Thursday, May 23, 2013

NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource

ImagesCA6ZGXG7I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link.  Here is a bit more from the NACDL press release about the resource (and also my role therein):

Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders.  The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012.  They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.

The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.

On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....

In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:

The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.

The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.  The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law.  Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs.  The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.

I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months.  For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).

May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack

Florida Supreme Court rules local public defenders may withdraw from cases based on excessive caseloads

As reported in this local article, headlined "Supreme Court to allow public defenders to quit cases due to work load," the top court in Florida today issued a notable opinion concerning the challenges facing and authority given to local public defenders. Here are the basics from the press account:

Describing what it called a "damning indictment" of representation for poor criminal defendants, the Florida Supreme Court on Thursday ruled that the Miami-Dade County public defender's office could withdraw from a large chunk of felony cases because of excessive workloads.

The court divided 5-2 on the issue, with Justice Peggy Quince writing a majority opinion that said attorneys who represent defendants in third-degree felonies often have as many as 50 cases set for trial in a week.

"Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial,'' wrote Quince, who was joined in the majority by justices Barbara Pariente, R. Fred Lewis, Jorge Labarga and James E.C. Perry. "Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in 'triage' with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients."

But Chief Justice Ricky Polston, joined by Justice Charles Canady, wrote a dissenting opinion that said the Miami-Dade public defender's office had not proved harm to defendants. Polston and Canady would have upheld rulings by the 3rd District Court of Appeal, which rejected the public defender's attempt to withdraw. "Rather than proving actual (or the likelihood of imminent) violations of individual defendants' constitutional right to effective representation, the public defender's office presented general evidence regarding the average caseload of its attorneys, its lack of funding, and its difficulties in hiring new attorneys," Polston wrote....

Attorney General Pam Bondi and a statewide group of prosecutors fought the public defender's attempt to pull out of the cases. During Supreme Court oral arguments last year, Louis Hubener, an attorney for the state, pointed to a law that bars public defenders from withdrawing from cases solely because of "inadequacy of funding or excess workload."

The Supreme Court found the law constitutional, though it disagreed about how the law should be applied. "(The) statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances," the majority opinion said.

The full 45-page majority opinion and the six-page dissent referenced above can both be accessed at this link.

May 23, 2013 in Procedure and Proof at Sentencing, Television, Who Sentences? | Permalink | Comments (0) | TrackBack

Is Colorado Governor's grant of "clemency light" to quadruple murderer slick or silly?

GovernorhickenlooperThe question in the title of this post is prompted by this Reuters story concerning a fascinating — and clever? crazy? conniving? compelling? — decision made yesterday by the Governor of Coloardo concerning a convicted murderer scheduled to be executed in August.  Here are the basics:

Colorado Governor John Hickenlooper granted a reprieve on Wednesday to the state's longest-serving death row inmate, ordering his execution blocked indefinitely in a move that infuriated prosecutors and victims' families.

"It is a legitimate question whether we as a state should be taking lives," Hickenlooper, a first-term Democrat, wrote in his executive order, issued in response to a request for clemency from condemned quadruple killer Nathan Dunlap.

Dunlap, 39, who has been confined to Colorado's death row for 17 years, was scheduled to be executed in August by lethal injection. His lawyers had asked that Dunlap's death sentence be permanently commuted to life in prison without parole.

Hickenlooper called his order a "temporary reprieve," noting the decision left open the possibility for a future governor to rescind it and allow the execution to move forward. "I think it's highly unlikely that I will revisit it," said Hickenlooper, who is up for re-election next year.

Hickenlooper said he met with the families of Dunlap's victims before issuing the order and that the consensus among them was "disappointment." Bob Crowell, whose 19-year-old daughter, Sylvia, was among those slain, accused the governor of playing politics with the death penalty. "I think it stinks," Crowell told Reuters. "He (Hickenlooper) has not listened to the victims."

Dunlap was convicted and sentenced to death in 1996 for shooting to death four workers at a suburban Denver pizza restaurant where he had recently been fired. He has run out of formal appeals, although his attorneys and others have filed lawsuits seeking to halt the execution.

Dunlap's attorney, Phil Cherner, said he was "heartened" by the governor's decision. "It is a powerful statement against the death penalty. It cannot be administered fairly and needs to be done away with," Cherner said. He added that he broke the news to Dunlap, who he said "continues to be remorseful" for the killings....

Arapahoe County District Attorney George Brauchler, whose predecessor prosecuted the case, blasted the governor for granting what he called "clemency light" to a cold-blooded killer. "There's going to be one person in the system who will go to bed tonight with a smile on his face, and that's Nathan Dunlap," Brauchler said. "And he's got one person to thank for that smile, and it's Governor John Hickenlooper."

It was unclear what effect, if any, the reprieve would have on two more inmates now on Colorado's death row, or on other cases in which prosecutors are seeking the death penalty, including that of accused movie theater gunman James Holmes.  Legal analysts called the reprieve a victory for death penalty foes because it cast further doubt on the future of capital punishment in a state that has executed just one inmate in 46 years.

Colorado Attorney General John Suthers, a Republican and possible gubernatorial candidate, said the governor should not have allowed his "personal discomfort" with capital punishment to halt the execution. "The governor is certainly entitled to these views, but granting a reprieve simply means that his successor will have to make the tough choice that he cannot," Suthers said.

Whatever one might think about the substance of Gov Hickenlooper's grant of "clemency light" here (and I suspect commentors will have a lot to say on this front), I want to at least compliment him for issuing a lengthy explanation for his decision.  As summarized in this press release, Gov Hickenlooper provided this four-page detailed accounting of why he could not bring himself to allow Nathan Dunlap to be executed for his four murders.

Especially because Gov Hickenlooper is up re-election next year, and because it seems the current Colorado AG could be his opponent in that election, the unique decision to do a semi-permanent reprieve here will perhaps ensure that the death penalty in Colorado (where, of course, mass murderer James Holmes is being prosecuted) will be a front-and-center issue in the next Colorado election cycle.

May 23, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, May 22, 2013

Reviewing the new challenge facing states seeking to operate machineries of death

This notable new ProPublica story, headlined "A Prolonged Stay: The Reasons Behind the Slow Pace of Executions," reports on the execution drug procurement difficulties now facing many states seeking to carry out executions. Here are highlights from this lengthy and effective new piece of reporting:

States that impose the death penalty have been facing a crisis in recent years: They are short on the drugs used in executions.

In California, which has the country's largest death row population, the chief justice of the state supreme court has said there are unlikely to be any executions for three years, in part due to the shortage of appropriate lethal drugs.  As a result, state prosecutors are calling for a return of the gas chamber.

Ohio, which is second only to Texas in the number of executions carried out since 2010, said it will run out of the drug it uses in executions, pentobarbital, on Sept. 30.  The state has two men scheduled for execution in November, and eight more set to be killed after that.  Every state's supply of pentotbarbital, which has been the principal execution drug, expires at the end of November.

The shortage has forced death penalty states to scramble on two fronts: They are hunting for new suppliers or different drugs to use, and enacting changes to public records laws to keep the names of suppliers and manufacturers of those alternative drugs secret.

The lack of lethal drugs, and the fight over keeping new ones secret, are partly the result of a remarkably effective campaign by opponents of the death penalty, who have, in effect, taken their efforts from the court room to the boardroom.

Each time a state has found a new source for a drug to use in executions, Reprieve, an anti-death penalty organization based in London, in collaboration with death penalty lawyers in the United States, has used freedom of information laws, the local news media and the powers of persuasion to compel the drug's manufacturer to cut off the supply.

"Who's easier to persuade? The Supreme Court or a corporation that has financial interests?" said Clive Stafford Smith, a British-American, who was a death penalty lawyer in the South for many years before founding Reprieve.  "You can make it not worth their while to allow their drugs in executions."...

Death penalty states are now taking measures to keep anti-death penalty activists, and journalists, from learning the identity of suppliers.  A Georgia law enacted in March provides that any information about a "person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies or medical equipment" used in an execution shall be considered a "confidential state secret."  Already this year, at least three other states — Arkansas, South Dakota and Tennessee — have amended their public records laws to exempt the names of suppliers from disclosure....

In Colorado, a man who killed three teenagers and their boss in a pizza restaurant in 1993 is set to be executed in August.  But the state does not have the proper drugs, causing the director of prisons to send an urgent plea to the state's compounding pharmacies.  At "compounding pharmacies," pharmacists mix, or compound, the ingredients for drugs on site.

Last October, South Dakota became the first state to use a compound drug in an execution, and it did so twice.  Lawyers for one of the men to be executed, Robert Moeller, who had kidnapped, raped and murdered a 9-year-old girl, filed a lawsuit to obtain information about the supplying pharmacy.  The state resisted, and a federal judge sided with the state.

South Dakota was among the states to recently pass a law exempting the names of suppliers of lethal injection drugs from its public records law.  The change was necessary, said South Dakota State Sen. Jean Hunhoff, "because there's been harassment that has occurred against non-protected manufacturers and pharmacists, thereby causing difficulty for the state in obtaining the necessary chemicals for the lethal injection."  South Dakota's law passed in the state senate without opposition, and the house by a lopsided 60-8.

May 22, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (15) | TrackBack

Due to budget concerns, Oregon prosecutors advocating for lower drug sentences

Providing a bit of a man-bite-dog sentencing story, this local article reports on a notable set of lawyers advocating for lower sentences in Oregon.   The story is headlined "District attorneys favor drug sentencing decrease," and here are the basics:

A group of Oregon’s top prosecutors on Tuesday advocated lower prison sentences for marijuana and other drug crimes as a way of curbing the growth of state prisons.  The Oregon District Attorneys Association unveiled a plan to cut prison costs at a press conference in Oregon City.

Clackamas County DA John Foote said in a later interview that the plan is a response to legislation intended to save $600 million over the next decade by capping the prison population at 14,600 people.  The legislation has the support of a public safety commission appointed by Gov. John Kitzhaber and relies on reducing sentences for violent and property crimes.

Foote served on that committee and offered a minority report, which Tuesday’s proposal built on. It avoids any changes to Measure 11, but the prosecutors said it still would achieve the desired savings.  However, critics said the plan doesn’t go far enough and would require opening more prisons.

The bill that came out of the committee would remove first-degree sex abuse, second-degree assault and second-degree robbery from Measure 11 sentencing, and some property crimes from Measure 57.  Foote said the DA’s can’t support those ideas.  He said reducing Measure 11 sentences would be dangerous, and said a brief suspension of Measure 57 in 2009 caused property crimes to spike across the state, giving Portland one of the highest rates in the nation.

“(Reducing drug sentences) isn’t something we would do in a perfect world,” he said. “But we think these are the most responsible options available.”

May 22, 2013 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"[W]hen viewed through the lens of organizational science, courts boggle the mind."

The title of this post is a sentence from this interesting new commentary by Babak Armajani and Judge Kevin Burke, which is headlined "Creating the Courts Americans Want: The public is dissatisfied with our courts; What the judicial system needs is a culture of performance-based innovation." (Hat tip: How Appealing.)  Here is what follows the insight in the title of this post:

External sources (the voters or elected officials) select the "partners of the firm" (the judges) with little or no input from the court or even any understanding of what needs a court may have.  Judges' vision of sharing power with each other is often no more than an office-sharing arrangement, as if they were solo-practitioner lawyers whose practice specialty is being a judge.  The result is that it is a challenge for courts to establish and maintain a sense of unity, let alone an organizational culture of innovation.

There are some bright spots on the court landscape.  Arizona, Colorado, Maryland and Nebraska are among states giving a lot of attention to how to create stronger court organizations and, more important, conditions that foster change and innovation.  The courts in Maryland, for example, have partnered for several years with Johns Hopkins University's Institute for Policy Studies to enhance the courts' leadership capabilities.

Leadership is especially important when it comes to creating a culture of performance in the courts.  As in other organizational settings, meaningful change is initiated not by using technology to pave the cow paths of past practice but by first defining the outcomes the courts seek and then getting all involved to focus on improving those outcomes.

One outcome that most courts have the capacity to measure is the speed or timeliness of their decisions.  Many courts, among them those in Maryland and Minnesota, are working to improve this crucial measure.

Another important measure is the "customer" experience.  Was the litigant heard?  Did the litigant understand the reasoning and terms of a ruling?  The response to questions such as these on simple surveys can provide valuable information about the customer experience.  A decade ago, no court focused on these types of performance measures. Today, the court systems in Alaska, Colorado and Washington State have initiatives focused on measuring and improving the litigant experience, and many local courts have moved in a similar direction.

Where there is measurement, change usually follows. In places where such measures are used as tools for learning how to improve rather than to assign credit or blame, we are seeing the beginnings of dramatic changes in the culture and operations of our courts.

This article is not focused only on sentencing decision-making or criminal case adjudication.  But concerns about the timeliness of decisions are especially acute in death penalty litigation, and I surmise many sentencing "customers" (prosecutors and defendants and their lawyers) are rarely fully satisfied with their court experiences. Thus, I think the themes and ideas of this article should be of special interest to sentencing fans.

May 22, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Notable Miller-aftermath news from three states

Coincidentally, I saw these three news stories this morning concerning how three states are dealing (or not dealing) with the Supreme Court's 2012 Miller ruling concerning the sentencing of juvenile murderers:

In addition to urging readers to comment on which of this trio of states seems to be doing better or worse job with Miller management, I wonder if anyone knows of a collection of resources (ideally on-line) with a state-by-state accouting of responses to Miller and/or a defendant-by-defendant review of efforts to obtain resentencing based on Miller.

May 22, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 21, 2013

Jodi Arias now pleading for a life sentence before sentencing jury

As reported in this new USA Today piece, "Jodi Arias, who said after her murder conviction she would prefer death to life imprisonment, stood before the jury Tuesday and pleaded for her life instead, asking them not to punish her family for her actions."  Here is more on today's action in a high-profile capital case:

Speaking as the only witness on her behalf in the penalty phase of her trial, she also referred to the family of her victim, onetime lover Travis Alexander, saying, "I never meant to cause them pain."...

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Alexander's brother and sister as they described how his killing has torn their lives apart.

Arias acknowledged that her plea for life was a reversal of remarks she made to a TV reporter shortly after her conviction, when she said she preferred the death penalty. "Each time I said that, I meant it, but I lacked perspective," the former waitress said. "Until very recently, I could not imagine standing before you and asking you to give me life."

She changed her mind, Arias said, to avoid bringing more pain to members of her family, who were in the courtroom. "I cannot in good conscience ask you to sentence me to death, because of them," Arias said, pointing to her family. "I think death is tantamount to suicide. Either way, I will spend the rest of my life in prison. It will either be shortened, or not. If it is shortened, the people who will be hurt is my family. I am asking, please, please, don't do that to them."

After she finished speaking, the judge told jurors they can consider a handful of factors when deciding what sentence to recommend, including the fact that Arias has no previous criminal record. They also can weigh defense assertions that Arias is a good friend and a talented artist. Arias, wearing glasses, looked at the jury from time to time, but largely read from notes on a sheaf of papers she clutched in her hand.... At one point, she held up a white T-shirt with the word "survivor" written across it, telling the jurors that she would sell the clothing and donate all proceeds to victims of domestic abuse. She also said she would sell her hair to charity while in prison, and had already done so three times while in jail.

At one point in her remarks, Arias said she regretted how her trial, which drew national attention, had become a spectacle. She said she especially regretted testifying to the "darker elements" of her relationship with Alexander and how the "graphic, mortifying, horrific details" got into the public arena.

She said she had tried, instead, to avoid a trial. "I got on TV and lied about what I did and lied about the nature of my relationship with Travis," she said. "It has never been my intention to malign his name or character. In fact, it was a goal of mine to protect his reputation."

Recent related posts:

May 21, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Guest post on DOJ Report: Victimization of Mentally Ill Prison and Jail Inmates

Hello, all. I'm Lea Johnston, and I'd like to thank Doug Berman for inviting me to guest-blog about the new Department of Justice report released last week on sexual victimization in prisons and jails. I write in the area of mental disorder and sentencing, so I will focus on the mental health aspects of the data.

The DOJ report is based on inmate surveys conducted in over 600 state and federal prisons, local jails, and special correctional facilities between February 2011 and May 2012, and it includes the first national estimates of the sexual victimization of inmates with mental health problems.

The report found that inmates with serious psychological distress — elevated levels of nervousness, hopelessness, restlessness, depression, fatigue, or feelings of worthlessness — reported high rates of sexual victimization by staff and other inmates in 2011-12. In the words of the report:

The report also found that inmates with a history of mental health problems had higher rates of victimization than other inmates. The report ascertained that these characteristics were correlated with significantly elevated rates of sexual victimization:

These findings are significant because they demonstrate that mental disorder serves as a potent risk factor for victimization in correctional facilities. The report reinforces what academics — particularly Professor Nancy Wolff and her colleagues in important articles such as this one — have shown in recent years, but it goes further in detailing the current and historical offender characteristics that may signal risk of victimization.

There are three points related to this report that I think are worth making:

1)      Victimization rates may vary among facilities due to operational differences. The DOJ report shows that victimization rates vary widely among facilities for inmate populations as a whole. I suspect that victimization rates are especially likely to vary for mentally disordered prisoners, given differences in facilities’ housing policies for inmates with mental illnesses. Many facilities house offenders with serious mental illnesses (including clinical syndromes like schizophrenia, bipolar disorder, and major depression) with the general prison population until they reach a state of crisis — a potentially dangerous arrangement for a vulnerable inmate.  Some prisons, however, house disordered, vulnerable inmates in special facilities, wings, or units.  These arrangements may be temporary (designed to equip the offender, for instance, with coping mechanisms) or last for the entirety of the inmate’s confinement. Segregated housing may protect disordered inmates from abusive prisoners in the general population and yield lower rates of victimization.

2)      Victimization rates may improve under national standards released by the DOJ in May 2012 under the Prison Rape Elimination Act.  The PREA standards are aimed at detecting and preventing sexual abuse in correctional facilities and impose new screening, monitoring, reporting, and investigating requirements on prisons and jails.  Beginning in August, audits of facilities will take place every three years.

3)      Sexual victimization is not the only source of serious harm that mentally ill offenders face when incarcerated. They are prone to physical victimization due to their inability to assess danger sufficiently and to modify their behavior to ward off attacks. Cognitive and behavioral limitations can render strict conformance with prison rules difficult, and thus offenders with mental illnesses have elevated rates of disciplinary infractions. Consequently, disordered inmates are disproportionately punished in isolation, where they are especially susceptible to decompensation, psychotic breaks, and suicide ideation.  (I have explored this body of research in several articles, including one article on vulnerability and just desert.) 

As the aforementioned correlation between offenders’ history of mental disorder and sexual victimization suggests — and as the federal government has recognized in the PREA standards — it is possible to identify individuals at a heightened risk of sexual victimization at intake. This information is also available to judges at sentencing. 

My next guest blog will explore whether — and how — vulnerability to serious harm might inform the sentencing of offenders with mental illnesses.

May 21, 2013 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, May 20, 2013

Notable developments in penalty phase of Jodi Arias' capital trial

As reported in this new USA Today article, the "sentencing hearing for convicted killer Jodi Arias ground to a halt Monday when her lawyers refused to call any witnesses and a judge refused their requests for a mistrial and to withdraw from the case." Here is more:

Judge Sherry Stephens stopped proceedings and released the jury for the day, telling them to return Tuesday morning. Defense attorney Kirk Nurmi later said he will allow Arias to speak to the jury Tuesday.

Nurmi clashed with Stephens over a motion he filed seeking a mistrial in the sentencing hearing. Nurmi said a witness who was supposed to testify regarding Arias' character had been threatened and was refusing to testify. Patricia Womack has been receiving "threats on her life if she were to testify on Ms. Arias' behalf," Nurmi wrote in the mistrial motion.

But Stephens refused his motion, saying she could not determine why Womack would not testify because she was not present in the courtroom. Nurmi and co-counsel Jennifer Willmott then asked to drop out of the case. Stephens again refused.

Nurmi then refused to present any witnesses, and Stephens called for the recess. Nurmi later said Arias will speak Tuesday. Also previously scheduled to testify on Arias' behalf was a former boyfriend of Arias'.

Arias, 32, was found guilty May 8 of first-degree murder for the 2008 slaying of Travis Alexander, 30, who was found dead in his suburban Mesa, Ariz., home. He had been shot in the head and stabbed nearly 30 times, and his throat was slit. Arias said she killed Alexander, her secret lover, in self-defense; the jury thought otherwise.

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Travis Alexander's brother and sister as they described how his killing has torn their lives apart.

Now the jury is to consider mitigating factors — evidence about Arias' character and background that may sway them not to impose a death sentence. Stephens instructed jurors that they could consider a handful of factors when deciding what sentence to impose, including Arias' lack of a prior criminal record and assertions that she was a good friend, had an abusive childhood and is a talented artist....

Under Arizona law, if the jury cannot reach a unanimous decision on sentencing, the panel would be dismissed and a new jury would hear arguments and determine a sentence. If the second panel cannot reach a unanimous agreement, the judge then would sentence Arias....

Earlier this week, her lawyers asked to be allowed to step down from the case, but a judge denied the request. Legal experts say the decision was not a surprising one because the lawyers have a conflict of interest with their efforts to save her life after Arias said she would rather die.

Recent related posts:

May 20, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14) | TrackBack

"How to Legalize Pot"

The title of this post is the headline of this notable new op-ed in today's New York Times authored by Bill Keller.  Here are some excerpts from an interesting read:

The marijuana debate has entered a new stage.  Today the most interesting and important question is no longer whether marijuana will be legalized — eventually, bit by bit, it will be — but how....

A few places, like the Netherlands, have had limited legalization; many jurisdictions have decriminalized personal use; and 18 states in this country have approved the drug for medical use.  (Twelve others, including New York, are considering it.)   But Washington and Colorado have set out to invent a whole industry from scratch and, in theory, to avoid the shortcomings of other markets in legal vices — tobacco, alcohol, gambling — that lurched into being without much forethought, and have supplied, along with much pleasure, much misery.

The biggest shadow hanging over this project is the Department of Justice.  Federal law still makes felons of anyone who trades in cannabis. Despite the tolerant drift of the polls, despite evidence indicating that states with medical marijuana programs have not, as opponents feared, experienced an increase in use by teenagers, despite new moves toward legalization in Latin America, no one expects Congress to remove cannabis from the list of criminal substances any time soon....  But federal authorities have always left a lot of room for local discretion on marijuana enforcement.  They could, for example, declare that they will prosecute only drug producers who grow more than a certain amount, and those who traffic across state lines.  Attorney General Eric Holder, perhaps preoccupied with scandal management, has been slow to come up with enforcement guidelines that could give the states a comfort zone in which to experiment.

One practical challenge facing the legalization pioneers is how to keep the marijuana market from being swallowed by a few big profiteers — the pot equivalent of Big Tobacco, or even the actual tobacco industry — a powerful oligopoly with every incentive to turn us into a nation of stoners.  There is nothing inherently evil about the profit motive, but there is evidence that pot dealers, like purveyors of alcohol, get the bulk of their profit from those who use the product to excess. “When you get a for-profit producer or distributor industry going, their incentives are to increase sales,” said Jonathan Caulkins of Carnegie Mellon, another member of the Washington consulting team.  “And the vast majority of sales go to people who are daily or near-daily consumers.”

What [UCLA Professor Mark] Kleiman and his colleagues (speaking for themselves, not Washington State) imagine as the likely best model is something resembling the wine industry — a fragmented market, many producers, none dominant.  This could be done by limiting the size of licensed purveyors.  It would help, too, to let individuals grow a few plants at home — something Colorado’s new law permits but Washington’s does not, because polling showed Washingtonians didn’t want that.

If you read the proposal Kleiman’s team submitted to Washington State, you may be a little boggled by the complexities of turning an illicit herb into a regulated, safe, consumer-friendly business.  Among the things on the to-do list: certifying labs to test for potency and contamination.  (Pot can contain, among other nasty things, pesticides, molds and salmonella.)  Devising rules on labeling, so users know what they’re getting. Hiring inspectors, to make sure the sellers comply.  Establishing limits on advertising, because you don’t want allowing to become promoting....

And then there is the issue of drugged driving.  Much about the chemistry of marijuana in human beings remains uncertain, in part because the government has not supported much research. So no one has come up with a pot version of the breathalyzer to determine quickly whether a driver is impaired.  In the absence of solid research, some legalization advocates insist stoned drivers are more cautious, and thus safer.  (Hands up if you want Harold and Kumar driving your taxi.  Or piloting your airplane.)  On this and much else, Washington and Colorado will probably be making it up as they go, waiting for science to catch up.

May 20, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS unanimously reverses habeas win for defendant based on state elimination of "diminished capacity" defense

Only a matter of weeks after it was argued, the Supreme Court this morning unanimously decided that the Sixth Circuit got a habeas issue wrong in Metrish v. Lancaster, No. 12-547 (S. Ct. May 20, 2013) (available here). Here is the start of the SCOTUS opinion, per Justice Ginsburg:

Burt Lancaster was convicted in Michigan state court of first-degree murder and a related firearm offense.  At the time the crime was committed, Michigan’s intermediate appellate court had repeatedly recognized “diminished capacity” as a defense negating the mens rea element of first-degree murder.  By the time of Lancaster’s trial and conviction, however, the Michigan Supreme Court in People v. Carpenter, 464 Mich. 223, 627 N.W. 2d 276 (2001), had rejected the defense.  Lancaster asserts that retroactive application of the Michigan Supreme Court’s decision in Carpenter denied him due process of law.  On habeas review, a federal court must assess a claim for relief under the demanding standard set by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).   Under that standard, Lancaster may gain relief only if the state-court decision he assails “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court.” 28 U.S.C. § 2254(d)(1).  We hold that Lancaster’s petition does not meet AEDPA’s requirement and that the United States Court of Appeals for the Sixth Circuit erred in granting him federal habeas relief.

Absent something remarkable in the full opinion, I suspect it may prove to be more interesting (or at least more fun) to try to make jokes about the defendant's name in this case rather than to debate the ruling's enduring significance.

Lancaster is the only criminal justice ruling from the Supreme Court today, and I surmise from SCOTUSblog that the next decision day for the Court will be next Tuesday.  I am hopeful (but not optimistic) that the long holiday weekend will give the Justices a chance to finish off at least some of the notable criminal justices cases that we argued way back in January (Alleyne and Deschamps) and February (King and Peugh).  I am also I am hopeful (and a bit more optimistic) that the long holiday weekend will give me a chance to speculate about who may be authoring these opinions and why the are taking so long.

May 20, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, May 19, 2013

How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?

As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date.  This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the (Sixth Circuit) land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean.  Here is part of what it says:

Blewett can only help federal (not state) prisoners who (1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND (2) received a mandatory minimum sentence for a crack cocaine offense, AND (3) were sentenced before August 3, 2010.  The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine....

We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion.  If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it.  This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be.  This opinion could be reversed, in which case it would not help anyone....

If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you.  FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.

A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences.  That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit. 

Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could (and I think should) file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law.

Related posts on Blewett:

May 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17) | TrackBack

Illinois on verge of becoming second biggest state to legalize medical marijuana

As reported in this Chicago Tribune article, only a Governor's veto now stands in the way of Illinois becoming the most populous state other than California to have legalized medical marijuana.  Here are the details:

The Senate today approved legislation that would allow doctors to prescribe medical marijuana to patients with serious illnesses, sending the measure to Gov. Pat Quinn. The issue pitted supporters arguing for compassion for those suffering from pain they say only cannabis can ease against opponents who contend the legislation would undermine public safety.

Sponsoring Sen. Bill Haine, D-Alton, argued the measure is one of the toughest in the nation. Haine said his bill does not reflect other states that have “sloppily” instituted medical marijuana laws. “This bill is filled with walls to keep this limited,” said Haine, a former Madison County state’s attorney.

Sen. Kyle McCarter, R-Lebanon, raised concerns about lawmakers endorsing a product that classified as a controlled substance by the federal government, arguing marijuana is a gateway drug that could lead users to harder substances....

The proposal would create a four-year trial program in which doctors could prescribe patients no more than 2.5 ounces of marijuana every two weeks. To qualify, patients must have one of 42 serious or chronic conditions -- including cancer, multiple sclerosis or HIV -- and an established relationship with a doctor.

Patients would undergo fingerprinting and a criminal background check and would be banned from using marijuana in public and around minors. Patients also could not legally grow marijuana, and they would have to buy it from one of 60 dispensing centers across Illinois. The state would license 22 growers.

The measure drew strong opposition from the Illinois Association of Chiefs of Police and the Illinois Sheriffs' Association, which sent a letter to the governor and lawmakers warning the proposal would not stop medical marijuana card holders from driving while under the influence. They suggested blood and urine testing be included in the legislation to allow police to determine whether card holders had marijuana in their system while driving....

The Senate vote was 35-21, with 30 needed to pass the bill. It goes to Quinn, who has not indicated whether he will sign it. The Democratic governor recently said he is open minded to the legislation.

Though I have not tried to precisely run the numbers, I think the legalization of medical marijuana in Illinois would means that around half of Americans would be living in states with marijuana legalized for use under certain circumstances.  And, as I have suggested before, I think this fact is of potential constitutional significance.

May 19, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (22) | TrackBack

Is OJ providing a high-profile test case for the application of Lafler and Frye?

I have not been following closely the Nevada state habeas proceedings in which convicted armed robber and kidnapper (and acquitted murderer) OJ Simpson is contesting his convictions and sentences.  But this recent Christian Science Monitor article spotlights how "The Juice" is now, yet again, in court bringing attention to notable lawyering and criminal legal practice issues:
O.J. Simpson’s current appeal for a new trial has the potential to shed light on an issue that affects countless lesser-known defendants in the US court system: bad lawyering. Along the way, he might get a helping hand from the US Supreme Court.

Mr. Simpson is seeking a ruling overturning his conviction of armed robbery and kidnapping of sports memorabilia dealers in 2007. He says his counsel was inadequate and that his lawyer misled co-counsel. "I had never sold any of my personal memorabilia, ever," he testified Wednesday, dressed in prison blues.

Squabbles between lawyers and their clients and co-counsels are not uncommon, says Robert Pugsley, a professor at Southwestern Law School in Los Angeles. “Most clients in this situation are so poor or low on the economic scale that their bad lawyering doesn’t get much attention, and so the issue remains largely unnoticed,” he adds. “Whether Simpson prevails or not, this proceeding has a great chance to put the spotlight on this widespread problem.”...

Simpson’s claim of ineffective assistance of counsel “will predictably devolve into a ‘he said, he said,’ conflicting, fact-based narrative by Simpson and his former attorney,” says Professor Pugsley. Simpson's counsel in the robbery case that went to trial in 2008, Yale Galanter, has refused to comment publicly but is scheduled to testify Friday.

Potentially working in Simpson’s favor is a US Supreme Court ruling last session (Missouri v. Frye) that held that the guarantee of “effective assistance of counsel” extends to the consideration and negotiation of pleas – Simpson’s key complaint.

Co-counsel in the 2008 trial, Gabriel Grasso, said on the stand this week that while Mr. Galanter told him he'd talk with Simpson about a proposed plea deal, Galanter never told Mr. Grasso why he rejected it. Grasso said he didn't know if Simpson was even told.

“O.J. might have the good luck to rely on the Supreme Court’s decision last term in Missouri v. Frye. Timing is everything,” says Laurie Levenson, a professor at Loyola Law School in Los Angeles....

Simpson maintains that advice from Galanter not to testify in 2008 is, in fact, part of the reason for this week’s appeal....

The appeal is taking place in Las Vegas, and this is Simpson's last chance under Nevada law to prove that he was wrongly convicted. A federal court appeal is still possible.

However, the standard of proof is so high that Simpson is unlikely to meet it, even if the judge believes everything he says, says Norman Garland, a professor at Southwestern Law School. “Simpson has to prove not only that the advice given to him was deficient, but that he was prejudiced by that deficiency,” says Professor Garland. “The requirements for demonstrating ineffective assistance of counsel are demanding, and the defendant must overcome a strong presumption that counsel’s performance was within the range of competent representation in order to prevail.”

A few recent related posts on Lafler and Frye:

May 19, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Legislative and executive officials revving up Florida's machinery of death

As reported in this lengthy new local article, "Gov. Rick Scott has accelerated the pace of signing death warrants in Florida by lining up three executions over the next few weeks, the most in such a brief period of time in more than two decades."   Here is more about his actions and recent similar activity within his state's legislature:

Scott and his chief legal adviser say they are doing nothing unusual.  But legal experts who oppose the death penalty wonder whether other factors are at work — such as Scott’s desire to improve his standing with voters as he seeks re-election next year.

Not since 1989, when an unpopular Gov. Bob Martinez set a record by signing six death warrants in a single day, has a Florida governor been so eager to use the death penalty. “In the past, governors wouldn’t do multiple warrants at a time. It was a much more orderly process than this,” said Martin McClain, an attorney who has defended many Florida Death Row inmates. “If appears that every 10 days, Gov. Scott is signing a death warrant.”

Scott recently signed three death warrants in succession, for condemned murderers Elmer Leon Carroll, William Van Poyck and Marshall Lee Gore.  All three have been on Death Row for longer than 20 years.  Their executions, set over the next six weeks, will keep the death chamber at Florida State Prison in Starke unusually busy.  Two other recent death warrants have been blocked in federal court.

Scott had signed a total of six death warrants before the recent burst. “I go through them when people have exhausted their appeals and they’re finished with the clemency process,” Scott said. “Then I continue to move the process along.”...

Scott’s spurt of death warrant signings also parallels the Legislature’s recent passage of a bill aimed at speeding up the death penalty appeals process.  Dubbed the Timely Justice Act by legislators, the bill (HB 7083) passed both chambers by wide margins.  It has not yet been sent to Scott for action.  “We’ll review it and see what it does,” Scott said of the bill.  One provision of the bill would require the governor to sign a death warrant within 30 days of a Death Row inmate’s clemency review, a standard step in all death penalty cases.

Some legal experts have raised concerns that the bill could increase the possibility that an innocent person could be put to death.  Former state Supreme Court Justice Raoul Cantero recently co-authored an opinion column in which he said the Timely Justice Act should be viewed in a broader framework of Florida’s death penalty system, “to minimize the risk that Florida might execute innocent people or others who shouldn’t be subject to the death penalty.”....

Florida is one of 33 states that has the death penalty, and it has 405 inmates on Death Row, more than any other state except California.  The state has executed 75 people since 1976, when capital punishment was re-instituted after a long absence.

May 19, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Noting distinct criminal sentencing responses to "hacktivism" in the US and the UK

This new piece from Salon highlights the severity of the US sentencing system relative to our friends across the pond.  The piece is headlined " U.K. hacker sentencing highlights U.S. overreach: LulzSec members in Britain receive maximum of 15 months, while hacktivist Jeremy Hammond faces life in prison here." Here is how it starts:

Hacktivist Jeremy Hammond has already spent 14 months in pretrial detention at federal prison in New York.  He awaits trial for his alleged involvement in the famed LulzSec Stratfor hack and faces up to 42 years in prison.  Meanwhile, across the Atlantic, sentencing of admitted LulzSec hackers in Britain highlights the severity of the U.S. approach to hacktivism.  Three young men in the U.K. pled guilty to activity attributed to the Anonymous offshoot; their charges mirror those facing Hammond, while the extent of punishment is wildly disparate.

As activist publicity organization Sparrow Media pointed out Thursday, “three English co-defendants who plead guilty to being members of the Lulzsec hacktivist group were today sentenced by a UK court.  Ryan Acroyd, the most technically experienced of the three, received the longest sentence -- he will spend 15 months in prison.”

May 19, 2013 in Offense Characteristics, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, May 18, 2013

"Crackheaded Ruling by Sixth Circuit"

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here).  Here are excerpts from Whelan's take:

[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....

Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett.  Here are the titles and links to the press releases coming from these groups:

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.

Related post:

May 18, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

A (dynamically?) dormant death penalty in Dorothy's domicile

Kansas-state-flag-stampThe playfully alliterative headline for this post is spurred by this lengthy and effective local piece headlined "The Kansas death penalty has cobwebs." Here are excerpts:

It may be weeks before Kansans know if prosecutors will seek the death penalty for Kyle Flack, accused of killing four people in Franklin County this spring.   It will take far longer — 10 years or more — before anyone in the state is actually put to death for a crime.

And that time gap, advocates on both sides of the death penalty debate say, suggests the state remains deeply uneasy about the punishment — an ambivalence that muddies its value.  “When a law isn’t applied, it isn’t really a law,” said David Muhlhausen, a death penalty supporter and expert with the conservative Heritage Foundation.

Capital punishment opponents aren’t eager to speed up executions, of course.  But they say the state’s lengthy death penalty procedure is costing taxpayers millions of dollars in legal fees and other expenses without significantly improving public safety.  “Constituents have said to me, ‘We have a theoretical death penalty, but we don’t carry it out in practice,’” said Mary Sloan, executive director of the Kansas Coalition Against the Death Penalty.  “So if we’re not going to carry it out in practice, why do we pay all that cost?”

No one has been put to death in Kansas since 1965.  “Kansas is 10 years and $20 million away from its first execution,” predicted lawyer and capital punishment opponent Sean O’Brien of Kansas City.

But death penalty supporters say the state’s ultimate sanction shouldn’t be judged solely by the number of times it’s actually used.  The mere threat of death — or decades locked in isolation, waiting for death — plays an important role, they say, in the state’s justice system.

Kansas lawmakers reinstated the state’s death penalty in 1994.  Since then, 13 men have been condemned to death for murder.  All remain alive.  Only nine sit on the state’s death row, according to the Kansas Department of Corrections’ website.  The others’ sentences were reduced after appeals and plea agreements, or have been vacated pending a new trial.

Since 1976, when the U.S. Supreme Court validated rewritten capital punishment laws, only two states with death penalty statutes — Kansas and New Hampshire — have not executed a single inmate.

The long gap between capital crime and capital punishment in Kansas is the result of several interlocking factors, experts say.  The state’s death penalty law is narrow, providing a way for even the most brutal killers to escape the punishment.  Some prosecutors use the death penalty more as a negotiating tool than a criminal sanction, and some politicians remain ambivalent about executions, as do many residents in the state.

And the courts play a critical role.  All death sentences in Kansas are automatically reviewed by the state’s Supreme Court.  It’s uniquely allowed to “scour the record” for trial and sentencing errors in capital cases, even those not raised by defense lawyers.  That further raises the chances for delays....

This fall, the U.S. Supreme Court will consider Kansas death row inmate Scott Cheever’s case — he claims his Fifth Amendment protection against self-incrimination was violated during his trial and sentencing for killing a sheriff....

In 2003, a legislative audit examined the state’s death penalty expenses in the previous decade.  Kansas, the audit found, had spent or would spend almost $20 million on its 14 death penalty cases, including cases where the death penalty was sought but not granted. By contrast, taxpayers spent $6.3 million on eight cases where the prosecutors did not ask for death in a murder case.

The most expensive death penalty case involved Johnson County’s John E. Robinson Sr., convicted on two capital murder counts.  Ten years ago, the state said Robinson’s case would cost taxpayers $2.4 million, a bill that has continued to grow.  “Nobody in his right mind defends the death penalty because it saves money, anywhere, anytime, under any circumstances,” O’Brien said.  “Because it doesn’t.”...

Gov. Sam Brownback said last week that his view on capital punishment has changed in recent years, putting him to the left of most in his Republican Party.  He now believes it should be reserved for inmates who pose a future threat to society, using Osama bin Laden as an example. “You’re always looking to protect life,” he said.  “That’s a very narrow definition of the use of the death penalty.”

Brownback’s views on capital punishment in Kansas, though, may be less important than they appear.  Even if he is re-elected in 2014, it’s unlikely he would still be in office when any death row clemency requests might be filed.  But they do suggest many Kansans, even some conservatives, remain uncomfortable with the ultimate sanction....

Some prosecutors and supporters, though, say keeping the death penalty on the Kansas books remains important.  Studies show the death penalty is still a deterrent, Heritage’s Muhlhausen said, although the effect drops in states that don’t actually carry it out.

Other experts dispute his conclusion. The Kansas murder rate is 3.5 per 100,000 people, according to the Death Penalty Information Center.  In Missouri, it’s 7 murders per 100,000.  Both have the death penalty, but only Missouri has carried it out in recent years. Iowa has no death penalty.  Its murder rate is 1.3 per 100,000 people.

But even the threat of capital punishment can focus a defendant’s attention on plea agreements that spare victims’ families from long trials, some lawyers say.  In most agreements, almost all future appeals are waived, ending the trauma of court appearances and media stories about the crime.  Additionally, death penalty defendants have more to worry about than death.

Paul Cramm represented Edwin Hall, now serving a sentence of life without parole after pleading guilty to murdering Kelsey Smith. Clients, Cramm said, are often as worried about the conditions of death row as they are about the execution chamber itself, which encourages plea deals. Death row inmates are kept in El Dorado, Kan., in isolation from almost all other prisoners. Most defendants realize “the likelihood of an acquittal or a finding of not guilty is not real high,” Cramm said. “The likelihood of being executed in your lifetime is not real high. So I guess what we’re negotiating for is, what sort of life do you want to have while you’re incarcerated?”...

Asked if the gap between sentence and execution in Kansas is too long, Brownback hesitated for several seconds. “I’ve been at the chambers in Lansing, where the death penalty would have to be administered,” he said. “That’s a very sobering place to see.

“But I think it’s kind of actually worked for the state,” he added. “Most Kansans would look at it as wanting this to be very, very, very sparingly used.”

May 18, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, May 17, 2013

"Two Rights to Counsel"

The title of this post is the title of this notable new article by Josh Bowers now available via SSRN. Here is the abstract:

This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel.  The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. 

To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye.  An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law.  Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.”  In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle.

It does not follow, however, that the Court’s two-track jurisprudential approach is misguided.  Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.

May 17, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

"Is Marijuana Booming Among Boomers?"

The title of this post is the headline of this lengthy new Forbes article which gets started this way:

Like many of her peers, Zoe Helene, 48, smoked marijuana in her early 20s but gave it up as her career in the digital world took off in the 1990s.  Today the multidisciplinary artist and environmental activist lives in Amherst, Mass., and is building a global network of trailblazers called Cosmic Sister.  Since she married an ethnobotanist in 2007, she has returned to using cannabis occasionally — “as a tool for evolving and expanding my psyche.”

Helene is among a group of women that Marie Claire magazine has dubbed “Stiletto Stoners — card-carrying, type-A workaholics who just happen to prefer kicking back with a blunt instead of a bottle.”  She’s also one of a growing legion of boomers who are returning to marijuana now that the stigma and judgment (and laws) surrounding its use are becoming more lax.

Massachusetts, which decriminalized pot in 2008, became the 18th state to legalize medical marijuana, last year.  In the 2012 presidential election, which New York Times columnist Timothy Egan called America’s “cannabis spring,” Colorado and Washington voters legalized recreational use, launching weed into the national spotlight and spawning a flurry of marijuana initiatives.  Since then, decriminalization bills have been introduced in 10 additional states, and legalization is being considered in 11 states and Puerto Rico.

This trend, along with decriminalization in cities like Chicago, Boston, New York and Denver, has removed a major “barrier to entry” for law-abiding citizens who would use cannabis as medicine or a substitute for alcohol.  No longer worried about breaking the law or having their kids discovering their “dirty little secret,” many boomers are returning to a substance they once enjoyed.  Others, who never stopped smoking, are coming out of the closet (or the garage) about their use.

May 17, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, May 16, 2013

As notable new face joins Eighth Circuit, will court do better with SCOTUS on sentencing issues?

Jane KellyThanks to How Appealing,I just saw this interesting new AP profile of the interesting new judge on the Eighth Circuit.  The article is headlined "Jane Kelly's experience rare on US appeals court," and here are excerpts:

Jane Kelly will become a federal appeals court judge Friday with an unusual background that supporters say makes her a perfect fit for the job and a potential U.S. Supreme Court candidate someday.

The 48-year-old attorney has spent her career as a public defender representing low-income criminal defendants, a rarity in the ranks of appeals court judges who are often former prosecutors and trial judges. She'll become just the second woman in the 122-year history of the 8th U.S. Circuit Court of Appeals, which handles cases in seven states from Arkansas to the Dakotas.

Kelly, who's worked at the federal public defender's office in Cedar Rapids since 1994, graduated from Harvard Law School in the same 1991 class as President Barack Obama. But her appointment was far from patronage. She had so much support that her confirmation received a 96-0 vote in the Senate less than three months after she was appointed, speedier than any other circuit judge nominated by Obama. She also is the survivor of a 2004 beating on a popular jogging trail that left her hospitalized for weeks and shook Cedar Rapids.

Associates say she is a smart legal thinker who has zealously defended the rights of even the most publicly despised clients, including a notorious mailbox bombing suspect and the biggest white-collar criminal in Iowa history. Even prosecutors who disagreed with her in court praise Kelly, who will take the oath of office privately.

"Her story is compelling all the way around," said Debra Fitzpatrick of the University of Minnesota-based Infinity Project, which advocates for more women on the 8th Circuit. "Her credentials and her background and her career sort of set her up to be the right candidate at the right time."

If a Supreme Court justice retires during Obama's second term, Kelly could get mentioned as a potential nominee. Her supporters say they expect her to shine on the circuit, which has 11 active judges and hears 3,500 appeals a year. The lifetime appointment pays $184,500 annually.

Iowa Sen. Tom Harkin, a Democrat, recommended Kelly to Obama to replace retiring Judge Michael Melloy after she rose above an "outstanding" pool. He said she would be the first career public defender on the circuit, bringing "a critically important perspective." Iowa's other senator, Republican Chuck Grassley, ranking member on the judiciary committee, helped convince colleagues to move Kelly's confirmation quickly. Grassley said he supported Kelly because she received a glowing endorsement from respected retired judge David Hansen of Iowa, appointed to the circuit by President George H.W. Bush.

Kelly, Hansen's clerk from 1992 to 1993, was a persuasive writer and debater who often argued opposing viewpoints to help him flesh out cases, Hansen said. "She's a delight to be around, and I predict a very bright future for her in the federal judiciary," Hansen said. "She isn't going to have any trouble intellectually with the work because she has a brilliant legal mind."

Kelly, who did not respond to an interview request, received friendly questions and praise at her confirmation hearing. She said her background gives her a "broader view" of the challenges facing defendants but that she'd need to get up to speed on civil matters. She introduced her partner, Tom Lidd, who has credited Kelly with helping inspire and edit his book about Iowa football legend Nile Kinnick.

A long-distance runner, Kelly's life almost ended when she went for a morning jog on the Cedar River Trail in June 2004. She was tackled and beaten by a male stranger, then dragged to a creek and left for dead. Passersby found Kelly in a pool of blood, in and out of consciousness and struggling to call for help. Speculation swirled that the attack was linked to Kelly's legal work, but no one ever was arrested.

Kelly quickly returned to representing criminal defendants after spending months in recovery. Her colleagues gave her the John Adams Award, which recognizes an Iowa lawyer's commitment to the constitutional right to criminal defense. And hundreds gathered one year later for a "Take Back the Trail" event, where Kelly jogged there again for the first time.

Kelly grew up in Newcastle, Ind., and graduated from Duke University in 1987. She earned a Fulbright scholarship to study in New Zealand before enrolling at Harvard, where she and Obama were acquaintances but not friends. She clerked for U.S. District Judge Donald Porter in South Dakota and then for Hansen.

She taught one year at University of Illinois law school before returning to Iowa as one of the first hires for the new public defender's office. She's been a fixture ever since, often representing "not the most popular person in the room," as she put it in her confirmation hearing, including drug dealers, pornographers and con artists.

As long-time readers and sentencing gurus likely know, many of the most notable modern SCOTUS sentencing rulings involved reversals of Eighth Circuit decisions.  In just last few years alone, the defendants in Pepper, Spears, Greenlaw, and Gall all lost on sentencing issues in the Eighth Circuit prior to reverals in the Supreme Court.  Indeed, I have long speculated that some Justices take an extra long look at some of the sentencing decisions that emerge from that circuit.  I suppose only time will tell if and how these federal sentencing law patterns, and the broader criminal justice jurisprudence of the Eighth Circuit, change at all in the months and years ahead now that a fresh new face with a fresh new perspective has joined that august court.

May 16, 2013 in Booker in the Circuits, Who Sentences? | Permalink | Comments (5) | TrackBack

"Can ‘Smart Gun’ Technology Change the Stalemate Over Gun Violence?"

The title of this post is the headline of this new piece of reporting over at The Crime Report, which echoes some ideas that I have been raising on this blog for a number of years and that I have given extra attention to following the Newtown massacre.  Here are excerpts:

Philadelphia Mayor Michael Nutter issued a challenge to the gun industry yesterday, arguing that the application of “smart gun” technology, designed to program firearms so that only their owners can fire them, could not only save lives but neutralize the concerns of gun rights advocates.

"Why don't you at least try?” Nutter, who also serves as president of the U.S., Conference of Mayors, asked Joe Bartozzi, vice-president of the Connecticut-based firearms manufacturer O.F. Mossberg and Sons.  “Put one on the market and see what happens."

But Bartozzi, speaking at a roundtable for newsroom editors and columnists at John Jay College of Criminal Justice in New York, insisted it wouldn’t work.  Bartozzi said Mossberg had already surveyed focus groups about some of the cutting-edge technology already available, such as personalized rings that could be digitally programmed to recognize the legitimate owner of a weapon.

The response, he said, was overwhelmingly negative.  Customers who wanted guns to protect themselves and their families considered such technology too unreliable, he said. "What if I have to hand the gun to my spouse in an emergency?”  Bartozzi recalled a focus group member asking.

"It’s hard to understand that it represents more than just a piece of steel or plastic.  It represents personal security; it represents security when the police aren't there.  It represents even food when there's no supermarket. It represents self-defense.  It represents liberty and freedom for a lot of people," Bartozzi said....

Nutter and fellow panelist Minneapolis Mayor R.T. Rybak argued that finding technological solutions to the challenge of gun access represented a common sense approach to a problem both sides agreed was a key factor in reducing the kind of gun violence that has afflicted many U.S. cities: the easy access to guns — particularly those sold or trafficked on the black market — to youth gang members and others who otherwise could not get them legally....

The smart gun technology issue, ranging from biometrics to trigger locks, also reflects a wider challenge by gun safety advocates to treat guns as consumer products subject to national safety standards similar to seatbelts in cars or childproof medicine bottles.

Bartozzi, a member of the board of governors of the National Shooting Sports Foundation — the leading industry lobby group — insisted guns are unlike other consumer products subject to federal rules because they are protected by the Second Amendment.  “I think sometimes we confuse what our privileges and rights. Driving a car is a privilege.  You have the right to own a gun,” he said.

Rybak and other speakers at yesterday’s “Under the Gun” roundtable charged that leading gun rights lobbies such as the National rifle Association (NRA) and the NSSF made it harder to reach any compromise because of their objections to both technological solutions and efforts to modernize even the current system for tracking guns used during crimes.

Based in part on prior discussions on this blog (some of which are linked below), I understand fully the reservations that many gun owners and gun-rights activists have about using technology to try to prevent mis-use of firearms.  Nevertheless, I think the development of device that might at least enable one to eletronically disable a stolen or lost firearm could perhaps generate interest in the marketplace, especially if the federal government created tax incentives to encourage use of this kind of gun-safety technology.

More broadly, I think the development of a safer "smart gun" could and should be spurred by some kind of "Project X" private funding scheme through a university or think tank (see example here), especially now that it seems the private marketplace or governments are making much progress on this front.  I suspect just a few millions dollars as a "smart gun" prize (only a fraction of what is being poured into gun policy lobby shops and PACs) could go a very long way to moving forward and ultimately saving innocent lives.

A few recent and older related posts:

May 16, 2013 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (3) | TrackBack

When can and how should sex offenders be responsible for harming property values?

The provocative question in the title of this post is prompted by this recent local article from Pennsylvania headlined "Judge: Sex offender not required to buy victim's property."   Here are excerpts:

A Lehigh County couple who say a neighbor who admitted molesting their child should be forced to buy their property apparently won't get their wish.

County Judge Michele A. Varricchio has shot down the Upper Milford Township couple's unusual request that sex offender Oliver Larry Beck be required to purchase their $235,000 property, according to court records. Varricchio issued the order last week, explaining that forcing a sex offender to buy the home of a victim living in his neighborhood would "open the proverbial floodgates."

"This court finds it against public policy to require a defendant to purchase a plaintiff's property in a nuisance case," Varricchio wrote. The judge added that ordering the home purchase would "impose almost limitless liability on a property owner by every other neighbor who claims difficulty selling his or her property, regardless of the proximity to the alleged nuisance."

Varricchio was ruling on preliminary objections in a lawsuit filed against Beck, along with Beck's wife and mother. The couple whose daughter was molested by Beck filed the suit in December asking a judge to order Beck to buy their home and pay for the child's pain and suffering and for other damages. They claim the property is virtually unmarketable....

They still are eligible to seek damages for their child's suffering and for the loss in value of their property, although Varricchio said they are not entitled to be paid for the total value of the property. Varricchio's order says that that the victim's family should amend the lawsuit to provide details and proof of the loss in the value of their property.

"There is no doubt that the parents have a right to enjoy their own residence and property without the invasion and interference caused by [Beck]," Varricchio wrote. "Property rights are protected by the United States Constitution, but the equal protection clause affords both plaintiffs and defendants that protection."...

There is some scientific evidence that sex offenders lower property values. Two economics professors at Columbia Business School in 2008 studied the effect, finding that the value of homes within one-tenth of a mile of a sex offender dropped by an average of 4 percent.

The suit accuses Beck of sexual assault, infliction of emotional distress, fraud and negligence, among other claims. It also names as defendants Beck's wife and mother, claiming both knew or should have known of Beck's attraction to young children.

Beck, now 65, pleaded guilty in 2011 to indecent assault of a child under 13 and served time in prison. He is out of prison, but under Megan's Law must register as a sex offender for the rest of his life. Investigators said that in February 2011, Beck lured the victim, then 7 years old, into his house by saying he wanted to show her a bear's head mounted in his basement. After telling the girl to feel the bear, Beck told her to take off her shirt and pants and then assaulted her, according to court records.

Beck's attorney, Robert J. Magee of Allentown, wrote in a court brief that the demand for the home purchase was "not appropriate or authorized under a legal or equitable theory." He added that the victim's family is still able to use and enjoy the property. He added, "This is just a type of injury that allows for no recourse, an injury without a remedy."

Varricchio also dismissed the couple's request that Beck pay their attorneys' fees. In addition, she dismissed a claim against Beck's wife that she be held partly liable for their property value loss.

May 16, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (41) | TrackBack

"Capital Prejudice"

The title of this post is the title of this new article on SSRN authored by J. Richard Broughton.  Here is the abstract:

This paper, published as part of a symposium devoted to cultural competency and the death penalty, considers the law of prejudice pursuant to Strickland v. Washington, with a focus on its application in capital cases.  It offers a rarity in the academic literature on Strickland’s prejudice prong: a modest defense of it.  Although this paper concedes the plausibility of an alternative to the existing standard, it argues that some form of harm analysis ought to remain part of basic ineffective assistance jurisprudence and that even the best articulated alternative suffers from some deficiencies that render the existing standard equally desirable.  Indeed, this paper acknowledges that the existing prejudice standard is unlikely to be replaced and therefore must be properly understood and applied. 

The paper gives special attention to the standard as applied in capital cases involving ineffective assistance claims after Strickland, as those cases have tended to dominate the Court’s attention in this area of constitutional criminal procedure.  It then argues that the prejudice standard must account not simply for the strength of the state’s case but also, in the special context of a Strickland challenge arising from the capital sentencing phase, for the unique capital sentencing procedures in place in the relevant jurisdiction and be understood as intersecting with the Eighth Amendment law of aggravation and mitigation law as applied during the jury’s selection decision.

The Court’s opinions in Terry Williams, Wiggins, and Rompilla, in particular, all represented an effort to give greater bite to the Strickland standard and demonstrate that the state need not necessarily prevail on ineffective assistance claims.  But, unlike others in the academic community, I argue that the Court wrongly decided each of those cases. It gave too much attention to the deficiency prong and inadequate attention to proper application of the prejudice prong, particularly in light of the nature of the crimes, the strength of aggravation, and the highly deferential portions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) that generally govern claims on federal habeas review.  The Court, however, has moved in a corrective direction, especially after its recent decision in Cullen v. Pinholster, which will likely have significant consequences for the litigation of ineffective assistance claims on collateral review.

May 16, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 15, 2013

Arizona jurors quickly make finding for Jodi Arias to be formally death eligible

As detailed in this new AP report, the "same jury that convicted Jodi Arias of murder one week ago took about three hours Wednesday to determine that the former waitress is eligible for the death penalty in the stabbing and shooting death of her one-time lover in his bathroom five years ago." Here is more about today's jury finding and what now follows in this high-profile capital case:

The decision came after a day of testimony in the "aggravation" phase of the trial, during which prosecutor Juan Martinez hoped to prove the June 2008 killing was committed in an especially cruel and heinous manner.

Family members of victim Travis Alexander sobbed in the front row as Martinez took the jury through the killing one more time. He described how blood gushed from Alexander's chest, hands and throat as the motivational speaker and businessman stood at the sink in his master bathroom and looked into the mirror with Arias behind him....

The trial now moves into the final phase, in which prosecutors will call Alexander's family and other witnesses in an effort to convince the panel Arias should face the ultimate punishment. Arias' attorneys also will call witnesses, likely members of her family, in an attempt to gain sympathy from jurors so they give her life in prison. That phase is scheduled to start Thursday morning.

The aggravation phase played out in quick fashion, with only one prosecution witness and none for the defense. The most dramatic moments occurred when Martinez displayed photos of the bloody crime scene for the jury and paused in silence for two minutes to describe how long he said it took for Alexander to die at Arias' hands on June 4, 2008....

Martinez told jurors Wednesday that Alexander "suffered immensely" at Arias' hands. "She made sure she killed him by stabbing him over and over and over again," he said.

The defense didn't have much of a case given how many times Alexander was stabbed, the defensive wounds on his hands, the length of the attack, and the sheer amount of blood found at the scene. Defense lawyers said Alexander would have had so much adrenaline rushing through his body that he might not have felt much pain.

The only witness was the medical examiner who performed the autopsy and explained to jurors how Alexander did not die calmly and fought for his life as evidenced by the numerous defensive wounds on his body.

Recent related posts:

May 15, 2013 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

US Judicial Conference seeks emergency funding due to "an unprecedented financial crisis that could seriously compromise [its] Constitutional mission"

As reported in this new post at The BLT, the US Judicial Conference yesterday "asked the White House for emergency funding, saying the judiciary does not have the budget flexibility to absorb the large mandatory budget cuts that have caused furloughs in the nation's federal public defender and court offices."  Here is more:

In a letter sent Tuesday to the White House Office of Management and Budget [available here], the U.S. Judicial Conference said the courts need an emergency appropriation of $73 million — $41 million for federal public defenders and $32 million for court operations. The money would save 550 jobs in public defender and clerk offices, and prevent 24,000 furlough days for 5,000 employees, the letter states.

The judicial conference request also connected the emergency funding to the Boston Marathon bombing, saying $5 million for projected representation costs "for high-threat trials, including high-threat cases in New York and Boston" that federal public defenders would have been able to absorb had the sequester not happened.

The courts want to replace part of the $350 million overall cut to the federal courts budget as part of sequestration earlier this year, according to the letter from U.S. Circuit Judge Julia Gibbons, the chair of the judicial conference, and U.S. Circuit Judge Thomas Hogan, director of the Administrative Office of the U.S. Courts.

"The judiciary is confronting an unprecedented financial crisis that could seriously compromise the Constitutional mission of the United States courts," the letter states. "We believe our supplemental request meets the threshold for receiving an emergency designation."

The federal courts, the U.S. Department of Justice and other federal agencies have been sounding the alarm about the impact of sequestration cuts since last year. Since the cuts went into effect, federal public defenders offices and clerk of courts have announced furloughs for employees.

Congress has so far restored funding cuts that affected air travel, and allowed the Justice Department to transfer funds to avoid furloughs for the prison officers, Federal Bureau of Investigation agents, prosecutors and other officials. So far, the courts have gotten no such consideration. "Unlike some executive branch entities, the judiciary has little flexibility to move funds between appropriation accounts to lessen the effect of sequestration," the letter states.

The judicial conference says $13 million of the funding would go directly to restoring public safety, because it will bring back half of the sequestration cuts for drug testing, substance abuse and mental health treatment of federal defendants and offenders. The request includes $28 million to avoid deferring for three weeks payments to private attorneys representing indigent defendants.

Recent related posts:

May 15, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (31) | TrackBack

"Colorado corrections alerting judges of hundreds of sentencing flaws"

The title of this post is the headline of this Denver Post article, which gets started this way:

Corrections officials are alerting judges throughout Colorado that errors appear to have resulted in early, improper release dates from prison for hundreds of prisoners they sentenced.

The judges are reviewing the case files so they can decide which of those already released from incarceration should be returned to prison to serve out the longer sentences required by state law. Other cases involve prisoners who are on the verge of release who may now see their sentences extended.

These are the early results of an audit still underway by the Colorado Department of Corrections.  Gov. John Hickenlooper ordered the department to conduct the audit after it was disclosed that a parolee believed to have murdered corrections chief Tom Clements was released from prison early because of a clerical error.

The audit, so far, has found "serious questions" in the sentences of 349 individuals either already released from prison or scheduled for release, corrections officials said.  Of those, judges have amended sentences in 56 cases.

The errors occurred for a variety of reasons.  In some cases, judicial clerks may have given incorrect sentences to the corrections department.  In others, corrections officials may have interpreted sentences incorrectly.  A full breakdown is not yet available on how the errors occurred.

The audit still is in the preliminary stages and is not expected to be finished until July. The state has identified 8,415 individuals whose sentences need reviews, with at least 2,500 warranting a more intensive look.  About a fifth of the intensive reviews have been completed. If the current error rate continues, "serious" sentencing flaws could be detected in the cases of more than 1,000 individuals.

I guess this story brings new meaning to the label "Department of Corrections."

May 15, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Judge Kopf weighs in on Rep. Sensenbrenner (and on comments to his comment)

I am pleased to see that Senior United States District Judge Richard Kopf has now discussed, through two recent posts on his blog "Hercules and The Umpire", some of the recent discussion generated by my post concerning Representative James Sensenbrenner's statement about "judge-shopping" and the need for mandatory minimum sentencing laws.  Here are the titles of the two posts by Judge Kopf, along with the heart of Judge Kopf's additional commentary in these posts:

Memo to Doug Berman: The answer is “yes.” (This is a direct answer to this post's title query: "Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping'?"):

I once had an audience with then Chairman Sensenbrenner in his Washington office. It was disconcerting for a variety of reasons.  Prime among the reasons for my disquiet was the fact that the Congressman sat very near to a portrait of himself that was so large and so lifelike that I could not figure out whether I was speaking to the portrait or the real guy. As it turned out, nothing I said to the portrait or the man made any difference.

More on Sensenbrenner:

Everyone who knows anything about the federal district courts understand that it is virtually impossible to judge-shop in the manner suggested by the Bucky Badger doppelgänger.  Everyone who knows anything about federal sentencing policy -- from the Sentencing Commission on down -- also knows that almost all mandatory minimum sentences radically distort and frustrate reasoned sentencing practices.  The current effort to address statutory minimums in Congress is really important and Doug’s effort to stimulate serious discussion on the subject was cheapened by the responses he received.

Good and smart people ought to act good and smart.  We have the Sensenbrenners of the world to provide us with the nasty and dumb.

May 15, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Abortion doc cuts post-conviction deal to get formal LWOP rather than face (symbolic) death penalty

As reported in this ABC News story, "Philadelphia abortion doctor Kermit Gosnell agreed ... to serve two life sentences and waive his right to an appeal in order to avoid the possibility of being condemned to death." Here is more about the case and the deal cut:

Gosnell was convicted of first degree murder on Monday in the deaths of three babies who were born live and then killed by severing their spinal chords with scissors.

As part of the deal, Gosnell, 72, will serve two life sentences without the possibility of parole or the opportunity to appeal.  Prosecutors had sought the death penalty against Gosnell, but because of his advanced age it was deemed unlikely that he would live long enough for death penalty appeals which can last decades.

Gosnell is expected to be sentenced Wednesday.  He will also be sentenced on a conviction of involuntary manslaughter in the death of a female patient who was given a lethal dose of sedatives and pain killers in 2009.

The guilty verdicts came on Monday, the jury's 10th day of deliberations.  Gosnell was accused of performing late-term abortions on four babies who were born alive, but were then allegedly killed by Gosnell.  He was cleared in the death of one of the infants.

For two months, the jury heard often grisly testimony, including from members of Gosnell's staff.  Eight staffers have pleaded guilty to several crimes. Prosecutors said none of the staff were licensed nurses or doctors.

While there are many justifiable complaints about the high costs associated with the administration of the death penalty, this outcome provide a prime example of the cost savings that the death penalty can sometimes help generate.  Only the prospect of the death penalty made this post-conviction deal possible, and the cost to the Pennsylvania court systems from direct and collateral appeals could have been considerable absent this deal.

Recent related post:

May 15, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers"

The title of this post is the title of this notable new paper now up on SSRN by Kevin Bennardo. Here is the abstract:

A sentencing appellate waiver is a promise by a criminal defendant not to appeal her sentence.  These provisions routinely appear in federal defendants’ plea agreements.  With a few narrow exceptions, a knowing and voluntary sentencing appellate waiver bars a defendant from appealing all issues within the scope of the waiver.  Using previous models of judicial behavior and available empirical data, this article argues that the inclusion of sentencing appellate waivers in plea agreements creates bargaining inefficiencies and removes important incentives from the sentencing process.  As a solution, the article proposes that sentencing appellate waivers should take the form of separate post-sentencing agreements.

First, during the plea bargaining stage, both parties suffer from incomplete information about the true value of the defendant’s appellate rights because neither the procedure nor the outcome of the sentencing hearing is yet known.  With that information deficiency, the parties’ default valuation of the defendant’s sentencing appellate rights are often unaligned — the defendant overvalues her appellate rights out of fear of an unjust sentence and the government undervalues the same rights based on past experiences. This disparity is magnified by the disproportionate significance that a defendant places on an unfavorable sentencing outcome relative to an unfavorable outcome’s significance to the government.  As a result, the parties inefficiently bargain over sentencing appellate waivers at the pre-plea stage.

Second, the foreknowledge that a sentence is virtually unreviewable removes important incentives from the sentencing judge.  Past research and behavioral modeling have demonstrated that the “ordinary” district court judge labors under an aversion to reversal and that this reversal aversion influences sentencing outcomes and procedures.  By signaling to the court that the prospect of appellate review has been removed, the current system of including sentencing appellate waivers in plea agreements reduces the likelihood that district courts will adhere to statutorily-required sentencing practices.

Third, the inclusion of sentencing appellate waivers in plea agreements creates difficulties in imposing meaningful consequences on defendants for breach of the agreement.  Under the current system, a breaching defendant who notes an appeal in violation of her appellate waiver suffers the consequence of having her appeal dismissed.  In general, neither the government nor the court is willing to unravel the entire plea agreement as a result of the breach.  Thus, the defendant’s breach renders her no worse off than if she had adhered to her promise not to appeal.  The government’s impotence to impose meaningful additional sanctions beyond the prospect of dismissal fails to effectively deter defendants from breaching their sentencing appellate waivers.

This article proposes a post-sentencing appellate waiver system whereby the defendant and the government may bargain for a separate sentencing appellate waiver agreement after the completion of the sentencing hearing.  During this post-sentencing bargaining, both parties will be fully informed about the sentencing hearing’s procedure and outcome, and thus will be able to appropriately value the defendant’s appellate rights and bargain efficiently.  Because a sentencing appellate waiver will not be consummated (if at all) until after the sentencing hearing is complete, the sentencing judge will be incentivized to conduct a hearing that complies with all applicable sentencing law.  And, because the government can withdraw the incremental benefit bartered in exchange for the defendant’s promise not to appeal, defendants will be disincentivized from breaching their sentencing appellate waiver agreements.

May 15, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, May 14, 2013

A potent response to a prosecutor's perspective on Lafler, Frye and the future of plea bargaining

Via this post last month, I noted this interesting commentary appearing in the Houston Law Review’s online edition by Graham Polando, Deputy Prosecuting Attorney in Indiana, concerning the Lafler ruling and the future of plea bargaining. Today I received an e-mail from Darryl Brown telling me that this blog post with Polando's Lafler criticism compelled him "to crank out a four-page response on why he's wrong in every way, including the sentencing angle."  This response is available here at SSRN, and Darryl reports it is forthcoming in the same e-journal.  Darryl also says his piece includes a "key un-scholarly innovation": an offer to donate $100 to prosecutors if any one of them proves Darryl wrong. 

This piece is titled "Lafler's Remedial Uncertainty: Why Prosecutors Can Rest Easy," and here is its abstract:  

Some prosecutors are dismayed by the U.S. Supreme Court's decision in Lafler v. Cooper. This very brief (2,000 words) comment responds to a recent version of that concern. Lafler held that a defendant who declined a plea bargain offer due to his attorney's incompetent advice, and was later convicted at trial, must be reoffered the original bargain as the first step in a remedy for denial of his right to effective counsel. Some prosecutors worry that defendants will exploit Lafler to take a shot at trial while still keeping the plea bargain in reserve.  In four pages, I explain why they should not worry.

Lafler does not guarantee defendants a sentence based on the bargain, only a chance to present that bargain to a trial court that now knows (from the intervening trial) a great deal more about a defendant's case, and which has clear authority, after Lafler, not to vacate the post-trial conviction and sentence. Further, few defendants will find it as easy as Mr. Cooper did to prove that his lawyer provided ineffective representation. And in any case defendants will have to wait years, in prison, after a trial conviction to win a Lafler claim (usually in habeas litigation) and a chance to convince a judge to resentence on the bargain's terms.

May 14, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping"?

SensenbrennerThis recent new article in CQ Weekly was especially notable, as I noted in this post, because it highlighted how many Republican members of Congress are now leading serious discussions of review and possible reform of the federal criminal justice system and severe federal sentencing laws.  But I needed to do this separate post to spotlight what seems to be a stunningly stupid comment from Wisconsin Republican Jim Sensenbrenner in his explanation for why he still supports federal mandatory minimum sentencing laws. Here is the passage from the CQ Weekly article that almost made my head explode:

While the dialogue may be changing, passing legislation, as always, is another story.  Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.

The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor.

Sensenbrenner said as much in an interview, arguing that without such sentences, prosecutors and defense attorneys would “shop” for judges based on their reputations for handing out tough or lenient penalties.  “If there isn’t a better way to stop judge-shopping, then I think we’re stuck with mandatory minimums,” he says.

Perhaps Sensenbrenner knows something magical about the operation of the federal criminal justice system that I do not know, but I am pretty sure there are no existing mechanisms for either prosecutors or defense attorneys to somehow "shop" for judges based on their sentencing reputations.  If there were, I am confident federal prosecutors would do their very darnedest to make sure they never had any sentencing cases before district judges like Jack Weinstein (who has a well-deserved reputation for abhorring any sentencing rules demanding long setences) and defense attorneys would do their very darnedest to make sure they never had any sentencing cases before district judges like Linda Reade (who has a well-deserved reputation for being eager to give long within-guideline sentences).

As regular readers should know, I think there are a few valid — but ultimately unconvincing — arguments to be made in support of some existing federal mandatory minimum sentencing laws.  And I heartily welcome supporters of existing federal mandatory minimum laws to make their very best arguments in support of the status quo, especially as Rand Paul and other notable new congressional voices urge statutory reforms.  But gosh, is it too much to ask that powerful members of Congress at least have the most basic understanding of how our existing sentencing laws and procedures actually work before they assert that we have to be "stuck with mandatory minimums"?

In my perfect sentencing law and policy world, a comment this idoitic from someone who has long played a central role in passage and reform of federal sentencing laws would be grounds for impeachment.  But, as my work on this blog so often highlights, we are very far — and, I fear, will always be very far — from my perfect sentencing law and policy world.

Some recent and older related posts:

May 14, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (37) | TrackBack

Gov Brown bringing California prison fight back to SCOTUS

As reported in this local article, headlined "Gov. Jerry Brown on Monday followed through with his vow to turn to the U.S. Supreme Court in a bid to end years of judicial control over California's overcrowded prison system." Here is more about the latest legal development in a seemingly never-ending California corrections saga:

In a three-page filing, the governor and his top prison officials notified a three-judge panel the state is appealing an April order requiring California to shed at least 10,000 more inmates by the end of December.  The attorney general's office now has 60 days to file its full legal arguments with the Supreme Court....

In the recent order, the federal judges found that California prisons remain over capacity, and that the state has various ways to improve medical care and release inmates without jeopardizing public safety.

The governor responded to that order with a plan that would remove about 7,000 inmates by the end of this year, still thousands short of the judges' demands.  But state officials do not want to take those measures, arguing a reduction of more than 25,000 inmates over the past few years has solved the overcrowding issue.

Lawyers for the inmates contend the state must do more to end the legal battle.  The Supreme Court, in a 5-4 ruling, upheld the 2009 orders to reduce prison overcrowding.  The justices would likely decide next fall whether to review the issue again.

May 14, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, May 13, 2013

After three PA murder convictions, which form of LWOP will abortion doctor get?

The question in the title of this post is my reaction to the notable state criminal trial verdicts in a high-profile case reported in this new New York Times article.  Here are the conviction and sentencing basics:

Dr. Kermit Gosnell, a West Philadelphia doctor known for performing late-term abortions, was found guilty on Monday on three of four counts of first-degree murder.

The verdict came after a five-week trial in which the prosecution and the defense battled over whether the fetuses Dr. Gosnell was charged with killing were alive when they were removed from their mothers.  Prosecutors have said they will seek the death penalty when the trial moves into the sentencing phase on May 21....

The jury of eight women and four men acquitted Dr. Gosnell of one first-degree murder charge involving an aborted fetus.  He was also acquitted of third-degree murder in the death of a 41-year-old patient but was found guilty of a lesser charge of involuntary manslaughter in that case.

The gruesome nature of the crimes that Dr. Gosnell was accused of and the squalid conditions in his clinic had fueled arguments on both sides of the abortion debate. Anti-abortion campaigners used the case to reinforce their argument that the practice is immoral, while abortion rights advocates warned that it underlined the need to ensure the availability of properly regulated abortions....

Prosecutors had argued that Dr. Gosnell murdered seven late-term infants who would have survived if he or his assistants had not given them a drug designed to cause “fetal demise” and then plunged scissors into their necks to ensure that they were dead. But the prosecution suffered a setback last month when Judge Jeffrey P. Minehart threw out three of the seven first-degree murder charges without giving a reason.  That left Dr. Gosnell facing four charges of first-degree murder, as well as one charge of third-degree murder in connection with the death of the patient.

In defense arguments, Mr. McMahon argued that there was no evidence that any of the fetuses were born alive and that his client was therefore not guilty on any of the murder counts.  He also told jurors that the death of the patient, a refugee from Bhutan, was due to existing medical problems and not to an overdose of an anesthetic administered by Dr. Gosnell’s unlicensed assistants, as prosecutors had said....

Mr. McMahon declined to say whether he would appeal or how he intends to keep his client off death row....

Clinic workers who appeared as witnesses for the prosecution said some of the fetuses appeared to move or make noises.  One, known as Baby D, was delivered into a toilet and appeared to make swimming motions before one of Dr. Gosnell’s assistants cut its neck, according to a worker cited during closing arguments by Edward Cameron, an assistant district attorney.

Mr. Cameron and another assistant district attorney, Joanne Pescatore, also told the jury that Dr. Gosnell kept the severed feet of aborted fetuses in dozens of jars around his clinic, the Women’s Medical Society in West Philadelphia.

According to a January 2011 grand jury report, Dr. Gosnell’s patients were covered with bloodstained blankets, treated with unsterilized instruments and surrounded by cats that were allowed to defecate in the building.  To bolster their argument that Dr. Gosnell subjected his patients to filthy and dangerous conditions, prosecutors presented the jury with a dirty procedure table and a stained ultrasound probe.

The question in the title of this post reflects the current reality that all death sentences in Pennsylvania are functional LWOP sentences in the modern era. Through there are over 200 murderers now on Pennsylvania's death row, the state over the last 40+ years the state has only executed three defendants who waived all of their appeals.

Because Gosnell is already 72 years old, it seems very unlikely that all Gosnell's appeals of any death sentence would be completed and the PA execution back-log cleared before Gosnell dies in prison of "natural causes." (Indeed, even if Pennsylvania started ASAP to execute 10 condemned prisoners each year, it would take until 2034 to carry out just existing death sentences.)

So, whether formally or functionally, Gosnell is all but certain now to serve an LWOP sentence.  Still, apparently seeking a symbolic victory, PA prosecutors apparently plan to invest a lot of money and energy trying to ensure Gosnell serves this sentence on death row rather than elsewhere.

May 13, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Noting some new GOP sentencing reform voices inside the Beltway

Cap hillThis notable new article, amusingly headlined "An End to the Jailhouse Blues?", authored by By John Gramlich and appearing in CQ Weekly discusses what I am inclined to call the "new right on criminal justice reform" on the Hill.  Here are excerpts:

Congressional Democrats have argued for years that too many low-level drug offenders are locked away in federal prisons and that mandatory-sentencing laws disproportionately harm minorities and tie judges’ hands.  Lately, they have been joined in those criticisms by Sen. Rand Paul, a tea-party-backed Republican with White House aspirations.  “I think the Republican Party could grow more if we had a little bit more of a compassionate outlook,” the Kentuckian says.

Paul is emblematic of a quiet but unmistakable shift among conservatives in Congress when it comes to criminal justice.  Not only are Republicans engaging in a serious debate about relaxing federal criminal penalties — an idea that was once anathema to lawmakers who worried that their next campaign opponent would label them “soft on crime” — they are leading the discussion.

The House Judiciary Committee, which has poured cold water on Democratic priorities since Republicans regained control of the chamber in 2010, last week created a bipartisan, 10-member task force that will conduct a six-month analysis of the estimated 4,500 crimes on the federal books.

The task force will examine “overcriminalization” in the federal justice system and evaluate what Judiciary Chairman Robert W. Goodlatte calls an “ever-increasing labyrinth” of criminal penalties, some of them for relatively minor crimes in which perpetrators may not have realized they were breaking the law. The Virginia Republican cited the example of an 11-year-old girl who “saved a baby woodpecker from the family cat” but received a $535 fine because of a federal law banning the possession of a migratory bird.

The panel will be led by law-and-order Wisconsin Republican Jim Sensenbrenner and Virginia Democrat Robert C. Scott, an outspoken critic of more-contentious criminal policies such as mandatory minimum sentencing, which the task force will also evaluate. A diverse range of groups endorses the effort, including the American Civil Liberties Union, the Heritage Foundation and the U.S. Chamber of Commerce.

At the same time, the Republican chairman of the House Appropriations subcommittee that oversees federal prison spending, Frank R. Wolf of Virginia, plans to work with his Democratic ranking member, Chaka Fattah of Pennsylvania, to create a separate task force to review all aspects of the rapidly growing federal correctional system. Wolf is outraged that federal prisoners are not provided more opportunities to gain work experience and believes the Bureau of Prisons is holding too many people, including ill older inmates who no longer pose a threat to society. A report by the Justice Department’s inspector general recently came to the same conclusion.

“If you’re 68 years old and you’re dying of cancer and your life expectancy is seven months, why do we want to keep you in prison?” Wolf says.

Then there is Paul, who perhaps more than any other Senate Republican aligns with Democrats on sentencing issues. Paul is co-sponsoring a bill with Democratic Judiciary Chairman Patrick J. Leahy of Vermont that would allow federal judges to depart from mandatory minimum sentences under certain conditions — a so-called “safety valve” that effectively would do away with congressionally mandated punishments in many cases. Similar House legislation is co-sponsored by Scott and another Kentucky Republican, Thomas Massie. “Some of the sentencing has been disproportionately unfair to African-Americans, and so I am for getting rid of the mandatory minimums or letting judges override them,” Paul says.

He argues that young drug offenders, in particular, are vulnerable to overly harsh punishments and points out that each of the past three presidents — Barack Obama, George W. Bush and Bill Clinton — was “accused of doing drugs as a kid.... Had they been caught, none of them would have ever been president,” he says. “Just by luck of not being caught, they did fine. But a lot of kids don’t.”...

If Republicans sound kinder and gentler on criminal justice today than they did two decades ago, their perspective has been guided by cold, hard numbers.

Goodlatte last week cited statistics showing that Congress has added an average of 500 new crimes to the law books in each of the past three decades. Those federal crimes overlap with scores of existing penalties for the same crimes enacted by the states, which handle the vast majority of the nation’s criminal trials.

The creation of hundreds of new federal crimes, combined with mandatory minimum sentencing laws and the 1984 elimination of parole for federal offenders, has resulted in a steady and costly uptick in the federal prison population. The federal corrections system is now the largest in the country, much larger than state systems in Texas and California.

In fiscal 2006, the Bureau of Prisons had 192,584 inmates. Five years later, the number had grown 14 percent to 218,936, according to a November report by the Justice Department inspector general.

Massie, formerly the top elected official in Lewis County, Ky., says his perspective has been shaped by his experience managing a local budget, where he says his “biggest line item” was incarceration. The first-term lawmaker backs a bipartisan corrections overhaul that Kentucky enacted in 2011 and said Republicans on the federal level should embrace similar changes because mass incarceration runs counter to established GOP principles on government spending. “I call it socialism with constrained mobility,” Massie says. “You’re paying for all their medical costs. You’re paying for all their food, all their housing. You’ve got to have air conditioning. Jails are not cheap.”

While the dialogue may be changing, passing legislation, as always, is another story. Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.

The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor....

While the challenges are clear, those who support the GOP-led discussion surrounding criminal justice say it is encouraging that the debate is happening at all. It’s a significant step forward that a bipartisan group of legislators is really for the first time looking in a very serious way at ways to try to get their arms around this behemoth,” says John G. Malcolm, a senior legal fellow at the Heritage Foundation.

Some recent and older related posts:

May 13, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"Lawyers worry new measure of mental retardation could prompt more executions"

The title of this article is the headline of this new Reuters article, which provides an interesting death penalty angle on a high-profile non-death-penalty story.  Here are excerpts:

A new standard from the country's leading psychiatric association to diagnose mental retardation could allow courts to execute convicted criminals with IQ scores below 70 more easily, say death penalty lawyers.

The Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association (APA), is the standard guidebook of psychiatric disorders and is used by clinicians to identify and diagnose psychiatric illnesses.

Each new edition is scrutinized by mental healthcare providers and the pharmaceutical industry for changes in definitions as well as new categories of illnesses.  Such shifts can have enormous economic, social and legal implications and often are the subject of controversy.

The fifth edition of the book since it was first published in 1952, or DSM-V, is due to be released May 22.  Already it has prompted concern from death penalty lawyers because of the change in the way the manual defines mental illness, or intellectual disability, the new name given in DSM-V.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work.  Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual's behavior to determine if he or she meets the developmental standards.

Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," Dow said. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."...

From 2002 to 2012, only a quarter of the death row inmates who claimed to have mental retardation were granted stays of execution, according to research by John Blume, director of Cornell University Law School's Death Penalty Project. This included cases that had exhausted all appeals from the time of the Atkins decision to the end of 2012.

"Judges and jurors have stereotypes of what it means to be mentally retarded," Blume said. "There is a problem with people who have lower than 70 IQ scores getting executed in spite of the Atkins ruling, and under the new DSM guidance, that problem is only going to get worse."

According to Darrel Regier, vice chairman of the task force that produced the DSM-V revisions, the DSM is developed to provide guidelines for diagnosing mental illnesses for clinicians, not to provide treatment or judicial guidelines, and the test scores are only useful when interpreted by a clinical expert.

The DSM-IV's reliance on an IQ score led, in some cases, to jurors sentencing people with IQ scores of 71 or 72 to death, in spite of the test's five-point margin of error, Regier said. "A single IQ point on a test can have profound implications for life and death without (clinical) interpretation," he said.

James Harris, the founding director of the Developmental Neuropsychiatry Program at the Johns Hopkins University School of Medicine and a member of the DSM-V work group, said the criteria focus on three areas of adaptive functioning: academic, social and practical.... "We believe that we are providing the courts with a more fine-grained means to consider adaptive functioning more comprehensively and more meaningfully," Harris said.

There are many clear realities, as well as many opaque stories, concerning death penalty administration and adjudication lurking in this story.  For starters, Atkins was decided by the Supreme Court more than a decade ago, and I find it both troublesome and telling that we have not gotten anywhere close to figuring out the final practical "cash out" of Atkins during this period despite the reality that there should be only a few hundred capital cases in which a murder defendants status as mentally retarded could be reasonably disputed.

Second, while defense lawyers seem quick to suggest that the new change in the DSM will make it easier for some lower courts to "evade Atkins," it seems to me that the new DSM will also make it easier for some lower courts to perhaps expand Atkins to offenders with IQ measures of 75 or higher.  Indeed, I have seen more than a few courts quickly reject Atkins claims based on an IQ score in the 70s, and then news DSM would seem to preclude too-ready reliance on a single number to resolve these claims.

Third, if and whenever there is reason to fear lower courts in some states are regularly seeking to evade Atkins, the best solution would be to urge a legislature to codify a particular statutory approach to Atkins issues and/or to convince the Supreme Court to (finally) take up an "applying Atkins" case.  Indeed, I find uniquely worrisome the notion that DSM revisions on any issue ought to be shaped by how the DSM might be applied or misapplied in a few capital cases each years.

A few related posts (mostly pretty old):

May 13, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Why Might the Cleveland Kidnapper Get Charged With Murder?"

The title of this post is the headline of this new piece in the National Journal on a topic that has already garnered considerable discussion on this blog.  Here are excerpts:

The government is wading into the murky waters of what constitutes a human life. The prosecutor in the Cleveland kidnappings case said on Thursday that he plans to pursue murder charges against Ariel Castro — the now-infamous abductor of at least three women — “for each act of aggravated murder he committed by terminating pregnancies,” according to reports. Implicit in the charges is a question central to the abortion debate: Do fetuses count as persons?....

To abortion opponents, [this case] may represent an opportunity to underscore their belief that fetuses are living and abortion is murder whether it's at the hands of Castro or a physician.  Supporters of abortion rights may feel the need to preempt such attacks, underscoring the differences between a medical procedure done at the behest of the mother and an assault on their pregnancy done without their consent....

In fact, there’s some precedent: at least 38 states have laws — some like Ohio’s — against fetal homicide, according to the National Conference of State Legislatures.  In 2011, two proposed bills in Mississippi and Georgia threatened to ensnare women who miscarried, too.  But proponents of personhood, the movement to classify fetuses as living, say such claims are specious and most such bills are aimed at intentionally killing fetuses — through abortion or drug use in some cases.

The Ohio case may provide fodder in the debate, but as far as the legality goes, it's unlikely to set any new precedents.

Recent related post:

May 13, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, May 12, 2013

Ohio prosecutor upset public unwilling to pay higher taxes to make his job easier

The title of this post is my proposed alternative headline for this local article discussing recent sentencing law reforms in Ohio (made by a Republican legislature and signed in law by GOP Governor John Kasich).  The actual headline from the local paper is "Prosecutor: Sentencing changes damaging judicial system," and here are excerpts (with the prosecutor's telling comments highlighted by me):

In light of a recent trial in which a Springfield man was convicted in Athens County Common Pleas Court of three counts of trafficking in cocaine, Prosecutor Keller Blackburn discussed how the man will face a lesser sentence thanks to House Bill 86 and said the legislation changes in sentencing is hurting the state’s judicial system.

Michael Turner, 29, sat through a four-day trial before a jury found him guilty of two third-degree felony counts of trafficking in cocaine and one second-degree count of trafficking in cocaine.  When he was indicted in August of 2011, the charges he faced carried a maximum prison sentence of 18 years with at least eight years being mandatory. However, after House Bill 86 passed through legislation, the maximum he can now be sentenced is only nine years.  A sentencing date has yet to be set.

Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes.  Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time.  Now, probation or jail time is more likely for first-time offenders.  Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered....

“It’s balancing the budget on the backs of local taxpayers on felony cases,” he added. “There’s a reason things are felonies and others are misdemeanors.  Local communities are supposed to pay for misdemeanors and the state is supposed to pay for felonies.  Now felony fives, fours and some threes are paid for by the counties.” 

While Blackburn does not believe the sentencing changes affects the criminal mind much, he does point out the differences it makes after the fact.  “When you change the numbers, then negotiations get more difficult.  If someone is only risking six additional months by not taking a deal, they’ll go to trial.  It harms negotiations and pass costs to local communities,” Blackburn said.

According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.

“The principles and purposes of sentencing used to be to punish the offender and protect the public.  It’s now to punish the offender and protect the public in the most economical manner.  That’s not what’s supposed to be happening but that’s what legislation has decided,” Blackburn said....

You start taking tools out of the toolbox.  Maybe the person with 24 balloons of heroin does need an intensive treatment program but maybe we know they just sold twice and we just missed them,” the prosecutor said.  “Maybe they are one of the major spokes in the wheel and all I can do is put them on probation when the probation department is underfunded.”

The problem is money and they don’t want to put any more money into prisons so they’re not willing to make many changes,” said Blackburn.

Based on the prosecutor's comments here, it does not seem at all accurate to say, as does this article's headline, that a new sentencing law is "damaging [Ohio's] judicial system" in any way.  Rather, by enabling more defendants to go to trial and by making sure communities cover certain costs, it would appear the new sentencing law may actually be strengthening the judicial system in the Buckeye State.

Rather, what really seems to be bothering Prosecutor Keller Blackburn is that Ohio's new sentencing laws make plea negotiations "more difficult" and may lead to more defendants exercising their constitutional right to a jury trial.  Pulling back the curtain as to what prosecutors really care about, Backburn laments that he is losing one of the tools he wants in his toolbox so he can determine the fate of a defendant's future without the complications or challenges of proving to a jury or judge why this fate is appropriate or cost effective.  And dang those voters and legislators, concludes Blackburn, they are unwilling to put more of their hard-earned money into making his job as a prosecutor easier.

May 12, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Illinois Lieutenant Governor announces support for state medical marijuana bill

As reported in this AP article from Illinois, "Lt. Gov. Sheila Simon said she is in favor of a bill allowing the medical use of marijuana, explaining Sunday that testimony from seriously ill veterans and other patients helped change her mind."  Here is more:

"As a former prosecutor my first reaction was, 'I'm not interesting in changing our laws on medical marijuana,'" she told The Associated Press in an interview Sunday. But she said that after hearing from patients and reading up on the bill, she's convinced the regulations are strict enough.

Backers of the measure, which has cleared the Illinois House and awaits a Senate vote, have said the same thing. The plan, touted as the strictest in the nation among states that have legalized medical marijuana, would authorize physicians to prescribe marijuana to patients with whom they have an existing relationship and who are living with at least one of more than 30 medical conditions, including cancer.

The proposal creates a framework for a pilot program that includes requiring patients and caregivers to undergo background checks. It also sets a 2.5-ounce limit per patient per purchase and sets out state-regulated dispensaries.

Supporters say marijuana can relieve continual pain without the detrimental side effects of prescription drugs. But opponents say the program could encourage recreational use, especially among teenagers.

The Illinois Association of Chiefs of Police and the Illinois Sheriffs' Association are opposed to the measure, saying there's no sure way to figure out whether a motorist is driving under the influence of marijuana.

But Simon told the AP the bill is strict enough to prevent misuse. "It does a good job of both getting medical marijuana to people who need and keeping it away from those who don't," she said.

Simon is weighing a run for another statewide office instead of seeking another term as lieutenant governor. The Carbondale Democrat declined Sunday to say which office she will run for, saying she will wait to see how other shape up.

Simon is likely choosing between Illinois' attorney general, comptroller or treasurer. In recent months, Simon has played up her law-related background and accomplishments including as a pro bono lawyer and prosecutor.

I find this story notable not merely because it likely increases the chances of Illinois becoming the 20th state to legalize medical marijuana, but also because it suggests that a shrewd and successful state politician apparently sees support for marijuana reform as a potential political selling point rather than a liability.

Recent related post:

May 12, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, May 11, 2013

"Discovery and Darkness: The Information Deficit in Criminal Law"

The title of this post is the title of this notable new article by Ion Meyn now available via SSRN.  Here is the abstract:

Scholarship has long recognized a disparity between the discovery rights afforded to civil litigants and those afforded to criminal defendants.  The consensus is that this disparity is caused by resource constraints and limited access to the prosecutorial file.  This Article challenges that conception, contending that criminal defendants are in fact structurally precluded from conducting any formal investigation.  Merely entitled to disclosures of the State's evidence, a criminal defendant must rely on the fruits of the opponent's investigation to somehow suggest a counter-narrative.  This dynamic is inconsistent with the design of the adversarial system and results in a failure to engage in adequate pretrial testing.

This Article recasts a criminal defendant as an essential party to a criminal investigation who should have the pretrial power to compel information from multiple sources. Certainly, greater access to the prosecutorial file and more resources will mitigate discovery deprivations that currently plague criminal defendants.  But without extending a criminal defendant the power to direct an independent and formal investigation, adequate pretrial testing cannot occur.  Evaluating the investigative tools that should be extended to a criminal defendant, the Article utilizes a case study to ascertain how the application of these tools might affect a pretrial investigation.  Finally, the Article surveys and responds to policy arguments against permitting the participation of criminal defendants in criminal investigations.

I think this article has an especially important sentencing salience given that 9 of every 10 convictions are the results of a plea bargain.  I am certain that the terms of sentencing exposure in plea deals are always impacted by the realities of the "discovery" process in criminal cases (just as settlements in civil cases are always impacted by the realities of the civil discovery rules).

May 11, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, May 10, 2013

"Marijuana taxes as a cash cow? Think again"

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

Taxing pot could raise hundreds of millions of dollars but still not be the moneymaker states were hoping for. Colorado and Washington State are launching their legal recreational marijuana industries, and both are coming to terms with scaled back expectations.

Washington had projected up to $450 million in annual tax revenue, but the state's new pot consultant figures it could be little more than half that.  In Colorado, the Colorado Futures Center think tank forecasts $130 million in taxes but thinks that won't even cover the cost of regulating the new industry.

Still, these forecasts are rough guesses.  They're based on estimates of drug usage and marijuana prices, both of which are difficult to measure because most of the cannabis industry is underground.

Another problem will be tax collection, especially because it's an all-cash industry. Banks and credit card companies won't service pot businesses while cannabis is still deemed illegal at the federal level.  To address that problem, Washington regulators hope to monitor every gram that's grown, moved and sold.

"We're going to look at some sort of traceability system that's going to track the plant from the plant to the sale," said Pat Kohler, a director at the state's Liquor Control Board. "This is definitely a challenge, a long with many other challenges."

At least one private company, MJ Freeway in Colorado, already does so-called "seed-to-sale" tracking.  Still, CEO Amy Poinsett warns that the all-cash nature of the industry encourages wrongdoing, like laundering money.  "There's quite a temptation to just slip $500 into your pocket," Poinsett said, noting it's a shame because "this is one of the only industries where people are saying, 'Please regulate me. Please tax me.'"

In Colorado, anti-pot politicians are threatening to roll back legalization if voters don't approve higher taxes. There's a proposal to send the question to voters later this fall.

Taxes are already high in Washington.  The law approved by its voters last year includes a 25% sales tax at three different stages: when it's sold from grower to processor, processor to retailer, and retailer to customer.  That will add a few dollars to every store purchase, pushing the price of a gram from its current average of $10 closer to $15.

With tax rates fixed in Washington, raising more revenue would have to come from selling more weed.  To accomplish that, regulators could potentially hand out more licenses and lessen restrictions on growers and sellers.  But that conflicts with one of the state's primary concerns: carefully controlling the price of marijuana.

May 10, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Notable new Oregon bill to allow some young sex offenders to get off registry

In this recent post about the Second Amendment rights of registered sex offenders prompted a lengthy comment thread about who does and does not end up on sex offender registries.  With that discussion fresh in mind, I found this AP story about a bill making its way through the Oregon legislature interesting:

Some young offenders convicted of having sex with underage partners would be able to request the crime be removed from their records under a bill narrowly passed by the Oregon House on Wednesday. Voting 31 to 27, the House sent the bill to the Senate with little discussion.

Under the bill, in order for adult offenders to apply to have their records erased, coercion or force could not have been used in the sex act. Other conditions include completion of all required court-ordered programs and treatments.

Proponents say the current punishment for such sex offenders does not fit the crime. Opponents say people convicted of sex crimes often reoffend and should not be able to have their records expunged. "Individuals who commit sex offenses ... this isn't their first time and it won't be their last," said Crook County District Attorney Daina Vitolins, who opposes the bill on behalf of the Oregon District Attorneys Association. To say an act is consensual when it involves a person who is too young to give consent is indefensible and minimizes the law, Vitolins said.

For offenders to have their records cleared under the proposed law, they could be no more than five years older than the victim, and the victim must be at least 14. For sex crimes committed by a minor, the victim must be at least 12 and the age difference can be no more than three years.

House Speaker Tina Kotek, a sponsor, brought the legislation forward after hearing from a constituent who was 14 when his friend's parents reported him to the authorities for engaging in inappropriate behavior — which did not involve intercourse — with their young daughter.  "This is the difference between a life of hopelessness and a future for this individual," the Portland Democrat told lawmakers last month.

Among those testifying for the bill was Matthew Shettles, who served three years' probation on a charge of sex abuse for having sex with his girlfriend in 2004 on the night of his high school graduation. In written testimony, Shettles said he had just turned 18 at the time and she was five weeks shy of 15.  A counselor learned of the encounter and was required by a mandatory reporting law to inform authorities, he said.

He said having a sex crime on his record has made it difficult to get hired and rent an apartment. Employers and housing agencies often run criminal background checks.  "It doesn't seem reasonable that a guy who had sex with his girlfriend should have to pay for the rest of his life," Shettles said in the written testimony.

Under the bill, only sex crimes that meet a specific set of requirements could be erased from an offender's record.  Among other things, the person must have successfully applied to be removed from the state's sex offender registry and cannot have been convicted of other serious crimes.

May 10, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, May 09, 2013

"Looking Past the Hype: 10 Questions Everyone Should Ask About California's Prison Realignment"

The title of this post is the title of this new paper on SSRN by Joan Petersilia and Jessica Snyder. Here is the abstract:

California’s Criminal Justice Realignment Act passed in 2011 shifted vast discretion for managing lower-level offenders from the state to the county, allocated over $2 billion in the first 2 years for local programs, and altered sentences for more than 100,000 offenders. Despite the fact that it is the biggest penal experiment in modern history, the state provided no funding to evaluate its overall effect on crime, incarceration, justice agencies, or recidivism.

We provide a framework for a comprehensive evaluation by raising 10 essential questions: (1) Have prison populations been reduced and care sufficiently improved to bring prison medical care up to a Constitutional standard? (2) What is the impact on victim rights and safety? (3) Will more offenders participate in treatment programs, and will recidivism be reduced? (4) Will there be equitable sentencing and treatment across counties? (5) What is the impact on jail crowding, conditions, and litigation? (6) What is the impact on police, prosecution, defense, and judges? (7) What is the impact on probation and parole? (8) What is the impact on crime rates and community life? (9) How much will realignment cost? Who pays? (10) Have we increased the number of people under criminal justice supervision?

May 9, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Cleveland police report supports Aggavated Murder capital charges against Ariel Castro

I asked in this post yesterday whether Ariel Castro, the monster who abducted and sexually tortured three young women in Cleveland, could and should possibly face the death penalty under Ohio law.  Based on the newly released police report, discussed in this CBS News piece, I am now convinced that Castro can reasonably be charged with with Aggravated Murder pursuant to Ohio Revised Code 2903.01. Here are the key facts supporting this conclusion:

New details on the women's harrowing ordeal were confirmed in a police report obtained Wednesday by CBS News.... [Michelle] Knight told police, according to the report, that Castro impregnated her "at least 5 times," but that each time he would starve her and then punch her in the stomach to induce a miscarriage.

Here are the key provisions of ORC 2903.01, with the terms in bold and some italics that highlight the basis on which Ohio prosecutors could charge Aggravated Murder against Castro:

2903.01 Aggravated murder.

(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.

(B) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.

Critically, I do not mean here to assert that state prosecutors must now seek the death penalty in their prosecution of Castro.  I can envision lots of sound reasons for local prosecutors to decide not to seek the punishment of death here -- especially if Castro's three primary victims indicate a strong disinclination to go through the difficulties (and media sensation) of a full-blown capital trial and the inevitable appeals that would likely follow if a jury imposed a death sentence.

But I do mean to assert that state prosecutors should now be considering how they will present to an Ohio grand jury the evidence which could support a charge of Aggravated Murder based on Casto's alleged repeated purposeful efforts to unlawfully terminate Michelle Knight's pregnancies. 

Because Ohio legislators amended the state's Aggravated Murder provisions to expressly include "purposely caus[ing]... the unlawful termination of another's pregnancy," Ohio law now expressly reflects a state policy decision that a defendant who intentionally and unlawfully terminated a pregnancy could face an Aggravated Murder charge.  Based on the facts appearing in the recently released police report, Ariel Castro is the poster child for the kind of "unlawful pregnancy terminator" who, in my view, should be facing charges of Aggravated Murder under Ohio law.

Recent related post:

May 9, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (44) | TrackBack

Illinois moves closer to becoming 20th state to legalize medical marijuana

As reported in this article, headlined "Medical marijuana bill clears Illinois Senate committee," a very big and significant state has now moved one step closer to joining the ranks of state's legalizing marijuana for some purposes. Here are the basics:

A key panel of Senate lawmakers advanced legislation Wednesday that would allow patients with certain illnesses to use marijuana to ease their symptoms. The measure was approved on a 10-5 vote by the Senate Executive Committee despite concerns raised by law enforcement officials that the bill would not prevent medical marijuana card holders from driving while under the influence.

The proposal has already passed the House. Gov. Pat Quinn has said he is "open minded" to the legislation but must give the matter further review.

Under the bill, a four year pilot program would be established to allow doctors to prescribe patients no more than 2.5 ounces of marijuana over two weeks. Patients would have to buy from one of 60 dispensing centers across the state and could not grow their own.

Sponsoring Sen. Bill Haine, D-Alton, said the rules were the toughest in the nation. A former State's Attorney, Haine promised the bill is "not an opening to legalization" of recreational pot use. Opponents said they acknowledged the relief marijuana could provide but questioned unintended consequences.

May 9, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 08, 2013

Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 months

As had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:

Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.

The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh....  Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.

A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below.  Here are the essential pieces of the deal:

The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.

For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines.  Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.

Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range.  The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.

The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....

Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range.  However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.

Download Skilling Sentencing Agreement final.cfv

May 8, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"Federal Public Defense in an Age of Inquisition"

The title of this post is the title of this notable new article by federal public defender David Patton, which is now available via SSRN.  Here is the abstract:

This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided.  It concludes that in many situations they do not; indeed, they often receive far worse.  Although Gideon and the Criminal Justice Act of 1964 undoubtedly improved the quality and availability of counsel in the federal courts, extraordinary damage has been done since then to the aspect of the criminal justice system that makes lawyers so valuable: the adversary process.

Sentencing severity, the control of that severity by prosecutors rather than judges or juries, and high rates of pretrial detention have greatly limited defendants’ ability to challenge the government’s version of the facts and the law.  This Essay briefly describes federal criminal practice as it existed in 1963 and illustrates the shifts that have occurred by discussing current practice in the federal public defender office in New York City.

May 8, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Senate hearings scheduled this afternnon for two of Prez Obama's USSC nominees

As detailed on this official Senate Judiciary Committee webpage, today at 2:30pm there is a scheduled a hearing on "Nominations" which includes the nomination of "William H. Pryor, Jr., to be a Member of the United States Sentencing Commission" and "Rachel Elise Barkow, to be a Member of the United States Sentencing Commission."

Regular readers may recall from this prior post that I am very excited about all three of the new nominees to fill open spots on the USSC. I am thus thrilled to see two of these nominees get a hearing only a few weeks after their nomination, but also a bit puzzled about why US District Judge Charles Breyer is not also having a hearing. (As a matter of pure speculation, I am inclined to guess that Judge Breyer's nomination is more controversial perhaps because of his brother's status as a sitting Supreme Court Justice.)

Because I will be on the road all afternoon, I will not be able to follow closely this scheduled hearing, but others can watch it live via this link.  I am eager to hear reports on whether the questioning of these two nominees are tough or sweet, as well as whether their views on the import and importance of federalism concerns come up.  (I would also love to see Senators Leahy and Paul ask the nominees whether they share my perspective on the proposed Justice Safetly Valve Act of 2013.)

Some recent and older related posts:

May 8, 2013 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 07, 2013

Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013

Thanks to the suggestions, and insights and energy of Harlan Protass, a criminal-defense lawyer in New York and an adjunct professor at the Cardozo School of Law, some of the ideas first expressed in this recent post concerning the proposed Justice Safetly Valve Act of 2013 now find expression in this Wall Street Journal opinion piece we co-authored.  Here is are snippets from the the piece:

There are few topics on which leading Democratic and Republican voices agree these days. But the recently introduced Justice Safety Valve Act of 2013 — which would authorize federal judges to impose prison terms below statutory mandatory minimums in some cases — represents a new bipartisan effort at addressing America's overcrowded prisons and bloated budget.  Passage of the act, though, will depend on President Obama and his Justice Department getting behind it....

The Justice Safety Valve Act, recently introduced by Sens. Patrick Leahy (D., Vt.) and Rand Paul (R., Ky.), and to the House by Reps. Robert C. "Bobby" Scott (D., Va.) and Thomas Massie (R., Ky.), could help reduce the millions of taxpayer dollars wasted keeping thousands of people sentenced under mandatory minimum laws locked up.  The bill would enable federal judges to consider when or whether a mandatory-minimum sentence serves legitimate law-enforcement purposes given the particular circumstances of the crime and defendant.  Judges could impose prison terms below the statutory minimums only when they explain, through an on-the-record, reviewable opinion, that a shorter term is sufficient to serve the express goals of the criminal justice system set out by Congress....

[B]ipartisan support and sponsorship of the Justice Safety Valve Act highlights that prominent lawmakers on both sides of the aisle agree — at this time of lean budgets, sequester cuts and overcrowded prison facilities — that the current federal sentencing scheme is neither fair nor effective, and that mandatory-minimum sentencing laws lie at the heart of the problem.

President Obama's vocal support of this bill would signal a real commitment to using his bully pulpit to advocate on behalf of significant reform proposals.  If he does not, the president's failure to champion sentencing reform may become his most lasting federal criminal-justice legacy.

Some recent and older related posts:

May 7, 2013 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack