Thursday, April 10, 2014

US Sentencing Commission to vote on reducing drug sentencing guidelines

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Thursday, April 10, 2014, at 2:30 p.m."  On the official agenda is "Vote to Promulgate Proposed Amendments," and as reported in this prior post, in January the USSC voted to publish proposed amendments to the federal sentencing guidelines that include an across-the-board reduction in the sentences recommended for all drug offenses.  

I expect there will be some press reports about the USSC vote on the drug guidelines later today.  In the meantime, this effective new PBS Frontline article headlined "Feds to Reconsider Harsh Prison Terms for Drug Offenders," provides some background and context:

The federal prison population has expanded by nearly 800 percent in the past 30 years, spurred in part by the increasing use of tougher sentences applied to nonviolent drug crimes. Now there’s a growing movement to scale it back. On Thursday, the U.S. Sentencing Commission, an independent federal agency, plans to vote on an amendment to sentencing guidelines that could ultimately begin to winnow the federal prison population, nearly half of whom are people convicted of drug offenses.

The amendment is part of a bipartisan push away from America’s addiction to incarceration, which prison reform experts say costs far too much, not only in dollars — $80 billion a year in 2010 — but also in the devastation primarily of African-American communities, who have been disproportionately caught up in the system.

The commission’s proposal would lower the sentencing guideline levels for drug-trafficking offenses, allowing judges to impose reduced sentences by about 11 months, on average, for these crimes. The guidelines are the range between which a judge can sentence an offender. Currently, those guidelines are set higher even than mandatory minimum sentences — the lowest possible sentence a judge could impose — to give prosecutors bargaining power. The amendment would set the upper and lower guideline limits around the mandatory minimums, leading to lower sentences for nearly 70 percent of drug-trafficking offenders, the commission said....

Prison reform advocates say the commission’s proposal is an incremental step, but an important one. “When you’re serving 10 years, six months can make a difference,” said Jesselyn McCurdy, an attorney with the ACLU’s Washington legislative office. “It’s incremental, but it’s all important because it sends the larger message that we have to do something about the harsh sentencing in the federal system.”

Should the Sentencing Commission’s amendment pass, it will be sent to Congress, which will have 180 days to make any changes. If it does nothing — which is the likely outcome given bipartisan Congressional support for the proposal — the resolution will take effect on Nov. 1.

For years, states, which carry the bulk of U.S. prisoners, have taken the lead on sentencing reform — largely out of necessity. Struggling with stretched budgets and overflowing prisons, 40 states have passed laws that ease sentencing guidelines for drug crimes from 2009 to 2013, according to a comprehensive analysis by the Pew Research Center. Seventeen states have invested in reforms like drug treatment and supervision that will save about $4.6 billion over 10 years, according to the Justice Department.

Such reforms also have gained popular public support. According to Pew’s own polling, 63 percent of Americans say that states moving away from mandatory minimum sentencing is a “good thing,” up from 41 percent in 2001. Even more — 67 percent — said that states should focus on treatment, rather than punishment, for people struggling with addiction to illegal drugs....

The Sentencing Commission itself notes that substantial reform requires action by Congress. “Our proposed approach is modest,” said Patti Saris, the commission’s chairwoman. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...

The Senate is currently considering a bill called the Smarter Sentencing Act, a bipartisan bill introduced in July 2013 by Sen. Richard Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). It wouldn’t abolish mandatory minimums, but it would allow judges to impose more lenient sentences for certain non-violent drug offenses. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said when introducing the bill, adding that the act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”...

But the bill, which even the senators acknowledged as “studied and modest” on their website, doesn’t have great odds of passing. According to govtrack.us, a nonpartisan website that tracks congressional legislation, the Smarter Sentencing Act has only a 39 percent chance of being enacted.

Some recent related posts:

UPDATE:  This press release reports that, as expected, the USSC voted today to reduce the federal guidelines for all drug offenses.  Here is an excerpts from the press release:

The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The Commission estimates that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average.

The Commission this year has prioritized addressing federal prison costs and capacity with a continued commitment to public safety. The Commission estimates that the amendment reducing drug guidelines would reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact.

“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”

In addition, the Chair of the USSC made a statement in conjunction with today's vote, which is now available here via the USSC's website.  The interesting three-page statement concludes with this interesting paragraph concerning possible retroactive application of the proposed new guidelines: 

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

April 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, April 09, 2014

Retro Report provides reminder of "When Youth Violence Spurred ‘Superpredator’ Fear."

WeeklyStandard-1995nov27The New York Times together with Retro Report puts together articles and videos looking back a media coverage and the aftermath of high-profile stories of years gone by. The latest production is available here under the headline "hen Youth Violence Spurred ‘Superpredator’ Fear." Here are excerpts from the article that goes along with the great 10-minute video on the topic:

Social scientists like James A. Fox, a criminologist, warned of “a blood bath of violence” that could soon wash over the land. That fear, verging on panic, is the subject of this week’s segment of Retro Report, a series of video documentaries that examine major news stories from years ago and explore what has happened since.

What happened with the superpredator jeremiads is that they proved to be nonsense. They were based on a notion that there would be hordes upon hordes of depraved teenagers resorting to unspeakable brutality, not tethered by conscience. No one in the mid-1990s promoted this theory with greater zeal, or with broader acceptance, than John J. DiIulio Jr., then a political scientist at Princeton. Chaos was upon us, Mr. DiIulio proclaimed back then in scholarly articles and television interviews. The demographics, he said, were inexorable. Politicians from both major parties, though more so on the right, picked up the cry. Many news organizations pounced on these sensational predictions and ran with them like a punt returner finding daylight.

But a funny thing happened on the way to the apocalypse. Instead of exploding, violence by children sharply declined. Murders committed by those ages 10 to 17 fell by roughly two-thirds from 1994 to 2011, according to statistics kept by the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. Mugged by reality, a chastened Mr. DiIulio has offered a mea culpa. “Demography,” he says, “is not fate.” The trouble with his superpredator forecast, he told Retro Report, is that “once it was out there, there was no reeling it in.”

It certainly had consequences. It energized a movement, as one state after another enacted laws making it possible to try children as young as 13 or 14 as adults... Many hundreds of juveniles were sent to prison for life, though in the last few years the United States Supreme Court has ruled that such sentences must not be automatic, even in murder cases. Individual circumstances and possible mitigating factors should be weighed, the justices said....

The superpredator scare fit neatly with a “lock ‘em up and throw away the key” approach to rising crime that had taken hold even before the ‘90s. Many states are now moving in the opposite direction, if only because incarceration is expensive, in both its human toll and its burden on strapped government budgets....

Fears about predators, super or not, have not entirely disappeared. Of late, some are concerned about what is called “the knockout game.” It involves a young man or group of young men punching a stranger on the street. This is cast essentially as a black-on-white crime, perhaps a gang initiation rite. No question, such assaults have taken place. But are they part of an organized “game”? In New York, the police seem unsure if they amount to more than isolated incidents.

As for superpredators, not everyone has abandoned the notion. In the ‘90s, Mr. DiIulio called those youngsters “remorseless” and “impulsive,” describing them as unburdened by “pangs of conscience.” Hmm, said Richard Eskow. Or words to that effect. Mr. Eskow, a senior fellow with the Campaign for America’s Future, wrote for The Huffington Post two years ago that he knew a group of people who matched those very descriptions. They were, he said, the reckless bankers and Wall Street high rollers who almost brought the United States economy to its knees a few years ago.

April 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Fourth Circuit deepens (via dramatic split opinion) circuit split over fixing sentencing problems via 2255 motions

Though one needs to be a hard-core federal sentencing or habeas aficionado to really enjoy all the action, even casual fans may want to check out the extraordinary work of a Fourth Circuit panel yesterday in Whiteside v. US, No. 13-7152 (4th Cir. Apr. 8, 2014) (available here).  Excerpts from the three separate opinions provides a flavor of all the action, but a full read is needed to understand and appreciate the passion that is reflected in the passages quoted below.

To begin, writing for the panel majority, Judge Gregory explains the legal basics at the outset:

This case presents the question of whether a federal inmate may use a 28 U.S.C. § 2255 motion to challenge a sentence that was based on the career offender enhancement under the United States Sentencing Guidelines when subsequent case law reveals the enhancement to be inapplicable to him.  We find that he may, and in doing so hold that the mistake results in a fundamental miscarriage of justice that is cognizable on collateral review.  For the reasons stated below, we grant a certificate of appealability, vacate the petitioner’s sentence, and remand the case for resentencing.

More than 30 pages later comes a concurring opinion by Judge Davis that runs only two pages, but effectively highlights the heart of the issues splitting this panel (and the circuit courts more generally). Here is an excerpt:

I am pleased to join Judge Gregory’s extraordinarily compelling opinion, which fully responds to the dissent’s overwrought and formalistic protestations that our judgment here presages an end to law as we know it. (Evidently, it is not enough simply for the dissent to say that there is no miscarriage of justice shown on this record.)

The dissenting opinion is hopelessly pleased with itself.  This is not surprising, as it prostrates itself at the altar of finality, draped in the sacred shroud of judicial restraint....

In any event, what’s remarkable is that, as viewed through the lens of our good friend’s dissenting opinion, it is perfectly fine for the United States Department of Justice, which is to say the Executive Branch, to bypass supposed reverence for finality on a case-by-case basis, through waivers of limitations and other devices, see ante, Maj. op., n.6, but the Third Branch is duty-bound never to acknowledge instances in which law’s interest in finality must give way to competing values rooted in our shared abhorrence of manifest injustice.  To devolve to the Executive Branch sole authority to identify a cognizable miscarriage of justice amounts to judicial abdication, not judicial restraint.  Such an approach enjoys no legitimate place in our scheme of institutional checks and balances. The Third Branch’s transcendent role, in our enviable but imperfect system of criminal justice, is to afford protection from the loss of individual liberty resulting from profoundly erroneous decision-making, and not least of all, erroneous decision-making by the Third Branch itself, as in this very case.

The dissenting opinion favors what’s “finished” over what’s “right” and thereby blinks at a profound miscarriage of justice. It is wrong to do so.

Finally, Judge Wilkinson provides an addition 30+ pages to explain his views about why the panel majority gets this matter so very wrong.  Here is how his lengthy opinion starts and ends:

Deangelo Whiteside was properly designated a career offender in the course of his federal sentencing proceedings.  Now, years later, the majority vacates that sentence.  In invalidating Whiteside’s sentence, the majority creates a circuit split over whether career-offender designations are cognizable on collateral review, and ignores settled law as to whether changes in circuit precedent can reset the statute of limitations for post-conviction review of federal criminal proceedings.  The majority opinion represents a dramatic expansion of federal collateral review that is unsupported by law or precedent.  It makes a shambles of the retroactivity doctrines that have long safeguarded the basic finality of criminal convictions.  It disrupts the orderly administration of our criminal-justice system....

The Great Writ stands for the fundamental proposition that government too is subject to the given law.  Here the government observed the law; it is, sadly, a court that accords no meaning to that fact.  How is it that requiring someone to serve a sentence lawfully imposed and constitutionally rendered becomes a “plain injustice” and a “fundamental unfairness”? Maj. Op. at 29.  This path vindicates no fundamental liberty.  It only transforms collateral review into a double of direct review, a redundant mechanism for routine error correction, deployed to unsettle sentences that were imposed years earlier under governing law, in accordance with unexceptionable procedure, and by a sovereign acting in accordance with its sovereign duty to protect citizens from those who repeatedly violate its criminal laws.

For the aforementioned reasons, and because I view this decision as wholly wrong and deeply damaging to our criminal-justice system, I respectfully dissent.

April 9, 2014 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, April 08, 2014

AG Eric Holder advocates for Smarter Sentencing Act in testimony to House Judiciary Committee

As reported via this DOJ press release, Attorney General Eric Holder testified this morning before the US House Committee on the Judiciary.  Here are parts of the AG's prepared remarks that should be of interest to sentencing fans:

Across the board, the Department’s comprehensive efforts reflect our commitment to integrity and equal justice — in every case and circumstance.  And nowhere is this commitment stronger than in our work to strengthen America’s federal criminal justice system. Through the Smart on Crime initiative I announced last August, my colleagues and I are taking action on a number of evidence-based reforms — including modifications to the Department’s charging policies with regard to mandatory minimum sentences for certain nonviolent, low-level drug crimes.  This commonsense change will ensure that the toughest penalties are reserved for the most dangerous or violent drug traffickers.  And I’m pleased to note that Members of this Committee have shown tremendous leadership in the effort to codify this approach into law.

I’ve been proud to join many of you in supporting the bipartisan Smarter Sentencing Act — introduced by Representatives Scott and Labrador and cosponsored by Ranking Member Conyers — which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.  And I pledge to keep working with leaders like you — and like Senator Rand Paul and others — to address the collateral consequences of certain convictions, including felony disenfranchisement policies that permanently deny formerly incarcerated people their right to vote.

We will never be able to simply arrest and incarcerate our way to becoming a safer nation. That’s why we need to be both tough and smart in our fight against crime and the conditions and behaviors that breed it.  And this struggle must extend beyond our fight to combat gun-, gang-, and drug-fueled violence — to include civil rights violations and financial and health care fraud crimes that harm people and endanger the livelihoods of hardworking Americans from coast to coast.

UPDATE: As highlighted in this Politico report, headlined "Eric Holder at center of marijuana debate," following AG Holder's prepared testimony there was some heated discussion of the topic of federal marijuana policy.  Here is how the Politico piece starts:

Attorney General Eric Holder found himself caught Tuesday in a vast congressional divide over how the federal government should respond to moves states have made to legalize marijuana.

During a House Judiciary Committee hearing, Republicans repeatedly bashed Holder for going too far to accommodate the state actions, while a Democrat pounded the attorney general for refusing to call for a study of whether the federal drug classification system exaggerates the dangers posed by cannabis.

April 8, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, April 06, 2014

Noting the very cautious politics still surrounding pot legalization

Today's New York Times has this interesting lengthy article discussing pot politics under the headline "Despite Support in Party, Democratic Governors Resist Legalizing Marijuana." Here are excerpts:

At a time of rapidly evolving attitudes toward marijuana legalization — a slight majority of Americans now support legalizing the drug — Democratic governors across the country ... find themselves uncomfortably at odds with their own base.

Even with Democrats and younger voters leading the wave of the pro-legalization shift, these governors are standing back, supporting much more limited medical-marijuana proposals or invoking the kind of law-and-order and public-health arguments more commonly heard from Republicans. While 17 more states — most of them leaning Democratic — have seen bills introduced this year to follow Colorado and Washington in approving recreational marijuana, no sitting governor or member of the Senate has offered a full-out endorsement of legalization. Only Gov. Peter Shumlin, a Democrat in Vermont, which is struggling with a heroin problem, said he was open to the idea....

The hesitance expressed by these governors reflects not only governing concerns but also, several analysts said, a historically rooted political wariness of being portrayed as soft on crime by Republicans. In particular, Mr. Brown, who is 75, lived through the culture wars of the 1960s, when Democrats suffered from being seen as permissive on issues like this.

“Either they don’t care about it as passionately or they feel embarrassed or vulnerable. They fear the judgment,” said Ethan Nadelmann, the founder of the Drug Policy Alliance, an organization that favors decriminalization of marijuana. “The fear of being soft on drugs, soft on marijuana, soft on crime is woven into the DNA of American politicians, especially Democrats.” He described that sentiment as, “Do not let yourself be outflanked by Republicans when it comes to being tough on crime and tough on drugs. You will lose.”

In Washington and Colorado, the Democratic governors had opposed legalization from the start, though each made clear that he would follow voters’ wishes in setting up the first legal recreational-marijuana marketplaces in the nation. “If it was up to me, being in the middle of it, and having read all this research and having some concern, I’d tell people just to exercise caution,” Gov. John W. Hickenlooper of Colorado said in a recent interview....

Washington has yet to let its first marijuana stores open — that is expected to happen later this spring — but Gov. Jay Inslee has made his position clear. “As a grandfather, I have the same concerns every grandfather has about misuse of any drug, including alcohol and marijuana,” he said in a telephone interview, adding, “All of us want to see our kids make smart decisions and not allow any drug to become injurious in our life. “I recognized the really rational decision that people made that criminalization efforts were not a successful public policy,” Mr. Inslee continued. “But frankly, I really don’t want to send a message to our kids that this is a route that is without risk.”...

The resistance comes as public opinion on the issue is moving more rapidly than anyone might have anticipated. Nationally, 51 percent of adults support legalizing the drug, according to a New York Times/CBS News poll conducted in February, including 60 percent of Democrats, 54 percent of independents and 72 percent of young adults. Even 44 percent of Tea Party members said they wanted the drug legalized....

There is no obvious political upside to supporting legalization, analysts said, and politicians, as a rule, tend to be risk averse. “You don’t hold these positions without having a sense of your own place in history,” said former Representative Patrick J. Kennedy, who joined Mr. Sabet in founding Project SAM, which strives to reduce marijuana use by emphasizing health risks. “They can honestly see that this is not a good move, that it’s going to have huge consequences, not all of which can be foretold.”...

At this point, the prospects for other elected officials jumping on the legalization bandwagon is likely to depend on what happens as the experiments in Washington and Colorado proceed. Among the questions are whether legalization will lead to more drug abuse by teenagers and how much it will fatten state tax coffers.

“I don’t tell other governors what to do,” Mr. Hickenlooper said, “but when they asked me, I said, ‘If I was in your shoes, I would wait a couple of years and see whether

there are unintended consequences, from what is admittedly a well-intentioned law.’”

April 6, 2014 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, April 05, 2014

"Is the Death Penalty Starting to Make a Global Comeback?"

The title of this post is the headline of this intriguing Slate commentary.  Here are excerpts:

An Indian court today sentenced three men to death for the horrific gang rape of a photojournalist in Mumbai last year.  They are the first to be sentenced under India’s tough new anti-rape law.

The sentence hammers home something that’s been obvious for some time now: After appearing to be on the verge of abolishing the death penalty entirely, India has now firmly rejoined the ranks of the world’s executioners.  It’s one of a number of countries — including some of the world’s largest democracies — that have recently re-embraced capital punishment.

A 1983 Indian Supreme Court decision allows for capital punishment in only the “rarest of the rare” cases, and from 2004 to 2011 the country didn’t carry out any executions at all. From 1995 to 2012, it carried out only three.  Then in 2012, Ajmal Kasab, the last surviving gunman of the 2008 Mumbai terror attack, was hanged in secret in what appeared to be an unusually swift and haphazard execution.  The Kashmiri militant Afzal Guru was hanged under similar circumstances last year.  Seventy-two people in total were sentenced to die in India last year, including four of the men involved in the gang rape and murder of a 23-year-old medical student in Delhi in 2012 — a case that shocked the country and prompted the drafting of laws aimed at speeding up the prosecution of rapists.

India’s not the only country heading in this direction. Amnesty International’s 2013 death penalty report noted that executions were up 15 percent last year — and that’s not even counting China, where the number of executions is a state secret.  Just three countries — Iran, Iraq, and Saudi Arabia — accounted for 80 percent of executions, but to my mind, the most interesting recent trend has been been the countries that, like India, have been bucking the general global movement away from the death penalty.

In 2012 Japan carried out its first executions since 2010. Under Prime Minister Shinzo Abe, four rounds of “secret executions” have taken place.  Nigeria carried out its first executions in seven years last year and Indonesia its first in five years.  Vietnam resumed them after an 18-month pause with the execution of seven people by lethal injection.

It’s true that in terms of number of countries, the world is moving away from the death penalty. According to Amnesty’s numbers, 37 countries had the death penalty in 1994, compared with 22 today.  In Europe and Latin America, the practice has essentially been entirely banished and an increasing number of African countries are reviewing their laws.

On the other hand, with the exception of Brazil, where it’s banned, and Russia, where it’s legal but abolished in practice, the world’s 10 biggest countries are all death penalty states.  With India, Japan, and Indonesia rejoining the U.S., the world’s largest democracies are death penalty countries and the practice has heavy popular support in all of them.

UPDATE: This interesting international article highlights related death penalty developments under the headline "Vietnam is sentencing corrupt bankers to death, by firing squad."

April 5, 2014 in Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, April 03, 2014

Serial killer hoping SCOTUS will be troubled by execution drug secrecy in Texas

As highlighted in this AP article, a legal challenges based on execution drug secrecy is now before the Supreme Court after a Texas death row defendant has won and then lost on lower courts in his effort to block his execution.  Here are the basics:

Attorneys for a serial killer asked the U.S. Supreme Court to halt his execution set for Thursday in Texas as they challenge that state's refusal to release information about where it gets its lethal injection drug.

Lawyers for Tommy Lynn Sells made the plea after a federal appeals court allowed the execution to stay on schedule.  A lower court had stayed the execution Wednesday, ordering Texas to reveal more information about its drug supplier, but the ruling was quickly tossed on appeal.  "It is not in the public interest for the state to be allowed to be deceptive in its efforts to procure lethal injection drugs," Sells' attorneys told the high court.

The appeal was one of two separate issues pending before the justices.  Another before the court since last month asked for the punishment to be stopped to review whether Sells' legal help at his trial was deficient, and whether a court improperly denied him money to hire investigators to conduct a probe about his background.

Sells, who was sentenced to death for fatally stabbing a 13-year-old South Texas girl in 1999, claims to have committed as many as 70 killings across the U.S. The 49-year-old is scheduled to be lethally injected Thursday evening in Huntsville. Sells' attorneys argue that they need to know the name of the company now providing the state with pentobarbital, the drug used during executions, in order to verify the drug's quality and protect Sells from unconstitutional pain and suffering.

But 5th U.S. Circuit Court of Appeals sided with Texas prison officials, who argued that information about the drug supplier must be kept secret to protect the company from threats of violence. It also found that the stock of the pentobarbital, a powerful sedative, falls within the acceptable ranges of potency.  The court said that had Texas wanted to use a drug never used before for executions or a completely new drug whose efficiency or science was unknown, "the case might be different."

It's unclear how the Supreme Court would rule. Last month it rejected similar arguments from a Missouri inmate's attorneys who challenged the secrecy surrounding where that state obtained its execution drugs, and the condemned prisoner was put to death....

A batch of pentobarbital that Texas purchased from a compounding pharmacy in suburban Houston expired at the end of March. The pharmacy refused to sell the state any more drugs, citing threats it received after its name was made public. That led Texas to its new, undisclosed suppler.

The court case challenging the state's stance also included 44-year-old Ramiro Hernandez-Llanas, who is scheduled for execution next week.  But the 5th Circuit ruling affected only Sells. Maurie Levin, an attorney for the inmates, said Sells' case would be appealed to the U.S. Supreme Court. Levin said the lower court ruling, which had ordered the Texas Department of Criminal Justice to give defense attorneys details about the drug supplier and how the drug was tested, "honors the importance of transparency in the execution process."

If Sells' execution is carried out Thursday, it would be the fifth lethal injection this year in Texas, the nation's busiest death-penalty state.

Sells had dubbed himself "Coast to Coast," a nod either to his wandering existence as a carnival worker or to his criminal history. Court documents said he claimed as many as 70 murders in his lifetime in states including Alabama, California, Arizona, Kentucky and Arkansas. "We did confirm 22 (slayings)," retired Texas Ranger John Allen said this week. "I know there's more. I know there's a lot more. Obviously, we won't ever know."

UPDATE: This AP story reports that Sells "was put to death Thursday in Texas after the U.S. Supreme Court rejected his lawyers' demand that the state release information about where it gets its lethal injection drug."

April 3, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (43) | TrackBack

Wednesday, April 02, 2014

Terrific upcoming NYU Law conference on "Mercy in the Criminal Justice System"

Image001I am very pleased and very excited that on April 15 this year I will be spending all day thinking and talking about something other than my income tax forms.  That is because, as detailed in the program linked at the bottom of this post, I will be spending that day attending and speaking at the Sixth Annual Conference of the NYU Law School's Center on the Administration of Criminal Law.  This year's NYU Center conference is focused on clemency and related topics.

The full official title for the event, which runs from 10am to 4pm at NYU Law is "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies," and the keynote speaker is White House Counsel Kathryn Ruemmler.  Here is a brief account of the panels and participants scheduled to surround the keynote:

Panel 1: The Role of Law Schools in Delivering Clemency and Post-Conviction Assistance.

This panel will discuss how law schools are providing critical services to prisoners through clemency clinics and other mechanisms, and will also provide practical training on how to effectively prepare clemency petitions, post-conviction motions and provide other reentry support to prisoners.

Moderator: Prof. Mark Osler, University of St. Thomas Law School.  Panelists: Prof. Anthony Thompson, NYU Law; Prof. J.P. “Sandy” Ogilvy, Columbus School of Law, Catholic University; Harlan Protass, Esq., Clayman & Rosenberg; Prof. Joann M. Sahl, University of Akron Law School.

Panel 2: What We Can Learn About Clemency From the States.

This panel will examine the different ways clemency and pardon petitions are administered in selected states with effective systems.

Moderator: Nancy Hoppock, Executive Director of the CACL. Panelists: Lt. Governor Matthew Denn, State of Delaware; Hon. Robert L. Ehrlich, Jr., King & Spalding and former Governor of Maryland; Margaret Love, Esq., former U.S. Pardon Attorney; Jorge Montes, Esq., former Chairman of the Illinois Prisoner Review Board.

Panel 3: The Future of Clemency.

This panel will discuss recent developments in federal clemency and where clemency could and should be headed in the future.

Moderator: Prof. Rachel E. Barkow, NYU Law. Panelists: Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel; Prof. Paul G. Cassell, University of Utah Law School; Prof. Douglas A. Berman, The Ohio State University Moritz College of Law; Sam Morison, Esq.; Dafna Linzer, Managing Editor of MSNBC.com.

Persons can register for this great and timely conference at this link.

Download CACL.ClemencyProgram5

April 2, 2014 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

"Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"

The title of this post is the headline of this notable new Huffington Post piece.  Here are excerpts:

Several organizations representing state and local law enforcement are quietly trying to kill a bipartisan bill that would roll back tough mandatory sentences for people convicted of federal drug offenses under legislation passed during the height of America’s drug war three decades ago.

These groups include the National Sheriffs' Association, the International Association of Chiefs of Police, the National Narcotic Officers' Associations' Coalition, the National Association of Police Organizations and the Major County Sheriffs' Association, The Huffington Post has learned.

They hope to weaken congressional support for the Smarter Sentencing Act, which would reform the nation's mandatory minimum statutes, authorizing federal judges to sentence drug defendants to less time behind bars than what current law requires. The legislation passed the Senate Judiciary Committee in January, when, in a rare instance of bipartisan collaboration these days, Republicans Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona joined the committee’s Democrats in supporting the measure. Its House counterpart is still sitting in committee....

Major drug dealers “need to be locked up somewhere,” [Bob] Bushman [president of the National Narcotic Officers' Associations' Coalition, one of the groups fighting the bill] told HuffPost. “Some of these folks have worked hard to get to prison."...

A number of law enforcement agencies have already joined advocacy groups like the ACLU in endorsing the bill. They include the Major Cities Chiefs Association, the International Union of Police Associations, the American Correctional Association, the International Community Corrections Association and the American Probation and Parole Association. Attorney General Eric Holder backs the measure as well.

Bushman and his allies, however, aren’t the first law enforcement advocates to speak out against the bill. The Federal Law Enforcement Officers Association and the National Association of Assistant United States Attorneys have also come out against federal sentencing reform in recent months. Unlike Bushman’s cohorts, both of these groups represent officials who work for the federal government, and both have stated their positions in public.

The National Narcotic Officers' Associations' Coalition, the National Sheriffs' Association and the other state and local groups have been working behind the scenes. Several of them had previously lined up against Debo Adegbile, the president's nominee to head the Justice Department's Civil Rights Division, and helped block his confirmation last month.

Lobbyists with the National Association of Police Organizations and other groups met with Sens. Dianne Feinstein (D-Calif.), Kay Hagan (D-N.C.), Amy Klobuchar (D-Minn.) and John Walsh (D-Mont.) to discuss their opposition to the reform package. A spokeswoman for the International Association of Chiefs of Police confirmed that the organization was lobbying against changes on Capitol Hill, but said it wasn't prepared to speak publicly on the topic.

Fred Wilson, an official with the National Sheriffs' Association, said his group isn't formally opposed to the legislation in principle but believes the bill needs more study -- even though it has already passed through the Senate Judiciary Committee. "It may be [late], but our legislative folks seem to think not all is lost," Wilson said.

A letter from Bushman and his group to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) -- just one of several letters written by the Smarter Sentencing Act opponents that Bushman said are floating around Capitol Hill -- argues that federal policy should not be driven by "second-order effects of America’s drug problem" like incarceration costs....

Bushman said it was "a little early" to talk about whether law enforcement groups could be won over with a compromise bill this time, but said members of Congress first need to look at the "broader implications" of rolling back mandatory minimums. Democratic congressional aides acknowledged that they have been speaking with a number of law enforcement groups about the bill and said they hoped some of the concerns raised would be addressed, but likewise noted it was still relatively early in the legislative process.

April 2, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (32) | TrackBack

"Two church leaders urge Senate to pass Smarter Sentencing Act"

The title of this post is the headline of this article from what appears to be a prominent Catholic newspaper. Here are excerpts:

Two Catholic leaders called on the U.S. Senate to pass the Smarter Sentencing Act, which would reform rigid sentencing policies for certain nonviolent drug offenders. Archbishop Thomas G. Wenski of Miami, chairman of the U.S. bishops' Committee on Domestic Justice and Human Development, and Father Larry Snyder, president of Catholic Charities USA, said in a March 27 letter to senators that tough minimum sentences "are costly, ineffective and can be detrimental to the good of persons, families and communities." They called the bill a "modest first step in reforming our nation's broken sentencing policies."

The bill would cut minimum existing sentences by half and allow judges to use discretion when imposing jail terms against lower-level offenders. The legislation also would permit crack cocaine offenders to seek lighter sentences if they were jailed under the Fair Sentencing Act of 2010. The bill's supporters tout it as a necessary first step to reduce overcrowding in prisons and begin whittling down the massive cost of incarceration.

Despite supporting the bill, Archbishop Wenski and Father Snyder questioned three new categories of mandatory sentencing minimums that were added to the original bill, saying they would not ease prison overcrowding or reduce costs. The new categories cover sexual assault, domestic violence and arms trading....

Noting that annual incarceration costs for state and federal governments total about $80 billion annually, the clergymen wrote that it is time for the government to support programs aimed at crime prevention, rehabilitation, education and substance abuse treatment and as well as probation, parole and reintegration into society. "Our Catholic tradition supports the community's right to establish and enforce laws that protect people and advance the common good. But our faith teaches us that both victims and offenders have a God-given dignity that calls for justice and restoration, not vengeance," the letter said. 

The full letter referenced in this article is available at this link, and here is the closing paragraph:

Though imperfect, the Smarter Sentencing Act will help begin a long, overdue reform of our nation’s ineffective and costly sentencing practices.  Pope Francis recently said, “God is in everyone’s life.  Even if the life of a person has been a disaster, even if it is destroyed by vices, drugs or anything else — God is in this person’s life.”  We join the pope by advocating for reforms to our nation’s sentencing policies that will lead to healing and restoration, rather than simply punishment.

Though I am not sure this would be an entirely fair and accurate statement, I love that this last paragraph allows me to reasonably assert that wise religious leaders say "Pope Francis supports the Smarter Sentencing Act."  Indeed, maybe based on this letter I can even consider claiming that God supports the SSA (and, in so doing, provocativey and humorously speculate aloud about who is really behind the forces opposing the SSA).

April 2, 2014 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Is there any likely sentencing or (private) prison reform aspect to big SCOTUS political speech ruling?

The big SCOTUS news this morning is the split 5-4 First Amendment ruling in McCutcheon v. FEC (available here). This press report on the ruling from the Los Angeles Times provides the basics: 

The Supreme Court on Wednesday freed wealthy donors to give more money directly to congressional candidates, extending its controversial 2010 Citizens United decision that opened the door for unlimited independent spending on political issues.

In a 5-4 decision, the court’s conservative majority struck down Watergate-era aggregate limits that barred political donors from giving more than $123,000 a year in total to candidates running for seats in the House of Representatives or Senate. The court said this limit violated the free-speech rights of the donors, and it was not needed to prevent “corruption” of the political process. The justices noted that donors mush still abide by rules that prevent them from giving more than $2,600 per election per candidate.

Chief Justice John G. Roberts Jr., speaking for the court, said the 1st Amendment protects a citizen’s free-speech right to give to candidates. “Money in politics may at times seem repugnant to some, but so too does much of what the 1st Amendment protects,” he said. If it protects “flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

Justice Stephen G. Breyer, speaking for the four dissenters, said the court had opened a huge legal loophole that threatens the integrity of elections. “Taken together with Citizens United, today’s decision eviscerates our nation’s campaign finance laws,” he said.

The question in the title of this post highlights that I am always a blogging criminal justice hammer seeing every important SCOTUS ruling as a possible sentencing nail. Without even reading the full opinion, I wonder if this ruling might end up helping (1) some white-collar defendants and their wealthy friends better support federal legislators and candidates who advocate sentencing reform in arenas that impact these kinds of defendants, and/or (2) private prison companies and their executives support federal legislators and candidates who advocate for continued or expanded reliance on private prisons.

As usual, I am sure I am stretching a bit to view a non-sentencing story as having significant potential sentencing echoes. But maybe readers agree that there could be something to these early post-McCutcheon speculations.

April 2, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, White-collar sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, April 01, 2014

Forecasting the uncertain present and future of federal legislative sentencing reform

Writing for CQ Weekly (which calls itself the "definitive source for news about Congress") John Gramlich has this fascinating and lengthy new article about the state of federal sentencing reform efforts. The piece is headlined "The Prison Debate, Freshly Unlocked," and here are excerpts from a piece that merits a full read:

A bipartisan Senate coalition intent on shrinking the swollen federal prison population will see its toughest test yet in the weeks ahead. Party leaders face the delicate task of shepherding legislation through a politically charged chamber that could ease punishment for tens of thousands of felons — in an election year, no less.

The political stakes, particularly for Democrats, are substantial.  Control of the Senate is up for grabs in November and if Majority Leader Harry Reid of Nevada presses forward with a debate over crime and punishment, he could force members of his own caucus to cast difficult votes on a subject that has haunted the party in the past.  Many vulnerable Democrats want to focus on jobs rather than softening criminal penalties.

Despite the risks, it’s clear that Congress is closer than it has been in decades to slowing the growth of the federal prison population, which has ballooned to about 216,000 today from 25,000 in 1980.  Overhaul supporters have covered their bases, building consensus and deliberately pushing legislation through the committee process. But floor consideration will pressure any cracks in the coalition, given lingering reservations from influential lawmakers in both parties and opposition from prosecutors, which could stoke public fears about crime.

Reid has two bills on his slate, both of which would cut criminal penalties for a broad cross-section of federal offenses.  One would slash mandatory minimum sentences for some drug offenders by as much as 60 percent and give judges more leeway to impose lighter penalties than those set out in statute.  It also would allow crack cocaine users and dealers who were sentenced under a system that Congress abolished in 2010 to seek shorter sentences retroactively.

The other measure would allow as many as 34,000 currently incarcerated inmates — more than 15 percent of the federal correctional population — to leave prison early, provided they successfully complete rehabilitation programs first.

Both bills have support from opposite ends of the ideological spectrum, further undermining the decades-old caricature of party orthodoxy on criminal justice: that Republicans are “tough on crime” while Democrats are “soft.”...

Predicting the outcome of an election year Senate debate about criminal justice is not easy. Reid is still weighing whether to bring the legislation up in a year in which his party is at risk of losing control of the Senate for the first time since 2007.

And even if legislation passes the Senate, finding a path through the House is more difficult.  The House Judiciary Committee has set up a task force to examine sentencing and prison population issues.  But House leadership has, so far, shown no interest in taking up companion bills to the Senate measures. House Judiciary Chairman Robert W. Goodlatte, a Virginia Republican, said his panel “is taking a comprehensive look at the prison reform issue, and plans to continue its review over the next several months.”...

Lobbying from law enforcement organizations could still prove pivotal in this debate, particularly if it focuses on the specter of increased crime.  The sentencing bill sponsored by Durbin and Lee has sparked notable opposition from the National Association of Assistant U.S. Attorneys, a prosecutors’ group that took the rare step of publicly breaking with Attorney General Eric H. Holder Jr. — their boss — to denounce the legislation and warn that it could endanger public safety....

Meanwhile, the Fraternal Order of Police ... has its own concerns about any proposals that might reduce time behind bars.  The group is still evaluating both bills.  “The argument that we hear most often for reducing the prison population is cost,” James Pasco, the executive director of the group’s legislative advocacy center, says.  “Well, you know, the fact of the matter is if somebody commits a crime serious enough for lengthy incarceration, it’s at variance with common sense to suggest that’s not a good penalty just because it costs too much.”

“We have had conversations with the administration and we’ve had conversations with both sides in Judiciary, and they are aware of our apprehensions [about the bills],” Pasco added. “But the game really begins now.”

Bipartisan opposition from a handful of holdouts could make for speed bumps on the floor, if not outright problems.  California Democrat Dianne Feinstein, a senior member of the Judiciary panel, warned that the early-release bill could endanger public safety because “we do not know the facts of any of the 34,000 inmates estimated to be affected by this bill.”

Judiciary Chairman Patrick J. Leahy, a Vermont Democrat, also withheld his support for the early-release bill by voting “present” in committee. Leahy expressed concerns that the measure, which would let lower-risk inmates earn credits allowing them to transfer from prison to halfway houses and other forms of supervision, could worsen “racial and socioeconomic disparities in our prison system” and place an unfunded mandate on the Bureau of Prisons by requiring the agency to do widespread risk assessments on the inmates it incarcerates.

Holder has endorsed the sentencing measure, but stopped short of endorsing the early-release proposal, telling the U.S. Sentencing Commission in March that it needs changes to make it “as good as it might be.”

The sentencing bill also faces likely amendments.  In an interview with CQ Roll Call, South Carolina Republican Lindsey Graham said he and fellow Judiciary member Charles E. Schumer, a New York Democrat, are working on an amendment that would scale back some of the bill’s sentencing reductions.

Republicans, for their part, are divided about whether they want both measures to reach the floor at all.  Tea-party-backed members such as Lee and Paul support both bills, but Cornyn and the ranking Republican on the Judiciary Committee, Charles E. Grassley of Iowa, represent the party’s establishment wing and support only the early-release measure.  “If Sen. Reid would take up the prison reform legislation, I think then it has a good chance of passing. It’s got good, strong bipartisan support,” Cornyn, the Senate minority whip, says. “If they’re going to try to pair it with the sentencing reform, I think that’s a problem.”

In the Senate, where opposition from even a single member can stop legislation dead, Alabama Republican Jeff Sessions is still evaluating his options to oppose both bills. Sessions, another member of the Judiciary Committee and a former federal prosecutor who helped broker a new law in 2010 to reduce sentencing disparities between crack and powder cocaine offenses, voted against both of the new proposals in committee.

“One of the reasons people want to reduce sentences is because the crime rate is down,” Sessions said. “They think that just happened. But a fundamental reason is we enhanced enforcement, we enhanced the likelihood that you’d be apprehended and actually convicted, and we enhanced the penalties.  I believe the changes in the law that they have proposed are larger and more impactful than the sponsors fully realize.”

Though I sincerely hope I am very wrong, I take away one fundamental message from this story (aided, in part, by reading between the lines): the real chance of passage of any significant federal sentencing or prison reform legislation this year seems slim, at best.

April 1, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16) | TrackBack

Reviewing the state of the death penalty in the Buckeye State

The Attorney General of Ohio has a statutory obligation to report on the state's administration of capital punishment each year, and this local article highlights parts of the latest version of the AG's Capital Crimes Report (which can be accessed in full here):

Ohio continues to add more people to Death Row — four last year — even though the lethal injection process is mired in legal controversy.

The 2013 Capital Crimes Report, issued today by Attorney General Mike DeWine, says 12 executions are scheduled in the next two years, with four more pending the setting of death dates....

Ohio has carried out 53 executions since 1999, including three last year, the same as in 2012.  The annual status report on capital punishment in Ohio, which covers calendar year 2013, does not mention the problems during the Jan. 16, 2014, execution of Dennis McGuire when he gasped, choked and struggled for more than 10 minutes before succumbing to a two-drug combination never before used in a U.S. execution....   The next scheduled execution is Arthur Tyler of Cuyahoga County on May 28.

DeWine’s report notes that 316 people have been sentenced to death in Ohio since 1981 when capital punishment was restored after being overturned as being unconstitutional by the U.S. Supreme Court.  The report cites 18 gubernatorial commutations of death sentences: four by Kasich, five by Gov. Ted Strickland, one by Gov. Bob Taft, and eight by Gov. Richard F. Celeste.

For the first time this year, a group opposed to the death penalty issued its own report in response to the official state document. Ohioans to Stop Executions concludes, “While Ohio's overall use of the death penalty is slowing, it has become clearer than ever before that the race of the victim and location of the crime are the most accurate predictors of death sentences in the Buckeye State.”  The group said 40% of death sentence originate in Cuyahoga County. 

Ohio prosecutors filed 21 capital murder indictments last year, a 28 percent drop from 2012, as life without the possibility of parole sentences became more prevalent.

I do not believe the report from the group Ohioans to Stop Executions is available yet, but I assume it will be posted on OTSE's website before too long.

April 1, 2014 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, March 31, 2014

New Jersey State Municipal Prosecutors Association endorses marijuana legalization

A helpful reader alerted me to this notable article from the Asbury Park Press, headlined "It's high time to legalize pot, N.J. prosecutors say." Here is how it starts:

Proponents of legalizing marijuana in New Jersey received a boost from an unlikely source — the very people who prosecute pot users. The New Jersey State Municipal Prosecutors Association in Hamilton, N.J., has come out in favor of legalizing possession of marijuana. The support of the prosecutors association comes as two bills were introduced this month in the New Jersey State Legislature and as polls show a majority of Americans favor legalization.

One of the bills, introduced March 10, calls for a referendum asking voters to legalize the possession of an ounce or less of marijuana. Assemblymen Reed Gusciora, a Democrat from Trenton, N.J., who also is municipal prosecutor in Lawrence Township, N.J., and Michael Patrick Carroll, a Republican from Morris Township, N.J., are its sponsors.

"If it were up to me, I would make all quantities legal," Carroll said. "Why should the government be in the business of criminalizing marijuana? All it does is create administrative Al Capones and puts the power in the hands of gangsters." From the government's perspective, Carroll said legalizing marijuana would be a huge benefit. Government could save money by hiring fewer police and parole officers. Carroll also noted that getting an arrest record has ruined many people's careers.

On March 24, Sen. Nicholas Scutari, a Democrat from Linden, N.J., who also is municipal prosecutor there, introduced another bill. Scutari's bill does not call for a referendum. Instead it would legalize the cultivation, sale and possession of marijuana; set up an agency to oversee the industry; and then funnel the sales tax revenue to the state Transportation Trust Fund, drug prevention and enforcement efforts and women's health programs....

The board of trustees of the municipal prosecutors association voted Feb. 21 to endorse legalization, said its president, Jon-Henry Barr, who is municipal prosecutor in Kenilworth and Clark Township, N.J. "The board was not unanimous, but a clear majority of municipal prosecutors favor the idea," Barr said.

Of the 10 members of the board of trustees, seven were in favor of legalization, Barr said. Two members were opposed to legalization, and one member of the board abstained from voting, Barr said. He said the association is made up of 150 prosecutors. Among the reasons the municipal prosecutors favor legalization is the damage a prosecution for marijuana possession has on a person's reputation and the growing acceptance among Americans that marijuana should not be criminalized, Barr said....

"The time has come to understand that this particular offense makes about as much sense as prohibition of alcohol did," Barr said. "It is time to stop the insanity." Barr said prosecutors are spending time prosecuting marijuana cases when they could be attacking more pressing problems.

Some municipal prosecutors were unaware of the association's position on marijuana, and not all agree with it. "I was not at the meeting," Municipal Prosecutor Bonnie Peterson said. She is prosecutor in Seaside Park, Ship Bottom and Harvey Cedars, three communities on the Jersey Shore. "They sent an e-mail. I was surprised. ... I would find it very hard to believe the municipal prosecutors association would come out with a blanket endorsement of legalization of marijuana."... Steve Rubin, prosecutor in Long Branch and West Long Branch, N.J., was one of the municipal prosecutors association's board of trustees who voted to endorse legalization. Still, he said he has some concerns, especially during a transition to legalization. He said he fears some marijuana trade would remain in the hands of criminals. "There still are people who are bookmakers," Rubin said. "We thought they would have been eliminated with OTB (off-track betting) and the lottery."

But Rubin said legalization would eliminate many of the court cases he has to present. "I would no longer have to prosecute a bunch of 18-year-olds who went to a frat party," Rubin said.

Cross-posted at Marijuana Law, Policy and Reform

March 31, 2014 in Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Is it time for AARP to get active in policy debates over sentencing and prison reforms?

Coa-main2The (provocative) question in the title of this post is prompted by this lengthy article from a local Pennsylvaia paper under the headline, "Older criminals present challenges for prisons, courts; Our population is getting grayer everywhere, including behind bars." I have seen and highlighted a number of these article in the past, and often they appear in a series of articles about state prison policies and reform. But this lengthy article is within a series of articles called "Coming of Age" addressing a range of issues facing a greying baby-boom population.

It is surely a sign of the modern mass incarceration times that a series about growing old includes a lengthy article about growing old in prison. And here are excerpts from the piece:

Older prison inmates are more likely to have chronic illnesses and mental conditions that require special treatment, and moving them through the court system can be a complicated balancing act on the scales of justice.

At the Bucks County Correctional Facility in Doylestown Township, 7.5 percent of the population — about 89 prisoners — are 65 and older.  There is no special cell block for the elderly, although some prisoners who are especially frail may be placed in protective custody, said William Plantier, Bucks County’s director of corrections....

Most of Pennsylvania’s state correctional institutions house elderly inmates. All have wheelchair-accessible cells and showers that can accommodate people with disabilities. Inmates with medical conditions that require elaborate care are sent to SCI Laurel Highlands, a minimum security prison located about 70 miles southeast of Pittsburgh.

Built on the site of a former state hospital, Laurel Highlands is set up like a medical facility. Inmates receive treatments like kidney dialysis and chemotherapy, and staff members have been trained to treat chronic illnesses such as Alzheimer’s disease and other forms of dementia. Laurel Highlands has 15 dialysis chairs. Before the facility opened in 1966, inmates had to be transported to outside clinics for treatment. “We’re saving a ton of money by doing it in-house,” said Betsy Nightingale, assistant superintendent at Laurel Highlands. “It’s also much better for security purposes, because the inmates do not have to travel.”

Inmates in Laurel Highlands follow a normal prison schedule; there are regular times when prisoners are counted and meals follow a schedule. Frail inmates who cannot move about the facility easily have activities brought to them. “There’s bingo and a current events program,” Nightingale said.

About 120 inmates reside in Laurel Highland’s skilled care unit. That part of the prison has nurses on staff 24/7. Prisoners who have Alzheimer’s and other incapacitating illnesses take up most of the rooms. While the majority of the 1,571 beds at Laurel Highlands are filled with older inmates, younger people with chronic illnesses may also be sent there. Sometimes, they are nursed back to health and transferred to another prison.

Currently, about 5,365 of Pennsylvania’s 51,512 state-sentenced prisoners are over age 55. That’s about 10.42 percent of all prisoners. In 2000, the percentage was 4.82, about 1,775 out of 36,802 inmates.

There are 1,249 prisoners over age 65 — about 2.49 percent of the prison population. Nationwide, the number of prisoners age 55 and older has risen sharply over the past decade, according to a 2013 study by the Pew Charitable Trust, a nonpartisan research center. In 1999, there were 43,300 prisoners age 55 and up. By 2011, that number had blossomed to 121,800.

The health care costs for inmates age 55 and older with a chronic illness is, on average, two to three times that of the cost to house and care for other inmates, according to the study. In Pennsylvania, the ratio of older to younger inmates fluctuates, as prisoners complete their sentences and are released, said Susan Bensinger, deputy press secretary for the state Department of Corrections. “Not everyone who is older and goes to prison, even to Laurel Highlands, goes there to die, which is a common assumption,” she said.

But the reality is, people do die behind bars. To address this issue, the department has created an end-of-life care initiative, in which an inmate volunteer is paired with another prisoner who is terminally ill. The two inmates spend several hours a day together, so the dying prisoner spends less time alone and is more comfortable. The program, which isn’t hospice care, can be an emotional experience for the volunteers, Bensinger said. “It’s a very different thing to watch another human being die,” she said. “Some of them are probably seeing themselves in 10 years. The volunteers are very compassionate.”

In the prison system, 50 is considered elderly. That’s because inmates often enter the facilities with serious health problems. “Many inmates come to us never having received dental care or regular health care. Most of them also have drug and alcohol dependence, which ages a body much more rapidly,” Bensinger said.

March 31, 2014 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Controversy long after du Pont heir got probation as punishment for raping his small daughter

As detailed in this lengthy local article from Delaware, headlined "Heir's sentence raises questions in child rape case," a high-profile child rape case from years ago is now generating new controversy because the low sentence imposed on the rapist just became public.  Here are the details: 

A judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he "will not fare well" in prison and needed treatment instead of time behind bars, court records show.  

Superior Court Judge Jan Jurden's sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape.  Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.

Richards' 2009 rape case became public this month after attorneys for his ex-wife, Tracy, filed a lawsuit seeking compensatory and punitive damages for the abuse of his daughter. The fact that Jurden expressed concern that prison wasn't right for Richards came as a surprise to defense lawyers and prosecutors who consider her a tough sentencing judge. Several noted that prison officials can put inmates in protective custody if they are worried about their safety, noting that child abusers are sometimes targeted by other inmates.

"It's an extremely rare circumstance that prison serves the inmate well," said Delaware Public Defender Brendan J. O'Neill, whose office represents defendants who cannot afford a lawyer. "Prison is to punish, to segregate the offender from society, and the notion that prison serves people well hasn't proven to be true in most circumstances." O'Neill said he and his deputies have often argued that a defendant was too ill or frail for prison, but he has never seen a judge cite it as a "reason not to send someone to jail."...

O'Neill said the way the Richards case was handled might cause the public to be skeptical about "how a person with great wealth may be treated by the system."  Richards, who is unemployed and supported by a trust fund, owns a 5,800-square-foot mansion in Greenville, Del., he bought for $1.8 million in 2005.  He also lists a home in the exclusive North Shores neighborhood near Rehoboth Beach, according to the state's sex abuse registry. His great-grandfather is du Pont family patriarch Irenee du Pont, and his father is Robert H. Richards III, a retired partner in the Richards Layton & Finger law firm....

The lawsuit filed by Richards' ex-wife accuses him of admitting to sexually abusing his infant son between 2005 and 2007, the same period when he abused his daughter starting when she was 3.  Police said they investigated allegations involving the boy in 2010 after his mother filed a complaint, but said they did not have sufficient evidence to justify charges. Investigators will take another look at the allegations included in the lawsuit, which are based on reports by probation officers.

State Attorney General Beau Biden's office had initially indicted Richards on two counts of second-degree rape of a child -- Class B violent felonies that carry a mandatory 10-year prison term for each count.  According to the arrest warrant filed by a New Castle County Police Detective JoAnna Burton in December 2007, the girl, then 5, told her grandmother, Donna Burg, that Richards sexually abused her.

Burg said the child reported that her father told her it was "our little secret" but said she didn't want "my daddy touching me anymore." Tracy Richards, who confronted her then-husband, told police he admitted abusing his daughter but said "it was an accident and he would never do it again," the warrant said.

Richards was free on $60,000 secured bail while awaiting trial on the charges that could have put him behind bars for years.  But in June 2008, just days before a scheduled trial, prosecutor Renee Hrivnak offered Richards a plea to a single count of fourth-degree rape, which carries no mandatory time, and he accepted, admitting in court that he abused his child.

"It was more than reasonable, an enlightened plea offer," Richards attorney Eugene J. Maurer Jr. said.  Fourth-degree rape is a Class C violent felony that by law can bring up to 15 years in prison, though guidelines suggest zero to 2 1/2 years in prison.

At Richards' February 2009 sentencing, Hrivnak recommended probation, Biden's chief deputy Ian R. McConnel said, adding that in retrospect he wished she would have sought prison time.  Hrivnak would not comment.... McConnel would not discuss the rationale behind the Richards' plea deal and Hrivnak's recommendation of probation for the fourth-degree rape conviction.

While judges have the latitude to sentence defendants within legal parameters, they are urged to follow more lenient guidelines established by the Delaware Sentencing Accountability Commission, a panel of judges and other top officials in the criminal justice system. The panel has a policy that prison should be reserved for violent offenders, including rapists.

Jurden gave Richards, who had no previous criminal record, an eight-year prison term, but suspended all the prison time for probation. "Defendant will not fare well in Level 5 setting," said the final line of her sentencing order. In Delaware's correctional system, Level 5 is prison....

Defense lawyer Joseph A. Hurley said it makes sense to him that the judge would be concerned about Richards' time in prison. "Sure, they have protective custody, but that is solitary confinement for 23 hours a day. We're not a third-world society," Hurley said. "Sex offenders are the lowest of the low in prison," Hurley said. "He's a rich, white boy who is a wuss and a child perv. The prison can't protect them, and Jan Jurden knows that reality. She is right on."

Though lots of reactions to this story are possible, I cannot help but highlight that a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated. But I am inclined to encourage everyone to appreciate how this story reveals yet again how prosecutorial charging, bargaining and sentencing decisions are never subject to transparency or formal review, while judicial sentencing decisions have to be made in open court, on the record, and can in some cases be appealed.

March 31, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24) | TrackBack

Sunday, March 30, 2014

As heroin concerns grow, so do proposals to increase sentences

Everyone who follows sentencing reform developments knows that it is common for legislative proposals calling for longer prison terms to follow reports of a new or increased crime problem.  The biggest crime problem being discussed these days seems to be heroin use and abuse, and here are two stories from Louisiana and Ohio reporting on proposals to increase drug sentences:

The sentencing reform debate developing around heroin in Louisiana is especially interesting, and here are excerpt from the article linked above:

Heroin-related deaths soared last year from New Orleans to Baton Rouge, and the drug has shown no signs of loosening its grip as the epidemic spills into more and more parishes. On the verge of panic, authorities are warning of a public health crisis that demands new methods of deterrence. “When we’re getting to people, they’re dead,” said Col. Mike Edmonson, the State Police superintendent. “When we’re getting to people, the needle is still hanging out of their skin.”

Against this backdrop, law enforcement officials are supporting legislation to drastically increase prison time for heroin dealers and users, including a bill backed by the influential Louisiana Sheriffs’ Association that would impose a mandatory minimum of two years behind bars — without parole — for anyone caught possessing even a small amount of heroin. House Bill 332 sailed through the House Criminal Justice Committee last week and is attracting bipartisan support, even among lawmakers otherwise skeptical of the “tough-on-crime” policies that have been blamed for Louisiana’s nation-leading incarceration rate.

“I think everybody understands the danger of heroin,” said Rep. Joseph Lopinto, R-Metairie, the committee’s chairman and the author of the bill. “I don’t want to put them away for the rest of their lives, but from the other standpoint, I want to make it enough of a deterrent that when they do get out of prison they say, ‘I’m staying away from that stuff.’ That’s the purpose.”

The proposal, which also would double the mandatory minimum sentence for heroin distribution from five to 10 years, stands in sharp contrast to a package of other legislative measures that aim to reduce the state’s teeming prison population, in part by shortening jail time for nonviolent offenders. And it comes at a time of growing recognition among conservatives and liberals alike that mandatory minimums for drug offenses have strained state coffers while doing little, if anything, to curb crime.

“Louisiana already has the highest incarceration rate in the nation, and part of the reason for that is their history with mandatory minimums for nonviolent drug offenses,” said Lauren Galik, a policy analyst at the Reason Foundation, a libertarian think tank, who has studied the state’s sentencing laws. “It clearly hasn’t served as a deterrent effect if people are still using drugs.” 

March 30, 2014 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (19) | TrackBack

Friday, March 28, 2014

Federal judge robustly defends drug guidelines ... after robustly varying from them

Thanks to this post by Paul Cassell over at The Volokh Conspiracy, titled "Are the federal sentencing guidelines for drug dealing unduly harsh?", I have had a chance to see and read a remarkable 70+-page opinion by US District Judge James Browning in US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   For any and everyone concerned about federal (or even state) sentencing for drug offenses, this opinion is a must-read.  Reyes also provides a remarkable case-specific window into the modern drug trade and the persons who get caught up within it.  And the validity and role of various uses of judicial discretion after Booker also is front-and-center in this opinion.

I am going to make all my sentencing students read this opinion, and this openning to the opinion helps highlight why it covers so many important issues:

THIS MATTER comes before the Court on Defendant Kayla Marie Reyes’ Sentencing Memorandum and Motion for a Downward Variance, filed March 21, 2013 (Doc. 45)(“Sentencing Memorandum”).  The Court held a sentencing hearing on January 6, 2014. The primary issues are: (i) whether the Court will vary downward to a sentence of 15 months to reflect Defendant Kayla Marie Reyes’ comparatively minimal involvement in an overall drug conspiracy; (ii) whether the Court should vary from the advisory guideline range because of a substantive disagreement, under Kimbrough v. United States, 552 U.S. 85 (2007), with the United States Sentencing Commission’s Guideline ranges for drug trafficking violations, as did the Honorable John Gleeson, District Judge for the United States District Court for the Eastern District of New York, in United States v. Diaz, No. 11-CR-00821-2, 2013 WL 322243 (E.D.N.Y. Jan. 28, 2013); and (iii) whether the Court should consider the costs of incarceration and supervised release in sentencing.  

The Court will vary downward, but not as much as Reyes requests: it will vary to a sentence of 30 months, which the Court concludes best reflects the factors that Congress laid out in 18 U.S.C. § 3553(a).

The Court concludes that Judge Gleeson’s criticisms of the Commission’s Guideline ranges for drug trafficking lack a sound basis.  Accordingly, the Court will not adopt his substantive disagreement under Kimbrough v. United States with the Commission’s Guideline for drug trafficking offenses. The Court varies for reasons tied to the factors in § 3553(a) and to Reyes’ individual circumstances, and not because of a substantive disagreement with the Commission’s ranges for drug trafficking. Finally, the Court will not consider the costs of incarceration and supervised release in sentencing, because the factors in § 3553(a) do not clearly permit the Court to consider costs, and because those concerned about the fiscal implications of criminal justice policy should petition the other branches of government and should not ask the Court to consider such implications in sentencing an individual defendant. 

As this introduction hints, I could readily write a few dozen blog posts about this Reyes opinion (and might do a few more in the weeks ahead). But my most fundamental insight about the opinion appears in the title to this post: Judge Browning makes a very forceful argument in support of the federal drug sentencing guidelines, but he is doing so in a case in which he concludes that they should not be followed. If Judge Browning really thinks these guidelines are so sound, I do not quite understand why he feels it necessary (or even legally appropriate) to vary from them.

March 28, 2014 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Could Oklahoma ruling declaring drug secrecy unconstitutional impact execution plans nationwide?

The question in the title of this post is prompted by this new Reuters article, headlined "U.S. executions set for possible delay after Oklahoma court decision."  Here are excerpts:

An Oklahoma judge ruled on Wednesday the state's secrecy on its lethal injections protocols was unconstitutional, a decision that could delay executions in other states where death row inmates are planning to launch similar challenges.

County district court judge Patricia Parrish ruled the state violated due process protections in the U.S. Constitution by not providing the name of the drug supplier, the combination of chemicals and the dosages used in executions. Oklahoma's attorney general said the office will appeal.

Oklahoma and other U.S. states have been struggling to obtain drugs for executions. Many pharmaceutical firms, mostly in Europe, have imposed sales bans because they object to having medications made for other purposes used in lethal injections. The states have looked to alter the chemicals used for lethal injection and keep the suppliers' identities secret. They have also turned to lightly regulated compounding pharmacies that can mix chemicals.

But lawyers for death row inmates argue drugs from compounding pharmacies can lack purity and potency and cause undue suffering, in violation of the U.S. Constitution. "Judge Parrish's decision is a major outcome that should have a reverberating impact on other states that are facing similar kinds of transparency issues," said Fordham Law Professor Deborah Denno, who specializes in the legalities of lethal injections....

Legal experts expect more states to face challenges that will delay executions, but if they settle transparency issues, many will resume putting inmates to death. "Almost every state is hiding part of the process, or is attempting to," said Richard Dieter, the executive director of the Death Penalty Information Center....

For now, several of the 32 states with the death penalty are keeping mum about business transactions for execution drugs. Texas, which has executed more prisoners than any other state since the U.S. Supreme Court reinstated the death penalty in 1976, has obtained a fresh batch of the drug it uses for its executions. But Texas will not identify the supplier, citing "previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," the Texas Department of Criminal Justice said in a statement.

Alabama said this week it has run out of one of the main drugs it uses, putting on hold executions for 16 inmates who have exhausted appeals and face capital punishment. It is also looking at ways to keep the name of drug providers secret. Inmates in Missouri, which carried out an execution this week, have sued the state over execution protocols that include layers of secrecy.

Arizona said on Wednesday it had to change its lethal injection cocktail because it could not obtain the drugs it once used. "Being lost in the conversation and political maneuvering is the fact that family of murdered loved ones are paying the ultimate price as they wait for justice to be carried out," Arizona Attorney General Tom Horne said in a statement.

Some related prior posts:

March 28, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

Thursday, March 27, 2014

USSC Chair talks up "A Generational Shift for Drug Sentences"

I just noticed via the US Sentencing Commission's official website that Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, gave this lengthy speech at the Georgetown University Law Center titled “A Generational Shift For Drug Sentences.” The speech as reprinted runs eight-single-spaced pages, and here is one of many notable snippets:

So what have we learned then about drug sentencing policy in the generation since these federal sentences and guidelines were put into place?  At the state level, we have seen that many states have been able to reduce their prison populations and save money without seeing an increase in crime rates.  Michigan, New York, and Rhode Island all significantly decreased drug sentences, with Michigan and Rhode Island rolling back mandatory minimum penalties for drug offenses.  Each state saw reductions in prison population, accompanied by decreases in crime rates.  South Carolina eliminated mandatory minimum penalties for drug possession and some drug trafficking offenses and increased available alternatives to incarceration for drug offenses.  It too has seen reductions in its prison population and a drop in crime rates.  Other traditionally conservative states like Texas, Georgia, and South Dakota have shifted their emphasis from harsh punishment of drug offenses to a greater focus on alternative approaches, without seeing an increase in crime rates.  Respected organizations like the Vera Institute and the Pew Charitable Trust have studied these state reforms and found positive results.

This real-life experience in the states, together with new academic research, has begun to indicate that drug sentences may now be longer than needed to advance the purposes for which we have prison sentences, including public safety, justice, and deterrence.  Some prominent scholars have written that lengthy periods of incarceration are unlikely to have a deterrent effect and that even the incapacitation effect — keeping dangerous people off the streets — becomes less significant as prisoners get older.

March 27, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, March 26, 2014

Killer bride Jordan Graham moves to withdraw murder plea claiming feds breached deal in sentencing arguments ... UPDATE: motion denied!

I am intrigued and amazed to learn via this local article, headlined "Newlywed asks to withdraw guilty plea in husband's murder," that the Montana killer bride has now formally moved to withdraw her guilty plea based on the assertion that the federal prosecutors' sentencing arguments breached the (mid-trial) plea deal struck between defendant Jordan Graham and the feds.  Here are the details: 

The Kalispell newlywed accused of pushing her husband off a cliff last summer asked to withdraw her guilty plea late Tuesday, arguing the agreement she accepted was “illusory” and a “hollow formality.” Jordan Graham, 22, was to be sentenced in Missoula’s U.S. District Court Thursday for the July murder of 25-year-old Cody Johnson along a trail in Glacier National Park. It’s now unclear if the sentencing will proceed as scheduled.

First, U.S. District Judge Donald Molloy will have to rule on Graham’s motion to withdraw her guilty plea. If he accepts the motion, a new trial will be scheduled.  If he rejects her motion, the sentencing could continue as planned.

In Tuesday’s motion, federal public defender Michael Donahoe argued that prosecutors “breached the plea agreement” by suggesting in a sentencing memorandum filed last week that Graham murdered Johnson with both intent and premeditation. That memorandum, and its suggestion that Graham be sentenced to life in prison, rendered December’s plea agreement “nothing but an empty promise” — merely a means by which prosecutors avoided a possible manslaughter verdict, Donahoe said.

Graham accepted the plea agreement near the end of her trial, pleading guilty to second-degree murder.  In exchange, prosecutors agreed to drop a first-degree murder charge — and its contention that Johnson’s death was premeditated.

For a first-degree murder conviction, prosecutors needed to prove there was intent on Graham’s part; intent is not required for a second-degree murder conviction.  “By offering and agreeing to accept a plea agreement to second degree supported by an extreme recklessness plea colloquy, the government effectively removed the issue of defendant’s alleged premeditation as an issue in the case,” Donahoe wrote Tuesday.  “That was the entire purpose of the plea agreement,” he added.

Then came the sentencing memorandum, where prosecutors argued that Graham planned the murder of Johnson on the night of July 7 and should spend the rest of her life in prison  — or at least the next 50 years.

Graham has admitted pushing her husband of eight days off a cliff in Glacier Park during an argument. She was experiencing doubts about their marriage, she said, and shoved Johnson during a heated exchange.  Her intent was not to kill him, Graham said, but rather an instinctive response to Johnson grabbing her arm.

In his sentencing memorandum, assistant U.S. attorney Zeno B. Baucus honed in on evidence that Molloy expressly prohibited from December’s trial.  That evidence included a long, black cloth found in the vicinity of Johnson’s body, which prosecutors theorized Graham used to blindfold her husband before pushing him off a cliff along Glacier Park’s Loop trail. Graham also took away her husband’s car keys, prosecutors contended, and removed his wedding ring before the altercation....

On Tuesday, Donahoe said the prosecution’s return to premeditation theories rendered the plea agreement void — and asked the judge to allow Graham to withdraw her admission of guilt....  “By making what should have been its closing argument to the jury in its sentencing papers, the government has furnished a ‘fair and just reason’ to support defendant’s request to withdraw her plea,” Donahoe wrote. “The government’s plea agreement promise ... is an empty and hollow formality,” he said. “Therefore, the defendant argues that the government’s offer for a plea agreement was and is illusory and in bad faith.”

I expect the government will file a full-throated response to this motion sometime today. And I am sure the government will stress that, by taking a plea to the lesser-charge of second-degree murder, Garaham got an extraordinarily important sentencing benefit: the sentencing range for that charge is a range of 0 to life, whereas a first-degree murder conviction carried a mandatory LWOP sentence. I fully understand why Jordan Graham and her lawyer are troubled that the feds are making a forceful sentencing argument for an LWOP sentence, but I am not sure why its sentencing advocacy alone provide a basis for withdrawing a seemingly otherwise valid (and valuable) plea.

I have been obsessing about the upcoming sentencing in this case with my sentencing students because, as noted in this recent post, I think it provides a great and accessible tutorial on federal plea bargaining and sentencing realities. Little did I expect that this live tutorial would take on this interesting extra lesson.

Previous related posts (with lots of interesting prior comments):

UPDATE:  As this AP article reports, prosecutors do not agree that they breached any promises in this case:

Prosecutors responded Wednesday that they agreed to dismiss the first-degree murder charge but did not agree to ignore other evidence offered at trial in recommending a sentence of 50 years to life.

Assistant U.S. Attorney Kris McLean noted that Graham agreed to plead guilty on Dec. 12 without the benefit of a plea agreement. At that time, U.S. District Judge Donald Molloy reminded Graham that her plea meant she could face a life sentence in federal prison.

The federal government is not limited by the defendant’s description of events in recommending a prison term, McLean wrote in his response Wednesday. He argued the court can consider any information about the background, character and conduct of the defendant when determining a sentence.

The government’s sentencing memo recommends the court consider an upward variance to a sentence of life in prison, but no less than 50 years, in part because “the circumstances surrounding Cody’s death closely resemble conduct that is often associated with a first-degree murder conviction.”

Prosecutors said the fact that Graham was unhappy in her new marriage, that she somehow ended up with the only set of keys to the car Johnson drove into the park on July 7 and the fact that she texted a friend saying if the friend didn’t hear from her at all again that night, “something happened,” indicated Graham was “planning and considering murder.”

Graham is scheduled to be sentenced Thursday by Molloy in Missoula. It was not clear how Graham’s motion might affect the sentencing schedule.

ANOTHER UPDATE:  Unsurprisingly, as this local article reports, the "judge has denied a Kalispell newlywed's request to withdraw her guilty plea for the murder of her husband in Glacier National Park last summer." Here is more:

U.S. District Judge Don Molloy began Thursday's sentencing hearing by considering Jordan Linn Graham's motion to withdraw her guilty plea to second-degree murder....

Molloy ... ruled Thursday that Graham had knowingly and willingly pleaded guilty near the end of her trial last December - and said that plea will remain in place. He made the ruling after hearing brief arguments from both sides. He then proceeded to the sentencing. 

March 26, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

"Cooperative Federalism and Marijuana Regulation"

The title of this post is the title of this notable new paper co-authored by Erwin Chemerinsky, Jolene Forman, Allen Hopper and Sam Kamin and now available via SSRN.  Here is the abstract:

The struggle over marijuana regulation is one of the most important federalism conflicts in a generation. Since 1996 twenty states have legalized marijuana for medical purposes and, in November 2013, Colorado and Washington legalized marijuana for adult recreational use. In the fall of 2013, the federal Department of Justice (“DOJ”) announced it will not prioritize enforcement of federal marijuana laws in states with their own robust marijuana regulations, specifying eight federal enforcement priorities to help guide state lawmaking. This announcement has been widely interpreted to signal that the federal government will not enforce its stricter marijuana laws against those complying with the new Washington and Colorado laws so long as the new state regulatory regimes effectively prevent the harms the DOJ has identified as federal priorities.  Yet even if the federal government voluntarily refrains from enforcing its drug laws against those complying with robust state regulatory regimes, the ancillary consequences flowing from the continuing federal prohibition remain profound.  Banks, attorneys, insurance companies, and potential investors concerned about breaking federal law are reluctant to provide investment capital, legal advice, or numerous other basic professional services necessary for businesses to function and navigate complex state and local regulations. And consumers face the risk of severe legal consequences.

The Article explains why, even if it wished to do so, the DOJ could not simply shut down all state marijuana legalization efforts using the federal government’s preemption power under the Supremacy Clause.  We suggest an incremental and effective solution that would allow willing states to experiment with novel regulatory approaches while leaving the federal prohibition intact for the remaining states.  The federal government should adopt a cooperative federalism approach that allows states meeting specified federal criteria — criteria along the lines that the DOJ has already set forth — to opt out of the federal Controlled Substances Act (“CSA”) provisions relating to marijuana. In opt-out states certified by the Attorney General, state law would exclusively govern marijuana-related activities and the CSA marijuana provisions would cease to apply.  Federal agencies could continue to cooperate with opt-out states and their local governments to jointly enforce marijuana laws, but state law rather than the CSA would control within those states’ borders. Equally important, nothing would change in those states content with the status quo under the CSA.  This proposed approach embodies the best characteristics of federalism by allowing some states to experiment while maintaining a significant federal role to minimize the impact of those experiments on other states.

March 26, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 25, 2014

"Victim Gender and the Death Penalty"

The title of this post is the title of this notable new empirical paper authored by a whole bunch of folks at Cornell Law School and now available via SSRN. Here is the abstract:

Previous research suggests that cases involving female victims are more likely to result in death sentences.  The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware.  Death was sought much more for murders of either male or female white victims compared to murders of black male victims.  Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases.  The presence of sexual victimization, the method of killing, the relationship between the victim and the defendant, and whether or not the victim had family responsibilities all predicted the likelihood of a death sentence and help to explain why cases with female victims are more likely to be punished with a death sentence.

March 25, 2014 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Seeking special insights on Justice Sotomayor's sentencing jurisprudence

The request in the title of this post is my reaction to the new Yale Law Journal Forum posting providing here an online symposium titled "The Early Jurisprudence of Justice Sotomayor: Sonia Sotomayor's first five years on the Court."  Disappointingly, though not surprisingly, Justice Sotomayor's biggest sentencing opinions (e.g., Pepper, Peugh, Southern Union) do not seem to get much (if any) concentrated attention in the articles in the symposium.  

These three pieces from the symposium, however, do provide criminal justice commentary that might usefully supplement one's perspective on Justice Sotomayor's sentencing philosophies:

As the title of this post suggests, I would be eager to hear from readers as to whether they think there is something distinctive and/or notable about how Justice Sotomayor approaches sentencing issues.

March 25, 2014 in Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

Could 2014 be a "comeback" year for state executions?

Because last Saturday my fantasy baseball league had its annual auction, I have spent time recently thinking about which MLB players might have a big "comeback" year after struggling through 2013.  (As I Yankee fan, I am hoping Derek Jeter has a great comeback; as a fantasy GM, I am hoping Beckett might reward me for using a roster spot to pick him up.)  With comeback concerns in mind, I have lately been thinking about whether state executions might also end up staging something of a comeback after struggling through varied challenges with lethal injection protocols and drug shortages though 2013.

As detailed in this yearly execution chart from the Death Penalty Information Center, there were only 39 executions in 2013.  That was the second lowest yearly total in nearly two decades, and the other recent year with less than 40 executions (2008) was the direct result of SCOTUS halting all executions for a number of months while it considered the constitutionality of lethal execution protocols in Baze.  Opponents of the death penalty celebrated the low number of executions in 2013, and they surely were hoping execution difficulties would drive down execution numbers even further in 2014.

Details from DPIC here and here, however, report that there have already been 12 executions in 2014 and that there are another 12 "serious" execution dates scheduled for the next six weeks.  If most of these executions go forward, and especially if states like Texas and Florida continue to be able to find drugs to continue with executions, it seems very possible that there could end up being 50 or more executions in 2014.

March 25, 2014 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (27) | TrackBack

Monday, March 24, 2014

AG Eric Holder announces new rules for federal halfway houses

Via this official press release, I see that Attorney General Eric Holder is continuing his effort to reshape the policies and practices of the federal criminal justice system, this time through new policies and programming for federal halfway houses.  The title and subtitle of the press release itself provides a summary of this latest development: "In New Step to Fight Recidivism, Attorney General Holder Announces Justice Department to Require Federal Halfway Houses to Boost Treatment Services for Inmates Prior to Release; New Rules Also Instruct Federal Halfway Houses to Provide Transportation Assistance, Cell Phone Access in Order to Help Inmates Seek Employment Opportunities."

Here is more from the start of the press release:

In a new step to further the Justice Department’s efforts towards enhancing reentry among formerly incarcerated individuals, Attorney General Eric Holder announced Monday that the Bureau of Prisons (BOP) will impose new requirements on federal halfway houses that help inmates transition back into society.  Under the proposed new requirements, these halfway houses will have to provide a specialized form of treatment to prisoners, including those with mental health and substance abuse issues.  For the first time, halfway houses will also have to provide greater assistance to inmates who are pursuing job opportunities, such as permitting cell phones to be used by inmates and providing funds for transportation.  The new requirements also expand access to electronic monitoring equipment, such as GPS-equipped ankle bracelets, to allow more inmates to utilize home confinement as a reentry method.

Holder announced the changes in a video message posted on the Department’s website. The BOP’s new policies have the potential to be far-reaching. To ease their transition, those exiting prison typically spend the last few months of their sentence in either a federal halfway house — known as a residential reentry center (RRC) — or under home confinement, or a combination of the two. These community-based programs provide much needed assistance to returning citizens in finding employment and housing, facilitating connections with service providers, reestablishing ties to family and friends, and more.

Last year alone, more than 30,000 federal inmates passed through a halfway house. Among the most significant changes Holder announced is the requirement for standardized Cognitive Behavioral Programming (CBP) to be offered at all federal halfway houses.  This treatment will address behavior that places formerly incarcerated individuals at higher risk of recidivism. As part of this treatment requirement, BOP is setting guidelines for instructor qualifications, class size and length, and training for all staff at the halfway houses.

Several other modifications are being made to the standard contracts that apply to federal halfway houses in order to provide greater support to returning citizens. Examples include requiring halfway houses to provide public transportation vouchers or transportation assistance to help residents secure employment, requiring all federal halfway houses to allow residents to have cell phones to facilitate communication with potential employers and family, and improving and expanding home confinement by increasing the use of GPS monitoring.

March 24, 2014 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS grants cert to explore how many procedural angels can dance on a habeas pin

The snarky title of this post is my reaction to the one cert grant today by the Supreme Court in a capital case from Texas, Jennings v. Stephens [Order List available here].  Upon first seeing news of a grant in a capital case from Texas, I was hoping that the Justices might be taking up some meaty substantive death penalty issue.  

But, as the Order List explains, "petition for a writ of certiorari is granted limited to Question 4 presented by the petition." And here, as summarized via this case page at SCOTUSblog, is that question:

Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

Though I could be wrong on the fact here, I would guess that this specific federal habeas procedural issue arises maybe a couple of times each year at most. It is pretty rare that federal habeas petitioners prevail in the district court, and surely rarer still that a circuit court would on appeal thereafter ding that petitioner on a procedural issue. When there are thousands of cert petitions from defendants raising issues that could impact tens of thousands of criminal cases, I am both intrigued and annoyed that SCOTUS decides to take up a case likely to impact at most a handful of capital cases.

Of course, this issue of habeas procedure is obviously a very big deal to death row petitioner Jennings, and a number of Justices are likely troubled by how the Fifth Circuit handed this case. But would not a summary reversal be a more efficient and effective way to deal with this issue if a majority of Justices are troubled by the procedural maneuver pulled by the Fifth Circuit?

March 24, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, March 23, 2014

"Marijuana industry finds unlikely new allies in conservatives"

The title of this post is the headline of this interesting new article in the Los Angeles Times.  Here are excerpts:

Political contributors are not the only ones taking notice of the new realities of the marijuana business, said San Francisco-based ArcView Chief Executive Troy Dayton, who estimated his group would pump about $500,000 into pot this year.  Officeholders and candidates now jostle for the stage at investor meetings, he said. "A little more than a year ago, it would have been worthy of a headline if a sitting politician came to talk to a cannabis group," he said.  "Now they are calling us, asking to speak at our events."

No clearer example of the change exists than the industry's newest full-time lobbyist, Michael Correia.  An advocate for the 300-member National Cannabis Industry Assn., he is a former GOP staffer who worked two years as a lobbyist for the American Legislative Exchange Council — the powerful conservative advocacy group that has worked with state lawmakers to block the Affordable Care Act, clean energy incentives and gun restrictions.

"People hear the word 'marijuana' and they think Woodstock, they think tie-dye, they think dreadlocks," the San Diego native said. "It is not. These are legitimate businesses producing revenue, creating jobs. I want to be the face of it. I want to be what Congress sees."

Correia doesn't like to smoke pot. It makes him sleepy, he said.  And he isn't among those who have been in the trenches for years fighting for legalization.  For him, the work is largely about the federal government unnecessarily stifling an industry's growth. Any conservative, he said, should be troubled when companies can't claim tax deductions or keep cash in banks or provide plants for federal medical research....

Correia's association ... recently formed an alliance with Grover Norquist, the anti-tax activist who runs Americans for Tax Reform. In the fall, Norquist stood at a news conference with a longtime nemesis, Rep. Earl Blumenauer (D-Ore.), one of the most liberal members of Congress, to promote a measure that would allow marijuana enterprises to deduct business expenses from their taxes.  "Grover's view is government should not pick winners and losers," Correia said. "It is a fairness issue. This resonates with him."

The Marijuana Policy Project recently purchased a building in Washington's vibrant Adams Morgan neighborhood, complete with a rooftop deck. On a recent warm evening, it hosted its first fundraiser there for a Republican, Rep. Dana Rohrabacher of Costa Mesa. The next day, Rohrabacher noted the "evil weed" some loiterers had been inhaling outside the building: "They were smoking tobacco," he said.

Rohrabacher is a coauthor of a bill that would require the federal government to defer to state laws that allow marijuana sales. "If it was a secret ballot," he said, "the majority of my Republican friends would vote for it."

March 23, 2014 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Noting disparities resulting from reservation sentencing being federal sentencing

Ndlr-cover-86-3This local article from North Dakota, which is headlined "Article scrutinizes disparities in sentencing on reservations: American Indians face harsher penalties when tried in fed court vs state courts, advocates say," highlights an often-overlooked pocket of the federal sentencing system. Here are excerpts from the lengthy piece:

Dana Deegan is serving a 10-year sentence for placing her newborn son in a basket and abandoning him for two weeks, allowing him to die. Deegan, who was 25 years old when her son died in 1998 on the Fort Berthold Indian Reservation, had three older children and suffered from depression and abuse. She pleaded guilty in 2007 to second-degree murder to avoid a possibly harsher sentence.

Advocates have said her sentence was much harsher than those given for similar cases prosecuted in state courts in North Dakota – a disparity that critics say applies generally because American Indians accused of major crimes on reservations are prosecuted in federal courts, which generally have stiffer penalties. The issue, which lawyers, judges and legal scholars have long discussed, will soon be the subject of a national study by the U.S. Sentencing Commission.

Senior Judge Myron Bright of the 8th U.S. Circuit Court of Appeals, who is based in Fargo, has for years been an outspoken critic of sentencing disparities involving prosecution of American Indians on reservations. The issue is also the focus of an article calling for changes to address the sentencing gaps in the current issue of the North Dakota Law Review [available at this link], and the study is backed by Tim Purdon, U.S. attorney for North Dakota. The law review authors, one of them a tribal judge in North Dakota, noted the Deegan case as a glaring example of the gap in sentences between the federal courts — whose defendants are overwhelmingly American Indians prosecuted on reservations — and comparable crimes tried in state courts.

Non-Indian women in two similar cases prosecuted in North Dakota state courts received much lighter sentences, authors BJ Jones and Christopher Ironroad noted [in this article, titled "Addressing Sentencing Disparities for Tribal Citizens in the Dakotas: A Tribal Sovereignty Approach"]. In 2000, a 22-year-old woman was sentenced in Cass County for negligent homicide to three years, with imposition suspended for three years of supervised probation, which was terminated less than two years later, according to court records.... In 2007, a 28-year-old woman was sentenced in Burleigh County to 10 years in prison, with eight years suspended, for causing the death of her newborn, which died after being left in a toilet....

Federal courts have jurisdiction on Indian reservations under the Major Crimes Act passed in 1885. Ordinarily, states prosecute “street crimes,” including assault, burglary, sexual assault, murder and vehicular manslaughter. Because of strict sentencing guidelines, with mandatory minimums and no probation or time off for good behavior, sentences in federal court generally are higher than those in state courts, at least in states including North Dakota, South Dakota and Montana, lawyers and federal judges agree. “The law needs to be changed and Indians need to be treated on an equal basis, the same as their white neighbors,” Bright said.

But many agree that state penalties for certain crimes, such as vehicular manslaughter, are higher.  That, in fact, was a finding the last time the issue of sentencing disparities was studied in 2003 by an advisory group for the Sentencing Commission. But the group found the perception of an unfair disparity in sentences received by American Indians in federal court compared to state court was “well founded,” Purdon wrote the chairman of the Sentencing Commission earlier this month.

Purdon, who serves as chairman of the Attorney General’s Native American Issues Subcommittee, said more study is needed into the widespread perception of unfair sentences. “If the court system is perceived as unfair it undermines my ability to make the reservations safer,” he said, adding that the U.S. Department of Justice supports further study of the issue.

Two federal trial judges in North Dakota agreed that, because of federal sentencing guidelines, criminal sentences sometimes are higher than state court sentences, but cautioned that the reverse also is true for certain crimes.  “I believe it works both ways,” said Chief Judge Ralph Erickson of U.S. District Court in Fargo.  “Some crimes are less than customarily handed down in state courts,” such as vehicular homicide.

Much of the disparity comes from the lack of parole in the federal court system, meaning a defendant serves the entire sentence, Erickson said. “That’s where the rub comes in,” he said. “We’re aware of that and it’s frustrating.”... A comprehensive study is needed to determine if there are, in fact, sentencing disparities, Erickson said. If so, then solutions can be identified.

“There’s an overall disparity in sentencing,” said Judge Daniel Hovland of U.S. District Court in Bismarck. “Generally, federal sentences tend to be more severe,” but he agreed with Erickson that there are exceptions, including manslaughter. “I think the sentencing commission is going to take a much closer look at that issue and it will certainly bode well for everyone in the judicial system,” Hovland said.  “I’m confident they’ll reach a fair assessment.”

March 23, 2014 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, March 22, 2014

Florida state judge balks at 50-year proposed sentence for notable child porn downloader

As reported in this local article, headlined "Sentencing on porn charges delayed for former Univision star," a state judge in Florida is concerned about the lengthy prison sentence being urged by prosecutors for a high-profile defendant. Here are the details:

A hearing to determine the fate of former Univision star Adonis Losada on child pornography possession charges ended without a prison sentence Friday after a judge said she needed more time to decide.  Circuit Judge Karen Miller made the rare move after she told prosecutors that their 50-year recommended sentence for Losada was more than double the highest punishment she had seen for similar crimes in recent years — harsher than sentences in cases where defendants actually had contact with victims.

Losada, who has been in jail since his 2009 arrest on dozens of charges capping an undercover investigation, was uncharacteristically quiet Friday. He again refused to have Miller appoint a lawyer to represent him, as he had during his seven-day trial in February, but refrained from the long rants that forced Miller to halt proceedings several times.... Losada played the laughable, clumsy grandmother, Doña Concha, on the Univision variety show Sabado Gigante — a role he played until his 2009 arrest. Univision is the largest Spanish-language television network in the United States.

Assistant State Attorney Gregory Schiller told Miller that the high sentence was proper for Losada because he had more than 1,000 images of child pornography and was actively trying to arrange to have sex with either the niece or daughter of the undercover detective who was posing as another chat-room user. “He has no sympathy, no care for the children who were being raped, being sodomized in those images. He traded them like baseball cards,” Schiller said.

Miller, however, said her research found that the highest sentence for a child pornography possession case in Palm Beach County over the past three years was 18 years. She also noted that prosecutors who charge defendants with dozens of counts in these cases usually carry a fraction of those charges into trial or drop some of the charges upon conviction.

Schiller noted that Losada rejected a 20-year plea deal before trial. “So you want me to penalize him for exercising his constitutional right to go to trial?” Miller asked.

Based on the convictions, Miller could sentence Losada to up to 330 years in prison, Schiller noted. The minimum recommended sentence based on state sentencing guidelines is 571 months — or just under 48 years....

Losada also faces similar charges in Miami and had been under investigation for child pornography possession in California.

March 22, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, March 21, 2014

"Legitimacy and Federal Criminal Enforcement Power"

The title of this post is the title of thiis new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums.  All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty.  But why do such disparities exist?  Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets.  These understandings, while valid, neglect to account for a less-tangible source of federal criminal power: legitimacy.

“Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair.  A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power.  Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.

March 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 20, 2014

Illinois Supreme Court deems Miller ruling substantive and thus retroactive

As reported in this Chicago Tribune piece, headlined "Ruling allows new hearings for 100 convicted killers," earlier today the Illinois Supreme Court "ruled that state prison inmates serving life without parole for murders they committed years ago as juveniles will receive new sentencing hearings." Here is more about the ruling:

The ruling means that the inmates, some of whom were as young as 14 when they committed murder, will be allowed to present evidence to mitigate their responsibility and obtain a shorter sentence that would allow them to be set free at some point. Prosecutors will be able to offer to try to persuade judges to re-impose the life sentences....

With the ruling, Illinois joins states such as Iowa, Massachusetts and Texas in deciding a 2012 ruling from the U.S. Supreme Court applies to prisoners whose crimes were committed before the ruling.  Minnesota, Pennsylvania and Louisiana are among the states that have refused....

“A minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court’s discretion rather than mandatory,” the Illinois Supreme Court wrote in today’s unanimous opinion written by Justice Charles Freeman.

The ruling in Illinois v. Davis, No. 115595 (Ill. March 20, 2014) (available here), provides this account of its retroactivity assessment:

As the Iowa Supreme Court recognized:  “From a broad perspective, Miller does mandate a new procedure.  Yet, the procedural rule for a hearing is the result of a substantive change in the law that prohibits mandatory life-without-parole sentencing.” State v. Ragland, 836 N.W.2d 107, 115 (Iowa 2013).  In other words, Miller places a particular class of persons covered by the statute — juveniles — constitutionally beyond the State’s power to punish with a particular category of punishment — mandatory sentences of natural life without parole.  See Miller, 567 U.S. at ___, ___, 132 S. Ct. at 2464, 2468; Diatchenko v. District Attorney for the Suffolk District, 1 N.E.3d 270, 277 (Mass. 2013).  Since Miller declares a new substantive rule, it applies retroactively without resort to TeagueSee Schriro, 542 U.S. at 351-52 & n.4.

Also, we find it instructive that the Miller companion case, Jackson v. Hobbs, arose on state collateral review.  Notwithstanding its finality, the Court retroactively applied Miller and vacated Jackson’s sentence.  While our analysis is independent as a matter of Illinois law, the relief granted to Jackson under Miller tends to indicate that Miller should apply retroactively on collateral review.  See People v. Williams, 2012 IL App (1st) 111145, ¶ 54; People v. Morfin, 2012 IL App (1st) 103568, ¶ 57.

We observe that defendant and several amici assert that this court should depart from Teague and adopt a different rule of retroactivity.  However, we do not rely on Teague in our analysis because we view Miller as a new substantive rule, which is outside of Teague rather than an exception thereto. Accordingly, we need not and do not address this argument.  See People v. Campa, 217 Ill. 2d 243, 269-70 (2005) (reviewing court will not decide nonessential issues or render advisory opinions).

March 20, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Drug Dealers Aren't to Blame for the Heroin Boom. Doctors Are."

The title of this post is the provocative headline of this interesting new article from The New Republic. Here is a portion of how the piece gets started:

Heroin epidemics don’t come and go randomly, like the McRib. They have clearly identifiable causes — and in this case, by far the largest cause is doctor -prescribed pills. Every year since 2007, doctors have written more than 200 million prescriptions for opioid painkillers. (Consider that there are 240 million adults in the country.)  And about four in five new heroin addicts report that they got addicted to prescription pills before they ever took heroin....

Most people who try opiates don’t get addicted.  But enough do. Since 2002, the total number of monthly heroin abusers has doubled to 335,000 nationwide.  Some of the addicts get the pills through a well-meaning doctor or dentist, and many others swipe leftover pills from their friends or family members.  The result for an addict is the same: Once the pills or money run out, heroin is still available — and cheap.  At about $10 per hit, it can be half the street cost of pills.

“We seeded the population with opiates,” says Robert DuPont, an addiction doctor who served as drug czar under Presidents Nixon and Ford and who is now a harsh critic of opiate over-prescription.  The supply shock from easy access to prescription drugs has pushed heroin use out of cities and into rural and suburban and middle-class areas. Massachusetts reported a staggering 185 heroin deaths outside its major cities since November, and Peter Shumlin, the governor of Vermont, spent his entire “state-of-the-state” address talking about the nearly eightfold increase in people seeking opiate treatment there since 2000.  “What started as an OxyContin and prescription-drug addiction problem in Vermont has now grown into a full-blown heroin crisis,” he said.

In addition to providing an important reminder about the dynamic (and sometimes unpredictable) intersection of medical care, drug abuse and the "war on drugs," this piece also suggests a reason why we might not want to readily assume (or trust) that the medical profession will be an effective and healthy intermediary when debating how best to reform marijuana laws and regulate the use of cannabis-based products as a pain relievers.

March 20, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (14) | TrackBack

Texas officials get hooked up by special secret (capital) drug dealer

As reported in this AP story, headlined "Texas finds new execution drug supply," Texas officials seem to have special abilities to acquire the drugs needed to continue with executions. Here are the (cloak-and-dagger?) details:

Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month.  But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with The Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.

The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general's office, which has said the state's open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections.  "We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," said Texas Department of Criminal Justice spokesman Jason Clark.

The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to U.S. corrections agencies because they oppose the death penalty.  Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. Earlier this week, a court rescheduled two executions set for this month in Oklahoma — another leading death penalty state — because prison officials were having trouble obtaining the drugs, including pentobarbital, needed for its lethal injections.

Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the U.S. Food and Drug Administration as more conventional pharmacies....

Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled April 3 execution would make him the first to be put to death with Texas' new drug supply, said the issue could become fodder for legal attempts to delay his sentence.  "This might be good stuff," he said.  "And the roads are getting very short here."

But Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment.  "There are a lot of drugs, and Texas can be creative in finding some," he said.

Texas' current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire April 1.  The state executed one inmate, Ray Jasper, on Wednesday evening and has scheduled executions for five more, including one next week.  That execution, like Wednesday's, will draw from the existing stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said.  The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.

Sixteen convicted killers were executed in Texas last year, more than in any other state. Jasper's execution was Texas' third this year, bringing the total to 511 since capital punishment in the state resumed in 1982.  The total accounts for nearly one-third of all the executions in the U.S. since a 1976 Supreme Court ruling allowed capital punishment to resume....

Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns.  Clark, in refusing AP's request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents.  It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.

Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas Attorney General Greg Abbott's office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk.  In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state's suppliers, dismissing the same kind of security concerns raised this week....

Clark said the prison agency planned to ask Abbott to reconsider the issue. "We're not in conflict with the law," Clark said. "We plan to seek an AG's opinion, which is appropriate in a situation like this, and the AG's office will determine whether it's releasable."

March 20, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"

The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines.  In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review.  However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed.  As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”

The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a “lawless system.” However, the Guidelines as ultimately conceived drastically limited the sentencing judge’s ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy.  As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.

This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing.  My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.

March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, March 19, 2014

"Efficiency shouldn’t trump effectiveness in drug sentencing"

The title of this post is the headline in the Washington Post given to this letter from lawprof Mark Osler in response to that paper's recent coverage of prosecutorial opposition to proposals for federal drug sentencing reform.  Here is the full text of the letter as published:

As a former federal prosecutor who now trains criminal lawyers, I read with great interest the March 13 front-page article “Prosecutors fight plan to lower drug sentences.”  At best, the objections by some federal prosecutors to sentencing reform ring hollow.  At worst, they echo that most unfortunate plea of employee organizations: Keep our jobs easy.

Mandatory minimums make it easy to plead a case out, eliminating the effort and expense of trial.  That efficiency is worthwhile if a problem is being solved, but there is no evidence that the mass incarcerations created by mandatory minimums solve any problem.  If they were working, the supply of illegal narcotics would constrict and the price would go up, but some narcotics are cheaper now than 30 years ago.

The anti-reformers argue that mandatory minimums “provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command.”  It is a worthwhile argument, if true, but U.S. Sentencing Commission data have shown that the overwhelming majority of federal cocaine convicts are low-level actors — street dealers, couriers and the like.

Mandatory minimums do create efficiency.  But when that efficiency is primarily used to force pleas from low-level defendants without solving a problem, it is just bullying.

Some prior posts about federal prosecutorial perspectives on sentencing reform:

March 19, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Oklahoma court postpones two executions due to drug shortages

As reported in this AP article, an "Oklahoma court on Tuesday rescheduled a pair of executions set for this week and next, so state prison officials will have more time to find a supply of drugs for the lethal injections."  Here is more about the latest challenge facing a state trying to carry out a death sentence:

The decision came in a lawsuit in which two inmates had sought more information about the drugs that would be used to execute them later this month.  The inmates had sought a stay of their executions, but the Oklahoma Court of Criminal Appeals said that request was moot because the state Department of Corrections doesn't have enough drugs on hand to carry out their death sentences.  "The attorney general's attestations give this court no confidence that the state will be able to procure the necessary drugs before the scheduled executions are carried out," the court wrote.

Oklahoma and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drugmakers — many based in Europe with longtime opposition to the death penalty — stopped selling to prisons and corrections departments.  While the judges didn't rule on the merit of the inmates' stay request, they pushed their executions back a month — Clayton Lockett to April 22 and Charles Warner to April 29....

Oklahoma Attorney General Scott Pruitt said he is upset the executions have been delayed, but said Warner and Lockett will ultimately still be punished for their crimes.  "This delay is not about the facts of the case, nor does it seek to overturn the convictions of these two murderers. Instead, it's about outside forces employing threats, intimidation, and coercion to keep the state of Oklahoma from imposing the punishment handed down for these heinous crimes," Pruitt said.  "It's not a matter of if these punishments will be carried out, but it is only a matter of when."

Lockett, who was to be executed Thursday, was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner was set to be executed on March 27 for the 1997 rape and murder of his girlfriend's 11-month-old daughter.  In their lawsuit, Lockett and Warner said they feared the drugs to be used might be contaminated and cause them undue harm, in violation of a constitutional guarantee against cruel or unusual punishment.  A hearing in Oklahoma County District Court is set for March 26 on whether it's proper for the state to keep execution procedures behind a "veil of secrecy."

"We are relieved that the OCCA's decision allows Mr. Warner and Mr. Lockett to proceed on their constitutional challenge to Oklahoma's execution-secrecy law and execution protocol," Madeline Cohen, a federal public defender who previously represented Charles Warner, said. "We hope that no execution will go forward until we are able to obtain full information about how Oklahoma intends to conduct those executions, including the source of its execution drugs."

In briefs filed with the Court of Criminal Appeals on Monday, the state attorney general's office said prison officials were having difficulty finding pentobarbital, a sedative, and vecuronium bromide, a muscle relaxant. The state also uses potassium chloride to stop an inmate's heart. "The state declared it had pursued 'every feasible option to obtain the necessary execution drugs' but its 'Herculean' efforts so far had been unsuccessful," the court wrote.

State lawyers warned that, if it is required to find different drugs, it would have to write a new execution protocol that would likely face another court challenge. Judge Gary L. Lumpkin dissented Tuesday's decision. He said the inmates had failed to meet their burden for a stay but said the court shouldn't have granted a delay because the state hadn't asked for one.

March 19, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, March 18, 2014

Despite legislative abolition, Connecticut jury imposes death sentence on triple murderer

This local article from Connecticut reports on the outcome of the last capital case that was still in the works when the state abolished, prospectively only, the punishment of death.  The article is headlined "Roszkowski gets death row for triple murder," and here are the basics:

A career burglar from Trumbull became the 12th and last resident of Connecticut's death row when a jury found he should die by lethal injection for the execution-style murders of a mother, her 9-year-old daughter and a Milford landscaper. "I won't have any trouble getting to sleep tonight because I know we did the right thing," said juror Cedric Grech, shortly after a state Superior Court jury on Monday handed down the penalty for Richard Roszkowski.

"Right now I'm emotionally drained," said juror Ladawn Newton. "But I know that mother, her little girl and Mr. Gaudet and their families can finally have peace in their lives, and that makes me feel good that we made the right decision."

The fact that he will now be in the history books -- albeit for one of the worst crimes in the city's history -- didn't appear to affect the 48-year-old Roszkowski, who sat emotionless at the defense table as the verdict was read by Court Clerk Thomas Saint John.

It was certainly not lost on his lawyer, Michael Courtney, who had bragged in the courtroom during the two-month trial that he had never lost a Connecticut death case. Courtney's face turned bright red and he shook his head mouthing, "No, no, no" as the verdict was announced. Meanwhile, his co-counsel, Corrie-Ann Mainville, moved up to Roszkowski and began massaging his back and shoulder, whispering in his ear.

"This verdict was for Kylie," said C. Robert Satti Jr., who prosecuted the case along with Margaret Kelley, referring to the murdered girl. Satti's father, C. Robert Satti Sr., had successfully prosecuted the last man executed in this state, serial killer Michael Ross, who died by legal injection in 2005 after 20 years on death row. "It was an extremely conscientious jury that weighed the facts and the evidence and came to the appropriate verdict," Satti said.

Several jurors said it was the brutality Roszkowski showed the girl that earned him the death penalty. "There was just no excuse for what he did to the little girl," Grech said....

In a strange twist in the case, the president of Poland -- Roszkowski is of Polish descent -- is demanding that the U.S. not execute him; the courts have not yet addressed the issue.

In April 2012, Gov. Dannel P. Malloy signed a law eliminating the death penalty, but kept it in place for the 11 people now on death row. The Roszkowski case, which was pending at the time the law was signed, is the state's last death-penalty trial.

March 18, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

As a matter of law, policy and practice, what should be the "offense" a sentencer considers?

The question in the title of this post is arguably the most fundamental and important question (and one which is conceptually and practically quite difficult) for any and all sentencing systems.  And yet, this question seems rarely examined or even discussed except when there is controversy over issues like the use of acquitted or uncharged conduct in a guideline sentencing system.  Because I will be exploring this question with my sentencing students in coming classes, I am quite eager to have readers of this blog share their perspectives.

Some important consensus realities help explain why the question is conceptually and practically quite difficult: (1) nearly all sentencing systems and observers agree that the offense(s) of conviction must be a necessary and critical part of the "offense" to be considered at sentencing, but (2) nearly all sentencing systems and observers agree that at least some non-conviction, offense-related factors (such as motive and leadership role) should also be considered sentencing.  In other words, there is a consensus view that the "offense(s) of conviction" are a central but non-exclusive part of what I would call the "offense for sentencing."  That consensus, in turn, presents critical follow-up questions concerning just how a sentencing system (A) can/should define and process the "offense(s) of conviction" and (B) can/should allow, structure and/or require of any variety of non-conviction, offense-related factors.  Some of the most challenging and controversial issues of modern sentencing can often hinge on matters related to these follow-up questions/categories A and B.  

For example, under category A, a sentencing system must consider cases in which a defendant is convicted of multiple offenses and decide if a sentencer must or should group multiple convictions for sentencing consideration or should instead consider each offense distinctly and then combine in some way the sentence determined separately for each offense.  Also under category A are hard questions about offenses that have as a fundamental element the requirement of a serious prior conviction — like failure to register as a sex offender or felon in possession of a firearm.   A sentencing system has to consider if a sentencer must or should view the nature and circumstances of the predicate prior offense as important in consider the new offense of conviction.

Hard issues raised under category B are even more common and often much more controversial.  For example, if/when a defendant has been charged but not convicted of offense-related conduct either because of a jury acquittal or a plea deal, can/should/must a sentencer consider (or be barred from considering) facts and factors related to charged but unconvicted conduct?  In addition, just how much weight can/should/must a sentencer give to offense-related factors that are rarely part of a formal conviction (factors like motive and leadership role and victim impact), but that are often thought central to understanding how truly serious any specific offense really is. 

March 18, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"The Criminal Court Audience in a Post-Trial World"

The title of this post is the title of this interesting new article by Jocelyn Simonson available via SSRN. Here is the abstract:

Legal scholars today criticize the lack of public participation in the criminal justice system as a barrier to democratic accountability, legitimacy, and fairness.  When searching for solutions, these critiques bypass consideration of the audience members who attend criminal court each day — people who fill courtrooms to watch the cases in which their friends, family, and community members have been either victimized or accused of a crime.  This is a mistake, for the constitutional function of the audience is one uniquely suited to help restore public participation and accountability in a world without juries.

The Constitution protects the democratic function of the local audience through both the Sixth Amendment right to a public trial and the First Amendment right of the public to attend criminal court.  This Article argues that these rights apply with full force in the routine criminal courtroom, in which arraignments, pleas, and sentencings, rather than trials, are taking place. Recognizing and enforcing the constitutional protection of the audience will require local criminal courts to grapple with widespread issues of public exclusion from the courtroom.  Doing so has the potential to play a part in reinvigorating the lost connection of the public to the realities of routine criminal justice, linking a generally disempowered population to mechanisms of government accountability and social change.

March 18, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, March 17, 2014

You be the federal sentencing judge: months, years or decades in prison for notable Medicaid fraudsters?

White-collar crimes, especially when there are few if any individual victims, oft raise especially tough and dynamic issues concerning how to weigh and balance offense- and offender-related sentencing consideration. These realities seem especially true in an interesting federal health care fraud case from South Carolina described in this local article. The piece is headlined "As Medicaid fraud sentencing nears, SC youth agency founder seeks leniency so he can be positive role model for his children," and here are excerpts:

The founder of the Helping Hands Youth and Family Services agency, guilty of bilking the federal Medicaid program for millions of dollars, has asked a federal judge for leniency when he is sentenced Wednesday for six felony charges related to health care fraud.

Truman Lewis — who founded the for-profit youth mentoring agency that had offices in Conway, Georgetown, Columbia and Rock Hill — said in court documents that he still maintains his innocence and deserves no more than a six-month prison sentence.

Lewis and his brother, Norman Lewis, were found guilty in an August jury trial of conspiracy to commit health care fraud, conspiracy to commit money laundering and four counts of wire fraud.  They each face up to 10 years in prison for committing health care fraud and up to 20 years in prison for the money laundering and wire fraud charges. Both men will be sentenced Wednesday in Charleston by Judge Richard Gergel.

The jury found that the Lewises billed Medicaid for $8.9 million — much of it fraudulent  — over a nearly two-year period starting in 2009, and then used the money to buy luxury cars, a beachfront condominium and homes.  At the time of their indictment in June 2012, the Lewises had $1 million in certificates of deposit and bank accounts.  The jury determined that all of those assets can be seized to help pay back the money taken through fraudulent billings.

Helping Hands — which was supposed to provide mentoring services to low-income children with family or behavioral problems — had hundreds of youth clients in Horry and Georgetown counties.  Those clients were referred to the agency by the state’s Department of Social Services and area school officials, even though the agency’s counselors were not licensed.

Truman Lewis, in a court document filed on Friday, said he “may have made mistakes along the way but does not believe he did so with a malevolent intent and is wanting to work his way out of this position he finds himself in.”

At age 35, Truman Lewis is the oldest of 14 siblings who were “sometimes forced to live on food stamps,” the court document states, adding that the youth mentoring agency he founded allowed him “to pave the way for his siblings in school and work to show them there was a way out of poverty.”  Truman Lewis said he never should have faced criminal charges because his agency had entered into a repayment plan with state officials who oversee the Medicaid program before any charges were filed.  He said a long prison sentence would be detrimental to the government because he would not be able to work and pay restitution.

If the court allows Truman Lewis “to serve a sentence below the guidelines range, he may be able to seek employment to help work on restitution to the government,” the court document states.  Truman Lewis said he also wants a minimum prison sentence so he and his wife can continue to be positive influences on their four children.  “The entire family is extremely religious and attend church regularly, sometimes four to five times weekly as a family,” the court document states, adding that Truman Lewis and his wife “have a deep abiding belief in their religious convictions and are trying to pass their beliefs on to the children.”

David McCann, a court-appointed lawyer representing Norman Lewis, filed a document Monday asking for leniency for his client, but the filing does not recommend a specific prison sentence.  A lengthy sentence for the 32-year-old Norman Lewis “interrupts his young family and presents the unnecessary cost to taxpayers for confinement and treatment, if available,” McCann said in the court filing.

Norman Lewis’ previous court appearances have been marred by outbursts and repeated requests to represent himself at trial.  Norman Lewis initially told Gergel he wanted to be represented by God and Jesus rather than a court-appointed defender.  He also spoke during an arraignment hearing about more than 100 songs and poems he has written about his work with Helping Hands, “doing so in a manner that left the court concerned with the defendant’s mental capacity.”

A psychiatric exam in December 2012 showed Norman Lewis was competent to stand trial, prompting Gergel to approve his request to represent himself. Gergel rescinded that request in February 2013 after Norman Lewis repeatedly refused to accept boxes of discovery documents needed for trial preparation.  Norman Lewis’ refusal to meet with a probation officer led to his incarceration three months later and he was charged with contempt of court in July for speaking to potential jurors.

Norman Lewis’ wife, Melanie Lewis, pleaded guilty last year to one conspiracy charge in a plea agreement to avoid a trial.  That charge carries a maximum five-year prison sentence. Melanie Lewis will be sentenced on Thursday in Charleston.

Testimony during the August trial showed Helping Hands officials — most of them Lewis family members — falsified records and submitted bills for ineligible or non-existent clients in order to boost Medicaid payments.  Lewis family members then transferred that money to personal bank accounts and purchased items such as 10 automobiles, including an $89,000 Bentley and a $55,900 Mercedes....

Bank records included in court documents show Helping Hands billed Medicaid a steadily increasing amount starting in January 2009, when the agency received $13,500 from the federal health program.  By April 2010, Helping Hands was billing Medicaid for $1 million per month.  The agency closed for good in 2011.

Based on the amount of money apparently involved in this federal fraud (as well as enhancements for leadership role and other aggravating guideline factors), I would guess that the guidelines recommend a sentence of a decade or more for Truman and Norman Lewis. But would it be more effective and efficient for them to get a shorter prison sentence coupled with a rigorous set of restitution obligations to help ensure federal taxpayers are made whole?

You be the judge (and, ideally, propose in the comments a sentence that makes a clever pun about Helping Hands).

March 17, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims

Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)

Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011).   This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction."  At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."  

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).  

For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings.  This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.

More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.  See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”).  This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold.  See Dorcely, 454 F.3d at 370-71.  Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review).  Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).  

I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question."  Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements.  A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.

Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements.  But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements.  Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.

That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements.  At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.

Some old posts on the Ball case and acquitted conduct sentencing enhancements:

March 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

"Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing"

The title of this post is the title of this notable new article available via SSRN co-authored by a federal judge and a law professor. The piece, by Mark Bennett and Ira Robbins, examines an arena of sentencing law and practice that rarely gets the attention I have long thought it deserved.  Here is the abstract:

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves.  But what do sitting federal judges think about allocution?  Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions?  These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States.  This Article provides a summary and analysis of the participants’ responses.  Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences.  Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.

This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible.  Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.

March 17, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (35) | TrackBack

Sunday, March 16, 2014

NY Times sees "A Rare Opportunity on Criminal Justice"

The title of this post is drawn from the headline of this new New York Times editorial about federal sentencing reform.  Here are excerpts:

The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die.  Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.

Two bipartisan bills now under consideration aim to unwind our decades-long mass incarceration binge and to keep it from happening again. This fact is remarkable not only because of Congress’s stubborn standstill, but because crime and punishment has long been one of the most combustible issues in American politics....

The Smarter Sentencing Act — introduced in the Senate last year by Richard Durbin, the Illinois Democrat, and Mike Lee, the Utah Republican — would halve mandatory minimum sentences for certain nonviolent drug crimes, which currently stand at five, 10 and 20 years. It would also give judges more discretion to sentence below the mandatory minimum in some cases, and it would provide a chance at early release for thousands of inmates sentenced under an older law that disproportionately punished crack cocaine offenders.

The Recidivism Reduction and Public Safety Act, introduced by Sheldon Whitehouse, Democrat of Rhode Island, and John Cornyn, the Texas Republican, would allow low-risk prisoners to earn credit for early release by participating in education, job training and drug treatment programs.

Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it. The bloated Bureau of Prisons eats up nearly $7 billion a year, a quarter of the Justice Department’s entire budget. Politicians like Senator Rand Paul, Republican of Kentucky, and Mr. Lee have become the public face of the conservative turnabout, and they deserve credit for their efforts, but it’s important to remember that almost none of this would be happening without the need to save money.

In fact, many of the reforms now under consideration at the federal level began in reliably conservative states, where budget crises long ago demanded sweeping and lasting change. In Texas, which incarcerates more people than any other state, lawmakers have adopted alternatives to prison, such as drug courts and improved community supervision programs, that help keep people from reoffending. The result has been a steady decline in the prison population and the closing of three state prisons, even as crime rates go down. As Mr. Cornyn told The Times, “From Texas’s perspective, the evidence is in.”

Since 2000, 29 states have moved to cut back on mandatory sentences, particularly for low-level and nonviolent drug offenders, according to a new report by the Vera Institute of Justice.

Some prosecutors and politicians warn that all this reform comes at a serious risk to public safety, but the experience of multiple states shows otherwise.  Reserving prison for the most violent offenders saves money, and antirecidivism programs targeted at low-risk inmates protect public safety.

Whether the concern is too much government, too little money, or the inherent unfairness of locking people up for years for no good reason, the energy from both the right and the left is converging, and the moment for meaningful reform has arrived.

Though I share the general perspective that there is a “fierce urgency of now" for federal sentencing reforms, I disagree that money explains these recent developments at the federal level.  States, especially red states, have been at the forefront of modern sentencing reforms because of the need to balance budgets without raising taxes, but the feds have long shown a willingness to borrow money for any and all federal priorities. Rather, I think there is a new generation of politicians and voters who no longer view crime as much more salient concern than just and effective punishment.

Younger and more diverse politicians and voters appreciate that too much government and punishment can be as worrisome as a bit more crime, and that is what I think we are now finally getting a much more balanced federal political discourse about these issues than we did a generation ago. (Notably, the Baby Boomers were the first major generation who did not directly experience/witness the harms/problems of Prohobition and totalitarian regimes, so it makes some sense that generation would embrace a big criminal justice system eschewed by their parents and their children.)

March 16, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Saturday, March 15, 2014

Top Texas criminal court, in split ruling, decides Miller is to be applied retroactively

As reported in this Austin American-Statesman article, headlined "Court tosses out sentence for Austin killer," the Texas Court of Criminal Appeals ruled this past week that the US Supreme Court's Miller ruling is to apply retroactively.  Here are the basics:

The state’s highest criminal court Wednesday ordered a new sentence for Terrell Maxwell, who is serving life in prison without the possibility of parole for shooting an Austin man in the head during a 2007 robbery.  Maxwell was 17 at the time of the shooting, and the Texas Court of Criminal Appeals ruled that his automatic sentence of life without parole violated the U.S. Constitution’s prohibition on cruel and unusual punishment when applied to defendants who were under the age of 18 at the time of the crime.

The 5-4 ruling left intact Maxwell’s conviction for capital murder in the death of Fernando Santander, who was shot while sitting in a van in the parking lot of his apartment complex near Rundberg Lane.  Two accomplices testified that Maxwell shot Santander when the 31-year-old, startled to find a gun pointing at his cheek, quickly raised his hands in surrender, court records show.

The Texas court split on whether a 2012 U.S. Supreme Court ruling — Miller v. Alabama, which established that automatic no-parole sentences for juveniles were unconstitutional — applied retroactively to defendants like Maxwell.

Writing for the Texas court’s majority [opinion available here], Judge Cathy Cochran said the Miller ruling required that Maxwell be given the opportunity to argue in court that life without parole was not an appropriate sentence.  The Miller ruling did not prevent life without parole for juvenile murderers, Cochran wrote.  But before such a sentence can be imposed, jurors must consider “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” she noted.

Two dissents — written by Judges Michael Keasler and Paul Womack, joined by Presiding Judge Sharon Keller and Judge Barbara Hervey [available here and here] — said the Miller ruling should not be applied retroactively....

Texas no longer allows the practice, but 17 Texans are serving life without parole for murders committed while they were juveniles between 2005 and 2009. In 2005, Texas juries were given the choice between execution and life without parole for those convicted of capital murder. Because capital punishment was unconstitutional for offenders younger than 18, a guilty verdict meant a mandatory life sentence without parole for teens tried as adults.

Four years later, the law was amended to ban no-parole sentences for juveniles. Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive.

March 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, March 14, 2014

"G.O.P. Moving to Ease Its Stance on Sentencing"

The title of this post is the headline of this lengthy new New York Times article, which reports on political developments that should be largely well-known to regular readers of this blog.  Here are snippets (with a key legislative development highlighted in the middle):

[L]eading Republicans are saying that mandatory minimum sentences in the federal system have failed — too costly, overly punitive and ineffective. So they are embracing a range of ideas from Republican-controlled states that have reduced prison populations and brought down the cost of incarceration.

The shift turns upside down the “war on crime” ethos on the right, and even among some on the left, an approach that has dominated the policy of punishment for more than two decades.

Religious conservatives see these efforts as offering compassion and the hope of reuniting broken families. Fiscal conservatives say the proposals would shave billions off the federal budget. The combination has made closing prisons and releasing inmates who no longer appear to pose a threat new articles of faith among politicians who would have rejected them out of hand only a few years ago....

The changes represent a rare example of both parties agreeing in a major area of domestic policy. The Obama administration is engaged and supportive of the efforts in Congress, as was evident on Thursday when Attorney General Eric H. Holder Jr. endorsed a proposal that would reduce prison sentences for people convicted of dealing drugs, the latest sign that the White House is making criminal justice a priority of President Obama’s second term.

Bipartisan talks to move forward on a broad criminal justice bill have escalated in recent days. Republicans and Democrats are in early discussions about combining two bills that the Senate Judiciary Committee approved overwhelmingly this year. The first would give judges more discretion to depart from mandatory minimum sentences in lower-level drug cases, cut down mandatory sentences for other drug offenses, and make retroactive the 2010 law that shrunk the disparity between cocaine and crack-cocaine sentences.

The second bill seeks to tackle the other end of the problem by establishing a skills-training and early-release system for those who already are incarcerated but are considered at low risk of committing another crime. Senator Harry Reid of Nevada, the majority leader, has signaled to both parties in the chamber that he will bring a criminal justice bill to the floor this year.

These proposals have united political odd couples. Senator Mike Lee of Utah, along with and Senator Ted Cruz and Senator John Cornyn, both of Texas — some of the most conservative Republicans in the Senate — are aligned with Senator Richard J. Durbin of Illinois and Senator Sheldon Whitehouse of Rhode Island, who are among the more liberal Democrats. The subject consumed an animated panel discussion last weekend at CPAC, the annual gathering of conservatives, with Grover Norquist, the antitax advocate; Gov. Rick Perry of Texas; and Bernard B. Kerik, the former New York City police commissioner....

Mr. Cornyn, a former judge and the No. 2 Republican in the Senate, identified another conservative ideal behind the changes: They originated in the states, where most Republicans would prefer to let policies develop and mature. “When the states take the initiative, it goes from being a theory or a philosophy or an ideological discussion to ‘What’s the evidence?’ ” he said. “From Texas’s perspective, the evidence is in.”...

Mr. Whitehouse noted how politically and demographically diverse the states were that formed the basis for the Senate’s legislative model. “The states we’d talk most about,” he said, “were Rhode Island, Texas, Kentucky and Pennsylvania. Go figure.”

Some Republicans want to take the changes even further. Legislation that Senator Rand Paul of Kentucky is drafting would restore voting rights for some nonviolent felons and convert some drug felonies to misdemeanors.

Mr. Paul, who is a possible presidential candidate in 2016 and has been courting constituencies like African-Americans and young people who feel alienated by the Republican Party, said it was only a matter of time before more Republicans joined him. “I’m not afraid of appearing to be not conservative enough,” he said, explaining that he got the idea for his legislation by talking with black constituents in the western part of Louisville who complained to him that criminal convictions were often crosses to bear for years, keeping them from voting and getting jobs.

“I don’t think most of the country thinks marijuana is a good idea,” Mr. Paul added. “But I think most of the country thinks that if you happen to get caught doing it when you’re a teenager you should get a second chance.” Like several of the Republicans who have changed their minds on the issue, Mr. Paul has a personal story that helped shape his position. The brother of a good friend, he said, is unable to vote today because 30 years ago he was convicted of growing marijuana — a felony.

For Mr. Portman, it was his encounters with a man about his age, a drug addict who had been in and out of the system several times but received the assistance he needed in prison to help turn around his life. “He’s got dignity and self-respect,” Mr. Portman said. “These stories are unbelievably encouraging.”

For Mr. Lee, who like Mr. Whitehouse, Mr. Cornyn and many of the other lawmakers involved in drafting the legislation has experience as a prosecutor or judge, it was seeing firsthand the inflexible nature of the federal sentencing system. “As an assistant U.S. attorney, I saw from time to time instances in which a judge would say, ‘I’m not sure this sentence makes sense, in fact I have real reservations about it. But I have to,’ ” Mr. Lee said. “Those memories have stayed with me.”

Some longtime supporters of overhauling the federal sentencing and prison systems wish Republicans had come to see their way sooner. But they still marvel at the turnaround. “It’s really striking,” said Jeremy Haile, federal advocacy counsel for the Sentencing Project. “Now they’re arguing the other way: who can be the smartest on crime.”

March 14, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (36) | TrackBack

"Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"

The title of this post is the headline of this new Washington Post article highlighting that not all prosecutors agree with Attorney General Eric Holder about the need for significant sentencing reforms.  Here are excerpts:

Attorney General Eric H. Holder Jr.’s broad effort to eliminate mandatory minimum prison sentences for nonviolent drug offenders and reduce sentences for defendants in most drug cases is facing resistance from some federal prosecutors and district attorneys nationwide. Opponents of the proposal argue that tough sentencing policies provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command....

Longer prison terms for more criminals have led to a significant decline in the crime rate over the past 20 years, these critics say, and they argue that Holder’s proposed changes are driven by federal budget constraints, not public safety. “Rewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities,” Raymond F. Morrogh, commonwealth’s attorney in Fairfax County and director at large of the National District Attorneys Association, testified Thursday to the U.S. Sentencing Commission....

The prospect of ending mandatory minimum sentences for drug offenses had drawn fire from the National Association of Assistant U.S. Attorneys, which has been lobbying senior lawmakers to try to prevent legislation that would change the system. “We believe our current sentencing laws have kept us safe and should be preserved, not weakened,” said Robert Gay Guthrie, an assistant U.S. attorney in Oklahoma and president of the prosecutors’ organization. “Don’t take away our most effective tool to get cooperation from offenders.”

The organization that represents line federal prosecutors has written letters to Holder, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Charles E. Grassley (Iowa), the panel’s ranking Republican, urging them not to change the sentencing rules. Guthrie said that 96 percent of about 500 prosecutors who were surveyed in an association poll did not support Holder’s plan.

But other assistant U.S. attorneys — as well as several who were interviewed — said the new guidelines would reduce prison overcrowding and would be more equitable to certain defendants who can face severe sentences under the current system. “It allows us to be more fair in recommending sentences where the level of culpability varies among defendants in a large drug organization, but where the organization itself is moving large quantities of drugs,” said John Horn, first assistant U.S. attorney in the Northern District of Georgia. “Before the new policy, every defendant involved with over five kilos of coke would be subject to a minimum 10 or 20 years, whether he was a courier, someone in a stash house, a cell head or an organizational leader, and those distinctions can be important.”

Or, as Neil MacBride, a former U.S. attorney for the Eastern District of Virginia, put it: Former Mexican drug lord “Chapo Guzman and some low-level street dealer in Richmond simply don’t pose the same existential threat to society.”...

Sally Yates, the U.S. attorney for the Northern District of Georgia, said any new system will require some period of adjustment. “This is a sea change for assistant U.S. attorneys,” said Yates, who was appointed by President Obama after working as an assistant U.S. attorney for more than 20 years. “They grew up in a system in which they were required to seek the most serious charge, which often resulted in the longest sentence. Now, the attorney general is saying, ‘Look at the circumstances of every case and his or her prior criminal history in determining the fair and appropriate charge.’ That’s a lot harder than robotically following a bright line rule.”

Timothy J. Heaphy, the U.S. attorney for the Western District of Virginia, said prosecutors in his office at first had concerns similar to those of the association. “But as time goes on,” he said, “people are understanding that we’re spending less money on prisons and it is more fair to tailor our charging discretion.”

In the end, a Justice Department official said, assistant U.S. attorneys are free to express their opinions internally, but they don’t make policy. They must follow guidelines, the official added. Indeed, when Guthrie was asked Thursday about Holder’s newest proposal, he acknowledged: “We’ll follow the direction of the attorney general. He’s our boss.”

Some prior posts about AG Holder and prosecutorial perspectives on sentencing reform:

March 14, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, March 13, 2014

"Attorney General Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug Traffickers"

The title of this post is the title given by the Justice Department to this press release with AG Holder's statements to the US Sentencing Commission concerning drug guideline reform.  Here are just a few highlights:

The Justice Department strongly supports the Commission’s proposed change to the Drug Quantity Table. If adopted, this amendment would lower by two levels the base offense levels associated with various drug quantities involved in drug trafficking crimes. This would have the effect of modestly reducing guideline penalties for drug trafficking offenses while keeping the guidelines consistent with current statutory minimums – and continuing to ensure tough penalties for violent criminals, career criminals, or those who used weapons when committing drug crimes.

This straightforward adjustment to sentencing ranges – while measured in scope – would nonetheless send a strong message about the fairness of our criminal justice system. And it would help to rein in federal prison spending while focusing limited resources on the most serious threats to public safety. Let me be clear, my primary obligation as Attorney General is to ensure the safety of the American people. The changes that I have implemented over the past year are designed to do exactly that – while making our system more fair and more efficient.

This proposed amendment is consistent with the “Smart on Crime” initiative I announced last August. Its implementation would further our ongoing effort to advance commonsense criminal justice reforms. And it would deepen the Department’s work to make the federal criminal justice system both more effective and more efficient when battling crime and the conditions and behaviors that breed it.

March 13, 2014 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Previewing what AG Holder will say about drug sentencing to US Sentencing Commission

As noted in this prior post, Attorney General Eric Holder is, according to this official agenda, the first scheduled witness at the US Sentencing Commission's important public hearing today on proposed amendments to reduce drug sentencing terms in the federal sentencing guidelines. The full text of what AG Holder says will likely be available on line later today, but this new Washington Post article, headlined "Holder will call for reduced sentences for low-level drug offenders," provides a preview of what he plans to say (which my emphasis below on an especially notable development) and some context for his latest sentencing reform advocacy:

Attorney General Eric H. Holder Jr. on Thursday will urge reduced sentences for defendants in most of the nation’s drug cases, part of his effort to cut the burgeoning U.S. prison population and reserve stiff penalties for the most violent traffickers.

Holder’s proposal, which is expected to be approved by the independent agency that sets sentencing policies for federal judges, would affect 70 percent of drug offenders in the criminal justice system, according to figures provided by Justice Department officials. It would reduce sentences by an average of nearly a year.

“Certain types of cases result in too many Americans going to prison for far too long, and at times for no truly good public safety reason,” Holder plans to tell the U.S. Sentencing Commission, according to excerpts of his testimony provided to The Washington Post. “Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”

Like Holder’s previous criminal justice reforms, the move is likely to be hailed by civil liberties groups and assailed by some lawmakers who think the administration is chipping away at federal policies designed to deter criminals and improve public safety.

The seven-member sentencing panel has proposed an amendment to federal sentencing guidelines and will vote on it as soon as April. Until then, federal judges must refer to current sentencing guidelines. Holder, however, will instruct his prosecutors in a memo Thursday not to press judges to impose the longer sentences in the current guidelines if attorneys for drug offenders seek shorter sentences for their clients that would be permissible under the new policy.

Under current mandatory minimum guidelines, a drug offender convicted of possessing 500 grams of cocaine or 28 grams of crack would face a term of 63 to 78 months. Holder is proposing that the time in such a case be reduced to 51 to 63 months. “By reserving the most severe penalties for dangerous and violent drug traffickers, we can better protect public safety, deterrence and rehabilitation while saving billions of dollars and strengthening communities,” Holder plans to say. The lower sentencing ranges would result in a 17 percent decrease in the average length of time imposed on a drug offender, Justice Department officials said.

Holder’s new sentencing proposal is the latest step in his agenda to revise the criminal justice system. In August, he announced that low-level nonviolent drug offenders with no connection to gangs or large-scale drug organizations would not automatically be charged with offenses that call for severe mandatory sentences. That measure, however, didn’t address the sentencing ranges defendants could face under federal guidelines.

Holder’s latest policy change would reduce the Bureau of Prison population by 6,550 people within five years, according to the Justice Department. Of the more than 216,000 federal inmates, nearly half are serving time for drug-related crimes. At the same time it is seeking to reduce sentences for nonviolent offenders, the Justice Department is putting greater focus on violent traffickers who bring heroin and other drugs into the United States....

Holder’s efforts to reduce the prison population have drawn criticism from Sen. Charles E. Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee, and other lawmakers who say the administration is undermining policies that were set up to deter would-be criminals.

But many of Holder’s criminal justice policies have been praised by civil liberties groups and have bipartisan support in Congress. A bill that Holder and the Obama administration support to reform prison sentences includes both Republican and Democratic sponsors, including Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Mike Lee (R-Utah).

Last week, at the Conservative Political Action Conference at National Harbor, Md., Republican Texas Gov. Rick Perry said that prison reform is one issue on which he agrees with Holder. “There aren’t many things that the president and the attorney general and I agree about. Know what I mean?” said Perry, who ran for president in 2012.

As noted in this post, I will be off-line most of today in order to travel to and participate in a Sixth Circuit oral argument. But I should be able to provide additional coverage and review of all the sentencing reform action taking place today at the USSC's public hearing before the end of the day.

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 13, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 12, 2014

Alabama judges complain about new guidelines that limit their discretion to impose prison terms

Federal practitioners are used to hearing complains from sentencing judges about mandatory sentencing laws (and formerly mandatory guidelines) that require judges to impose lengthy prison sentences in certain cases.  But now in Alabama, as highlighted by this interesting new local article, state sententencing judges are complaining about new sentencing law that prevents them from imposing prison terms in certain cases.  The article is headlined "Judges criticize sentencing guidelines," and here are excerpts:

All three members of Walker County’s Circuit Court were critical of Alabama’s new sentencing guidelines for nonviolent offenders while visiting with the Rotary Club of Jasper Tuesday.

Presiding Circuit Judge Jerry Selman described the current political climate as “frustrating” for judges because of the guidelines, which took effect in October 2013. “We can no longer put people in jail who steal from us or who sell drugs to our children,” Selman said.

Proponents of the guidelines say that they are needed to address overcrowding in the state’s prisons, which are hovering at 195 percent of capacity. In 2009, federal judges ordered officials in California to reduce the prison population after it had reached 200 percent of capacity.

Selman told Rotarians that he prefers stiff sentences because he believes that the fear of incarceration is a deterrent to crime. As an example of the correlation, Selman shared the impact of a 60 year prison sentence he handed down to a female drug dealer.

He said he felt the sentence was justified because the woman had ruined the lives of multiple children in the black community by offering them marijuana and gradually moving them on to other narcotics. “I had several police officers come to me and say that for at least the first six weeks after that sentence, you couldn’t find a single drug in the black section of Jasper,” Selman said.

Selman added that he expected to see an increase in crime once individuals charged with drug and theft crimes realize the implications of the sentencing guidelines. Word recently reached him that a self-described career thief did not intend to hire a lawyer the next time he made an appearance before Selman because he could no longer receive jail time.

Selman said his opinion is that legislators are “misguided” and are using the guidelines to avoid building more prisons. “They are looking for ways to save money that are not apparent to everyday people. If they quit patching the holes in the highway, it becomes obvious,” Selman said.

Circuit Judge Hoyt Elliott agreed that building prisons would be a more logical solution to the state’s overcrowding problem than limiting the sentencing options available to judges. “The Legislature controls the purse strings. It wouldn’t be an easy thing for them to do, but it could be done. Tax structures could be changed. They are just not going to do it because it’s not politically popular. So they put the burden on us to relieve the overcrowding, and that is not our job to do,” Elliott said.

Circuit Judge Doug Farris said the guidelines will also undercut the incentive to participate in the county’s Drug Court program, which has had over 200 graduates since 2008 and has a success rate of more than 50 percent. “Whatever the Legislature says, I’m going to do, but I think the best way is to give the discretion back to the judges. Sometimes we need to be lenient, and sometimes we need to be strict. Every case is different,” Farris said.

March 12, 2014 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack