me until the news broke this week that he had molested young girls, including several of his sisters, when he was a 14-year-old.

Now he matters to me.  Not because of who he is or what he has done, but because Republican Presidential candidate Mike Huckabee came to Mr. Duggar's defense. While other potential Republican conservative candidates, many of whom have been pictured with Duggar over the years or have publicly supported his family's values, stayed silent on the sidelines, Mr. Huckabee moved quickly to call for forgiveness for Mr. Duggar....

Mr. Huckabee's statements have aroused the ire of many of his supporters.  His Facebook page lit up with angry comments from fans.  But I am not writing to join those who want to bury Mr. Huckabee.  As someone who has represented many teenage offenders, I want to praise him.

Mr. Huckabee's call for mercy in this age of retribution is an act of political courage. Although his recognition that youthful offenders are less culpable for their crimes due to their immature judgment and more amenable to rehabilitation is, in the words of the United States Supreme Court, something that "every parent knows" and a matter of "common sense," few politicians -- conservatives, moderates, or liberals -- have echoed his words.  In my book, he gets points for being willing to take a risk, even if he is simply stating the obvious when talking about young people who commit crimes.

But the book is not yet closed on Mr. Huckabee with regard to the Duggar affair.  Will Mr. Huckabee stand silent on these issues in his run for the Presidency? O r will he use this case as a "teachable moment" and engage other conservatives (and moderates, liberals and progressives) in a debate about juvenile justice reform?

Will Mr. Huckabee's endorsement of forgiveness and privacy for Mr. Duggar, extend to the thousands of other adolescent sex offenders, who unlike Mr. Duggar, were convicted of sex offenses and are paying the price by being required to register as sex offenders. Will he call for mercy for these young men and women as well?  Will he support efforts to allow them to prove that they are no longer a danger and no longer need to register? ...

Will Mr. Huckabee's recognition that "being a minor means that one's judgment is not mature" lead him to oppose prosecuting juveniles as adults, housing them in adult jails and prisons, or sentencing them to mandatory prison sentences?  If he truly believes that young people are capable of rehabilitation, will he oppose life without parole and other draconian sentences for juveniles? Will he support greater funding for programs aimed at rehabilitating them? ...

Just how far will Mr. Huckabee's grace extend? Does he believe in second chances only for wealthy, white, or religious teenagers who use their influence and connections to get diverted from our juvenile and criminal justice systems or will he support the same second chances for the poor, mostly black and brown teenagers who fill our juvenile and criminal jails and prisons?

Is this true political courage or one-off favor for a politically connected friend and his family?  Only time will tell.

May 27, 2015 in Campaign 2016 and sentencing issues, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Split Connecticut Supreme Court applies Miller retroactively to 50-year discretionary juve sentence

Yesterday the Connecticut Supreme Court, splitting 4-3, gave the Supreme Court's Eighth Amendment jurisprudence concerning juvenile LWOP sentencing the furthest reach of any major ruling I have seen through its opinion in Casiano v. Commissioner of Correction, No. SC19345 (Conn. May 26, 2015) (majority opinion here, dissents here and here).  Here is how the majority opinion gets started:  

We recently held in State v. Riley, 315 Conn. 637, 659, A.3d (2015), that, to comport with the eighth amendment to the federal constitution, the trial court must give mitigating weight to the youth related factors set forth in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 2464–65, 2468, 183 L.Ed. 2d 407 (2012), when considering whether to impose a life sentence without the possibility of parole on a juvenile homicide offender.  In Riley, the defendant challenged on direct appeal a total effective sentence of 100 years with no possibility of parole before his natural life expired, a sentence that the state conceded was the functional equivalent to life without parole.  State v. Riley, supra, 642. The different procedural posture and sentence in the present case raises two significant issues regarding the reach of Miller: whether Miller applies retroactively under Connecticut law to cases arising on collateral review, and, if so, whether Miller applies to the imposition of a fifty year sentence on a juvenile offender.  We answer both questions in the affirmative and, therefore, reverse the habeas court’s decision rendering summary judgment in favor of the respondent, the Commissioner of Correction, on the petition for a writ of habeas corpus filed by the petitioner, Jason Casiano.

May 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 26, 2015

Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State

As reported in this local article, "Gov. Pete Ricketts delivered Tuesday on his promise to veto legislation that would repeal the death penalty for murderers in Nebraska." Here is more on the decision and what is likely to follow it:

"This is a matter of public safety," Ricketts said. "We need to have strong sentencing. We need to be sure our prosecutors have the tools to put these hardened criminals behind bars."

"I urge our senators to stand with Nebraskans and law enforcement," Ricketts said.

The governor was joined by Attorney General Doug Peterson and family members of Evonne Tuttle, who was one of five people killed in the 2002 Norfolk bank robbery. Three of the killers involved in the robbery are on death row. Evonne's mother, Vivian Tuttle, said she sat through the trials. In each one, she watched the surveillance video that showed Jose Sandoval put a gun to her daughter Evonne's head as she knelt on the floor and was shot to death. "I want justice for my grandchildren. I want justice for the other families," she said.

The Legislature passed the death penalty bill (LB268) on Wednesday on a 32-15 vote. Thirty votes would be required to override the governor's veto. The governor said Friday that senators who voted to repeal the death penalty weren't in touch with their constituents. But a number of those senators said Tuesday at least half of their constituent contacts are telling them to stick to their votes in favor of repeal.

Supporters have lost at least one override vote -- Sen. Jerry Johnson of Wahoo. Johnson said he was shaky on his repeal vote last week. Then, most of his emails urging him to vote for repeal were from the faith community. What he has learned since last week's vote is that people in the pews aren't necessarily on the same page as church leadership, he said....

Another senator who voted for repeal -- Sen. John Murante of Gretna -- also is reconsidering his vote, he said. He is discussing it with many constituents who have called him over the past few days, he said. "I've always been torn on the issue of the death penalty," he said, "and I'm gathering as many opinions as I can before rendering a vote on the veto override."

Sounds like every single vote is going to matter now in Nebraska's unicameral legislature. Stay tuned.

May 26, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Implementing Just Mercy"

The title of this post is thew title of this notable new piece authored by William Berry III now available via SSRN. Here is the abstract:

This book review essay explores the connection between Bryan Stevenson's recent book, "Just Mercy: A Story of Justice and Redemption", and the development of concepts of individualized sentencing under the Sixth and Eighth amendments by the Supreme Court.

In light of these steps toward individualizing sentencing, this book review essay imagines a serious application of the principles of just mercy that Stevenson has championed in his legal career to the criminal justice system.  Specifically, this essay argues that individualized consideration of criminal offenders throughout the criminal justice process — from policing to sentencing — is necessary to achieve the compatible (not competing) goals of justice and mercy.

The essay proceeds in three parts.  Part One describes Stevenson’s book, highlighting the principles of just mercy latent in his narrative and their connection to the individualized consideration of criminal offenders.  In Part Two, the essay shifts to argue that many of the current shortcomings of the criminal justice system result directly from stigmatizing alleged offenders rather than considering them individually as people possessing human dignity.  Finally, in Part Three, the essay outlines a series of criminal justice reforms drawn from Stevenson’s experiences and the concepts of individualized consideration that emerge from pursuing just mercy.

May 26, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS grants cert on a federal sentencing case and state capital case

This morning's Supreme Court order list, available here, includes two grants of certiorari.  Both cases are criminal cases, Lockhart v. US and Foster v. Humphrey, and here are the links to casepages and the issues via SCOTUSblog:

Lockhart v. US:  Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.

Foster v. Humphrey: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

May 26, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, May 23, 2015

You be the prosecutor: what sentence will you recommend for convicted "sex on beach" couple?

Regular readers may recall this post from earlier this month, titled "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," which covered the possibility of one member of an indecent couple in Florida facing a mandatory 15-year prison sentence for shoreline dirty dancing with his girlfriend.  But this follow-up post reported that State Attorney Ed Brodsky indicated that "he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach."  Now this news update on the notable case indicates that sentencing is likely to be scheduled in the coming weeks and includes this partial preview:

Jose Caballero, 40, and Elissa Alvarez, 20, were convicted May 4 on two counts each of lewd and lascivious behavior for having sex on Cortez Beach on July 20, 2014. The convictions carry a maximum sentence of 15 years in prison and require both to register as sex offenders....

The State Attorney's Office has said it will not seek the maximum penalty for either defendant, but is looking into jail time for both of them. [Assistant state attorney prosecutor Anthony] Dafonseca said they'd seek a harsher punishment against Caballero, who has served prison time for cocaine trafficking.

The defendants were represented by attorney Ronald Kurpiers, but Alvarez will be represented at sentencing by Greg Hagopian, according to Dafonseca. Hagopian said he didn't want to discuss the reason for Alvarez's switch. She had no criminal record before her conviction.

A few people filed letters on behalf of the defendants, saying the judge should take it easy on Alvarez and Caballero and not make them register as sex offenders. "You are likening these two individuals to deplorable people who have actually taken advantage of or violated children," read a letter signed by Femi Olukoya. "This state needs to grow up and that can start with you," read another letter.

The jury found the couple guilty after a 1 1/2 day trial and only 15 minutes deliberation. One of the witnesses took video of the two in July, showing Alvarez moving on Caballero in a sexual manner in broad daylight.

Unsuprisingly, prior posts about this case generated a lot of notable commentary, and now I am eager to focus discussion on how folks think the state prosecutors here ought to exercise their sentencing discretion. Specifically, I would really like folks to put themselves in the shoes of the Florida prosecutors and state, with some specificity, exactly what sentence they think should be recommended to the sentencing judge in this unusual criminal case.

Prior related post:

May 23, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

Friday, May 22, 2015

Two notable voices from the (far?) right calling again for drug war and sentencing reform

Download (2)The two recent stories about recent comments by notable advocates reinforce my sense that more and more traditional (and not-so-traditional) conservative voices are feeling more and more confortable vocally criticizing the federal drug war and severe drug sentencing:

Headline: "Grover Norquist: Malloy Right On Drug Sentencing Reform"

Money Quotes:   If you told me a year ago that I [Grover Norquist] would be speaking out in favor of one of Gov. Dannel P. Malloy's top priorities, I would have said you were crazy. The governor is a tax-and-spend liberal and I have spent my entire career fighting high taxes and wasteful government spending. Yet, just as a broken clock gets it right once in a while, Gov. Malloy is right about the need to reform mandatory minimum sentencing laws.

Contrary to their original intent, mandatory minimum laws have done little to reduce crime. They have, however, been significant drivers of prison overcrowding and skyrocketing corrections budgets. That's why conservatives and liberals in Washington, D.C., and in statehouses all across the country are coming together to repeal and reform these one-size-fits-all laws. Oklahoma, Georgia, South Carolina, Texas and Florida are just a handful of the states where conservatives have not simply supported, but led, the efforts to scale back mandatory minimum sentences.

Conservatives in Connecticut should support the governor's mandatory minimum proposals for two reasons. First, the reforms are very modest — addressing only drug possession. In some states, such as Connecticut's neighbor, Rhode Island, and Delaware, lawmakers have repealed mandatory minimum sentences for all drug offenses. Still more states have enacted significant reform to their drug mandatory minimum laws so that judges have discretion to impose individualized sentences that fit the crime. In all of these states, crime rates have dropped.

Conservatives in Connecticut also should embrace sentencing reform because of the state's awful budget mess. For too long, fiscal hawks have turned a blind eye to wasteful law enforcement spending. Not wanting to appear "soft on crime," they have supported every program and policy to increase the prison population without subjecting those ideas to cost-benefit analysis.

Those days are over. After watching state spending on prisons skyrocket more than 300 percent over the last two decades, state leaders across the country seem to understand that they can no longer afford to warehouse nonviolent offenders in prison.

-----

Headline: "Glenn Beck Calls for the Repeal of Federal Drug Prohibition"

Money QuotesToday on Glenn Beck's radio (and TV) show, I [Jacob Sullum] debated marijuana prohibition with Robert White, co-author (with Bill Bennett) of Going to Pot: Why the Rush to Legalize Marijuana Is Harming America The conversation turned to the war on drugs in general and also touched on federalism, the Commerce Clause, the nature of addiction, and the moral justification for paternalistic interference with individual freedom.  Reading from my recent Forbes column, Beck said he is strongly attracted to the Millian principle that "the individual is sovereign" over "his own body and mind," which rules out government intervention aimed at protecting people from their own bad decisions. "I'm a libertarian in transit," he said. "I'm moving deeper into the libertarian realm.... Inconsistencies bother me." By the end of the show, Beck was declaring that the federal government should call off its war on drugs and let states decide how to deal with marijuana and other psychoactive substances.

Addendum: Marijuana Majority's Tom Angell notes that Beck indicated he favored marijuana legalization back in 2009, saying, "I think it's about time we legalize marijuana...  We either put people who are smoking marijuana behind bars or we legalize it, but this little game we are playing in the middle is not helping us, it is not helping Mexico and it is causing massive violence on our southern border...  Fifty percent of the money going to these cartels is coming just from marijuana coming across our border." As far as I know, however, this is the first time Beck has explicitly called for an end to federal prohibition of all the other currently banned drugs.

May 22, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, May 20, 2015

Nebraska legislature votes by large margin to repeal state's death penalty

As reported in this new AP article, " Nebraska lawmakers gave final approval on Wednesday to a bill abolishing the death penalty with enough votes to override a promised veto from Republican Gov. Pete Ricketts."  Here is more:

The vote was 32 to 15 in Nebraska's unicameral Legislature.  If that vote holds in a veto override, Nebraska would become the first conservative state to repeal the death penalty since North Dakota in 1973.  The Nebraska vote is notable in the national debate over capital punishment because it was bolstered by conservatives who oppose the death penalty for religious reasons and say it is a waste of taxpayer money.

Nebraska hasn't executed a prisoner since 1997, and some lawmakers have argued that constant legal challenges will prevent the state from doing so again.

Republican Gov. Pete Ricketts, a death penalty supporter, has vowed to veto the bill. Ricketts announced last week that the state has bought new lethal injection drugs to resume executions.  Ricketts, who is serving his first year in office, argued in his weekly column Tuesday that the state's inability to carry out executions was a "management problem" that he is committed to fixing.

Maryland was the last state to end capital punishment, in 2013. Three other moderate to liberal states have done so in recent years: New Mexico in 2009, Illinois in 2011, Connecticut in 2012. The death penalty is legal in 32 states, including Nebraska.

May 20, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Spotlighting who profits from "Piling on Criminal Fees"

Professors Ronald Wright and Wayne Logan have this important new Huffington Post article summarizing the important themes from their important article titled "Mercenary Criminal Justice." Here are excerpts:

Criminal courts sometime function as fee-generating machines....  The problem here is not any single criminal fee; the problem is how they stack up to create injustice.  That's why we are calling for a statewide Commission on Criminal Fees.

In a recent law review article, "Mercenary Criminal Justice," we chronicled the historically central role of fee-generation in U.S. criminal justice systems, a tendency that became even more pronounced as a result of the recent fiscal crisis.  We call this system "mercenary" because the revenues affect the enforcement decisions of actors in the justice system, who start to depend on that revenue, and put their own job security above the job of doing individual justice.  As the Justice Department's report on Ferguson noted, city officials there asked the police and courts to increase ticket collection, explicitly to increase their revenue, basically treating minor criminal offenders as ATM machines.  This mistreatment is all the more troubling when the fees and fines land most heavily on racial minorities and the poor, as they routinely do...

The beneficiaries of the revenue hail from diverse and powerful institutions. Courts, crime labs, prosecutors, and even public defenders all see the dollar signs and make their requests.  What's the harm, after all, in asking for another $100 from an arrestee, convict, or probationer?

And it is not only government employees who have their hands out: private sector actors (with profit motives) have increasingly gotten a piece of the action. Courts, for instance, ask private contractors to collect fees and fines, allowing them to add their own service charges to the total bill.  Private companies, moreover, have been active in probation services. More recently, the American Legislative Exchange Council (or ALEC) started promoting a variation on this theme -- called "post-conviction bail" -- that empowers private bail bond dealers to monitor defendant compliance with post-release conditions. If the released inmate does not comply, the dealer tracks him down and collects a new financial penalty.

Any one of these fees or fines might be a reasonable part of a non-prison punishment, promoting public safety and the interests of defendants alike.  The trouble comes when nobody minds the total effects of all these fees on individuals.  Taken together, even the most modest and well-justified fees can trap the indigent in the control of criminal courts, always paying but never paying their debt down to zero.  We believe that a statewide Commission on Criminal Fees can see the big picture and prevent this piling-on effect. Before authorizing a new fee to support the state crime lab, for instance, the Commission would ask how that fee interacts with the public defender's application fee, the probation supervision fee, and all the other fees currently imposed on individuals ensnared in the justice system.

May 20, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Has death penalty administration now become a "testing ground for toxic drugs"?

The question in the title of this post is prompted by the subheadline of this lengthy new New Republic piece: "Lethal Entanglements: Lethal injection was supposed to be a cleaner, more humane version of capital punishement. Over the past five years, it has become a messy, largely unmonitored testing ground for toxic drugs."  Here are is a passage from the center of the lengthy article:

Lethal injection was first adopted in Oklahoma in 1977 as a less violent alternative to the gas chamber and the electric chair. Over the next 25 years, almost every death-penalty state copied Oklahoma’s three-drug formula: first the barbiturate sodium thiopental to knock the prisoner out, then the paralytic pancuronium bromide to immobilize him, and finally potassium chloride to stop his heart.  The second and third drugs would cause intense suffering on their own, but the Supreme Court ruled that the method was constitutional in Baze: As long as the thiopental rendered the prisoner unconscious, he would be insensate to the agonizing effects of the next two drugs.  Just one year after the Baze decision, though, in late 2009, the pharmaceutical company that sold thiopental to every death-penalty state, Hospira, reported a shortage.

As a consequence, the death penalty has undergone in the past five years its biggest transformation since states began switching to lethal injection decades ago.  As thiopental disappeared, states began executing prisoners with experimental one-, two-, or three-drug cocktails.  States have essentially been improvising what is supposed to be one of their gravest and most deliberate duties, venturing deep into the shadows to carry out executions.  They have turned to mail-order pharmaceutical suppliers and used untested drugs.  They have sidestepped federal drug laws, minimized public disclosure, and, on multiple occasions, announced changes to execution protocols just hours before prisoners were set to die.  The machinery of death in the United States has become a kluge.

In April, the Supreme Court acknowledged this when it heard oral arguments in Glossip v. Gross.  A group of prisoners from Oklahoma — including Richard Glossip, a convicted murderer — challenged the state’s use of a drug called midazolam because they feared it would not anesthetize them.  The court had hoped Baze would obviate future lethal injection lawsuits, but the thiopental shortage had stripped the decision of any practical relevance almost as soon as it was issued. Now, just seven years later, the justices were considering whether they should invalidate a specific method of execution for the first time in U.S. history.  The court’s decision won’t overturn the death penalty, but it will define the way we practice it for years to come.

Though the challenge comes from Oklahoma, it is Arizona that provides the best case study of the rapid, slipshod evolution of lethal injection since Baze. The desert state hasn’t executed the most prisoners since the thiopental shortage began — that distinction belongs, as always, to Texas — but it has used more methods than any other state, killing prisoners with four different drug combinations.  No other state has been quite so dogged in its determination to carry out executions. And no other state has left so detailed a paper trail.  Judges, lawyers, and journalists (most notably Michael Kiefer at The Arizona Republic) have brought much of the abuses to light over the years, but the story has been told in disparate pieces: a deposition here, an uncovered email there. The complete narrative is more troubling than any one of its components.

May 20, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 19, 2015

"NY Senate votes to create registry of violent felons"

The title of this post is the headline of this notable new AP article sent my way by a helpful reader.  Here are excerpts:

The New York state Senate has voted to create a public list of those convicted of violent felonies similar to the existing sex offender registry. The proposal is intended to prevent future crimes, and in particular domestic violence, by allowing people to check if a new acquaintance has a violent past.

The legislation is named Brittany's Law after Brittany Passalacqua, a 12-year-old from Geneva who was murdered in 2009 along with her mother by her mother's then boyfriend.  The boyfriend had a prior conviction for a violent felony.

Brittany’s grandmother, Dale Driscoll, remarked: “Words cannot express the gratitude my family and I have for Senator Nozzolio and his dedication and commitment to seeing ‘Brittany’s Law’ adopted into law.  The murder of my daughter and granddaughter devastated our family.  If this legislation prevents another family from suffering the loss we have experienced, then my daughter and granddaughter will not have died in vain. People should have the right to know if a person is a violent felon and I will continue to do everything I can to push this measure in the State Assembly.”...

The Senate passed the bill Monday.  Similar legislation is pending in the Assembly but no vote has been scheduled.

Critics argue a registry could stigmatize ex-offenders and make it harder for them to secure jobs and housing after they are released.

May 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Notable sentencing and clemency comments from newly-confirmed Deputy Attorney General

I just came across this recent Washington Post profile of Sally Quillian Yates, the new number two at the Department of Justice.  The piece is headlined "New deputy attorney general: ‘We’re not the Department of Prosecutions’," and here are some notable excerpts:

The odds were stacked against lawyer Sally Quillian in her first trial in rural Barrow County, Ga. Before an all-white jury, she was representing the county’s first African American landowning family against a developer over a disputed title to six acres of land. The family was so distrustful of the court system back in the 1930s that they hadn’t recorded their deed.  Instead, the family’s matriarch kept the deed, written on cloth, folded inside her dress every day while she worked the fields.  Now, a developer was trying to take their property, and Quillian was arguing the case using an arcane legal theory.

“I had no idea what I was doing,” Quillian — now Sally Quillian Yates — recalled. “I had never tried a case before.”  But the jury came back with a verdict in favor of her client. “These 12 white jurors, who knew and went to church with and socialized with everybody on the other side, did the right thing,” said Yates, who was then at a private firm.  “This court system that my client’s family had mistrusted so much that they wouldn’t even file their deed had worked for them as it’s supposed to and had given them back the property that had been so important to their family all of these years.”

That case some 30 years ago had a deep impact on Yates, who went on to become a prosecutor in Atlanta for 20 years.  In 2010, President Obama nominated Yates to be the U.S. attorney for the Northern District of Georgia.  Last week, she was confirmed to be deputy attorney general , the second-highest-ranking position at the Justice Department.  A bottle of champagne still sits in her fourth-floor corner office, which overlooks Constitution Avenue and where senior officials celebrated her ­84-to-12 Senate vote....

One of Yates’s priorities will be to follow through with the criminal justice reform efforts begun by Attorney General Eric H. Holder Jr., including the push to give clemency to “nonviolent drug ­offenders” who meet certain criteria set out by the department last year, she said in her first interview since taking the job.

Yates and other prosecutors enforced the harsh sentencing policies from the 1980s and ’90s.  “Those policies were enacted at a time of an exploding violent-crime rate and serious crack problems,” Yates said.  “They were based on the environment we were in. But things have changed now, and violent crime rates have dropped dramatically.”

More than 35,000 inmates are seeking clemency, but a complicated review process has slowed the Obama administration’s initiative.  In February, Obama commuted the sentences of 22 drug offenders, the largest batch of prisoners to be granted early release under his administration and the first group of inmates who applied after the new criteria were set.

“Certainly, there’s some growing pains at the beginning,” Yates said.  “There’s start-up time involved in this. I think all of us are frustrated that it’s taken longer than we would like for this to be operating as efficiently as possible.  But I think we are headed down that road now. There are going to be more recommendations from the department, and I would expect more commutations that the president will be issuing.”...

Yates commutes every other weekend to Atlanta to be with her husband, who is the director of a school for children with learning disabilities, and to plan the wedding of her 24-year-old daughter, the older of two children.  She said the back-and-forth is worth the opportunity to influence criminal justice issues, including civil rights and sentencing reform, at the highest level.

She plans to urge lawmakers on Capitol Hill to pass legislation to change sentencing policies. “Certainly, I don’t think I can ever be accused of being soft on crime,” Yates said. “But we need to be using the limited resources we have to ensure that we are truly doing justice and that the sentences we’re meting out are just and proportional to the crimes that we’re charging.”

“We’re not the Department of Prosecutions or even the Department of Public Safety,” Yates said. “We are the Department of Justice.”

May 19, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Some recent posts of note from Marijuana Law, Policy and Reform

I have not recently done in this space a round-up of posts of note from Marijuana Law, Policy and Reform in a few weeks. Here is an abridged listing of MLP&R posts that might be of special interest to sentencing fans: 

May 19, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences? | Permalink | Comments (0) | TrackBack

Is a former lobbyist and former federal prisoner likely to be a uniquely good sentencing reform advocate?

The question in the title of this post is prompted by this notable new CQ Roll Call article headlined "Out of Prison, Ex-Lobbyist Pushes Sentencing Overhaul." Here are excerpts:

Kevin Ring helped write a bill in the 1990s that toughened penalties for methamphetamine charges. Now, recently out of prison, the former Team Abramoff lobbyist says he wants Congress to overhaul the nation’s justice system and to undo mandatory minimum requirements altogether.

His own effort comes at a pivotal time for the issue on Capitol Hill, where bipartisan measures (S 502, HR 920) to reduce stiff sentencing requirements for drug charges appear to be gaining some traction.

Ring, a former Hill aide, is wrapping up his 20-month sentence for an honest services fraud conviction by serving home confinement that allows him to work in downtown Washington, D.C. He is drawing on his K Street and criminal justice experiences at Families Against Mandatory Minimums, an advocacy group devoted to peeling back the same sort of laws he helped push through while serving as a Senate Judiciary Committee staffer.

“We wanted to look tough on meth,” said Ring, a Republican, who recently started working full-time as FAMM’s new director of strategic initiatives. “The Hill is run by too many 20-year-olds with a lot of opinions and not enough experience, and I was part of that. I didn’t have enough experience to write criminal statutes. What did I know?”

Ring is a former colleague of ex-K Street power player Jack Abramoff, and like Abramoff he went to the federal prison camp in Cumberland, Md. Ring started working with FAMM part-time five years ago, doing grant writing. He’d already lost two jobs at K Street firms amid the unraveling Abramoff scandal, and he needed work. He had to terminate all outside employment during his prison term.

“When he first interviewed with us, he was incredibly humble, hat in hand, and said, ‘I’m about to be indicted,’” recalled Julie Stewart, FAMM’s president and founder and a self-described libertarian. “I immediately realized what an incredible gem we had in Kevin because of his conservative background. It was very clear to me that Kevin could do so much good for FAMM and for our issue and promoting it in a voice that could really be heard by the people we were trying to influence on the Hill.” FAMM, she noted, is a rare organization that gets funding from conservative David Koch and liberal George Soros.

Ring, 44, said he doesn’t expect he will meet the legal definition of a lobbyist at FAMM, but he intends to write op-eds, congressional testimony and advocacy letters. In short, he plans to influence the process largely from the background. It's not likely to be an easy sell.

Even as the White House and Republicans on the Hill, including Sen. Mike Lee of Utah and Rep. Raúl R. Labrador of Idaho, are championing sentencing overhaul legislation, such proposals are far from a fait accompli. Senate Judiciary Chairman Charles E. Grassley of Iowa has pushed back on criticism that he is blocking sentencing legislation, but he’s made clear his support would come with a price....

Grassley, in a recent speech at the Press Club, said white-collar criminals such as Ring receive "paltry sentences." He has suggested such criminals ought to be subject to mandatory minimums in exchange for reduced minimums for nonviolent drug offenders. "The last thing we need is to take away a tool that law enforcement and prosecutors use to get the bad guys," Grassley said.

His spokeswoman, Beth Levine, said Grassley’s staff and aides to the lawmakers pushing for sentencing legislation “have been sitting down to work something out.”

FAMM, as well as Ring, opposes new mandatory minimum requirements for white-collar crimes. “It’s an awful, awful idea,” Ring said during an interview last week in FAMM’s offices near Metro Center. “Even without mandatory minimums, prosecutors can threaten you with such a long sentence that you want to plead guilty.”

He said the mandatory minimums have inflated sentencing guidelines across crimes, even those not subject to mandatory sentences. In Ring’s case, prosecutors asked the judge to sentence him to at least 20 years in prison. He said even his current home confinement, which includes a GPS ankle tracker to monitor his location 24 hours a day, is surprisingly restrictive and ought to be used more for nonviolent offenders — keeping them out of the prison system and allowing them to continue to work, pay taxes and care for their children.

It’s a message that resonates with budget-conscious Republicans, especially those with a libertarian stance. Stewart, who started FAMM 24 years ago, when her brother went to federal prison for growing marijuana in Washington state, said the current conversation on Capitol Hill and across the country is unprecedented. “My one fear is that talk is cheap,” she said. “It’s going to be a push.”

And Ring will be right in the middle of it. “I believed it before, and now I just feel like I’m better informed for having had the experience,” Ring said. “You know I wouldn’t wish the experience on anyone, but now that I have it, I feel compelled to say what I saw. So that goes to not only how prosecutions work, how sentencing works, but then also how prisons work or don’t work.”

May 19, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 18, 2015

Deterrence, jurisdiction and the death penalty after many murders in Waco bar brawl

The title of this post are the topics I am now thinking about inspired by this lengthy news article, headlined "Capital murder charges expected in Waco biker shootout," discussing possible charges in the aftermath of a bloody bar fight.  Here are excerpts (with my emphasis added):

The unprecedented, deadly biker gang violence on display Sunday at the Twin Peaks restaurant in Waco, Texas, has led to mass arrests, massive bail figures, the specter of numerous death penalty cases, the likely shuttering of a business, and an irate police force who said they did everything they could to stop it.

About 170 motorcycle gang members charged with engaging in organized crime are each being held on a $1 million bond in the wake of the shootout in Waco that left at least nine dead and 18 injured, and authorities say capital murder charges are expected....

While they haven't been filed yet, capital murder charges open the possibility that prosecutors will seek the death penalty for some of the suspects, in a state that puts far more inmates to death annually than all others....

Waco Police Sgt. W. Patrick Swanton said while capital murder charges are likely, it's too early to determine how many motorcycle gang members will face the charge.

The head of the Texas Department of Public Safety says the violence that unfolded in Waco when rival motorcycle gangs opened fire on each other in a restaurant parking lot is unprecedented. The shootout erupted shortly after noon at a busy shopping center where members of at least five rival gangs had gathered for a meeting. DPS Director Steve McCraw, a former FBI agent, said Monday that the shootout Sunday was the first time "we've seen this type of violence in broad daylight."...

Police and the operators of Twin Peaks - a national chain that features waitresses in revealing uniforms - were aware of the meeting in advance and at least 12 Waco officers, in addition to state troopers, were outside the restaurant when the fight began, Swanton said. As a result, the whole incident, involving an estimated 100 guns in total, "happened very fast," Swanton said. "We were there within seconds, meaning within 35 to 40 seconds," Swanton said.

So far, officials have admitted that some of the bikers were shot by police, but have not said whether or not any of those killed died as a result of police gunfire....

The interior of the restaurant was littered with bullet casings, knives, bodies and pools of blood, he said. Authorities were processing the evidence at the scene, south of Dallas. About 150 to 200 bikers were inside during the shootout. "I was amazed that we didn't have innocent civilians killed or injured," Swanton said.

Parts of downtown Waco were locked down, and officials stopped and questioned motorcycle riders. Agents from the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives were assisting local and state authorities. McLennan County Sheriff Parnell McNamara, whose office is involved in the investigation, said all nine who were killed were members of the Bandidos or Cossacks gangs.

In a 2014 gang threat assessment, the Texas Department of Public Safety classified the Bandidos as a "Tier 2" threat, the second highest. Other groups in that tier included the Bloods, Crips and Aryan Brotherhood of Texas. The Bandidos, formed in the 1960s, are involved in trafficking cocaine, marijuana and methamphetamine, according to the U.S. Department of Justice....

Swanton said the local biker gangs have little regard for law enforcement, which is why they did not hesitate to start a shootout with uniformed officers in plain sight. "They could care less whether we were here or not," Swanton said. "That's the violence we were dealing with."

I think almost everyone knows or should know that Texas is the state most likely to impose and carry out a death sentence in the United States. Thus, it sure appears that Texas's notable death penalty track record had no deterrent effect on the folks with guns and knifes involved in this carnage.

Especially with the stories of drug trafficking and gang threats on local police, I also think this case seems almost to cry out for federal intervention. Thus, I think it will be interesting to watch just which jurisdiction (state or federal) takes the lead on charges (both capital and noncapital) in this stunning crime story.

May 18, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

DC Circuit on child porn and sentencing manipulation and nonfrivolous arguments (aka departures and variances and Booker, oh my!)

I sometime consider Washington DC to be a land like Oz where weird, and sometimes magical, sometimes scary, sometimes bizarre, events can transpire.  Thus, when reading the DC Circuit's recent  opinion in US v. Bigley, No. 12-3022 (DC Cir. May 15, 2015) (available here), I kept hearing Dorothy's voice as the opinion twisted and turned through a variety of notable sentencing issues in the dark Booker forest.  Here is how the per curiam opinion gets started:

Before United States v. Booker, 543 U.S. 220 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation.  See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C. Cir. 1995).  But Booker and its offspring fundamentally changed the sentencing calculus, requiring courts to now consider any mitigation argument related to the sentencing factors contained in 18 U.S.C. § 3553(a) when imposing a sentence within the statutory range of punishment. See Pepper v. United States, 131 S. Ct. 1229, 1241–48 (2011); Kimbrough v. United States, 552 U.S. 85, 101–02 (2007); Rita v. United States, 551 U.S. 338, 357 (2007). A sentencing court, post-Booker, must consider nonfrivolous arguments for mitigation, even if those arguments were previously prohibited under the mandatory guidelines regime. Because the district court failed to consider a nonfrivolous claim of sentencing manipulation when it pronounced its sentence, we vacate the sentence and remand.

Notably, the full opinion for the DC Circuit panel here does not quite say that a district court always has an obligation to address expressly a nonfrivolous argument raised by the defendant. Judge Rogers concurs separately to advocate such a holding by the circuit:

“Sentencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008).  I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance.  But the burden of providing a brief explanation is small and the advantages great.  “Most obviously, [an explanation] requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions.” Id. at 193; see also In re Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008) (“The requirements that a sentencing judge provide a specific reason for a departure and that he commit that reason to writing work together to ensure a sentence is well-considered.”).  It also promotes the “perception of fair sentencing,” Gall, 552 U.S. at 50, and “helps the sentencing process evolve by informing the ongoing work of the Sentencing Commission,” Cavera, 550 F.3d at 193. When a sentencing court responds to a defendant’s arguments, it “communicates a message of respect for defendants, strengthening what social psychologists call ‘procedural justice effects,’ thereby advancing fundamental purposes of the Sentencing Reform Act.” See Michael M. O’Hear, Explaining Sentences, 36 FLA. ST. U. L. REV. 459, 472 (2009). The requirement also assures an adequate record with which we can conduct “meaningful appellate review.” Gall, 552 U.S. at 50. I would join the majority of circuits in holding district courts should address a defendant’s nonfrivolous argument for a variance from the Guideline range.

Though the formal ruling and the discussion of sentencing procedural are surely the most consequential aspects of this Bigbey ruling, I cannot overlook or fail to comment on the case facts and on how the remarkable severity of the federal child porn guidelines shaped the entire sentencing dynamic of this case. Here is the sad and remarkable (guideline) tale: The defendant in this case was charged and pled guilty to "one count of interstate travel with intent to engage in illicit sexual conduct with a minor" after he drove to DC to hook up with a (fictional) 12-year-old daughter of a friend of an (undercover) agent chatting on-line. At the suggestion of the agent, the defendant bought a digital camera with him on his trip to DC for taking pictures of the girl, which had this impact in the calculation of the guideline range:

When the probation office calculated his advisory sentencing guideline range, it employed the Section 2G1.3(c)(1) cross-reference guideline provision, which requires the application of Section 2G2.1 when an offense involves “causing, transporting, permitting, or offering . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” U.S.S.G. § 2G1.3(c)(1). By applying Section 2G2.1, Bigley’s base offense level increased from 24 to 32, which, when the other guideline calculations were made, boosted his sentence guideline range from 46 to 57 months to 135 to 168 months of imprisonment.

In other words, because (and only because) the defendant was talked into bringing a digital camera on his illegal child booty-call trip, his recommended guideline sentence shot up from 4-5 years to 12-14 years. I have heard of some severe gun-possession sentencing enhancements, but I have never seen such a severe camera-possession sentencing enhancement.  Perhaps the NRA (the Nikon Rights Association) should consider filing an amicus brief at the resentencing.

May 18, 2015 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

NY Times editorial astutely praises "Justice Reform in the Deep South"

Throughout too much of America's history, the term "Southern Justice" would invoke shudders and fear. (Indeed, as discussed here, Norman Rockwell used this term as the title for his historic painting depicting the deaths of three civil rights workers killed for seeking to register African American voters.) But, as effectively highlighted by this new New York Times editorial, lawmakers in the deep south are lately doing a lot to remake the image of southern justice:

It has been getting easier by the day for politicians to talk about fixing the nation’s broken criminal justice system. But when states in the Deep South, which have long had some of the country’s harshest penal systems, make significant sentencing and prison reforms, you know something has changed.

Almost all of these deep-­red states have made changes to their justice systems in the last few years, and in doing so they have run laps around Congress, which continues to dither on the passage of any meaningful reform.  Lawmakers in Alabama, for example, voted nearly unanimously early this month to approve a criminal justice bill.  Alabama prisons are stuffed to nearly double capacity, endangering the health and lives of the inmates, and the cost of mass imprisonment is crippling the state budget at no discernible benefit to public safety.

The bill would cut the state’s prison population of nearly 25,000 by about 4,500 people over the next five years. Sentences for certain nonviolent crimes would be shortened, and more parole supervisors would be hired to help ensure that people coming out of prison don’t return. Gov. Robert Bentley is expected to sign the measure as soon as Tuesday.

Before Alabama, South Carolina passed its own package of reforms in 2010.  In February, it closed its second minimum-­security prison in a year.  Georgia got on board with significant reforms to its adult and juvenile prison systems in 2012 and 2013, including giving judges more leeway to sentence below mandatory minimums and increasing oversight of prisons.  In 2014, Mississippi passed its own systemic fixes, like providing more alternatives to prison for low­level drug offenders.

Of course, all these states had abysmal conditions to start with. Mississippi imprisons more of its citizens per capita than China and Russia combined. That’s worse than any state except Louisiana, which has not yet managed reforms as broad as its neighbors. Alabama was facing the threat of federal intervention to alleviate its crushingly overcrowded prisons if it didn’t act.  And many of these state reforms are far more modest than they should be....

Nonetheless, these initiatives show important progress. Less than a decade ago, it was difficult to find any governor anywhere, of either party, who would go near this issue. Now, a Republican governor like Nathan Deal of Georgia is pointing with pride to two major reform packages, as well as the state’s “ban the box” law, which prohibits the state from asking potential employees about their criminal history until later in the hiring process.

Still, justice reform is a fragile proposition, and can be easily thwarted by more powerful political forces.  As the 2016 presidential election approaches, most of the major candidates agree that criminal­justice reform is a priority, but there remains a good deal of ambivalence on how to move forward.  There needn’t be.  The reforms in the southern states, though limited, are already paying off.  The presidential candidates — not to mention Congress — should be paying close attention.

May 18, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Six new SCOTUS opinions, but nothing too exciting for sentencing fans

The next six weeks are the SCOTUS law nerds version of March Madness: the regular SCOTUS season of hearing oral arguments and deciding relatively easy cases are over, and the last weeks of the Term are going to involve the handing down of many notable opinions on many notable topics.  The madness began today with the release of six opinions, three of which had criminal justice elements, but none of which were all that controversial nor especially consequential.

Howard at How Appealing has a great round-up of the basics of the six new opinions here, and Kent at Crime & Consequences has this helpful substantive review of the three rulings with some criminal justice consequence.

For those looking to set their (always tentative) SCOTUS calendars, I will predict now that we get the Elonis Facebook threat ruling either next Tuesday or the following Monday but will not get any other significant criminal justice ruling until the last few weeks of June.

May 18, 2015 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, May 15, 2015

"America’s Deadliest Prosecutors"

150512_JURIS_deadliestprosecutors.jpg.CROP.original-originalThe title of this post is the main headline of this notable new Slate piece, which highlights the central role that different prosecutors can and do play in the administration of the death penalty.  Here are excerpts:

“I think we need to kill more people,” Dale Cox, a prosecutor in Caddo Parish, Louisiana, said recently. He was responding to questions about the release of Glenn Ford, a man with Stage 4 lung cancer who spent nearly three decades on death row for a crime he did not commit. Cox acknowledged that the execution of an innocent person would be a “horrible injustice.” Still, he maintained of the death penalty: “We need it more now than ever.”

Cox means what he says. He has personally secured half of the death sentences in Louisiana since 2010. Cox recently secured a death sentence against a father convicted of killing his infant son, despite the medical examiner’s uncertainty that the death was a homicide. Rather than exercising caution in the face of doubt, Cox told the jury that, when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.

The nation suffered more than 10,000 homicides last year, yet only 72 people received death sentences — the lowest number in the modern era of capital punishment. The numbers have been steadily declining for the better part of a decade. Most states are abandoning the practice in droves. Even in states that continue its use, capital prosecutions are being pursued in only a few isolated counties.

What distinguishes these counties from neighbors that have mostly abolished the death penalty, in fact if not in law? Perhaps the biggest factor is the presence of a handful of disproportionately deadly prosecutors who represent the last, desperate gasps of a deeply flawed punishment regime. Most of their colleagues are wisely turning away from a practice that has revealed itself to be ineffective at deterring crime, obscenely expensive, inequitably administered, and not infrequently imposed upon the innocent. But America’s deadliest prosecutors continue to pursue death sentences with abandon, mitigating circumstances and flaws in the system be damned.

Cox is one of them.  Jeannette Gallagher of Maricopa County, Arizona, is another. She and two colleagues are responsible for more than one-third of the capital cases — 20 of 59 — that the Arizona Supreme Court reviewed statewide between 2007 and 2013.  Gallagher recently sent a 19-year-old with depression to death row even though he had tried to commit suicide the day before the murder, sought treatment, and was turned away. She also obtained a death sentence against a 21-year-old man with a low IQ who was sexually abused as a child, addicted to drugs and alcohol from a young age, and suffered from post-traumatic stress disorder.  She then sent a U.S. military veteran with paranoid schizophrenia to death row.  Her response to these harrowing mitigating circumstances has not been to exercise restraint, but rather to accuse each of these defendants of simply faking his symptoms.  The Arizona Supreme Court has found misconduct in three of her cases, labeling her behavior as “inappropriate,” “very troubling,” and “entirely unprofessional.”...

Meanwhile, in Duval County, Florida, Bernie de la Rionda has personally obtained 10 death sentences since 2008.  (He failed to secure the conviction of George Zimmerman, however, for chasing down and shooting teenager Trayvon Martin.)  The Florida Supreme Court reversed three of those cases; one for law enforcement misconduct and two after concluding that death was too severe a punishment.  That court also reversed an earlier death sentence because de la Rionda repeatedly harped about the defendant’s sexual preferences and views on homosexuality, despite the trial court’s warning that the evidence was irrelevant....

Not surprisingly, death sentences drop precipitously after these prosecutors leave office. Bob Macy sent 54 people to Oklahoma’s death row before retiring in 2001.  Over the past five years, Oklahoma County has had only one death sentence.  Lynne Abraham secured 45 death sentences as the Philadelphia district attorney.  Since she retired in 2010, the new district attorney has obtained only three death sentences.  Joe Freeman Britt, dubbed the deadliest prosecutor in America, secured 42 death sentences during his tenure in Robeson County, North Carolina.  Last year DNA evidence led North Carolina officials to release two intellectually disabled half brothers, Henry Lee McCollum and Leon Brown, each of whom served 30 years — with McCollum under a sentence of death — for a rape and murder they did not commit.  Britt is the prosecutor who sent McCollum, a man with the mental age of a 9-year-old, to death row.  Britt retired in the 1990s, and the county has imposed only two death sentences in the past decade.

May 15, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 14, 2015

Any predictions about how long the capital jury will need to deliberate in the Boston bombing case?

Slider_2015-04-06T174208Z_174798518_GF10000051140_RTRMADP_3_BOSTON-BOMBINGS-TRIALAs this Boston Globe article reports, "jurors began deliberating Wednesday on the sentence of Dzhokhar Tsarnaev, sorting through a complex 24-page verdict slip meant to help them decide whether the Boston Marathon bomber should be sentenced to life in prison or death." Here is more details about where matters now stand as a set-up to the question in the title of this post:

The jurors were left with only 45 minutes to meet Wednesday after receiving instructions from the judge and hearing closing arguments from both sides. Prosecutors used their time to depict the 21-year-old defendant as a remorseless terrorist who participated in the bombing to make a political statement; defense attorneys portrayed Tsarnaev as the troubled follower of an older brother who brainwashed him into joining his violent plan.

Both sides also reminded jurors — the same panel that convicted Tsarnaev last month — of the emotionally charged testimony and graphic photos presented during the 10 weeks of testimony. Yet they recommended contrasting methods of weighing whether Tsarnaev deserved to be put to death.

In her closing argument, Judy Clarke, Tsarnaev’s attorney, delivered a surprising concession, telling jurors they could quickly endorse some of the sections of the verdict slip that refer to the factors that permit, but do not require, the imposition of the death penalty for her client. “Check them off,” she said with a dismissive flick of the wrist.

Clarke acknowledged there was ample evidence presented during the trial that Tsarnaev, among other things, intended to kill, that his crime was premeditated, and that it was especially cruel and heinous — all factors that make his offenses subject to capital punishment.

But prosecutors urged a more careful review of each section of the verdict form, calling on the 12 jurors to study the long list of Tsarnaev’s actions and each question they must answer in reaching their decision. They called on jurors to remember that they promised to remain open to the death penalty if the government proved its case. “I urge you to take your time with each one,” said prosecutor William Weinreb, who gave the rebuttal closing after Clarke’s statement.

But Clarke, as has been her style since the beginning of the trial, when she startled the courtroom by conceding that Tsarnaev committed the crimes, continued to try to show jurors that she was leveling with them and that she was a high-minded attorney looking to not waste their time with legal technicalities.

In her 90-minute statement, Clarke struck a more philosophical note, saying sometimes good kids emerge out of chaotic, troubled homes to become good young adults — but sometimes not.  She went through photos and evidence suggesting that Tsarnaev’s parents were emotionally, and later physically, absent from his life, and that Tsarnaev’s older troubled and radicalized brother, Tamerlan, filled the void.  The root cause of the violence that erupted on Boylston Street on April 15, 2013, was Tsarnaev’s older brother, Clarke said. “Dzhokhar would not have done this but for Tamerlan,” she said....

Echoing themes of war, prosecutors passionately argued before jurors that Tsarnaev was his own man and chose to become a jihadist warrior.  They portrayed him as part of a disturbing number of young anti-American terrorists who seek to kill to send a political message.  While the defense has cited Tsarnaev’s age — he was 19 when he planted the bombs — as a mitigating factor against the death penalty, prosecutor Weinreb rejected the notion.

“These weren’t youthful crimes,” he said. “There was nothing immature or impulsive about them. These were political crimes, designed to punish the United States . . . by killing and mutilating innocent civilians on US soil.”

He went on to say that while the defense case focused heavily on Tamerlan as the evil force who corrupted his younger brother, no evidence to back up the theory emerged in court. “Where is the evidence of brainwashing and mind control?” Weinreb asked.

Reaching their final decision will be more art than science, both sides said, telling jurors that it will not be a simple tabulation of how many aggravating factors they endorse against the number of mitigating factors they find. Those factors, among other things, are delineated on the verdict slip.

For the jury to impose the death penalty, all 12 members would have to unanimously agree on that sentence for at least one of the 17 death-eligible counts for which Tsarnaev was convicted. Anything short of that would require the judge to impose life in prison without parole. Jurors are scheduled to resume deliberations Thursday.

I have a nagging feeling that, because I am going to be off-line during most of the work day today and tomorrow with a variety of professional commitments, we are going to get a verdict from the jury before the end of this week. But perhaps because there are multiple formal elements to the capital verdict form, and perhaps also because the jurors may want ample time to talk through all their perspectives, it certainly seems possible we will not get a verdict until next week.

A few prior related posts:

May 14, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, May 13, 2015

"What Private Prisons Companies Have Done to Diversify in the Face of Sentencing Reform"

The title of this post is this interesting Bloomberg Business article, and here are excerpts:

America’s overall prison population has increased by 500 percent over the last 40 years, and the U.S. incarcerates more people than any other country, by far.  State and federal authorities began turning to private prison companies in the 1980s to handle overflowing facilities, and today about 8 percent of prisoners in the U.S. are housed in privately run prisons. Almost all are run by the two largest providers: Corrections Corporation of America and GEO Group.

In September 2014, then-Attorney General Eric Holder announced that the federal prison population had declined for the first time since 1980.  There were nearly 5,000 fewer prisoners in federal prisons in the 2014 fiscal year, compared to the year before, he said. The latest figures for state prisons are only from 2013, which showed an increase of 6,300 prisoners from the previous year.

Both GEO Group and CCA — which last year pulled in a combined $3.3 billion in annual revenue — have taken moves in recent years to diversify into services that don't involve keeping people behind bars.  GEO Group in 2011 acquired Behavioral Interventions, the world’s largest producer of monitoring equipment for people awaiting trial or serving out probation or parole sentences.  It followed GEO’s purchase in 2009 of Just Care, a medical and mental health service provider which bolstered its GEO Care business that provides services to government agencies.

“Our commitment is to be the world’s leader in the delivery of offender rehabilitation and community reentry programs, which is in line with the increased emphasis on rehabilitation around the world,” said GEO chairman and founder George Zoley during a recent earnings call.  

For $36 million in 2013, CCA acquired Correctional Alternatives, a company that provides housing and rehabilitation services that include work furloughs, residential reentry programs, and home confinement.  “We believe we’re going to continue to see governments seeking these types of services, and we’re well positioned to offer them,” says Steve Owen, CCA’s ‎senior director of public affairs.

Brian W. Ruttenbur, a managing director at CRT Capital Group’s research division, says that neither GEO or CCA will be significantly hurt by sentencing reform in the near future. “The big growth in recent years has been with [U.S. Immigration and Customs Enforcement, or ICE] and both of these companies have historically made heavy investments there,” Ruttenbur says.  Immigration detainees are commonly held in the same private facilities that contain state and federal prisoners, and a Government

Accountability Office analysis of ICE data showed that immigration detentions more than doubled between 2005 and 2012. Alex Friedmann, associate director of the Human Rights Defense Center and managing editor of Prison Legal News, says sentencing reform will probably not affect immigration detainees. “Immigration reform might, but even under proposed reform legislation, detention will likely increase,” he says. In 2015, more than $2 billion in federal contracts are up for bid to run five or more prisons that meet the “Criminal Alien Requirements” and house non-U.S. citizens.

May 13, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Former Georgia Supreme Court Chief Justice call for absolute capital abolition

As reported in this Atlanta Journal-Constitution article, headlined "Former justice calls for end to death penalty," reports on a notable speech given by a notable former jurist.  Here are the details:

A former chief justice of Georgia’s highest court on Tuesday strongly renounced the death penalty and called for its abolition.  Norman Fletcher, who served 15 years on the Georgia Supreme Court, said the death penalty is “morally indefensible,” “makes no business sense” and is not applied fairly and consistently.

“Capital punishment must be permanently halted, without exception,” Fletcher said. “It will not be easy, but it can and will be accomplished.”

Fletcher, now a Rome lawyer, retired from the state Supreme Court in 2005.  Although considered one of the court’s more liberal members, he cast numerous votes upholding death sentences.  In more recent years, he has signed on to legal briefs urging courts to halt the executions of a number of condemned inmates.

Fletcher made his remarks Tuesday evening at the Summerour Studio near Atlantic Station, where he received the Southern Center for Human Rights’ Gideon’s Promise Award for his role in helping create a statewide public defender system.  In his acceptance speech, Fletcher said he was about to “shock” those attending the ceremony.

Lawyers who once criticized his decisions upholding death sentences were justified, he said. “With wisdom gained over the past 10 years, I am now convinced there is absolutely no justification for continuing to impose the sentence of death in this country,” Fletcher said....

Fletcher added, “There can be no doubt that actually innocent persons have been executed in this country.”  Too often, Fletcher contended, budgetary issues, race and politics factor into the decision-making of whether to seek the death penalty.

Fletcher cited the late U.S. Supreme Court Justice Harry Blackmun, who once said he could “no longer tinker with the machinery of death.”  Blackmun made this declaration before he retired from the high court in 1994. “It is time for us to quit the tinkering and totally abolish this barbaric system,” Fletcher said.

May 13, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Senator Cornyn highlights his plan to "ensure that prisons don’t become nursing homes behind bars"

This recent post spotlighted the Washington Post's extended front-page story about the graying of America's prison populations.  Notably, Senator John Cornyn has now penned this letter to the editor to explain what he is trying to do to deal with this issue:

A bipartisan proposal working its way through Congress would offer a path home for some nonviolent, elderly prisoners.

The Corrections Act, which I have introduced with Sen. Sheldon Whitehouse (D-R.I.), includes a provision that would make prisoners age 60 and older eligible for early release after serving two-thirds of their sentences.  This reform builds on an expired pilot program from a bipartisan prison reform law known as the Second Chance Act of 2007.  That program showed good results before it was canceled last year, and our proposal would save taxpayer money by treating seriously ill and dying individuals with compassion.

It is becoming increasingly clear that we must make bipartisan efforts to reform our criminal justice system.  Many of the issues involved are complex, but reforming the system to ensure that prisons don’t become nursing homes behind bars doesn’t need to be one of them.

May 13, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 12, 2015

Is it unseemly I wish I could watch the Boston bombing closing arguments?

The question in the title of this post reflects my (perverse?) frustration with the absence of cameras in federal courtrooms, especially in cases in which the work of advocates seem so significant in the sentencing decision-making process.  From the start of the Tsarnaev trial, I have long thought that the sentencing outcome would turn on how well the prosecution  keeps the jury's focus on the horrible crime (which surely seems death-worthy) and how well the defense turns the focus to mitigating personal factors which perhaps led Tsarnaev to commit the horrible crime.  I am expecting that the closing arguments would capture and encapsulate the debate over this crime, criminal and his punishment in a fascinating way.  But, to my disappointment, I will only get to read accounts of the arguments rather than see and hear them directly.

For those eager for a bit of a preview, this new Boston Globe article, headlined "Lengthy, complex checklist awaits Tsarnaev jurors," explains the formal death sentencing process the jury will soon be facing:

In the end, the punishment of Dzhokhar Tsarnaev will come down to one question: Have federal prosecutors proved that the Boston Marathon bomber’s crimes were so heinous he deserves to be sentenced to death?

But before jurors weigh that singular decision they will first have to wade through a complex checklist in a lengthy verdict sheet to show that they have indeed weighed all the factors in the case — those identified by prosecutors, known as aggravating factors, as well as those presented by defense attorneys, called mitigating factors.

Legal analysts say the thoroughness of the process is meant to assure that jurors focus on relevant factors and ignore prejudicial and arbitrary circumstances in determining a defendant’s fate. “The jury has to consider the circumstances that the government says is relevant, that justifies a death sentence, and then the jury makes a reasoned, morally responsible response to that evidence,” said George Kendall, a New York lawyer who has handled hundreds of death-penalty cases. “The idea is we want to have a system of accountability.”

Unlike typical criminal cases, the jury that determined Tsarnaev’s guilt in the first phase of his trial is also tasked with deciding his punishment during this second phase of his trial. And in deciding which sentence to bestow, the jurors will weigh the aggravating factors — or reasons why Tsarnaev’s crimes were so heinous he deserves death — against the mitigating factors, or arguments that seek to explain and soften his culpability in the crimes.

The formula of arguing aggravating vs. mitigating factors in capital crimes was upheld by the US Supreme Court in 1976, in a case originating in Georgia, and it became the basis for modern federal death penalty laws. The decision ended an unofficial moratorium on the death penalty that had begun four years earlier after the Supreme Court ruled that death penalty laws were unconstitutional because they were being applied arbitrarily.

Now, under the modern application of the death penalty, jurors must consider aggravating factors and mitigating factors for each defendant — and they must record their conclusion on each of those factors on the verdict slip. They must then repeat the process for each count.  Tsarnaev faces 17 charges that carry the possibility of the death penalty.

US District Judge George A. O’Toole Jr. has not released a copy of the verdict slip, but prosecutors have already identified aggravating factors in the case: That Tsarnaev intentionally sought to kill and inflict bodily injuries; that he targeted vulnerable victims, including children and spectators at the Marathon finish line; Tsarnaev has shown no remorse; the attacks were in the name of jihad, or terrorism; one of his victims was a police officer; and the attack was premeditated.

Jurors will have to be unanimous in finding that each of the aggravating factors was proven. They also must be unanimous if they choose to sentence Tsarnaev to death.  A split jury would result in a life sentence.

But jurors will also vote on the defense team’s mitigating factors, and they do not have to be unanimous on each one.  “The defense doesn’t have the same kind of burden, it’s the prosecutors who have the burden to prove this beyond a reasonable doubt, that death is the only appropriate sentence,” Kendall said.

Jurors will then weigh the totality of aggravating and mitigating factors before deciding on a sentence.  O’Toole has already instructed jurors that choosing a sentence isn’t a matter of simple math of how many aggravating factors were proven vs. how many mitigating factors the defense presented, but a “reasoned, moral response” to the overall case. “A single mitigating factor can outweigh several aggravating factors,” O’Toole told jurors.

The defense team has not publicly disclosed the mitigating factors it will list on the verdict sheet, but they will likely draw from the themes they have sought to crystallize in the trial: That Tsarnaev was an impressionable teenager who was manipulated by a dominating older brother; that brain science shows that teenagers do not have a fully matured brain; that he came from a troubled upbringing, and was looking for guidance in a vulnerable time in his life; and that his family held to old cultural tradition that he obey the direction of his older brother....

Kendall said jurors in Tsarnaev’s case are likely to weigh each argument seriously, having sat through 27 days of testimony in both phases of the trial, and listening to more than 150 witnesses. “It’s not just paperwork,” Kendall said. “It’s after all this evidence that the decision is being based on factors the law considers prudent and right ones.”

Jurors are scheduled to hear closing arguments Wednesday morning and could begin their deliberations Wednesday afternoon.

A few prior related posts:

May 12, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives"

The title of this post is the title of this notable new report released today from the Vera Institute of Justice. Here is how the report is described on this Vera webpage:

Segregated housing, commonly known as solitary confinement, is increasingly being recognized in the United States as a human rights issue.  While the precise number of people held in segregated housing on any given day is not known with any certainty, estimates run to more than 80,000 in state and federal prisons — which is surely an undercount as these do not include people held in solitary confinement in jails, military facilities, immigration detention centers, or juvenile justice facilities.  Evidence mounts that the practice produces many unwanted and harmful outcomes — for the mental and physical health of those placed in isolation, for the public safety of the communities to which most will return, and for the corrections budgets of jurisdictions that rely on it for facility safety.

Yet solitary confinement remains a mainstay of prison management and control in the U.S. largely because many policymakers, corrections officials, and members of the general public still subscribe to some or all of the common misconceptions and misguided justifications addressed in this report.  This publication is the first in a series on solitary confinement, its use and misuse, and ways to safely reduce it in our nation’s correctional facilities made possible in part by the Robert W. Wilson Charitable Trust.

May 12, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Ohio legislators moving forward on recommended death penalty reforms

As reported in this local article, headlined "Lawmakers want to exclude mentally ill from death penalty," a number of recommendations made by a death penalty task force on which I served here in Ohio are emerging in notable bills. Here are the basics:

Killers diagnosed as “seriously mentally ill” at the time of the crime could not be executed in Ohio under proposed legislation expected to be introduced Tuesday in the Ohio Senate.  If passed, the bill sponsored by Sens. Bill Seitz, R-Cincinnati, and Sandra Williams, D-Cleveland, would be a major change in Ohio, which now prohibits the execution of mentally disabled people but not the mentally ill.

Seitz and Williams have been jointly developing legislation based on recommendations from the Ohio Supreme Court Death Penalty Task Force, released in April 2014.  About a dozen task force recommendations are expected to be introduced in the General Assembly.

The bill would bar execution of people who, when they committed the crime, suffered from a serious mental illness that impaired their ability to “exercise rational judgment in relation to their conduct, conform their conduct to the requirements of the law, or appreciate the nature, consequences or wrongfulness of their conduct,” according to the National Alliance on Mental Illness Ohio, which supports the legislation....

Several of the 53 inmates executed in Ohio since 1999 could possibly have been excluded under the proposed change.  Wilford Berry, the first person to be executed when Ohio resumed capital punishment on Feb. 19, 1999, was considered to have mental illness with delusions.  At one point, Berry said he saw the angel of death sitting with him in his prison cell.

NAMI and the Ohio Psychiatric Physicians Association wrote a letter to lawmakers seek support for the legislation.  “We believe that those who commit violent crimes while in the grip of a psychotic delusion, hallucination or other disabling psychological condition lack judgment, understanding or self-control.  Until such time as the U.S. Supreme Court decides on this question, the responsibility for prohibiting the execution of such individuals in Ohio rests with the Ohio General Assembly.”...

Other task force proposals to be unveiled in the legislature in the future are establishing a statewide indigent death-penalty litigation fund in the Ohio Public Defender's office; requiring certification for coroner's offices and crime labs; and prohibiting convictions based solely on uncorroborated information from a jailhouse informant.

May 12, 2015 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, May 11, 2015

Notable Ohio county prosecutor calls pot prohibition a "disastrous waste of public funds"

Images (9)As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:

The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.

Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.

"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."

When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."

ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.

He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....

Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....

Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"

He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.

He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.

I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings.  I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.

Cross-posted at Marijuana Law, Policy and Reform

May 11, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Will and should famed abolitionist nun, Sister Helen Prejean, be allowed to testify at Boston bombing sentencing trial?

Images (4)The question in the title of this post is the interesting legal question to be resolved this week in federal court in Boston as the defense team finalizes its mitigation case on behalf of Boston Bomber Dzhokhar Tsarnaev.  This Boston Globe piece, headlined "Will judge allow nun to testify for Tsarnaev defense?," provides some context:  

While everybody in and around Boston is celebrating Mother’s Day and spring sunshine, George O’Toole has something weighing on him. O’Toole is a judge and has presided over the trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev with his typical geniality. But even genial judges have to make tough decisions.

The trial, which began with jury selection in the first week of January, and testimony in the first week of March, is winding down. If all goes to plan, and it seldom does in trials, the jury could be sent away by the end of this week, ready to contemplate sentencing Tsarnaev to death or life in prison without the possibility of parole.

But before any of that happens, George O’Toole has to decide whether a 76-year-old Roman Catholic nun can testify as part of the effort to save a 21-year-old Islamic extremist from death. The nun in question is Helen Prejean, a Sister of St. Joseph, and if you ask what that means, you never had nuns.

Sister Helen Prejean is an icon of the antideath penalty movement, something of a celebrity. “Everybody knows Sister Helen,” said David Hoose, a Northampton defense attorney who has worked on death penalty cases. And it’s true, a lot of Americans do know her, at least vicariously. They know her as Susan Sarandon, the actress who won an Oscar for her portrayal of Sister Helen in the 1995 film “Dead Man Walking.”

Twenty years after Sister Helen became the face of the antideath penalty movement in America, she is here in Boston, poised, if O’Toole allows it, to be the last witness for the defense in the trial of Dzhokhar Tsarnaev.

No one saw this coming. As prominent as the New Orleans-based Sister Helen is in the antideath penalty movement, she is not known for testifying in death penalty cases. But she wanted to get involved in this case, somehow. Inevitably, she found herself in the defense camp....

[A]s someone who has counseled death row inmates, Sister Helen can impart [the] message ... that a death sentence hardly guarantees death.

Since 1988, when the federal government got back in the business of executing people, the government has sought the death penalty in nearly 500 cases. In 232 of those cases, there was a guilty verdict where jurors had to decide between life and death, and in 79 cases they chose death. Of those 79, only three have been executed. It’s possible that Dzhokhar Tsarnaev would be No. 4 if the jury sentences him to death, but the odds are against it.

In the meantime, Judge O’Toole has to decide on the government’s motion to exclude Sister Helen’s testimony. In death penalty cases, the defense is given a wide berth in calling witnesses as they present mitigating evidence.  Even if O’Toole is on the fence about the relevance of Sister Helen’s testimony, and is inclined to tightly limit the scope of what she can speak to, he might not want to risk a reversal of the whole trial over one final witness.

The defense may only want Sister Helen to repeat one of her stock lines: “People are more than the worst thing they have ever done in their lives.” That has been the underlying message of the defense all along. That Dzhokhar Tsarnaev, as a human being, is more than the unspeakable, unforgivable things he did one week in April 2013.

In this post at Crime & Consequences, Kent Scheidegger reasonably asks "What does Helen Prejean know that is relevant to the Tsarnaev case?".  I think Kent (and others in the comments) make sound points that could provide a legal justification for the district judge here precluding Prejean from being able to testify at the sentencing hearing on behalf of the Boston bomber.  But I also think, as the article above hints, judges are generally disinclined to preclude completely any offered defense testimony at the sentencing-phase of a capital trial.  I thus predict that the district judge here will allow Prejean to testify in some limited way if the defense presses aggressively for her to be a witness.

A few prior related posts:

UPDATE: Apparently Prejean started to testify not long after I wrote this post. This new USA Today article, headlined "Sister Helen Prejean: Tsarnaev 'genuinely sorry for what he did'," starts with this account of what transpired:

Sister Helen Prejean, the Catholic nun and anti-death penalty activist whose story came to fame with the 1995 film Dead Man Walking, took the stand on Monday in the penalty phase of convicted Boston Marathon bomber Dzhokhar Tsarnaev's trial. She said he is "genuinely sorry for what he did," and told her how he felt about the suffering he caused to the bombing's victims.

"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did." She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."

Prejean said she had met with Tsarnaev five times since early March and that he "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.

Prejean said she talked with Tsarnaev about both their faiths: his Islam and her Catholicism. "I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said, quickly drawing an objection from the prosecution.

Defense attorney Miriam Conrad, questioning Prejean, interjected, "Stop you right there." Conrad asked Prejean what she heard in Tsarnaev's voice she he spoke about the victims' suffering. "It had pain in it," she said.

May 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

You be the judge: what federal sentence for latest CIA media leaker?

As explained via this Washington Post article, headlined "Judge faces choices in sentencing CIA leaker," a federal judge in Washington DC has a tough sentencing call to make this afternoon:

The way prosecutors see it, ex-CIA officer Jeffrey Sterling is a devious malcontent who spread classified half-truths to a New York Times reporter, seriously harming national security.  By defense attorneys’ telling, Sterling is a compassionate, hardworking man whose misdeeds have been greatly exaggerated.

Which account U.S. District Judge Leonie M. Brinkema believes will ultimately shape the sentence she imposes Monday on the 47-year-old Missouri man, who was convicted in January of giving away sensitive information about an operation to thwart Iran’s nuclear ambitions.  The range of options she has to consider is broad.

Defense attorneys are arguing for a sentence in line with other convicted leakers — including former CIA director and retired general David Petraeus, who was sentenced last month to two years of probation and a $100,000 fine for leaking classified information to his mistress and biographer.  Prosecutors are advocating a “severe” penalty, and they have noted that federal sentencing guidelines call for 19 years and seven months at the low end and 24 years and five months at the high end.

Neither side has offered a specific recommendation on prison time.  Experts say a sentence approaching two decades is unlikely: The sentencing guidelines, they say, seem to be intended for spies nefariously helping foreign governments — a characterization that does not fit Sterling’s case.

Prosecutors have argued such spies are charged under a different statute, and they have noted the U.S. Sentencing Commission “has not seen fit to carve out any exception or departure for disclosing national defense information to the media or the public.”

But experts say Brinkema is likely to impose a penalty well below what the sentencing guidelines call for. “Frankly, I can’t imagine her not departing downward here,” said Dan Schwager, a former federal prosecutor now in private practice at Martin & Gitner.

But Sterling, experts say, should probably expect a tougher sentence than Petraeus, even though his defense attorneys assert that the two men are not all that different.  “It’s hard to put something like that completely out of your mind. It’s hanging out there,” former federal prosecutor Randall Eliason, who teaches law at George Washington University Law School, said of Petraeus’s recent sentence.  “At the same time, at the risk of sounding cliche, every case is different, and there are some significant differences — at least to me — between the cases.”

Sterling was convicted of nine criminal counts for providing New York Times reporter James Risen with classified information about the CIA operation, which involved giving faulty nuclear blueprints to Iran. Prosecutors argued Sterling was a disgruntled employee with a vendetta against the CIA because of employment grievances, and he fed Risen a misleading story with some accurate, classified details to paint the agency as inept. As as result, prosecutors argued, the United States was forced to abandon one of its few mechanisms to keep Iran’s nuclear ambitions in check.

Experts say Brinkema is likely to weigh two key factors as she assesses prosecutors’ request for a harsh sentence: Sterling’s motive, and the harm his illegal disclosures caused. Eliason said those factors might separate Sterling from Petraeus, who did not seem to have any malevolence and whose leaks never wound up in any published material. “There’s kind of this spectrum of possible conduct, and I think someone like Sterling falls somewhere in the middle,” Eliason said.

Prosecutors themselves asserted in a recent filing that Sterling’s case stood apart from other recently convicted leakers, including Petraeus; former CIA officer John Kiriakou, who revealed the name of a covert officer and was sentenced to 30 months in prison; and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter and was sentenced to 13 months in prison....

Brinkema, though, might disagree with the government’s assessments, experts said. Schwager said that, not unlike other recent leak cases, “ego” seemed to play a key role in motivating Sterling. And the damage Sterling’s disclosures caused, Schwager said, was hard to point to explicitly — a fact that would not be lost on the judge. “She knows the difference between specific harm and speculative harm,” Schwager said.

Prior related posts:

May 11, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, May 10, 2015

Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions

Images (2)As noted in this recent post, "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," at least one member of an indecent couple in Florida seemed to be facing an indecent prison sentence for some shoreline dirty dancing. But this local article, headlined "State attorney won't seek 15-year prison sentences for Bradenton Beach sex-on-the-beach couple," now suggests that prosecutors are going to be seeking a much less extreme sanction for these miscreants. Here are the latest details:

State Attorney Ed Brodsky said Thursday he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach.

Brodsky, elected state attorney for the 12th Judicial District, said his office never intended to seek the maximum 15-year sentence against Jose Caballero, 40, or Elissa Alvarez, 20, for having sex on Cortez Beach in July.

The couple was found guilty Monday on charges of lewd and lascivious exhibition after a video played in court showed Alvarez moving on Caballero in a sexual manner. Witnesses testified a 3-year-old girl had seen the couple.

The charge carries a maximum sentence of 15 years in prison, and requires both to register as sex offenders. "It was never our intention to seek 15 years for either of them," Brodsky said. "That's not a reasonable sentence."

Defense attorney Ronald Kurpiers said because Caballero served a previous prison sentence for cocaine trafficking within the past three years and the prosecution had filed prison release reoffender paperwork, Caballero would be sentenced to the maximum sentence of 15 years under Florida's prisoner release reoffender law.

Kurpiers said if Brodsky was saying they weren't seeking 15 years, it meant they had withdrawn the PRR. "I've never experienced that before in all my years in law," Kurpiers said. "I'm honestly emotional about it. That was a huge hurdle."

Brodsky said he wasn't willing to discuss what kind of sentences they will seek and a sentencing hearing hasn't been scheduled. Kurpiers said the judge would now have some discretion instead of an automatic sentence for Caballero. Kurpiers said he would try to have the sentence lowered. "I need to get out my knee pads so I can get down and beg," Kurpiers said.

Brodsky refuted the claim he would be seeking the maximum punishment after Families Against Mandatory Minimums, a Washington, D.C.-based interest group that fights mandatory minimum prison sentences, said they called his office Thursday to urge prosecutors not seek 15 years in prison for Caballero.

"As outrageous as Mr. Caballero's behavior was, it would be even more outrageous for the state to make him spend 15 years in prison," said Julie Stewart, president and founder of the organization, in a release. "As a parent, I would not want my children to see people having sex on a public beach in the middle of the day. But as a taxpayer, I would be even more offended to waste hundreds of thousands of dollars to punish Mr. Caballero's irresponsible behavior."...

A campaign was also launched Thursday on Causes.com titled: "Free couple facing 15 years in prison for sex on the beach." Led by Vitor Ribeiro, whose Facebook account lists Portugal as home, the campaign received more than 500 signatures by early Thursday evening. "Having sex on the beach is not a crime worthy of such a barbaric sentence," reads the campaign's subtitle.

Stewart said the state plea offer to Caballero for two and a half years in prison prior to the trial was evidence it didn't believe he deserved 15 years for the crime. Brodsky confirmed they had made the plea offer, and Caballero chose to reject it to go to trial. Kurpiers said he "strongly recommended" his clients take the plea deal, but ultimately it was their choice to refuse....

Alvarez and Caballero are in the Manatee County jail awaiting sentencing.

Beyond its prurient elements, this case provides a notable case-study in the import and impact of mandatory minimum sentencing schemes and the sentencing power mandatory minimums necessarily place in the hands of prosecutors.

For starters, I doubt the defense attorney would have "strongly recommended" that one defendant accept a 2.5-year prison sentence for merely having sex on the beach absent the threat of a 15-year mandatory prison term if the defendant exercised his right to go to trial.  How could and would a defense attorney reasonably tell a client that a long prison term is a reasonable offer for this behavior and giving up all rights to challenge the state's case absent the threat of a much more extreme mandatory prison term if convicted after a trial?

Next, as I understand Florida law in this setting, the only reason now that defendant Caballero will not get 15 years in state prison is because the prosecutor now has decided to, in essence, nullify the Florida "prison release reoffender" (PRR) law by taking back the paperwork needed to invoke its mandatory sentencing consequences.  Absent the media scrutiny that this case has come to generate, would the prosecutor likely have been so quick to say he never sought an extreme 15-year PRR sentence for Caballero?.

Critically, if the prosecutor never thought this was a proper PRR case, why did the prosecutor initially file the PRR paperwork in the first instance against Caballero?   Is there likely any reason other than to to try to force a plea deal through the threat of an extreme mandatory prison sentence — a threat which would essentially require the defense attorney to "strongly recommended" that defendant Caballero accept the 2.5-year prison sentence offered by the prosecutor?

Finally, only when the defendants exercised their right to trial — and thereafter likely only because this case started to garner attention — do we now here the prosecutor say on the record that a 15-year term was never sought and would not be reasonable.  In other words,  only once the media saw the prosecutor with his hand in the extreme mandatory-sentencing cookie jar did he pull his hand out and say he never really wanted that 15-year prison term for Caballero.

It is reassuring to see that media attention can and will sometimes prompt a prosecutor in an individual case to exercise his power and discretion to take an extreme mandatory sentence of the table after a trial conviction.  But these problems only arise because of the existence of extreme and broad mandatory minimums, and that is why I generally believe such laws make for bad public policy because I think our sentencing system should incorporate true checks-and-balances rather than be functionally controlled  by executive branch fiat.

Prior related post:

May 10, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Saturday, May 09, 2015

"Pressure builds on GOP for police, criminal justice reforms"

The title of this post is the title of this recent lengthy Politico article.  Much of the article discusses debate over possible federal involvement in state and local policing reforms.  But, as these passages highlight, federal criminal justice reform is part of the current mix in congressional reform discussions:

Pressure is mounting on Republican congressional leaders to take up criminal justice and police reform legislation — and the calls are increasingly coming from within the GOP.

Republican leaders haven’t yet decided how to proceed on an issue conservatives typically have not treated as a priority. But with outrage over police killings of African-Americans dominating the news, an increasing number of rank-and-file GOP lawmakers say doing nothing is no longer an option. 

Sheriff-turned-Rep. Dave Reichert (R-Wash.) wants Speaker John Boehner (R-Ohio) to set up a new select committee on the issue. Sen. Tim Scott, a black South Carolina senator, is pushing for more body cameras. And Senate Majority Whip John Cornyn (R-Texas) is eyeing a commission to study problem areas in criminal justice....

“We are doing a great disservice to ourselves and to everyone else so clearly frustrated by the status quo if we isolate Baltimore or Ferguson as just individual instances of civic unrest … if we don’t step back and see how they fit into the broader issue of our entire criminal justice system,” Cornyn said on the Senate floor Wednesday.

The Senate’s No. 2 Republican was advocating for a criminal justice overhaul. In addition to the bill to start a national commission, he’s sponsoring bipartisan legislation to allow well-behaved prisoners to earn time off their sentences.

It’s a different take on another proposal floated by President Barack Obama and Republicans alike: reducing mandatory minimum sentences on nonviolent drug related crimes, which are cited as one of the major reasons many black men from urban settings end up behind bars.

Leadership is listening but has not committed to a course of action. Boehner on TV last week, for example, retorted, “Why not?” when asked if the federal government should “chip in” for body cameras. Leaders in both chambers are waiting to see what their top law enforcement legislators say first. Both Judiciary Committees are already discussing what needs to be done and are scheduling hearings for the next few weeks....

For now, most of the work will focus on committees like Grassley’s, which seem to be sticking to areas with more consensus, like mandatory minimums and body cameras. During a recent speech, Grassley also floated a pitch to require states to give those charged with a misdemeanor counsel in court, and to reform a nationwide database that allows potential employers to find out if applicants were ever arrested — and use it against them even if they were released without charges.

Some recent related posts:

May 9, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 08, 2015

"We clearly need criminal-justice reform" says GOP Prez candidate Carly Fiorina

This Des Moines Register article (and video) details some notable new comments on criminal justice reform and drug policy from a notable new GOP Prez candidate.  Here are excerpts: 

The nation should stop overreacting to illegal drug use and stop doling out jail sentences that are way too long, Republican presidential candidate Carly Fiorina said in Iowa on Thursday.

"We know that we don't spend enough money on the treatment of drug use," said Fiorina, former chief executive of Hewlett-Packard. "When you criminalize drug abuse, you're actually not treating it. We had a daughter who died of addictions, so this lands very close to home for me." Fiorina's daughter Lori, a drug and alcohol addict, died in 2009.

The "three strikes and you're out" law doesn't work well, and all the drug laws affect African-Americans more than others, Fiorina told The Des Moines Register's editorial board during an hourlong meeting.

"I don't think that overreacting to illegal drug use is the answer," said Fiorina, who officially entered the 2016 race on Monday and is the only woman in the GOP field. She has never held elected office, but ran unsuccessfully for U.S. senator in California.

Asked whether she favors decriminalizing marijuana, Fiorina answered: "No, I do not think we should legalize marijuana."...

Asked whether, as president, she'd direct the U.S. attorney general to enforce federal drug laws in states such as Colorado, Alaska, Washington and Oregon, Fiorina said she wouldn't. "I believe in states' rights," she said. "They're within their rights to legalize marijuana, and they're conducting an experiment I hope the rest of the nation is looking closely at."

May 8, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"Have Texans lost their taste for capital punishment?"

The question in the title of this post is the first line in this Dallas Morning News commentary by Steve Blow headlined "Even in tough-on-crime Texas, death penalty convictions decline." Here are excerpts from the start of the piece:

I was struck by recent news accounts of a local murder trial. I remembered the crime well. Jacob Galen Everett, 22, was convicted of entering a Red Wing shoe store in Arlington, directing clerk Randy Pacheco to the back room and shooting him once between the eyes. Robbery was the motive, and the evidence showed that Everett got away with $200.

A few years ago, that would have been a certain death penalty case -- a cold-blooded murder committed in the course of a robbery. Instead, prosecutors sought life without parole and jurors went along.

I’m sure Texas still prides itself as a law-and-order state, but our hang-’em-high reputation may be in jeopardy. “There is no doubt about it. We’re seeing a reduction in the use of the death penalty in Texas,” said Kathryn Kase, executive director of Texas Defender Service. That’s a nonprofit that assists in death penalty defenses and advocates for fair trial policies. “We have a reduction in death penalty cases going to trial, and we have a reduction in death verdicts,” she said.

In 1999, Texas courts sent 39 people to death row. Last year, it was 11. And so far this year, none. “Here it is May, and we have had only two death penalty cases in Texas,” Kase said. “And in both, the jury chose life without parole instead. That strikes me as really significant.”

A decline is also evident in the number of executions being carried out. Yes, Texas still led the nation in executions last year, but it was with an asterisk. For the first time in decades, Texas shared that distinction. We tied with Missouri. Both states executed 10 people. Florida was close behind with eight.

And those numbers reflected a downward trend in executions -- both in Texas and the other 31 states with the death penalty. Executions in Texas peaked at 40 in the year 2000.

May 8, 2015 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Alabama rolls to join tide of red states enacting significant prison and sentencing reform

Images (1)As reported in this local article, the "Alabama Legislature Thursday gave final approval to a sweeping prison reform bill aimed at addressing the state's prison overcrowding crisis." Here are the basic details and the back-story:

The bill passed the House on a 100 to 5 vote Thursday evening.  The Senate, which approved the bill in March, concurred in the changes just a few minutes later on a 27 to 0 vote.  The legislation now goes to Gov. Robert Bentley, who said in a statement Thursday evening he planned to sign the bill, pending a legal review.

Bentley said in a statement the passage of the bill signaled "a historic day for Alabama as we take a significant step forward to address reform of Alabama's criminal justice system."...

Sen. Cam Ward, R-Alabaster, said Thursday evening the passage of the bill was a first step, not a final solution to the crisis. "No one should think we pass this bill tonight and prisons are solved, because they're not," Ward said.

Prison overcrowding, an issue in Alabama for decades, stood at 186 percent in January, and the crisis has contributed to mounting violence in the state's correctional facilities. The U.S. Department of Justice is investigating the Julia Tutwiler Prison for Women over accounts of sexual violence and harassment.  Six inmates have been killed at the St. Clair Correctional Facility since 2011, and allegations of physical or sexual violence have been leveled at three other prisons, including Elmore County Correctional Facility.

The reform bill aims to address the prison overcrowding crisis with new investments in parole, probation and supervision; the creation of a Class D felony for relatively minor crimes; limits on prison time and mandatory supervision for those convicted of Class C felonies, and changes to punishments for technical violations of parole.  The changes are expected to cost between $23 and $26 million a year, roughly 6.5 percent of the Department of Corrections' current $394.1 million allocation from the General Fund.

On its own, the bill will not resolve the crisis.  However, with additional building funded under a separate piece of legislation, capacity could fall to 138 percent over the next five years, with the overall population falling by about 4,500 inmates.  "That would be the largest reduction of any state in the country to this date," Ward said.

Ward said that may prevent the system from falling into federal receivership, which could lead to significant increases in prison spending; mass release of prisoners, or both. The bill before the House, Ward said, was a targeted way to address the population.  "No one's being released early," he said. "That's what we're trying to avoid, a bunch of violent offenders being released early."

The bill reflects recommendations made by the Council of State Governments and approved by the Alabama Prison Reform Task Force, which Ward chairs.  House Judiciary Committee chairman Mike Jones, R-Andalusia, said at the start of the House debate that the bill was not a matter of ideology.  "This is not about being Democrats, this is not about being Republicans, this is about being responsible for a problem our state faces," he said....

Some members of the Alabama Prison Reform Task Force had pushed for a more sweeping bill that would have made many of the provisions retroactive.  However, Ward and other sponsors of the legislation said the coalition behind the reforms was not likely to have gone that far.

The passage of the legislation received praise from both sides of the ideological divide. Susan Watson, the executive director of ACLU Alabama, applauded the passage of the bill in a statement Thursday evening.  "The passage of this legislation shows that Alabama acknowledges there is a serious over-incarceration problem in our prisons and that it is dedicated to fixing it," the statement said.

Katherine Robinson, vice president of the Alabama Policy Institute, called the move a "significant step" toward addressing the problem.  "This collaborative effort has provided the necessary catalyst of meaningful reform to Alabama's prison system," Robinson said in a statement.

House Speaker Mike Hubbard, R-Auburn, said the accusations at Tutwiler, St. Clair and other facilities served as a "wake-up call" to legislators who may have otherwise been reluctant to address a politically difficult issue.  "Clearly the best course of action for us as a state was to take control of this and fix it ourselves," he said.  "I'm proud of the fact we have taken a leadership role.  It was clear we were running out of time."

May 8, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Senator Grassley's home-state paper tells him to stop blocking federal sentencing reforms

This new editorial from the Des Moines Register, headlined "Grassley should not block sentencing reforms," highlights that some notable folks are frustrated by Senator Charles Grassley's apparent unwillingness to move forward significantly with federal sentencing reforms proposed by his colleagues. Here are excerpts:

Amid hysteria over growing use of illegal drugs 30 years ago, Congress passed tough new criminal laws carrying long mandatory prison sentences. Regardless of whether mandatory sentences had any effect on drug abuse, they have contributed to a 500 percent increase in the federal prison population and a 600 percent increase in federal prison spending.

Besides filling prisons and imprisoning a generation of largely minority males from inner cities, these one-size-fits-all sentences tie the hands of judges who should tailor penalties to the unique circumstances of individual defendants.  And this obsession with criminalizing drug use has diverted resources that instead should be used to help people overcome their addictions.

Something extraordinary has happened recently, however: A consensus has emerged that this nation has put far too many people behind bars, and in the process it has created an unemployable underclass with criminal records.  That consensus includes a remarkable cross-section of politicians from both ends of the political spectrum, along with religious leaders, corporate executives and opinion leaders.

While there is growing bipartisan support in Congress for changing the mandatory-minimum sentencing law, one potential stumbling block remains stubbornly in place: U.S. Sen. Charles Grassley, who as chairman of the Senate Judiciary Committee is in a position to allow federal sentencing reforms to move forward.

Grassley’s rhetoric has not encouraged optimism.  He was dismissive and defensive when a “Smarter Sentencing Act” was introduced in March with the support of senators ranging from Republicans Ted Cruz of Texas and Rand Paul of Kentucky to Democrats Dick Durban of Illinois and Patrick Leahy of Vermont.  He referred to supporters of the sentencing reform bill in a floor speech as the “leniency industrial complex.”

Although he recently seemed to soften his tone, saying he is “ready to address some of these issues,” Grassley has ruled out any across-the-board cut in mandatory minimum sentences.  Three Iowa bishops in a guest opinion published by the Register May 1 called on him to support sentencing reform, but he promptly responded with an opinion piece that amounted to a full-throated defense of mandatory minimum sentences.

The argument in favor of mandatory sentences is that the prospect of spending decades in prison gives prosecutors leverage to get lower-tiered dealers to produce evidence against “drug kingpins.”  But this gives prosecutors enormous power to force defendants to plead guilty, and with no prior involvement of a judge in open court.

Despite the assertion that mandatory sentences are aimed at putting away drug lords, “offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers — many levels down from kingpins and organizers,” according to research by the U.S. Sentencing Commission....

This nation’s war on drugs focused on criminal punishment instead of treatment has been a complete failure.  At long last there is growing support for changing that.  Iowa’s senior senator should not stand in the way.

Some recent related posts:

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

Thursday, May 07, 2015

"Mass Incarceration: The Silence of the Judges"

The title of this post is the headline of this lengthy piece authored by Judge Jed Rakoff appearing in The New York Review of Books.  Here is how it starts and ends:

For too long, too many judges have been too quiet about an evil of which we are a part: the mass incarceration of people in the United States today.  It is time that more of us spoke out. 

The basic facts are not in dispute.  More than 2.2 million people are currently incarcerated in US jails and prisons, a 500 percent increase over the past forty years.  Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population.  The per capita incarceration rate in the US is about one and a half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada.  Another 4.75 million Americans are subject to the state supervision imposed by probation or parole.

Most of the increase in imprisonment has been for nonviolent offenses, such as drug possession.  And even though crime rates in the United States have declined consistently for twenty-four years, the number of incarcerated persons has continued to rise over most of that period, both because more people are being sent to prison for offenses that once were punished with other measures and because the sentences are longer.  For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.

And whom are we locking up? Mostly young men of color.  Over 840,000, or nearly 40 percent, of the 2.2 million US prisoners are African-American males.  Put another way, about one in nine African-American males between the ages of twenty and thirty-four is now in prison, and if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes.  Approximately 440,000, or 20 percent, of the 2.2 million US prisoners are Hispanic males....

In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality.  More haltingly, we have also made some progress in our treatment of the poor and disadvantaged.  But the big, glaring exception to both these improvements is how we treat those guilty of crimes.  Basically, we treat them like dirt.  And while this treatment is mandated by the legislature, it is we judges who mete it out.  Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?

May 7, 2015 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Delaware Gov pledges to sign death penalty repeal legislation

As reported via this local article, Delaware "Gov. Jack Markell broke his silence on the effort to repeal Delaware's death penalty, telling the News Journal that he believes capital punishment is an 'instrument of imperfect justice'." Here is more:

"It doesn't make us safer," Markell said. "Should the repeal bill come to my desk, I would sign it." Markell's comments come just days before a House committee takes up the legislation which repeals the state's death penalty, except for those 15 inmates already on death row.

This is the first time Markell has publicly spoken on the matter. Markell said he's taken his time to formulate his position on the matter, saying that recent exonerations nationally and revelations of flawed testimony in certain cases have helped shape his view. "This is not an easy issue. My thinking has changed and I just wanted to give it very careful consideration," he said.

In April, the legislation passed the Senate in April 11-9 and now heads to the House Judiciary Committee. The legislation was not passed out of the same House committee last General Assembly. Police groups strongly oppose repeal and are expected to step up opposition in the House.

Markell said he respects all viewpoints on the matter, saying that at one point while serving on the state's Board of Pardons, he supported four of the five death penalty cases that came before him. "I know this is a really difficult issue for members of the General Assembly," he said. "I hope that after considering the arguments as I have, they will reach the same conclusion that I have."

May 7, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

"Unequal Justice: Mobilizing the Private Bar to Fight Mass Incarceration"

The title of this post is the title of this intriguing new report recently published by the Lawyers’ Committee for Civil Rights Under Law.  This new Crime Report piece, headlined "Acknowledging Bias in the Criminal Justice System," provides a helpful summary of the report's key themes:

Mass incarceration reform efforts rarely formally address racial disparities within the criminal justice system, according to a new report from the Lawyers’ Committee for Civil Rights Under Law, an advocacy group.  The report outlines systematic racial disparities in the criminal justice system and proposes strategies to address them.  It was created as a result of a series of “listening sessions” on race and imprisonment.

The sessions included dozens of practitioners, experts, academics, national law firm representatives, and formerly incarcerated individuals, who gathered “to discuss the state of mass incarceration, reform efforts, and the role of national law firms in this movement.”  The discussions near unanimous agreement that there is bias against black and Hispanic defendants in the criminal justice system.

“However, this fact is often absent in public discourse and almost never formally addressed in reform efforts.  This is particularly troubling since racial disparities in incarceration are often the result of implicit racial bias and structural or institutionalized racial discrimination, deep-rooted species of dysfunction which can only begin to be addressed by the acknowledgement and recognition that it exists,” the report’s authors wrote.

The report also noted that there is a “huge gap” in the legal effort to change mass incarceration. “Simply put, very few organizations in the nation have the resources, expertise, and will to fight mass incarceration in the courts,” the authors wrote.

May 7, 2015 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Electrifying Tennessee fight over electric chair as back up execution method

BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee.  This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet."  Here are some details from the start of the article:

Can death-row inmates challenge the constitutionality of electrocution?  The Tennessee Supreme Court will soon decide.  

Death penalty states once phased out the electric chair in favor of drugs — for humane reasons.  Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.

On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality.  Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.

But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.

Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy.  Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.

“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.

May 7, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, May 06, 2015

Boston bombing defense team turns to brain science in making mitigation case

As reported in this new Boston Globe piece, headlined "Brain expert testifies for Tsarnaev defense in penalty phase," jurors tasked with deciding what punishment to impose on the Boston Marathon bomber got a lesson in brain science during today's trial activities. Here are the details:

The part of the brain that matures the latest is the part that controls impulses and imagines consequences of actions in the future, a brain development expert testified Wednesday at the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev.

Dr. Jay Giedd, a professor at the University of California San Diego and a child psychiatrist, was called as a witness by the defense, which is seeking to stave off a death sentence for Tsarnaev, who was 19 at the time of the bombing. Giedd’s testimony came on the sixth day of the defense case in the penalty phase of Tsarnaev’s trial in US District Court in Boston. The defense is seeking a sentence of life without parole....

Giedd’s testimony appeared to be intended to suggest that Tsarnaev was not fully responsible for what he did because of his youth. In teenagers, Giedd said, impulse control is “still under construction.”

“Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences,” he said. He said people’s brains tend to become adults in the second decade of their lives. But he said, “There are so many exceptions to the rule.”

He also emphasized the role of environment in a child’s brain development. Parents, he said, are “always on, teaching our children about dealing with emotion. ... Our brains learn by example.”

Under cross-examination by Assistant US Attorney Nadine Pellegrini, Giedd also testified that it was crucial to look at a person’s behavior to determine how mature they are. “The behavior itself is ... key,” he said.

He acknowledged that people even younger than Tsarnaev was could have the brain maturity to recognize the consequences of their actions. “Age might just be a number when we’re talking about the level of maturity of an individual?” Pellegrini said. Giedd agreed.

May 6, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"

The title of this post is the effective title of this piece by Jacob Sullum appearing last week at Reason that captures my reaction to two of the notable essays in this fascinating Brennan Center publication titled "Solutions: American Leaders Speak Out on Criminal Justice."  Here are excerpts from Sullum piece explaining why criminal justice reforms might reasonably be more excited by the prospect of a Prez Cruz rather than another Prez Clinton:

The Brennan Center [book] ... features worthy and substantive contributions from, among others, Sens. Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Ted Cruz (R-Texas), not to mention nonpoliticians such as UCLA criminologist Mark Kleiman and Marc Levin, founder of Right on Crime.  Even New Jersey Gov. Chris Christie, who is not exactly thoughtful on the subject of, say, marijuana legalization, has some interesting things to say about bail reform.  And then there are former President Bill Clinton, Vice President Joe Biden, Wisconsin Gov. Scott Walker, Sen. Marco Rubio (R-Fla.), and former Secretary of State Hillary Clinton, who either support policies that contribute to overincarceration and excessive punishment, fail to acknowledge their past support for such policies, or have nothing specific to say about how to correct those policies....

Hillary Clinton ... notes that as a senator she supported shorter crack sentences (as did almost every member of Congress by the time a bill was enacted in 2010).  But unlike Paul, Booker, and Cruz, who describe actual pieces of legislation they have either introduced or cosponsored, Clinton is decidedly vague about what reforms should come next.

Clinton wants us to know "it is possible to reduce crime without relying on unnecessary force or excessive incarceration," which may sound wise but is actually a tautology. Instead of unnecessary force or excessive incarceration, she suggests, "we can invest in what works," such as "putting more officers on the streets."  Clinton, her husband, and Joe Biden all seem to agree that you can never have too many cops.  She also mentions "tough but fair reforms of probation and drug diversion programs," along with more money for "specialized drug courts and juvenile programs."  That's about as specific as she gets.

Clinton fills out the essay with platitudes and self-aggrandizing references to Robert Kennedy and "my friend" Nelson Mandela.  She also name-checks "Dr. King."  Possibly all three of these men have something to do with criminal justice reform, but if so Clinton never bothers to elucidate the connections.  It is sad that the Democratic Party's presumptive presidential nominee would offer such a shallow discussion of a subject on which Democrats are supposed to be more enlightened than Republicans. By contrast, three less prominent Democrats — Booker, former Maryland Gov. Martin O'Malley, and former Virginia senator Jim Webb — contributed essays that are actually worth reading.

Clinton's essay is especially embarrassing compared to Ted Cruz's.  Although Cruz is not as passionate, active, or ambitious on criminal justice reform as Rand Paul is, his essay includes succinct and informed discussions of the bloated federal criminal code, the leverage that mandatory minimums give prosecutors, and the virtual disappearance of trial by jury in criminal cases, along with specific reforms to address these problems.  Democrats who think Hillary Clinton is savvier or smarter than Cruz may reconsider after reading these essays side by side.

Recent related posts:

May 6, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 05, 2015

"What can one prosecutor do about the mass incarceration of African-Americans?"

The question in the title of this post is the subheadline of this lengthy and timely New Yorker article authored by Jeffrey Toobin.  For many reasons (as perhaps the highlights below suggest), the full article is a must-read:

Like many people in the criminal-justice system, John Chisholm, the District Attorney in Milwaukee County, has been concerned for a long time about the racial imbalance in American prisons.  The issue is especially salient in Wisconsin, where African-Americans constitute only six per cent of the population but thirty-seven per cent of those in state prison. According to a study from the University of Wisconsin-Milwaukee, as of 2010 thirteen per cent of the state’s African-American men of working age were behind bars — nearly double the national average, of 6.7 per cent.  The figures were especially stark for Milwaukee County, where more than half of African-American men in their thirties had served time in state prison.  How, Chisholm wondered, did the work of his own office contribute to these numbers?  Could a D.A. do anything to change them?

The recent spate of deaths of unarmed African-Americans at the hands of police officers has brought renewed attention to racial inequality in criminal justice, but in the U.S. legal system prosecutors may wield even more power than cops.  Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation.  Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison.  And prosecutors make these judgments almost entirely outside public scrutiny.

Chisholm decided to let independent researchers examine how he used his prosecutorial discretion.  In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office.  Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing.  According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).

Chisholm decided that his office would undertake initiatives to try to send fewer people to prison while maintaining public safety.  “For a long time, prosecutors have defined themselves through conviction rates and winning the big cases with the big sentences,” Nicholas Turner, the president of the Vera Institute, told me.  “But the evidence is certainly tipping that the attainment of safety and justice requires more than just putting people in prison for a long time.  Prosecutors have to redefine their proper role in a new era.  Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.” Chisholm’s efforts have drawn attention around the country....

Chisholm reflects a growing national sentiment that the criminal-justice system has failed African-Americans.  The events in Baltimore last week drew, at least in part, on a sense there that black people have paid an undue price for the crackdown on crime. Since 1980, Maryland’s prison population has tripled, to about twenty-one thousand, and, as in Wisconsin, there is a distressing racial disparity among inmates. The population of Maryland is about thirty per cent black; the prisons and local jails are more than seventy per cent black....

Chisholm decided to move to what he calls an evidence-driven public-health model. “What’s the most effective way to keep a community healthy?” he asked. “You protect people in the first place.  But then what do you do with the people who are arrested?” There are two basic models of prosecutorial philosophy.  “In one, you are a case processor,” he said.  “You take what is brought to you by law-enforcement agencies, and you move those cases fairly and efficiently through the system.  But if you want to make a difference you have to do more than process cases.”

So Chisholm began stationing prosecutors in neighborhoods around Milwaukee.  “If people view prosecutors as just the guys in the courthouse, who are concerned only with getting convictions, then you are creating a barrier,” he said.  He and his team started asking themselves in every instance why they were bringing that case.  “In those that were seen as minor, it was the least experienced people who were deciding whether to bring them.  And these people saw that we had generally brought those cases in the past, so they went ahead with them again. But we started to ask, ‘Why are we charging these people with crimes at all?’ ”

May 5, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Oklahoma Gov signs "safety valve" legislation giving judges more sentencing discretion

As noted in this prior post, a few month ago the Oklahoma House passed by a significant margin a state Justice Safety Valve Act authorizing state judges to give sentences below otherwise-applicable mandatory minimums.  Now, as effectively reported via this FreedomWorks posting, this notable sentencing reform has become law.  The piece is headlined "Oklahoma becomes the latest Republican state to enact meaningful justice reforms," and here are the details (with links from the original).

Oklahoma Gov. Mary Fallin signed a major bill into law allowing judges to sentence nonviolent offenders below mandatory minimum sentences, a big government, one-size-fits-all policy that costs taxpayers big bucks....

Introduced in February by state Rep. Pam Peterson (R-Tulsa), the Justice Safety Valve Act, HB 1518, is aimed at reducing the rate of incarceration in the Oklahoma, which is among the highest in the United States. The bill allows sentences below mandatory minimums if a judge determines, based on a risk assessment, that a nonviolent offender is not a public safety risk. The bill would allow the state to save much-needed bed space for dangerous criminals.

"Our prison bed space is being taken up with people who don’t need to be there," Peterson told NewsOK.com in February. "These people are breaking the law, but I think we’ve gone to the point now where we need that space for violent offenders and are filling it up with too many nonviolent offenders."

"The courts' hands are often tied because of these mandatory minimums," she said. “Longer sentences do not equate to public safety.”

HB 1518 passed both chambers of the Republican-controlled Oklahoma State Legislature with relative ease. The House approved the bill in March by a 76 to 16 vote. The Senate followed suit in late April, passing the bill in a 31 to 13 vote.  Fallin, a Republican, signed the bill on Monday.

In her State of the State address delivered in February, Fallin urged lawmakers to get "smart on crime," offering support for alternatives to incarceration for nonviolent offenders. Incarceration, she explained, actually increases the likelihood that an offender will continue a cycle of crime.

"Personal and community safety remain top priorities, and violent criminals will continue to be incarcerated. But the fact is, one in eleven Oklahomans serve time in prison at some point in their lives. Many of our current inmates are first time, nonviolent offenders with drug abuse and alcohol problems. Many also have mental health issues they need treatment for," said Fallin. "For some of these offenders, long sentences in state penitentiaries increase their likelihood of escalated criminal behavior.

"Oklahoma must ramp up its 'smart on crime' policies, including the Justice Reinvestment Initiative, designed to intervene for low-risk, nonviolent offenders and more readily offer alternatives such as drug-courts, veterans courts and mental health courts," she continued. "Implementation of coordinated 'smart on crime' efforts between state and local governments and tribal nations has demonstrated significant cost savings and improved outcomes for offenders and public safety."...

"It costs the state around $19,000 a year to house an inmate, but only $5,000 a year to send an addict through drug court and on to treatment," Fallin explained. "In addition to being less expensive, it’s also more effective; the recidivism rate for offenders sent to drug court is just one-fourth of the rate for those sent to prison."

The Justice Safety Valve Act will take effect on November 1.

May 5, 2015 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Could new DEA chief significantly change realities of federal war on drugs?

The question in the title of this post is prompted by this Huffington Post article, headlined "Lawmakers Encourage Obama To Select A Progressive New DEA Chief," reporting on this recent letter sent by a group of Representatives to Prez Obama. Here are the details: 

In a letter sent Friday, a group of lawmakers are urging President Barack Obama to select a more progressive head of the Drug Enforcement Administration, following the Department of Justice's announcement that the embattled current chief will resign in May. "We encourage you to use this as an opportunity to reshape the DEA's direction to reflect your administration's enforcement priorities," the letter reads.  The letter was signed by Reps. Jared Polis (D-Colo.), Steve Cohen (D-Tenn.), Earl Blumenauer (D-Ore.) and Democratic California Reps. Barbara Lee, Sam Farr, Zoe Lofgren and Eric Swalwell.

While the lawmakers say they appreciate the Obama administration's efforts to allow states to forge their own marijuana policies, they said that current DEA Administrator Michele Leonhart "leaves behind a legacy of strident opposition to efforts to reform our nation's drug policy."  The letter urges the president to nominate a new DEA chief who will be willing to work with state and federal officials to craft more flexible marijuana policies....

With just a little more than two weeks before Leonhart steps down, it remains unclear who the Obama administration could nominate who would both be approved by a Republican-controlled Senate and be a good fit for the DEA.

Leonhart came to head the DEA as acting administrator in 2007, under President George W. Bush.  She was made administrator in 2010 during Obama's first term, but has long seemed out of step on drug policy, clashing with the administration over the legalization of recreational marijuana in Colorado and Washington and with efforts to lower the mandatory minimum sentences for those convicted of federal drug crimes.

In their letter, the lawmakers argue that under Leonhart the DEA placed "far too great an emphasis on prosecuting state-legal marijuana activity, as opposed to prioritizing more dangerous drug-related activity," adding that her "misplaced priorities" exacerbated problems with the criminal justice system and put a strain on "legitimate marijuana businesses operating under state law."

May 5, 2015 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 04, 2015

SCOTUS asks for views from US Solicitor General on original lawsuit between states over marijuana reform

Via this order list, the US Supreme Court called for the views of the Solicitor General in the original case of Nebraska and Oklahoma v. Colorado.  That is the case, as readers may recall from posts here and here back in December, in which two states filed suit directly in the Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."

I am not sure what the usual timelines tend to be for submission of CVSG briefs during this time of year, but I would think this request from the Justices will just now further slow the resolution of a suit that was filled five months ago and will remain in limbo now until the Solicitor General weighs in.

Prior related posts:

Cross-posted at Marijuana Law, Policy and Reform

May 4, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Fairer capital fight has Virginia prosecutors fighting for the death penalty less

As reported in this notable new AP article, headlined "Pace of death sentences, executions slows in Virginia," once the state of Virginia provided a sounder means to defend to capital defendants, prosecutors decided it was sounder not to seek death sentences quite so often. Here is how the lengthy article gets started:

A prosecutor's decision not to seek a death penalty for the man accused of abducting and killing a University of Virginia student is emblematic of capital punishment's decline across the country and in the state that once operated one of the busiest execution chambers in the nation. Virginia has sent only six people to death row in the last nine years after sending 40 over the previous eight years, according to statistics compiled by the Death Penalty Information Center. As a result, the state only has eight inmates awaiting execution — down from a high of 57 in 1995 — and unless something changes, Jesse Matthew Jr. won't be joining them.

Matthew is charged with first-degree murder in the death of 18-year-old Hannah Graham. He also is charged with abduction with intent to defile, which is the first of 15 offenses listed in state law that can elevate a murder count to capital murder. Albemarle County's chief prosecutor has declined to say specifically why Matthew, who is due in court for a hearing on pretrial matters Tuesday, was not charged with capital murder.

Matthew's case, perhaps the most high-profile murder case in Virginia since the 2002 Washington-area sniper shootings that left 10 dead, is playing out as the death penalty is on the wane. Virginia has slipped from second to third nationally — behind Texas and Oklahoma — with 110 executions since the U.S. Supreme Court reinstated capital punishment in 1976. No executions are currently scheduled.

Legal experts say there are many reasons for the deceleration of the death penalty in Virginia, but perhaps the biggest is the establishment in 2004 of four regional capital defender offices staffed by attorneys and investigators who devote all their time to death penalty cases.

"In the past, an awful lot of people who ended up on death row had abysmal representation," said Steve Northup, a lawyer and former executive director of Virginians for Alternatives to the Death Penalty. "Prosecutors were able to take advantage. Now prosecutors know capital defendants are going to be well represented."

It's no coincidence, experts suggest, that the sharp downturn in death sentences began the year the capital defender offices opened. The year before, Virginia sent six people to death row. No more than two death sentences have been imposed in any year since.

A recent study by University of Virginia law professor John G. Douglass concluded that the number of capital murder charges has declined, but not as rapidly as the number of death sentences. Virginia prosecutors obtained an average of 34 capital murder indictments a year between 1995 and 1999, but only 22 per year from 2008 through 2013. The percentage of those cases going to trial fell from 38 percent in the late '90s to 19 percent, suggesting more cases are being resolved by plea negotiations resulting in punishment less than death. "Virginia prosecutors have not abandoned the death penalty," Douglass wrote. "Instead, increasingly, they bargain with it."

Douglass agrees with others who cite establishment of the state-funded capital defender's offices, which operate on a budget of $3.5 million a year, as one of the reasons Virginia's death row has been steadily shrinking. "A capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," Douglass wrote.

UPDATE: Bill Otis via this post at Crime & Consequences provides some important corrections to the AP article linked and excerpted above.

May 4, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, May 03, 2015

“Catching American Sex Offenders Overseas: A proposal for a federal international mandated reporting law”

The title of this post is the title of this notable new law review article authored by Basyle Tchividjian, which I just came across.  Here is an excerpt from the end of the piece's introduction:

In Asia alone, over 62,000 Americans visit each year for the purpose of sexually victimizing children.4 These numbers do not include other parts of the world, nor the United States citizens who reside overseas and sexually abuse children. This considerable problem requires a bold and practical response that has proven to be effective in the United States. It is time that federal law catch up to the states and mandate its citizens who are overseas to report Americans who are suspected of sexually abusing children in foreign countries.

Section II of this Article provides a brief foundational history of mandated reporting laws in the United States.  Section III outlines the increased involvement of the federal government in promoting mandated reporting laws.  Section IV summarizes the modern state of mandated reporting, and Section V analyzes the effectiveness of the current law. Section VI shifts the focus to the growing problem of United States citizens sexually victimizing children in foreign countries.  Section VII introduces and analyzes the PROTECT Act, exposing a significant gap in the ability to enforce this federal law.  Section VIII proposes a federal international mandated reporting law that will help close the gap and allow the PROTECT Act to achieve its objective of identifying and prosecuting United States citizens who sexually abuse children overseas. 

May 3, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, May 02, 2015

Considering clemency for federal marijuana offenders and other posts of note at Marijuana Law, Policy and Reform

This new post about a new commentary headlined "Do marijuana prisoners deserve amnesty?" reminded me that I have not recently done in this space a round-up of posts of note from Marijuana Law, Policy and Reform.  Here is an abridged list of April MLP&R posts that might be of special interest to sentencing fans:

May 2, 2015 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Seventh Circuit, in 6-5 en banc ruling, allows new federal 2241 review of Atkins claim based on new evidence

If you love to spend a spring weekend thinking through the statutes and policies that govern federal collateral review of federal death sentences — and really, who doesn't? — then the en banc Seventh Circuit has a great ruling for you.  Dividing 6-to-5, the Seventh Circuit in Webster v. Daniels, No. 14-1049 (7th Cir. May 1, 2015) (available here), decided that a federal death row inmate was "not barred as a matter of law from seeking relief under section 2241" to continue to pursue based on new evidence his claim that he was "so intellectually disabled that he is categorically ineligible for the death penalty under Atkins and Hall."

This following paragraph from the dissent authored by Judge Easterbrook highlights why this ruling took the majority many pages to reach and is controversial:  

Whether Webster is “retarded” was the principal issue at his trial and sentencing.  He raised his mental shortcomings as a mitigating factor, and four jurors found that they mitigate his culpability, but the jury still voted unanimously for capital punishment.  The sentencing hearing spanned 29 days, with abundant evidence.  The district judge found that Webster is not retarded within the meaning of §3596(c) and sentenced him to death. The Fifth Circuit affirmed on the merits and later affirmed a district court’s decision denying a petition under §2255 addressed to retardation.  If Webster is retarded, he is ineligible for the death penalty.  Whether he is retarded has been determined after a hearing, collateral review under §2255, and multiple appeals.  What Webster now wants is still another opportunity to litigate that question.  The majority gives Webster that opportunity in a new district court and a new circuit, setting up a conflict among federal judges.  Section 2255 is designed to prevent that, and prudential considerations also militate against one circuit’s disagreeing with another in the same case.

May 2, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack