Monday, October 06, 2014

SCOTUS summarily reverses Ninth Circuit habeas grant on AEDPA deference grounds

Thanks to this post by Kent Scheidegger over at Crime & Consequences, I just saw that the Supreme Court kicked off the first Monday of October with its first reversal of the Ninth Circuit in a criminal case. Here is how the per curiam opinion in Lopez v. Smith, No. 13-346 (S. Ct. Oct. 6, 2014) (available here), gets started:

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1).  We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is “clearly established.”  See, e.g., Marshall v. Rodgers, 569 U.S. __, __ (2013) (per curiam) (slip op. at 6).  Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.

After reporting on this SCOTUS development, Kent added this pointed commentary about the general failure of lower federal courts to show adequate AEDPA deference:

There is a broad spectrum of viewpoints on the Supreme Court today, but when there is not a single justice who thinks the court of appeals' decision is correct, when the error is so obvious that it doesn't even require full briefing and argument, and when the same pattern recurs "time and again," there is something gravely wrong with some of our courts of appeals (mostly those divisible by 3).

The continuing violation of this provision by some of the lower federal courts is the largest-scale defiance of federal law since the "massive resistance" campaign in the wake of Brown v. Board of Education (1954). Except this time federal courts are perpetrators of the violations instead of enforcers of the law.

October 6, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

SCOTUS keeps rejecting important follow-up Graham and Miller issues

The Supreme Court this morning issued this lengthy order list that has 60+ pages listing case after case for which the Justices have denied certiorari review.  Not suprisingly, folks are surprised to discover that all the same-sex marriage cases brought to the court over the summer are on the cert denied list (SCOTUSblog discussion here, AP discussion here).  

Sentencing fans will also be interested to learn about another group of notable state cases on the cert denied list this morning.  A helpful reader provided this account: "For what it’s worth, the US Supreme Court declined to hear at least three virtual LWOP cases (Goins v. Lazaroff, Barnette v. Ohio, and Bunch v. Ohio). They also declined to hear at least two cases on the retroactivity of Miller, including one that was an appeal by a state (Evans v. Ohio and Nebraska v. Mantich)."  

I have long believed it will only be a matter of time before the Justices take up at least a few important follow-up Graham and Miller Eighth Amendment issues. These cert denials suggest that the Justices are content to let the issues continue to be resolved only by lower courts for the foreseeable future.  

October 6, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Highlighting and lamenting the too potent powers of prosecutors

The Economist has these two new pieces spotlighting and complaining about the powers of modern prosecutors:

Here is an excerpts from the end of the first piece linked above:

Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems.  Judge [Jed] Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining — for instance by bringing in a magistrate judge to act as a broker.  He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.

Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials.  This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.

Most prosecutors are hard-working, honest and modestly paid.  But they have accumulated so much power that abuse is inevitable.  As [Justice Robert] Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”

October 6, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 05, 2014

Previewing some of the high-profile criminal cases on the SCOTUS docket

This new Reuters article, headlined "Inmate beards, Facebook threats on U.S. top court's docket," helpfully spotlights some of the higher-profile criminal law cases on the SCOTUS docket for the Term that officially gets started on Monday. Here are excerpts:

The U.S. Supreme Court opens on Monday a new term in which the nine justices will decide issues such as whether a Muslim prison inmate can have a beard and whether a man can be prosecuted for making threatening statements on Facebook. The term, which runs to the end of June, is expected to be defined by whatever action the justices take on whether states can ban gay marriage....

Arguments start on Monday in the cases the court has already accepted. It has agreed to hear a number of cases involving people challenging their treatment by the government, whether it be prosecutors, police or agencies.

Arkansas inmate Gregory Holt's challenge to a state prison grooming policy will be heard on Tuesday. Holt, who initially got the court's attention with a handwritten plea last year, says the policy violates a 2000 federal law giving religious rights to prisoners. He wants to grow a half-inch (1.3 cm) beard in accordance with his Muslim beliefs. Holt's lawyers note that 44 state prison systems and the federal government allow inmates to have similar beards. Legal experts predict he has a good chance of victory....

The Facebook threat case, to be argued on Dec. 1, concerns Anthony Elonis, who posted statements on the social network in 2010 after his wife, Tara Elonis, left him. Aimed at his wife, co-workers and others, the posts were mostly in the form of rap lyrics in which he fantasized about committing violent acts. Elonis was charged with violating a federal law that outlaws sending threatening communications. He was convicted on four of five counts and sentenced to 44 months in prison. The legal question is whether prosecutors needed to convince jurors that Elonis intended his statements to be interpreted as threats.

The first argument the court will hear on Monday comes in a North Carolina case brought by Nicholas Heien, who was charged and pleaded guilty to drug trafficking after police found cocaine in his car during a traffic stop. He challenged whether police had the right to stop his car for having a broken tail light when state law does not require two working tail lights.

October 5, 2014 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, October 03, 2014

Should advocates of federal criminal justice reform be rooting for Republicans to take control of Senate?

The question in the title of this post is prompted by the closing paragraphs of this new National Journal article. The article is headlined "How Republicans Stopped Being 'Tough on Crime': GOP lawmakers in Congress are moving toward prison reform. Is this the final frontier for bipartisanship?". Here are some extended excerpts from an article that reinforcement my sense that reform advocate might be wise to root for Republicans to have lots of success on Election Day next month:

[M]any Republicans in Congress are moving away from the tough-on-crime philosophy that dominated the Nixon, Reagan, and Bush eras. At a time when people complain about historic levels of gridlock, there is more bipartisan support for reforming the criminal-justice system than there has been in the past four decades.

This newfound Republican support isn't just the product of tokenism. Among the members of Congress who have cosponsored legislation on this issue are Sens. Rand Paul, John Cornyn, Chuck Grassley, Mike Lee, Rob Portman, and Orrin Hatch, along with Reps. Raul Labrador, Paul Ryan, and Jason Chaffetz.

"This certainly is something that has gained momentum among many Republicans — not all," Lee told National Journal. "There's still a number of Republicans who don't agree with me on this, that this ought to be a priority. But I've been pleased by the number of Republicans who have joined me in this effort."

Of course, that doesn't mean the Republican colleagues always agree with each other. Grassley recently blasted the Smarter Sentencing Act, which was introduced by Lee and Sen. Dick Durbin. The bill would allow federal judges to use their discretion when sentencing some nonviolent drug offenders, instead of having to obey mandatory minimums. Grassley said the bill would "put taxpayers on the hook for close to $1 billion in entitlement spending." What Grassley didn't mention was that the bill would also lead to $4 billion in budget savings over the next 10 years, according to the Congressional Budget Office.

Levin, the Right on Crime founder, says the financial burdens imposed by the justice system — which often disproportionately targets minorities and hamstrings those not wealthy enough to afford their own attorney — should especially outrage conservatives. "Look, I'm a free-market guy, so I say the fact that rich people can get a better car, nicer jewelry, that's all well and good. But here we're talking about justice," Levin said. "Conservatives ought to be particularly receptive to these things, and I think they are, because at some point it just becomes like a tax."

But Lee emphasized that sentencing reform isn't just a fiscal issue for Republicans. "There's no question that reforming our sentencing system could save us money. I want to point out, though, that that is not our primary objective in this," Lee told National Journal. "An even more important objective involves not the financial costs, but the human costs."

That human cost is very real. The violent-crime rate is the lowest it's been in 20 years, yet there hasn't been a corresponding decrease in incarceration. Nearly a third of the world's female prisoners are incarcerated in the U.S. Between 1991 and 2007, the number of children with a parent in prison increased by 80 percent—so widespread that Sesame Street recently aired a segment dealing with the issue.

The prison population is the oldest it's ever been. In West Virginia, 20 percent of the prison population is over the age of 50. This raises the question: What is the advantage of the U.S. spending billions of dollars to house prisoners who may not present any real public danger?...

Criminal-justice reform has united other odd couples like [Senators Rand] Paul and [Cory] Booker. In March, the Senate Judiciary Committee approved a bill put forward by Republican Sen. John Cornyn of Texas and Democratic Sen. Sheldon Whitehouse of Rhode Island that would try to triage the likelihood that a prisoner would commit another crime, if released. The law would also give time credits to "low-risk" offenders and allow some to complete their prison sentences under "community supervision."

Cornyn said it's time to move away from the one-size-fits-all approach to treating American prisoners. "When I went to law school, we'd learn in criminal law class that rehabilitation was always one of the goals of our criminal justice system. But honestly, in my lifetime, we've done a lousy job at rehabilitating people," Cornyn told National Journal. "Instead, they have taken an approach that's more like warehousing people."

Cornyn said he's confident that if the GOP retakes the Senate in November, prison reform will be one area where they will be able to work with the White House. Even Whitehouse — Cornyn's Democratic counterpart on this legislation — sees this as an upside to a possible Republican-controlled Congress. "Frankly, I think the biggest danger to these bills is not really on their substance. It's just the threat of partisan and obstructive mischief by the more extreme Republican senators," Whitehouse told National Journal. "The motivation for that mischief evaporates once they're in control."

There you have it — prison reform, the final frontier of bipartisan legislation. But as Levin points out, there's just one last thing for Republicans and Democrats working on the issue to sort out: "The only disagreement sometimes is who's gonna get the credit."

A few recent and older related prior posts:

October 3, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, October 02, 2014

"Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel"

The title of this post is the title of this intriguing looking article authored by Sara Mayeux now available via SSRN. Here is the abstract:

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer.

In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.

October 2, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS grants cert on lots of new cases, with only two on criminal procedure and one on prisoner suits

The Supreme Court this morning released this list of order, which includes orders granting certiorari review in ten new cases. A quick scan of the list does not reveal any notable sentencing cases and only two criminal law cases: Ohio v. Clark, which seems to involve a Confrontation Clause issue; Rodriguez V. US, which seems to involve a Fourth Amendment traffic stop matter.  In addition, Coleman v. Tollefson was granted concerning a prisoner's ability to bring a civil suit against correction officials.

I am quite bummed that this order list suggests the Justices are not interested in any sentencing issues raised in the long conference. It is possible that SCOTUS may "relist" rather than outright deny some sentencing petitions I have been following concerning issued like acquitted conduct guideline enhancement and/or Miller retroactivity. But after a period of years in the aftermath of Blakely and Booker, when we could expect a number of major sentencing rulings almost every Term, it lately seems like the Justices are actively trying to avoid taking up any major sentencing cases. Oh well.

October 2, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, October 01, 2014

"Prison bankers cash in on captive customers: Inmates' families gouged by fees"

The title of this post is the headline of this one part of some impressive reporting about the economic realities facing prisoners and their families being done by the Center for Public Integrity and CNBC.  Here is an excerpt from this piece that provides a basic summary:

JPay and other prison bankers collect tens of millions of dollars every year from inmates’ families in fees for basic financial services. To make payments, some forego medical care, skip utility bills and limit contact with their imprisoned relatives, the Center for Public Integrity found in a six-month investigation.

Inmates earn as little as 12 cents per hour in many places, wages that have not increased for decades. The prices they pay for goods to meet their basic needs continue to increase.

By erecting a virtual tollbooth at the prison gate, JPay has become a critical financial conduit for an opaque constellation of vendors that profit from millions of poor families with incarcerated loved ones.

JPay streamlines the flow of cash into prisons, making it easier for corrections agencies to take a cut. Prisons do so directly, by deducting fees and charges before the money hits an inmate’s account. They also allow phone and commissary vendors to charge marked-up prices, then collect a share of the profits generated by these contractors.

Taken together, the costs imposed by JPay, phone companies, prison store operators and corrections agencies make it far more difficult for poor families to escape poverty so long as they have a loved one in the system.

Here are links to additional related reporting as part of this project:

October 1, 2014 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Peculiar (judicial?) screed against evidence-based sentencing "fad" based on the "need to be realistic"?!!?

GalI have long been intrigued and generally impressed by the writings and work of Colorado state judge Morris Hoffman.  However, this new USA Today commentary by Judge Hoffman, headlined "Emptying prisons is no panacea: Deterring others matters as much as rehabilitation," has me scratching my head about what prompted a thoughtful judge to produce a peculiar screed against evidence-based sentencing.  At the risk of making this post much too long, I will reprint the whole commentary before explaining why it made my head hurt this morning:

Just days before Attorney General Eric Holder announced his resignation, the Department of Justice announced one of his signature achievements. After growing for decades, the federal prison population has started to decline.  The new data were greeted with wide acclaim, but before we embrace the idea that fewer prisoners is always good, let's step back and consider whether at least one of the drivers of our declining prison population is a good idea.

Like all humans, judges are susceptible to fads.  Anger management became a popular feature of American probationary sentences in the 1980s.  Teen courts and drug courts followed.  The new fad is "evidence-based sentencing."  It is both a refreshing attempt at rationality and a dangerous rejection of human nature.

Evidence-based sentencing purports to redirect judges' attention from old-fashioned retribution to enlightened deterrence and rehabilitation.  Judges across the country are attending innumerable evidence-based sentencing conferences that focus on how incarceration affects recidivism rates.  The claim is that incarceration costs much more than its deterrent benefits.  Judges should think twice before throwing away the key.

We don't need conferences to make that point.  One of the hidden truths of criminal justice is that most judges, including me, give criminals chance after chance before we sentence them to prison.  There are exceptions, such as serious violent crimes and drug crimes that carry mandatory prison sentences.  But, for the most part, defendants have to really work hard to land in prison.

We should applaud efforts to put data over gut instinct when trying to predict the future behaviors of our defendants.  But we also need to be realistic.  There's a reason science stinks at predicting individual behavior.  An almost infinite number of bits of data contribute to human decision-making, including the billions of base pairs in our DNA and a lifetime of brain-changing individual experiences, among other things.  Not to mention that unscientific interloper: free will.

There is a much more serious problem with evidence-based sentencing.  It ignores the most important reason we punish wrongdoers.  When I sentence a bank robber to prison, the idea is not just to deter him from robbing again ("specific deterrence").  I also want to deter other people who might be considering robbing a bank ("general deterrence").

General deterrence is what makes us a civilized society.  It is the glue that holds us together under the rule of law.  It is so deeply engrained, every human society that has left a record shows evidence it punished its wrongdoers.  Indeed, our tendency to punish wrongdoers is most likely an evolved trait, which we needed in order to keep our intensely social small groups from unravelling in selfishness.  By focusing on specific deterrence, evidence-based sentencing mavens ignore 5,000 years of civilized wisdom and 200,000 years of human evolution.

They seem to recognize this failing, but only half-heartedly.  They tend to downplay crimes such as rape and murder to focus on low-harm crimes.  But burglary and theft tear the social fabric more broadly simply because they are more frequent.  Indeed, low-harm crimes are often crimes of cold economic predation rather than hot emotion.  For them, deterrence can be more effective.  Giving thieves and burglars a stern lecture and probation, just because some social scientists tell us prison doesn't rehabilitate them, is a surefire way to increase thefts and burglaries.

Those of us fortunate enough to live in civilized societies owe that civilization to the rule of law, which means nothing without the bite of punishment.  Punishment must be merciful, but it should not be abandoned to misguided claims that it does not deter.

Candidly, this commentary has so many disconnected and illogical assertions, I have too many criticisms to fit into this blog space. But I can start by highlighting how curious it is that the AG's discussion of the reduction in the federal prison population, brought about largely through changes in federal drug sentencing policies and practices, leads to a state judge worrying we risk not punishing "thieves and burglars" enough to achieve general deterrence.  Moreover, AG Holder was bragging last week that in recent years we have lowered prison populations AND lowered crime rates.  What evidence-based sentencing seeks to do is find ways to better achieve both specific and general deterrence without continue to rely so heavily on the very costly and too-often-ineffective punishment of imprisonment.

More fundamentally, what really troubled me about Judge Hoffman's analysis is his misguided and harmful perspectives (1) that focused attention to data and evidence about imprisonment's impact on crime is a "fad," and (2) that only lengthy terms of incarceration constitute "real" punishment that can deter.  On the first point, I wonder if Judge Hoffman urges his doctors not to be caught up in the "fad" of practicing "evidence-based" medicine.  After all, given that  "almost infinite number of bits of data contribute" to human health (not to mention that "unscientific interloper, free will"), perhaps Judge Hoffman encourages his doctors to be "realistic" that he is going to die eventually anyway.  Indeed, perhaps we ought to be suspect about all efforts to improve and extend human life by "evidence-based [medicine] mavens [who] ignore 5,000 years of civilized wisdom and 200,000 years of human evolution" which shows we all end up dead anyway.

Truth be told, what is truly a "fad" in light of "5,000 years of civilized wisdom and 200,000 years of human evolution" is the extreme use of extreme terms of imprisonment that has come to define the modern American experience with punishment.  Brutal physical punishments and public shaming punishment have been the norm and the means use to deter crime in most other societies throughout human history (and in the US until fairly recently).  Moreover, all serious social and scientific research on human behavior has demonstrated that the swiftness and certainty of punishment, not its severity, is critical to achieving both specific and general deterrence.  That is one (of many) reasons evidence-based sentencing makes long-terms of imprisonment look a lot less effective, at least relative to its high costs, than various other possible punishments.

I could go on and on, but I will conclude by encouraging everyone to appreciate that evidence-based reforms in lots of settings often provoke these kinds of old-world reactions: typically, folks who benefit from or prefer an old-world "faithful" view about how they think the world works will be eager to question and seek to discredit reformers who suggest science and data provides a new perspective that requires significant reform and changes to the status quo.  And though I always hope to show respect for old-world "faithful" perspectives, I get worked up by attacks on evidence-based reforms because I am ultimately much more a creature of science than a creature of faith.

October 1, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

Tuesday, September 30, 2014

Ohio AG puts onus on Ohio legislature to reboot state's machinery of death

As reported in this local article, headlined "DeWine: Executions on hold until legislators change law," Ohio's Attorney General has now suggested that the state will not even seek to move forward with executions in 2015 unless and until Ohio's General Assembly passes legislation he thinks is needed to enable a constitutionally sound and effective execution protocol.  Here are the details:

Ohio will not resume executions next year unless legislators enact two key changes in state law, Attorney General Mike DeWine said yesterday. “You’re not going to see a death penalty take place until the General Assembly takes action,” DeWine said during a joint meeting with David Pepper, his Democratic opponent in the Nov. 4 election.  The session with Gannett newspaper editors in Ohio was streamed live on the Internet.

The execution issues deal with providing anonymity for “compounding pharmacies” and immunity protection for physicians who help the state with legal support for executions, DeWine spokesman Dan Tierney said.  Tierney said DeWine thinks two pieces of legislation, not yet final, must be passed in order to meet stipulations set down by U.S. District Judge Gregory Frost.  Frost halted all lethal injections in Ohio until early next year because of concerns about the drugs and how they are used.

Convicted killer Ronald Phillips is set to die on Feb. 15, followed by five other executions next year.

Ohio and most other states have exhausted their options for purchasing chemicals used in lethal injections, largely because manufacturers, many of them European, will not sell drugs for executions.  States are now turning to compounding pharmacies, which combine materials into compounds on demand for customers.  The proposal would allow the pharmacies to do that without being cited as the source, Tierney said.

Pepper spokesman Peter Koltak said Pepper agrees that Ohio’s death penalty should be “free from constitutional concerns.”  He said, “Future legislation on Ohio’s death penalty should be given thorough and thoughtful consideration.”

September 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Making the full case for Mitt Romney, drug czar

RomneyRegular readers may recall this post from a few months ago in which I highlighted the brilliant and provocative commentary by Mark Osler headlined "Mitt Romney for drug czar." Now I can post Mark's fuller explication of the ideas that lead to the notion of Drug Czar Romney as they appear in this article now available on SSRN headlined "1986: AIDS, Crack, and C. Everett Koop." Here is the abstract:

In 1986, Ronald Reagan’s America confronted twin public health crises: AIDS and crack. There were striking similarities between the two, in that both developed quietly before public alarms were raised; both were identified with traditionally oppressed groups; both spread in a similar pattern; and both created fear in the American public.  Where they differed, though, was in the reaction.  After initial missteps, AIDS was approached through problem-solving doctors and researchers rather than quarantine.  In contrast, crack was confronted with a heavy retributive hand.  AIDS was transformed to a chronic, treatable illness. In contrast, crack not only continued to plague communities, but the use of mass incarceration created new problems.

Four striking personalities shaped these differing outcomes.  With AIDS, the chief strategist was the remarkable C. Everett Koop, and the public face was a young boy named Ryan White.  For crack, a chief strategist was the vituperative William Bennett, and the public face was basketball player Len Bias.  The latter pair drove the fight against crack towards disaster, while the former created a more humane world.

This article argues that it is not too late to learn the lessons of 1986 and take a better approach towards narcotics, and that this approach might best be led by someone who understands the driving force behind drugs (the profit motive) the way that Koop understood the driving force behind AIDS (a virus).  In our present era, that person may be someone who straddles business and politics, such as former presidential candidate Mitt Romney.

September 30, 2014 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Reviewing how death is different (but still being used) in Japan

This new piece from The Economist, headlined "The death penalty in Japan: Hanging tough," discusses the on-going debate over capital punishment in the Land of the Rising Sun.  Here are excerpts:

It is one of the anomalies of Japan’s approach to the death penalty that a stricken conscience can bring the system grinding to a halt.  At least two Japanese justice ministers have refused to sign execution orders, most recently Seiken Sugiura, a devout Buddhist who oversaw a 15-month moratorium from 2005 to 2006.  But Japan’s new justice minister, Midori Matsushima, seems unburdened by such doubts.

Ms Matsushima, who took office this month, has swatted away demands to review the system.  Japan is one of 22 nations and the only developed country — apart from America, where it is falling out of favour — that retains capital punishment.  “I don’t think it deserves any immediate reform,” she said last week: in her view the gallows are needed “to punish certain very serious crimes”.

Calls for a review have grown since the release earlier this year of Iwao Hakamada, a 78-year-old who spent 45 years of his life in a toilet-sized cell awaiting execution.  A Japanese court said the police evidence that put him behind bars in 1966 was probably fabricated.  Mr Hakamada, dubbed the world’s longest-serving death-row prisoner, is awaiting a fresh verdict later this year.  Prosecutors have lodged an appeal against his retrial.

Opponents are hoping that the state’s stubborn fight to wheel another elderly man back to the gallows (he is severely ill and suffers from advanced dementia) may trigger debate and a backlash.  But critics face an uphill struggle. Japan’s media largely steers clear of the topic.  Ms Matsushima points to public support of over 85% on carefully-worded surveys put out by the cabinet: respondents reply to whether execution is “unavoidable if the circumstance demands it”.

Mr Hakamada would not be the first elderly or infirm inmate to be hanged in Japan.  On Christmas day in 2006, Fujinami Yoshio, aged 75, was brought to the gallows in the Tokyo Detention Centre in a wheelchair.  Even the openly abolitionist Keiko Chiba, who was justice minister from 2009 to 2010, failed to make a dent in the system.  In July 2010 she signed and attended two executions in a bid, she said, to start a public discussion that quickly petered out.

September 30, 2014 in Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

"A Plea for Funds: Using Padilla, Lafler, and Frye to Increase Public Defender Resources"

The title of this post is the title of this notable new paper by Vida Johnson available via SSRN. Here is the abstract:

In the same way that the Court revolutionized the criminal justice world with its ruling in Gideon, Padilla, Lafler, and Frye might also radically change the criminal justice landscape.  This Article will attempt to answer the following question: if there is a solution for the ever-growing case load of the public defender and the crisis of indigent defense, can PadillaLafler, and Frye be a significant part of the solution?

This Article will proceed by examining whether these three opinions create a bar too high for most public defender offices to meet.  It also seeks to suggest the kinds of changes needed for public defender offices to meet these basic requirements.  To do so, I will begin in Part II by discussing guilty pleas in general.  I will then describe the legal landscape prior to Padilla, Lafler, and Frye in Part III, and discuss the three cases themselves and their ramifications in Part IV.  In Part V, I will then introduce the requirements for effective assistance of counsel, and describe the best practices for public defenders to use during plea bargaining.  In Part VI, I will discuss the problem of the overburdened public defender office.  Finally, in Part VII, I will conclude by addressing how overburdened public defender offices might employ these cases to help ease their case loads.

September 30, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 29, 2014

Notable new AG Holder memorandum on charging policies and plea negotiations

I learned over the weekend that last week Attorney General Eric Holder issued a short memo to DOJ lawyers to provide "Guidance Regarding § 851 Enhancements in Plea Negotiations."  This full one-page memo, which is dated September 24, 2014, can be downloaded below.  Here are its most notable sentences, with my emphasis added:

The Department provided more specific guidance for charging mandatory minimums and recidivist enhancements in drug cases in the August 12, 2013, "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases."  That memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions," and sets forth factors that prosecutors should consider in making that determination. Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. Prosecutors are encouraged to make the§ 851 determination at the time the case is charged, or as soon as possible thereafter.  An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.  This is consistent with long-standing Department policy that "[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct." "Department Policy on Charging and Sentencing," May 19, 2010.

While the fact that a defendant may or may not exercise his right to a jury trial should ordinarily not govern the determination of whether to file or forego an § 851 enhancement, certain circumstances -- such as new information about the defendant, a reassessment of the strength of the government's case, or recognition of cooperation -- may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea. A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.

Download AG-Letter-Regarding-Enhancements-in-Plea-Negotiations

I am inclined to speculate that AG Holder felt a need to issue this short memo in part because of reports that some US Attorneys may have had a "practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea."

September 29, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

District Court embraces as-applied Second Amendment limit on federal felon-in-possession prohibtion

As long-time readers know, ever since the Supreme Court's Second Amendment Heller ruling, I have long thought federal criminal law's threat of severe sentences on any and all felons in possession of any and all firearms is constitutionally questionable. Now, thanks to this post by Eugene at The Volokh Conspiracy, I see that one federal district court has finally held that there are as-applied Second Amendment problems with the federal felon-in-possession criminal statute.

The notable Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014) (available here).  Interestingly (and perhaps not surprisingly),  Binderup is a civil rights suit brought by a relatively sympathetic individual with a minor criminal past, not a case involving a federal criminal defendant claiming the Second Amendment precludes his prosecution.  And here are excerpts from the start and end of the lengthy opinion:

As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011)....

Because plaintiff’s statutory claim fails, I reach his alternative constitutional claim asserted in Count Two. For the reasons expressed above, I conclude that plaintiff has demonstrated that, despite his prior criminal conviction which brings him within scope of § 922(g)(1)’s firearm prohibition, he poses no greater risk of future violent conduct than the average law-abiding citizen. 

Therefore, application of § 922(g)(1) to him violates the Second Amendment to the United States Constitution under the framework set for the by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). Accordingly, plaintiff is, and defendants are not, entitled to summary judgment on plaintiff’s as-applied constitutional challenge asserted in Count Two of the Complaint.

It now will be real interesting to see if the feds will appeal this ruling to the Third Circuit or instead just leave it be.

September 29, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Rooting for acquitted conduct petition grant from SCOTUS long conference

Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.

Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest.  Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)

Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background.  Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:

Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution.  When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge.  When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury.  Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong.  Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge.  Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....

The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence.  Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence.  By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.

Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury.  It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury.  But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.

Previous related posts on this case and acquitted conduct sentencing enhancements:

September 29, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

"Mitigating Foul Blows"

The title of this post is the title of this intriguing new paper by Mary Bowman available via SSRN. Here is the abstract:

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions.  Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error.  Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.

Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases.  This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize.  As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases.  These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.

September 29, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, September 26, 2014

Could (and should) AG Eric Holder be even bolder on sentencing and drug war reform as a lame duck?

Not suprisingly, the early conversations after Attorney General Eric Holder's resignation announcement yesterday (discussed here) concerns who President Obama will nominate for the position and and when the Senate will consider that nomination.  But, because AG Holder indicated he would stay on the job until his replacement is confirmed, and because it is certainly possible that the confirmation process could take a number of months, it is certainly possible that Holder could still need to do some significant work before he turns over the keys to his office.  And, as the question in the title of this post suggests, one might wonder if AG Holder might see his new lame duck status as providing him with even more freedom to push even more aggressively on various sentencing and drug war reforms he has championed in his tenure (especially over the last year or so).

Though I seriously doubt AG Holder could or should seek now to push through any major formal DOJ policy initiatives as he heads out the door, he certain can use his office and its bully pulpit to continue to talk up his views about the need for federal criminal justice reforms.  Indeed, as highlighted by this new Huffington Post piece, headlined "Eric Holder Signals Support For Marijuana Reform Just As He's Heading Out The Door," Holder may now already feel a bit more free to talk about reforming federal marijuana laws.

I am especially interested to see if AG Holder might have some more to say about DOJ's clemency efforts on his way out the door.  Needed reforms on executive clemency have been widely discussed by various DOJ officials throughout 2014, and yet there has still been a paucity of real consequential action by the President in this arena.  I hope AG Holder might really try to prod Prez Obama to get moving on this front on his way out the door.

September 26, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack

"Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard"

The title of this post is the title of this new paper by Adam Lamparello now available on SSRN. Here is the abstract:

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled.  As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded?  The answer is yes, and the Georgia courts do not understand why we are scratching our heads.  The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.

Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled.  In 1986, Georgia became the first state to ban executions of the intellectually disabled.  It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.

Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed.  Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed.  The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.

September 26, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, September 25, 2014

Eric Holder resigning Attorney General position ... next up?

As this Politico article reports, "Attorney General Eric Holder will announce Thursday his plans to leave his post at the Justice Department once a successor is confirmed." Here is more about this breaking news:

Holder has been in the job for nearly six years, since the start of the Obama administration, and would be the third longest-serving attorney general if he is still in the position in December.

President Barack Obama will announce the personnel change at the White House at 4:30 p.m. Officials have not yet said whether the president will announce a nominee for the job at that time.

Obama and Holder developed a close working and personal relationship over the course of the administration, putting the attorney general on stronger footing as he faced a wide range of criticism from Congress and the public, and as even some of the president’s aides privately urged for a change in leadership at the Justice Department. Holder also is close with Obama senior adviser Valerie Jarrett.

Holder’s departure has long been speculated, and he has discussed his plans with the president “on multiple occasions in recent months,” a Justice Department official said. He finalized his plans in an hourlong conversation at the White House residence over Labor Day weekend, potentially giving the White House close to a month to decide on a nominee for the position.

One much talked-about contender, Massachusetts Gov. Deval Patrick, is scheduled to travel to Washington on Thursday for pre-planned Friday events with the Congressional Black Caucus, his office said.... Two others believed to be on the short list for the job are Solicitor General Donald Verrilli and Preet Bharara, U.S. attorney for the Southern District of New York.

This USA Today article, headlined "After Eric Holder: Potential attorney general choices," provides this longer list of potential AG nominees in addition to Governor Patrick:

Janet Napolitano: The former Homeland Security secretary and governor was Arizona's attorney general from 1999 to 2002. She currently serves as president of the University of California system.

Kathryn Ruemmler: She departed as White House counsel last year. Obama told the New York Times that he deeply valued Ruemmler for "her smarts, her judgment and her wit." She worked for the White House since the start of Obama's tenure, starting as principal associate deputy attorney general — the third-ranking position at the Justice Department.

Robert Mueller: The respected lawyer and specialist in white-collar crime became FBI director a week before the 9/11 terrorist attacks. Mueller went on to serve both George W. Bush and Obama. Currently in private law practice, Mueller was recently tapped to lead the NFL's investigation into the Ray Rice domestic violence incident.

Kamala Harris: The attorney general of California is often touted as as a potential candidate for governor or U.S. Senate. She was the first woman elected as district attorney in San Francisco and first elected to her current position in 2010.

I have no insider knowledge and no real sense of who might be especially good at a job likely to be especially difficult over the next few years. But I think I am pulling for Kamala Harris (because I would like to see a woman of color in this job) and Preet Bharara (because I was a summer associate with him at a big NY firm more than two decades ago).

September 25, 2014 in Who Sentences? | Permalink | Comments (7) | TrackBack