Monday, March 16, 2015

New York Times editorial assails death decided "by a single vote" in Alabama and Florida

This new New York Times editorial, headlined "Death Sentences, With or Without a Jury," uses the recent Supreme Court cert grant in Hurst to assail a capital punishment system it views as "warped by injustice and absurdity." Here are excerpts:

In Florida and Alabama, death row inmates are challenging perverse state laws on the jury’s role in capital trials. The Supreme Court, which has been intervening more often in death penalty cases, last week agreed to review the Florida law.

In death penalty trials, juries that reach a guilty verdict are usually required in the trial’s subsequent penalty phase to make factual findings, such as whether the crime was especially heinous, that will determine whether the defendant is sentenced to death.

But Florida lets the judge make these findings, and does not require that the jury be unanimous in voting for a death sentence. After Timothy Lee Hurst was found guilty of a 1998 murder of a co­worker in Pensacola, his jury split 7 to 5 in favor of executing him, with no record of whether the majority even agreed on the reason. (Mr. Hurst claims he is intellectually disabled and thus ineligible to be executed.) In other words, Mr. Hurst was effectively condemned by a single vote by an unidentified juror.

Alabama also allows death to be decided by a single vote: that of the judge, who may override a jury verdict of life in prison and replace it with a death sentence, relegating the jury’s status to that of an advisory body. The Supreme Court declined to hear a challenge to the Alabama law in 2013, prompting a sharp dissent from Justice Sonia Sotomayor. She concluded that the state’s judges, who are elected — and who have unilaterally imposed death sentences 101 times after the jury voted for life — “appear to have succumbed to electoral pressures.”

The Alabama law, Justice Sotomayor wrote, undermines “the sanctity of the jury’s role in our system of criminal justice,” and very likely violates the court’s own rulings requiring juries, not judges, to find any fact that would increase a defendant’s sentence. Two new challenges to that law are before the court — one involving a death sentence imposed by a judge after a jury voted 12 to 0 for life — but it hasn’t decided whether to take them up.

This disregard for the jury’s role is all the more offensive given the Supreme Court’s reliance on jury verdicts as a key measure of America’s “evolving standards of decency,” the test it uses to decide whether a punishment is so cruel and unusual that it violates the Constitution. How can those “evolving standards” be accurately measured if the “verdicts” for death are so deeply divided or are in fact imposed by a judge who is rejecting the jury’s call to spare a life?

The Florida and Alabama jury laws are only more proof of the moral disgrace of capital punishment in this country. In Georgia, officials hide their lethal-­injection drug protocol behind state-­secret laws. Missouri has executed an inmate before the Supreme Court ruled on his final appeal. Texas has been trying for years to kill a man suffering from paranoid schizophrenia.

Prior related posts:

March 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, March 15, 2015

Senator Paul continues to emphasize criminal justice reform with minority audience

I_stand_with_rand_225quot_buttonThis new New York Times article, headlined "Rand Paul Focuses on Criminal Justice in Talk to Black Students," details the continued efforts by one prominent Senator to preach the need for criminal justice reform to groups historically distrustful of messages delivered by the GOP. Here are the details:

Senator Rand Paul laid out his vision on Friday for a legal system that makes it easier for people with criminal records to get jobs and to vote, telling students at a historically black college here that he believes there are still “two Americas” as the Rev. Dr. Martin Luther King Jr. said almost a half century ago.

Mindful of his audience and, no doubt, his appearance two years ago at Howard University when the mostly black audience was often skeptical of what he had to say, Mr. Paul, a Republican and a likely candidate for president, chose his words more carefully this time during his visit to Bowie State University....

Mr. Paul tried to avoid appearing presumptuous and at one point corrected himself when answering a question about the progress that black Americans have made. “I think sometimes we think we haven’t gone very far when I think we’ve come a long way,” he said, pausing to tweak his wording. “And I say ‘we’ collectively; obviously it’s not me.”...

There were a few awkward moments at the Howard event, like when he told the students that people had told him he was “either brave or crazy” to be there.

But on Friday he kept his remarks focused on correcting inequities in the criminal justice system and expanding economic opportunity. He repeatedly condemned the harsh drug sentencing laws that put so many minority defendants behind bars. “If you smoked some pot or grew some marijuana plants in college, you ought to get a chance,” he said.

Mr. Paul also made a case for expunging criminal records of people who have been convicted of nonviolent felonies so they can find employment more easily, a stance that puts him at odds with many in his party. “As Republicans we’re big on saying, ‘Well, we don’t want people permanently on welfare; we want them to transition from welfare to a job,’” he said. “People say, ‘Well, how am I supposed to get a job? I was a convicted felon.’”...

Mr. Paul, of Kentucky, has made an effort to reach out to African­American constituencies in the past few years, drawing crowds that have traditionally voted for Democratic candidates but are curious about his libertarian brand of conservatism. He spoke at the Urban League’s summer conference in Cincinnati last summer and visited Ferguson, Mo., when protests broke out after a police officer shot an unarmed black man. He has also met with black pastors in Southern cities like Memphis and Louisville, Ky.

Some recent and older related posts:

March 15, 2015 in Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, March 14, 2015

Reviewing DOJ's opposition to any fraud guideline amendments

This Reuters article, headlined "Justice Department objects to white-collar sentencing reforms," details that the US Department of Justice is not too keen on proposed reformed to the federal sentencing guidelines for fraud offenses. Here are the excerpts:

The U.S. Justice Department has come out broadly against a series of proposals from a federal panel that would cut prison time for white-collar criminals. The department's views, revealed on Thursday at a hearing of the U.S. Sentencing Commission, marked a potential setback for the proposals, which defense lawyers had already criticized for being too moderate.

In a letter released at the meeting, the department objected to a proposal to adjust victim losses for inflation for the first time since 1987. Losses directly influence recommended prison term lengths, and the move would reduce fraud sentences by 26 percent on average. "It seems a somewhat odd thing to do," Benjamin Wagner, the U.S. Attorney for the Eastern District of California, said at the hearing.

The Justice Department also objected to a proposal to shift the emphasis in calculating sentences for stock fraud cases to financial gains instead of investor losses, a change that could reduce the amount of prison time some executives would face. The department's position came amid continuing debate over whether changes to the guidelines are necessary to address what even some judges have said are overly harsh recommended punishments for fraud offenders.

Fraud offenses constitute the third largest type of federal crime in America, behind only immigration and drugs cases. Over the last decade, average prison sentences for fraud have lengthened three-fold, the commission said. But after the U.S. Supreme Court declared the guidelines advisory in 2005, judges increasingly gave shorter terms than what the commission recommended. In 2012, the average fraud sentence was 22 months, compared to the 29-month minimum recommended, the commission said.

Critics say the data shows many judges view the guidelines as overly-driven by victim losses, at times resulting in potential life sentences in cases like stock frauds with high-dollar amounts.

The commission's proposals, released in January, were viewed as too moderate by groups like the American Bar Association, which had pushed for broader revision de-emphasizing the influence losses have not just in cases involving the stock market but also for other frauds, such as in mortgages and healthcare. Still, the commission said its proposal to adjust the loss calculations for inflation would itself reduce sentence lengths.

The Justice Department said any reduction would be contrary to "overwhelming societal consensus." Several commissioners, though, appeared skeptical of the department's position.

Prior related posts:

March 14, 2015 in Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Oklahoma House passes safety valve to give judges more sentencing discretion

In the course of this lengthy discussion in the comments at Crime & Consequences, Bill Otis labelled the the federal bill known as the Justice Safety Valve Act as "radically pro-criminal" because it would give federal judges some limited authority to sentence defendants below statutory mandatory minimums.  Though I disputed this label, I suspect Bill might be inclined to call most members of the Oklahoma House "radically pro-criminal" based on this recent news, headlined "Oklahoma House passes bills to give judges more discretion in sentencing."  Here are the details:

The Oklahoma House on Wednesday approved a key piece of justice reform legislation intended to help reduce the state’s growing population of prison inmates.

Rep. Pam Peterson’s House Bill 1518 would give judges the authority to hand down shorter sentences for some crimes that now require mandatory minimum prison time. The judge would be allowed to do this if the longer sentence would be unjust or if the offender does not present a risk to public safety. There are more than 100 crimes in Oklahoma that carry requirements for incarceration for specified minimum durations.

Called the Justice Safety Valve Act, the Tulsa Republican’s measure was passed 76-16 and was sent to the Senate. It is modeled after similar legislation that has been approved in 17 other states. The bill would not allow judges to consider lesser sentences for violent or sexual offenses....

Rep. Scott Biggs, R-Chickasha, argued against the measure, saying it would minimize the role of district attorneys in the sentencing process and isn’t tough enough on repeat offenders.

“I’ve said I’m for reform, just not when it comes to violent offenders. Here we have repeat offenders,” he said. “This is a bad bill.”

Peterson said it’s time to reform the state’s justice system, noting Oklahoma’s prisons are overflowing due to the highest incarceration rate in the nation for women and one of the highest for men. The state’s prison population has doubled since 1990, but the crime rate has not declined as fast as that of other states, she said. “The definition of insanity is to do the same thing over and over again and expect a different result,” she said.

Gov. Mary Fallin has urged the Legislature to embrace justice reform efforts this session, including finding ways to offer more prison diversion programs that would provide treatment rather than incarceration for nonviolent offenders with drug and mental health problems.

March 14, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, March 13, 2015

"Jones, Lackey, and Teague"

The title of this post is the title of this notable new article by J. Richard Broughton now available via SSRN. Here is the abstract:

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane.

By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making the case for applying the bar, this paper adds to, and challenges, the existing literature on capital punishment, Lackey claims, and Teague doctrine. This paper dissects the Jones ruling on the application of Teague, examining the Supreme Court’s “new rule” case law and concluding that Lackey claims, when viewed at the appropriate level of generality, propose a new rule. It then addresses the more complicated aspect of applying Teague in this context, recognizing that the first Teague exception poses the most likely basis for avoiding the Teague bar on a Lackey claim. At a minimum, Lackey claims (like Miller v. Alabama claims, now the subject of substantial Eighth Amendment litigation on collateral review) sit at the intersection of procedural and substantive rules. Nonetheless, this paper makes the case for viewing the claim as procedural and therefore Teague-barred. Ultimately, then, this paper emphasizes a point that could substantially influence existing litigation: litigators and federal judges should take the Teague bar more seriously when considering Lackey claims on federal habeas review, particularly when viewed in light of modern habeas rules and doctrine that limit relief and protect the interests of the states. But the paper also emphasizes an important point about death penalty policy and politics: if the state is to have a death penalty at all, it should be prepared, and willing, to ensure that death sentences are actually carried out.

March 13, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Utah establishes criminal registry for white-collar offenders

Via this New York Times piece, I see that Utah has extended the idea of a criminal registry to fraudsters. Though I have reservations about criminal registries for a variety of reasons, I think this particular kind of registry might make a lot of sense as a recidivism/crime prevention measure.  Here is how this fascinating story gets started:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society. Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons.  The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”

While some Utah lawmakers fear that the registry is overkill, the idea does tap into a vein of populist outrage over financial misdeeds. As much as sex offender registries spread state by state, so too could a white-collar crime registry find favor across the nation, say its supporters.

The legislation’s sponsor in the Utah Senate, Curtis S. Bramble, a Republican, plans to promote the idea through his role as president-elect of the National Conference of State Legislatures, an influential group, saying that “the registry could become a best practices for other states.”

March 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, March 12, 2015

Is there a real chance Loretta Lynch will not be confirmed as next US Attorney General?

The question in the title of this post is prompted by this new Politico article headlined "Loretta Lynch nomination a cliffhanger." The piece starts this way:

Just days before her nomination as attorney general goes to the Senate floor, Loretta Lynch is stubbornly stuck right around 50 votes — suggesting a confirmation fight the Obama administration once seemed certain to win with relative ease will go down to the wire.

Barring an 11th-hour surprise, Lynch is likely to be confirmed. But with four GOP senators currently backing her along with unanimous support from Senate Democrats, Lynch would secure the bare minimum required to be installed as the nation’s top cop – as long as senators hauled in Vice President Joe Biden to break a tie. Story Continued Below

Several Republican senators who could have been potential “yes” votes are signaling ahead of the confirmation vote that that they will instead vote against her. The overwhelming bloc of opposition from Republicans stems from President Barack Obama’s executive actions on immigration, and Lynch’s confirmation is also plagued with remnants of congressional Republicans’ toxic relations with current attorney general Eric Holder.

March 12, 2015 in Who Sentences? | Permalink | Comments (3) | TrackBack

"Will Patrick Kennedy and SAM come out in support of the CARERS Act?" and other highlights from MLP&R

The question title of this post is the question I ask in this lengthy new post from Marijuana Law, Policy & Reform.  I have a lot of respect for the leading group opposing significant marijuana reform, Smart Approaches to Marijuana (which Patrick Kennedy helped start) because SAM proclaims repeatedly a commitment to charting a "middle road between incarceration and legalization [to provide a] commonsense, third-way approach to marijuana policy is based on reputable science and sound principles of public health and safety" (emphasis added).  In addition, the SAM group advocates for "rapid expansion of research into the components of the marijuana plant for delivery via non-smoked forms" and a special FDA reform that "allows seriously ill patients to obtain non-smoked components of marijuana."  My post at MLP&R explains why I think the stated commitments of Patrick Kennedy and SAM should result in them supporting expressly and vocally the a bipartisan federal medical marijuana reform bill introduced this week by Senators Rand Paul, Cory Booker and Kirsten Gillibrand known as the CARERS Act.

As detailed below, in addition to providing lot of CARERS coverage, there are lots of other recent posts of note at MLP&R that sentencing fans may want to check out:

March 12, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

US Sentencing Commission hearing on proposed fraud and other guideline amendments

Download (2)Today, as detailed at this webpage with the official agenda, the US Sentencing Commission is holding a public hearing to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines. This event is being streamed live (for the first time, I think), and can be watched at this link.

This webpage with the official agenda also provides links to the submitted written testimony of the scheduled witnesses. Most of the interesting conceptual and technical debate about guideline amendments this cycle are focused on the fraud guidelines, which have been subject to an array of criticisms due especially to their severity in cases including significant "loss" calculations. But, as the Department of Justice's written testimony (available here) makes the case that there is nothing really broken in the fraud guideline that needs to be fixed:

Lessening penalties for economic crime would be contrary to the overwhelming societal consensus that exists around these offenses. All three branches of government have expressed a belief that the sentences for fraud offenses are either appropriate or too low....

The Department also feels that penalties for economic crimes should remain unchanged and not be decreased. The proportionality established between loss and offense level is based upon numerous policy considerations, including how economic crimes should be punished and deterred. In the Department's experience and judgment, the harm from economic crimes is generally not being overstated.

In notable contrast, the written testimony of Professor Frank O. Bowman, III (available here) has a very different take on the realities of the fraud guidelines:

[F]or the last decade or so, the loudest complaint about §2B1.1 has been that it prescribes sentences which, at least for some defendants, are far too high. In particular, many observers have argued that for some high-loss defendants the guidelines now are divorced both from the objectives of Section 3553(a) and, frankly, from common sense....

Accordingly, one would have expected the proposed 2015 amendments to §2B1.1 to concentrate on the class of high-loss offenders the Commission seems to agree are over-punished by the guidelines. Curiously, however, the proposed amendments – though in several cases laudable for other reasons – would have virtually no material impact on the guidelines ranges for very high loss offenders, while producing modest guidelines reductions for significant numbers of low-to-moderate-loss offenders.

<P>I agree with the Commission’s basic conclusion that for many, perhaps most, economic offenders the Guidelines do not suggest manifestly unreasonable sentences.  But I also agree with Judge Saris’s implicit conclusion that for many high-loss offenders the fraud guideline is “fundamentally broken.”  The Commission doubtless believes that the modest proposals put forward in this cycle will at least ameliorate the high-loss offender problem. Unfortunately, the guidelines for high-loss offenders are so “fundamentally broken” that these modest measures will have no meaningful effect.

March 12, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 11, 2015

"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"

The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:

The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”

The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense.  These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.

These guidelines are premised on the following foundational principles: 

  • children are constitutionally and developmentally different from adults;

  • children, by reason of their physical and mental immaturity, need special safeguards and care;

  • children must not be defined by a single act; 

  • juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation; 

  • juvenile life defense requires a qualified team trained in adolescent development; 

  • juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner; 

  • juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;

  • juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;

  • juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;

  • juvenile life defense counsel must litigate for a presumption against life sentences for children; and

  • juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.

March 11, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Mizzou lawyers spotlight problems poised by rapid pace of executions

As reported in this Kansas City Star article, headlined "Attorneys struggle to keep up with Missouri’s execution pace," the Show Me State's recent pattern of showing condemned inmates to the execution chamber on a regular basis has prompted a notable expression of concern from lawyers. Here are the details:

[F]or the small group of lawyers who take on the burdens of defending inmates on the cusp of execution in Missouri, the sheer volume of cases is overwhelming their ability to do that work.

That’s the message four law professors and lawyers delivered to the Missouri Supreme Court this week as they called for execution procedure changes that would give lawyers more time for each client. “These amendments are necessary because the capital defense bar is in crisis because of its recent workload,” the group wrote.

Since November 2013, Missouri has executed 13 men. A handful of lawyers who specialize in capital litigation have represented most of them. They also represent most of Missouri’s other defendants with a pending execution date or who soon are expected to see one set.

The state’s fast execution pace — Missouri tied Texas for most in the country last year with 10 — has left those lawyers struggling to meet their legal obligations to multiple clients at the same time, according to the letter by members of an American Bar Association death penalty assessment team that recently studied Missouri’s execution system. “The legal proceedings in death penalty cases are notoriously lengthy and complex,” they wrote. “Establishing a detailed understanding of those proceedings is a time consuming task and a basic prerequisite to competent performance.”

In addition, the cases take an intense emotional toll on attorneys who get to know the clients intimately before watching them die, the letter said. “No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience,” the letter stated. One attorney has represented five of the last nine men executed and has two other clients with an “imminent risk of execution,” the letter noted....

The four members of the assessment team who sent the letter to the Supreme Court — University of Missouri law professor Paul Litton, St. Louis University law professor Stephen Thaman, retired Missouri Court of Appeals Judge Hal Lowenstein and Douglas Copeland, a partner in a St. Louis law firm — recommended three amendments to the state’s rules.

The first would limit any one lawyer from representing a client who has an execution date set within six months of any of the lawyer’s other clients. Second, they also ask that a minimum notice of six months be given before an execution can be carried out. The third proposal would allow lawyers to prioritize caseloads to concentrate on cases with pending execution dates while being granted more time to deal with other clients’ cases.

“These are common-sense solutions to a serious problem affecting virtually every scheduled execution,” according to the letter.

The problems have mounted only recently in Missouri, where the lawyers pointed out that only two executions took place in the seven years from 2006 through 2012. But this has been a long-term issue in other death penalty states. “For decades it has been widely recognized … that unreasonable workloads among capital litigators can severely challenge the effectiveness of their representation,” said national death penalty expert Deborah Denno, a professor at the Fordham University School of Law.

Though it will be up to the Missouri Supreme Court to adopt or reject the rule changes, the court has shown some flexibility in the past. Last July, it changed the rules to limit executions to no more than one per month.

And last August, the court withdrew an execution warrant it had issued the previous month after the inmates’ attorneys said they wouldn’t have enough time to do everything required in the case while balancing work they had in other pending cases. They were given additional months before that man’s execution was carried out in November....

Jennifer Herndon, a St. Louis-area lawyer who has represented several death row inmates, said the proposals are all good ideas that are badly needed. “People don’t understand the pressure, particularly in the last 30 to 45 days before an execution,” she said. “If you don’t work on it 24 hours a day, you’re thinking about it 24 hours a day.” Facing that same kind of pressure month after month makes it virtually impossible to operate at 100 percent “no matter how hard you try,” she said.

The helpful folks at The Marshall Project have uploaded a copy of the letter reference in this article at this link.

March 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 10, 2015

Fascinating press conference introducing federal medical marijuana reform bill, the CARERS Act

I am watching the press conference (streamed here) with presentations by Senators Rand Paul, Cory Booker and Kirsten Gillibrand introducing their new federal medical marijuana reform bill, the CARERS Act.  Fascinating stuff.

Senator Booker started by noting veterans' interest in using medical marijuana, Senator Paul spoke of the need for more research and banking problems for state-legal marijuana business, and Senator Gillibrand was the closer by stressing the need for families to have access to high-CBC medicines for children suffering from seizure disorders.

Adding to the power of the press conference is a set of testimonials from a mom eager to have CBC treatments for her daughter (who had a small seizure during the press conference!), and an older woman with MS eager to have access to marijuana to help her sleep.  Senator Paul followed up by introducing a father of one of his staffers with MS, who testified from a wheelchair.   Senator Booker then introduced a 35-year-old veteran who complained about been deemed a criminal for his medical marijuana use by a country he fought for over six years.   Notably, after all the white users/patients advocated for reform, Senator Booker introduced an African-American business owner talking about the problems with having to run a medical marijuana business without access to banking services.

This Drug Policy Alliance press release summarizes what is in the CARERS Act: 

The Compassionate Access, Research Expansion and Respect States - CARERS - Act is the first-ever bill in the U.S. Senate to legalize marijuana for medical use and the most comprehensive medical marijuana bill ever introduced in Congress. The CARERS Act will do the following:

  • Allow states to legalize marijuana for medical use without federal interference

  • Permit interstate commerce in cannabidiol (CBD) oils

  • Reschedule marijuana to schedule II

  • Allow banks to provide checking accounts and other financial services to marijuana dispensaries

  • Allow Veterans Administration physicians to recommend medical marijuana to veterans

  • Eliminate barriers to medical marijuana research.

March 10, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, March 09, 2015

What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?

As noted in this post, this morning the US Supreme Court today finally decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.  But, as this new SCOTUSblog post about the cert grant spotlights, it actually is not entirely clear just what the Supreme Court has decided to decide:

The Florida death penalty case now up for review involves Timothy Lee Hurst of Pensacola, who faces a death sentence for the 1998 murder of a woman who was an assistant manager at a Popeye’s fast-food restaurant where Hurst also worked.

Hurst’s public-defender lawyers asked the Court to rule on two broad questions: one about the jury’s role when an accused individual claims a mental disability, and one about the jury’s role in the death-sentencing process, including an issue of whether its verdict must be unanimous. (His jury split seven to five in recommending death.) The second question was based on a claim that Florida courts fail to follow a 2002 Supreme Court decision on death sentencing, Ring v. Arizona.

In agreeing to rule on the case, the Court rewrote the question it will consider in an apparent attempt to simplify it: whether Florida’s approach to death sentencing violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.”

Because the Ring decision is all about the Sixth Amendment, and the role of the jury in deciding whether a murder was committed in an “aggravated” form, it is not clear just what the Court had in mind in linking an Eighth Amendment issue to the Ring precedent. It could be, although this was not plain from the order, that the Court is looking at Hurst’s case on Eighth Amendment grounds on his claim of mental disability, on the lack of jury unanimity, and on the general fairness of a death sentence for this particular individual. Presumably, that will become clearer as the briefs are filed in the case in coming months.

Helpfully, this extended post at Crime & Consequences reviews some of the legal background and possible implication of the Hurst case, which includes these observations:

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure.  Therefore, there is no limitation on the Court's authority to create new law in this case.  The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States.  Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States.  However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.

Because of the maelstrom of potential legal issues raised by this particular Florida case, I am not sure what to expect from the Justices. I am sure any and everyone who does not like how Florida does its capital sentencing (including the nearly 400 murderers currently on Florida's death row) may be inclined to present varied constitutional arguments to SCOTUS to urge a reversal of the death sentence in this intriguing new case.

March 9, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Bipartisan federal medical marijuana bill to be introduced Tuesday

As reported in this new Washington Post entry, headlined "In a first, senators plan to introduce federal medical marijuana bill," a trio of notable Senators have interesting plans for mid-day Tuesday:

In what advocates describe as an historic first, a trio of senators plan to unveil a federal medical marijuana bill Tuesday. The bill, to be introduced by Senators Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Kirsten Gillibrand (D-N.Y.), would end the federal ban on medical marijuana.

The Compassionate Access, Research Expansion and Respect States (CARERS) Act would “allow patients, doctors and businesses in states that have already passed medical marijuana laws to participate in those programs without fear of federal prosecution,” according to a joint statement from the senators’ offices. The bill will also “make overdue reforms to ensure patients – including veterans receiving care from VA facilities in states with medical marijuana programs – access the care they need.” The proposal will be unveiled at a 12:30 p.m. press conference on Tuesday, which will be streamed live here. Patients, their families and advocates will join the senators at the press conference.

The announcement was met with praise by advocates. “This is a significant step forward when it comes to reforming marijuana laws at the federal level,” Dan Riffle, director of federal policies for the Marijuana Policy Project, said in a statement. “It’s long past time to end the federal ban,” said Michael Collins, policy manager for the Drug Policy Alliance, said in a statement. Both describe the introduction of the bill as a first for the Senate....

In December, Congress for the first time in roughly a decade of trying approved an amendment that bars the Justice Department from using its funds to prevent states from implementing their medical marijuana laws — a significant victory for proponents of the practice.

Potential Republican presidential candidates Rand, Sen. Ted Cruz (R-Texas) and former Florida Gov. Jeb Bush (R) have all said they support states’ rights to legalize pot, though they themselves disagree with the policy.

Cross-posted at Marijuana Law, Policy and Reform

March 9, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"

Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:

What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street?  To my knowledge, this question has never been polled by any respected organization.

I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:

A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas.  The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....

The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:

• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.

• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....

“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin.  “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”

March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring

One big question that arose way back in 2000 when the Supreme Court issued its landmark Apprendi decision was whether capital sentencing schemes that incorporated judicial death penalty determinations were still constitutional.  In 2002, in Ring, the Supreme Court somewhat clarified matter when it found Arizona's capital sentencing scheme problematic in light of Apprendi.  Now, finally and remarkably, the Supreme Court has decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.

This new SCOTUS order list has just one new cert grant, and here it is:

HURST, TIMOTHY L. V. FLORIDA: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).

Notably, according to the Death Penalty Information Center's data, Florida has carried out 39 executions since the Supreme Court handed down its ruling in Ring in 2002, and I suspect a good number of those Florida condemned (and now dead) murderers asserted that their death sentencing violated the Sixth Amendment and/or the Eighth Amendment in light of Ring.  If there is some kind of afterlife for executed murderers, I expect there will now be some interesting SCOTUS talk in the Florida section of that netherworld.

March 9, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

"Hey, Grandpa: End Mandatory Minimums!"

The title of this post is the headline of this Daily Beast piece highlighting the generational divide which now impacts the fate and future of some proposed federal sentencing reforms. Here are excerpts:

[A] wave of young conservative leaders has been pushing for a variety of reforms to address problems that, in many cases, disproportionately affect the African-American community. The bad news it that these conservatives have a formidable adversary: Their elders.

When word leaked last month the Smarter Sentencing Act would be reintroduced, Iowa Sen. Chuck Grassley, 81, wasted little time in going nuclear. “It is a fact that the so-called Smarter Sentencing Act would cut in half the mandatory minimum sentences that Congress put in place for distributing drugs to benefit terrorists or terrorist organizations,” he said. ... Terrorists?!?

The bipartisan Smarter Sentencing Act included Republicans Mike Lee, Ted Cruz, Rand Paul, and Jeff Flake as co-sponsors — hardly the sort to want to help fund terrorists. But this isn’t a new line for Grassley, who is chairman of the Judiciary Committee, and it isn’t clear whether the terrorist line is a sincere (albeit wrongheaded and crank-ish) concern, or merely a way to kill reform....

According to Vikrant Reddy, a senior policy analyst for the conservative Right on Crime, the generational divide — not the partisan divide — is the issue. “It is true that Senator Grassley has expressed skepticism about the Cruz-Lee proposals, but it is also true that Dianne Feinstein voted against last year’s Recidivism Reduction and Public Safety Act," Reddy said. “Senators Grassley and Feinstein have very little in common, but they do share a generation: They are both exactly 81 years old.”

Meanwhile, the loudest voices for criminal justice reform in Congress are members of Generation X: Mike Lee is 43, Ted Cruz is 44, and Cory Booker is 45. But Reddy doesn’t want to bash his elders just for the sport of it. There is, he insists, a perfectly good explanation for the generational divide: Grassley and Feinstein came of age in an era of high crime....

But the violent crime rate has consistently dropped in recent decades, and many reformers believe the pendulum has swung too far. “We may be at the point where high levels of incarceration are themselves ‘criminogenic,’ meaning that they actually cause more crime than they prevent, because extremely lengthy prison stays produce high recidivism rates,” says Reddy.

It would be a mistake to return to the bad old days of being soft on crime, but it would also be foolish to fail to adapt to changing times.  Rather than resting on our laurels, we should continue to tweak and fix problems.  Bipartisan agreement is rare in Washington, and it would be a shame to scuttle one of the few areas where conservative reformers have a real opportunity to do well by doing good.

... And they might have gotten away with it, too, if it weren’t for those meddling codgers.

March 9, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Profile of one (of thousands) of the juve LWOP stories full of post-Miller uncertainty

Thanks to How Appealing, I saw this interesting article from North Carolina about the history of an offender long serving an LWOP sentence for a juvenile murder who still awaits resolution of whether he can benefit from the Supreme Court's work three years ago in Miller v. Alabama.  The piece is headlined "Convicted of murder at 16, Anthony Willis is hoping a Supreme Court decision will overturn his sentence," and merits a full read for those following post-Miller developments closely. Here is an excerpt from the lengthy piece:

[I]f nothing else, prison gives a man time to reflect. Willis slowly came to realize — even though he was expected to die behind bars — that he needed his life to matter. The best way to do that, he decided, was to lean on God and to educate himself. After earning his GED, Willis began taking anger- and stress-management classes and attending prison fellowship seminars.

He earned back-to-back-to-back associate degrees from Western Piedmont Community College and a bachelor's degree from California Coast University. His mother attended his graduation ceremony for his first associate degree.  "That's my baby," Brenda Willis yelled as Willis walked down the aisle.  She was so proud of her son.

That's a big part of Willis' motivation today.  He wants his mother to know that his actions as a teenager were never her fault....  Now 35, his appearance and demeanor are nothing like one might expect from a man who has spent slightly more than half his life in prison. Most of the other prisoners call him Smiley, a nickname that has transferred with him from prison to prison.

Thin, polite, boyish and articulate, Willis seems to have been transformed by prison into a man who has gained respect by learning to stop following the herd.  Willis said he has found comfort in the Lord and teaches those virtues to other prisoners.  He said he regularly leads prison fellowship seminars and takes pride in his role as a mentor and recreational leader.  Willis said he often counsels new prisoners almost as soon as they get off the bus.  Most mistake his optimism for someone who is about to get released — anyone but a lifer....

Willis acknowledges that serving a life sentence isn't easy. "It's hard to hold onto hope in here," he said. "It's like holding onto a ledge by your fingertips." But he endures the best he can, buoyed by his faith, his new-found purpose in life and a U.S. Supreme Court ruling called Miller vs. Alabama.

On June 25, 2012, the Supreme Court ruled that mandatory life in prison without parole for people who committed murder as juveniles constitutes cruel and unusual punishment. The ruling effectively struck down laws in 28 states, including North Carolina....

The court did not bar mandatory life sentences without parole in all juvenile homicide cases. It said lower courts could impose such a sentence only after examining mitigating factors, including family environment, the circumstances of the offense and the possibility of rehabilitation.  But the court didn't make its order retroactive, so it does not apply to Willis and 87 other murderers convicted as juveniles and now serving life sentences in North Carolina.

In December, the Supreme Court agreed to consider whether the Miller ruling should be made retroactive in a Louisiana murder. But the case was resolved at the state level, leaving no issue for the federal court to hear. So making Miller retroactive remains in limbo, at least in North Carolina.

Less than two weeks after the Miller ruling, North Carolina's General Assembly responded by approving a law that requires a parole review after a juvenile murderer has spent a minimum of 25 years in prison.  But again, the law applies only to sentences handed down after the Miller ruling.  Courts in at least nine states — including South Carolina — have ruled that the ruling will be applied retroactively. Five other states have ruled that the decision is not retroactive.  North Carolina's appellate courts continue to consider the issue.

March 9, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 08, 2015

Can a sheriff prohibit sex offenders from a church that is sometimes a school?

The question in the title of this post is prompted by this story coming from North Carolina, headlined "Graham sheriff bans sex offenders from church." Here are the details:

A sheriff in one of North Carolina's smallest counties told sex offenders they can't attend church services, citing a state law meant to keep them from day care centers and schools. Sheriff Danny Millsaps, in Graham County, told the registered offenders about his decision on Feb. 17, according to a letter obtained by the Asheville Citizen-Times on Friday....

"This is an effort to protect the citizens and children of the community of Graham (County)," he wrote. "I cannot let one sex offender go to church and not let all registered sex offenders go to church." He invited them to attend church service at the county jail.

Millsaps, in an interview on Friday, said he may have made a mistake when he wrote that offenders "are not permitted to attend church services." He said he understands the Constitution gives everyone the right to religious freedom. But, he said, he's standing by his take on the law blocking offenders from places where children are present.

"I understand I can't keep them from going to church," he said. "That may have been misunderstood. I'll be the first one to say I might have made mistakes in the wording of that letter." He said he has no immediate plans to arrest a sex offender should one of the 20 in his county attend church on Sunday.

Graham County Manager Greg Cable said the county attorney is looking into the matter and any legal mistakes would be corrected. The American Civil Liberties Union in Raleigh, at the newspaper's request, is reviewing the letter the sheriff sent. The newspaper also sent a copy to the state Department of Justice for an opinion on the law....

Other North Carolina counties have dealt with the same issue. Deputies in Chatham County in 2009 arrested a sex offender for attending church, citing the same law. A state Superior Court judge eventually ruled the law, as applied to churches, was unconstitutional.

In Buncombe County, sex offenders are permitted in church as long as pastors know and are in agreement, Sheriff Van Duncan says. That's similar to the county's policy for allowing sex offenders at school events such as ball games. They are allowed as long as school administrators have warning and the offenders are monitored to some extent, the sheriff said. The law allows schools to do this, a factor the judge noted back in 2009 in the Chatham County case.

Duncan said if a sex offender threatens a child at a church or school event, the law can be enforced and used to ban the offender. He said church leaders in Buncombe County, generally, want to minister to sex offenders.

The law applies to churches that run schools Monday-Friday the same as it would apply to county or city schools during the week. Sex offenders are generally banned from school property.

March 8, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Religion, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Stirring (sentencing) civil rights sentiments in Selma speech

The events in Selma, Alabama a half century ago has led to a modern weekend of discussion and reflection on the achievements and work still to be done in the never-ending struggle for civil rights for all.  President Obama, whom even his toughest critics will admit can give a good speech, spoke to these matters in a speech at an historic location in Selma.  The full text of the speech is worth a read, and these sentiments from the text of President Obama's remarks which have obvious sentencing significance:

This is work for all Americans, and not just some.  Not just whites.  Not just blacks.  If we want to honor the courage of those who marched that day, then all of us are called to possess their moral imagination.  All of us will need to feel, as they did, the fierce urgency of now.  All of us need to recognize, as they did, that change depends on our actions, our attitudes, the things we teach our children.  And if we make such effort, no matter how hard it may seem, laws can be passed, and consciences can be stirred, and consensus can be built.

With such effort, we can make sure our criminal justice system serves all and not just some.  Together, we can raise the level of mutual trust that policing is built on — the idea that police officers are members of the communities they risk their lives to protect, and citizens in Ferguson and New York and Cleveland just want the same thing young people here marched for — the protection of the law.  Together, we can address unfair sentencing, and overcrowded prisons, and the stunted circumstances that rob too many boys of the chance to become men, and rob the nation of too many men who could be good dads, and workers, and neighbors.

Some related posts (from both SL&P and MLP&R):

March 8, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack