Thursday, August 01, 2013

Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"

Lee official_photoAs reported via this press release from the offices of Senator Dick Durbin, another notable pair of Senators from the two parties have put aside other differences to come together to support and promote federal sentencing reform.  (Since the press release comes from Senator Durbin's office, I have Senator Lee's picture posted.)   Here are the basics:

With federal prison populations skyrocketing and nearly half of the nation’s federal inmates serving sentences for drug offenses, Assistant Majority Leader Dick Durbin (D-IL), Senator Mike Lee (R-UT) have introduced the Smarter Sentencing Act, to modernize our drug sentencing polices by giving federal judges more discretion in sentencing those convicted of non-violent offenses. Making these incremental and targeted changes could save taxpayers billions in the first years of enactment.

“Mandatory minimum sentences for non-violent drug offenses have played a huge role in the explosion of the U.S. prison population,” Durbin said. “Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions.”

“Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said. “By targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing polices.”

The United States has seen a 500 percent increase in the number of inmates in federal custody over the last 30 years, in large part due to the increasing number and length of certain federal mandatory sentences. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster deep distrust of the criminal justice system.

This large increase in prison populations has also put a strain on our prison infrastructure and federal budgets. The Bureau of Prisons is nearly 40 percent over capacity and this severe overcrowding puts inmates and guards at risk. There is more than 50 percent overcrowding at high-security facilities. This focus on incarceration is also diverting increasingly limited funds from law enforcement and crime prevention to housing inmates. It currently costs nearly $30,000 to house just one federal inmate for a year. There are currently more than 219,000 inmates in federal custody, nearly half of them serving sentences for drug offenses.

The bipartisan Durbin-Lee-Leahy bill is an incremental approach that does not abolish any mandatory sentences. Rather, it takes a studied and modest step in modernizing drug sentencing policy by:

• Modestly expanding the existing federal “safety valve”....

• Promoting sentencing consistent with the bipartisan Fair Sentencing Act: The bipartisan Fair Sentencing Act of 2010 – which was authored by Senator Durbin and unanimously passed the Senate before it was signed into law – reduced a decades-long sentencing disparity between crack and powder cocaine offenses. Unfortunately, because of the timing of their sentences, some individuals are still serving far-too-lengthy sentences that Congress has already determined are unjust and racially disparate. The Smarter Sentencing Act allows certain inmates sentenced under the pre-Fair Sentencing Act sentencing regime to petition for sentence reductions consistent with the Fair Sentencing Act and current law....

• Increasing individualized review for certain drug sentences: The Smarter Sentencing Act lowers certain drug mandatory minimums, allowing judges to determine, based on individual circumstances, when the harshest penalties should apply. The Act does not repeal any mandatory minimum sentences and does not lower the maximum sentences for these offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, the ACLU, Grover Norquist, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, the NAACP, the Sentencing Project, Open Society Policy Center, the American Bar Association, NAACP Legal Defense and Educational Fund, the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the Constitution Project, Drug Policy Alliance, Brennan Center for Justice, and Lawyers’ Committee for Civil Rights Under Law.

I am going to need to see the text of this new bipartisan Smarter Sentencing Act before opining about whether it is a terrific reform proposal or just a very good one. But, even without seeing the specifics, I can note and praise the willingness and ability for these Senators, who likely do not agree on too many issues, coming together to give effect to their shared view that the federal sentencing system need to be made smarter.

Some recent and older related posts about the new federal politics of sentencing:

August 1, 2013 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Cleveland kidnapper Castro gets LWOP sentence plus 1000 years as plea deal provided

I had the honor this morning of watching the first part of the state sentencing proceeding for Cleveland kidnapper Ariel Castro in a remote studio waiting to be a boxed pundit on CNN.  Consequestly, I will link here and quote below part of CNN's extensive coverage of the sentencing chapter of this high-profile case:

Kidnapping victim Michelle Knight told her captor, Ariel Castro, during his sentencing hearing, "You took 11 years of my life away. ... I spent 11 years in hell. Now, your hell is just beginning."

"I can forgive you, but I will never forget," she said in her statement to Castro, calling him a hypocrite. "Nobody should go through what I went through," she said tearfully. She called another victim, Gina DeJesus, her "teammate" saying the woman saved her when she was "dying from his abuse." Knight said she "will overcome what happened" but Castro "will face hell for eternity."

During Ariel Castro's sentencing hearing, prosecutor Anna Faraglia said that Castro "tormented (his victims) by allowing them to watch their vigils ... and even had the audacity to attend them."  She further said that Castro would talk to his victims' parents as if he were distraught by their disappearances when "they were right underneath his roof."

Tim McGinty, Cuyahoga County prosecutor, stressed there's no backing to the claim that Ariel Castro suffered from mental illness. "He is responsible," he said, likening him to murderers John Wayne Gacy and Ted Bundy. "He has no excuse."  When asked what Castro would do if he could go back and do things differently, the kidnapper responded that he'd do it all over again, McGinty said. "He doesn't believe he did anything wrong," McGinty said. "There is no remorse."

Defense attorney Craig Weintraub then told the judge that he felt some of the testimony presented was inappropriate because "these were really private matters," the sentence had been agreed upon prior to the hearing and Castro waived his right to challenge the facts of the case. Judge Michael Russo responded that he felt the testimony and evidence was necessary to help him guide his decision on whether to accept the sentence.

Cleveland kidnapper Ariel Castro, speaking at his sentencing hearing, said, "I'm not a violent person.  I simply kept them there so they couldn't leave."  He was referring to the three women he held captive for about a decade.   Castro said he knew what he did was wrong, but he argued that the "accusations that I would come home and beat them" are "totally wrong."

"I'm not a monster. I'm just sick. I have an addiction. Just like an alcoholic has an addiction."...

Describing himself as a "very emotional person," Ariel Castro said during his sentencing hearing that "these people are trying to paint me as a monster and I'm not a monster. I'm sick."

"I believe I am addicted to porn to the point that it makes me impulsive and I lost it," he said, adding he's "not trying to make excuses."

Ariel Castro took issue with the aggravated murder charge related to the allegation that his abuse terminated the pregnancy of one of his victims, saying there was no evidence the incident occurred. Judge Michael Russo reminded him that he pleaded guilty, and Castro said he did so only to save his victims further psychological trauma....

Judge Michael Russo has already sentenced kidnapper Ariel Castro to hundreds of years in prison, mostly in eight- to 10-year consecutive blocks.  Russo said Castro "will never be released from incarceration during the period of his remaining natural life for any reason."

"A person can only die in prison once," Judge Michael Russo told Ariel Castro Thursday in handing down a sentence of life in prison plus 1,000 years.  The judge called the sentence "commensurate with the harm you've done." Russo, noting that Castro treated his victims as "slaves," said consecutive sentences rendered in his case must be "imposed" to protect the public and "to punish you."...

"There is no place in this city, there is no place in this country, there is no place in this world for those who enslave others," Judge Michael Russo told kidnapper Ariel Castro. The court in Cuyahoga County is seizing the property of Ariel Castro and imposing a fine of $100,000 on him, in addition to his massive sentence.

Related prior posts:

August 1, 2013 in Offense Characteristics, State Sentencing Guidelines, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, July 31, 2013

"Sentencing Bradley Manning: He could get 100 years, he could get none"

The title of this post is the headline of this notable new article in the Christian Science Monitor about a notable upcoming sentencing of a notable criminal offender.  Here are excerpts:

As the trial of Pfc. Bradley Manning begins its sentencing phase Wednesday, the prosecution will attempt to show that the documents he released gravely damaged national security.

At the same time, the defense will make the case that the perhaps the government was embarrassed by Private Manning’s disclosures, but they did not cause the catastrophic harm to national security that the Obama administration initially claimed....

“They are going to try to show that nothing he did ultimately harmed the country,” says Richard Rosen, former commandant of the US Army’s Judge Advocate General’s School and currently the director of the Center for Military Law and Policy at Texas Tech University School of Law in Lubbock. The bulk of this sort of evidence could not be introduced before the judge rendered its verdict, because it could be deemed prejudicial or irrelevant, but in the sentencing phase of the proceedings, “The rules of evidence are relaxed,” Mr. Rosen adds....

The key for Manning will be providing mitigating evidence – “factors that may sway the judge to grant him a lesser sentence,” Rosen says. “This may be family problems or that people persecuted him because of his sexual preferences.”

The sentencing phase will be extensive and may last for weeks. Although Manning was acquitted of “aiding the enemy,” which would have carried with it a life sentence without the possibility of parole, he has been found guilty of crimes that generally impose decade-long sentences each, which could quickly add up. “It’s going to accumulate quite a few years,” Rosen says. “We’re probably talking nearly 100 years – we’re talking a lot of years.”

“We’re not celebrating,” defense attorney David Coombs said. “Ultimately, his sentence is all that really matters.”

Once Col. Denise Lind, the presiding judge, renders her verdict, Manning’s case will automatically go to what is known as the “convening authority,” a general who, if he so desired, could overturn the verdict.

The powers of the convening authority have been called into question over recent months, when they have twice thrown out sexual assault convictions rendered by military juries. Though unlikely to happen, the general who is serving as the “convening authority” in the Manning trial – as with the sexual assault cases that caused so much controversy – could dismiss the conviction, known as “setting aside” the verdict.

What the general cannot do is provide a harsher sentence than Colonel Lind has already given to Manning. “He can give further clemency if he wants, he can lessen the sentence, or he can set aside the findings,” Rosen explains.

If the convening authority declines to change the sentence, Manning’s defense team can also seek clemency through the Court of Appeals for the Armed Forces. Beyond that, they could take the Manning case all the way to the US Supreme Court, likely by arguing that the US government violated Manning’s constitutional rights.

That will be a tough case to make. “I can’t think of a time when the Supreme Court has overruled a court of appeals for the Armed Forces,” Rosen says. “They don’t like to second-guess the judgments of the military courts.”

In the meantime, the defense will seek to ensure that Manning gets credit for the jail time he has already served – three years – and perhaps more by arguing that he was mistreated in pretrial confinement by being put in solitary confinement and being stripped naked.

For this, “He’ll try to seek additional credit – in other words, not a one-to-one reduction in jail time, but, say 10 to 1 – in other words, 10 days for every day he was mistreated,” Rosen says. “It’s going to be long and involved,” he adds. “It doesn’t end here.”

July 31, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Big taxpayer pricetag ($4 million) for just one notable casualty from federal drug war

Accurately calculating either the benefits or costs of the modern American war on drugs is all but impossible.  But it is hard not to notice and lament the discovery of one particularly costly incident for both a casualty of this war and federal taxpayers as is documented in this local article headlined "DEA settles left-in-cell case for $4M." Here are the details:

Daniel Chong, the self-confessed pot smoker who was caught up in a drug sweep last year and nearly died after federal agents inadvertently abandoned him in a holding cell for five days without food or water, is now a millionaire.

Attorney Eugene Iredale announced Tuesday he reached a $4.1 million settlement with the U.S. Department of Justice, without even filing a lawsuit.  “What happened to Daniel Chong should never happen to any human being on the face of the planet,” Iredale said....

In addition to the cash payment, the lawyer said federal officials agreed to adopt new detainee procedures designed to make sure no one is left unwittingly in a holding cell again.  Iredale said he also was told the temporary lockups inside the San Diego office have been equipped with cameras to allow agents to view what happens inside.

The U.S. Department of Justice, which paid the settlement and absorbed all other liability from the local police agencies assisting in the sweep, declined Tuesday to discuss the events or the multimillion-dollar payment.

The harrowing experience for Chong, 25, an engineering major at UC San Diego, began on a Friday night in 2012, when he admittedly went to some friends’ house in University City to celebrate April 20, a special date for marijuana users.  Chong didn’t know it at the time, but the home had been under surveillance by a federal narcotics task force.

Drug agents executed a search warrant early in the morning of April 21, Among other things, they found 18,000 ecstasy pills, marijuana and several weapons in the residence, according to court papers.  The agents also found Chong sleeping on a couch in the front room and transported him and six others to the San Diego field office of the U.S. Drug Enforcement Administration for follow-up interviews.

Chong said he answered all of the agents’ questions and they agreed to send him home without criminal charges.  But instead he was returned to a temporary holding cell, where he spent the next four days without food or water.  During the final two days of the ordeal, Chong was in complete darkness, he said.  He has said he became delirious, drank his own urine, ate the broken shards of his glasses and used the glass to cut the message “sorry mom” in his own forearm.

He said he kicked the door and screamed for help but agents never came to his assistance.  DEA agents admitted later they “accidentally” left Chong in the cell and took the unusual step of apologizing publicly to the UCSD student.   “When they finally opened the door, I was happy,” Chong said Tuesday. “I thought maybe they were going to take me to a mental ward. I was screaming.”

Chong spent five days at Sharp Memorial Hospital in Kearny Mesa before he was able to return home.  Although his lawyer said Chong still suffers from post-traumatic stress, Chong indicated he is doing better overall....

Findings of an investigation of the case by the Office of the Inspector General’s Office of the U.S. Department of Justice have not been released.  Iredale said federal investigators told him they do not plan to pursue criminal charges against any of the agents involved in the task force. Iredale singled out for the first time a San Diego Police Department officer who was the last person to see Chong before the cell was locked.

July 31, 2013 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27) | TrackBack

Tuesday, July 30, 2013

"Prisons are shrinking. That won’t necessarily last."

The title of this post is the headline of this recent notable essay by Mike Konczal posted on-line via the Washington Post. Here is how it starts:

The Bureau of Justice Statistics on Thursday released its count of the number of prisoners in the country. There are 1,571,013 individuals under the jurisdiction of state and federal correctional authorities. However, that number represents a decline, having fallen 1.7 percent since last year — the third consecutive annual drop and the largest of the three. This multi-year falling trend is also true if you consider everyone in the correctional system, or the nearly 7 million people you get when you include local jails, probation and parole. This is after decades of rapidly expanding prisoner populations in the United States.

Meanwhile, the Corrections Corporation of America (CCA), the nation’s leading provider of private, for-profit prisons, had a happy announcement in a recent PowerPoint presentation: State budgets will soon be no longer in crisis. One must imagine that CCA shareholders who are U.S. residents were excited that school budgets would no longer be slashed, public services more broadly would no longer be cut, and the dangerous state-level austerity holding back the economy would no longer be an issue. But the real excitement was over the idea that states could finally start arresting people again, thus filling the depleted ranks of the incarcerated.

Liberals debate the longer-term consequences of the past five years all the time. Is the financial sector well-regulated again? Did we roll back the expansive executive authority of the War on Terror, or solidify it? Did we invest enough in infrastructure when interest rates were at all-time lows? But a major question is still open for debate: Did collapse of state budgets during the Great Recession put us on a permanent path to rolling back the United States’ high levels of incarceration?

July 30, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, July 29, 2013

New Slate pitch for Prez to use clemency powers to address crack sentencing disparities

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 ideas expressed in this recent post concerning the President Obama's words and (lack of) actions now find expression in this new Slate commentary.  Here is how the piece, co-written by me and Harlan, starts and finishes:

President Barack Obama, commenting last week on George Zimmerman’s acquittal in Trayvon Martin’s death, remarked on “a history of racial disparities in the application of our criminal laws — everything from the death penalty to enforcement of our drug laws.”  A few months earlier, Attorney General Eric Holder similarly lamented new government data suggesting that even today “black male offenders” are sentenced to federal prison terms “nearly 20 percent longer than those imposed on white males convicted of similar crimes.”  These statements reveal that our nation’s first African-American president and first African-American attorney general are aware of serious racial discrimination in the administration of our nation’s criminal laws.  The question is what they plan to do about it?

Neither the president, nor his attorney general, has followed-up or suggested a fix for the problem.  Yet with one signature, Obama could make a remarkable difference: He could use his constitutional powers to commute the sentences of thousands of disproportionately black inmates serving excessive prison terms for crack cocaine offenses.  Put bluntly, rather than dropping occasional comments about high-profile criminal-justice incidents with racial overtones, both the president and the attorney general should make a focused and sustained effort to redress longstanding criminal justice disparities....

Back in 2009, Holder famously described us as a “nation of cowards” in dealing with race issues.  And while both Holder and the president seem to have the courage to speak about high-profile cases, they have yet to show the fortitude and focus needed to turn high-profile controversies into constructive opportunities.  If President Obama is genuinely committed to addressing racial disparities in the enforcement of our criminal laws, he can grant clemency today, and then make a sustained commitment to addressing these issues throughout his second term.  If he fails to do so, he can, justifiably, be called our nation’s “Coward-in-Chief” where race is concerned.

July 29, 2013 in Clemency and Pardons, New crack statute and the FSA's impact, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (33) | TrackBack

New law school clinic to undertake impact litigation on rights and criminal justice issues in Mississippi

UmissAt the request of Dean I. Richard Gershon of the University of Mississippi School of Law, I am pleased to be able to post this announcement about at exciting new clinic and job opportunity at Dean Gershon's school:

The University of Mississippi School of Law announces the creation of the MacArthur Justice Clinic, the law school's ninth clinical program.  The Clinic will undertake impact litigation on civil rights/human rights matters and criminal justice issues in Mississippi.  The law school seeks a tenure-track (or long-term appointment ) clinical faculty member to lead and teach in the clinic. With the generous support of the J. Roderick MacArthur Foundation, the law school will receive funding for the Clinic’s litigation efforts, and will also create an endowment to provide loan repayment and fellowships for recent graduates who pursue public interest law in Mississippi. The School of Law looks forward not only to the work of the MacArthur Justice Clinic, but also to the connection the Clinic will build with the Roderick MacArthur Justice Center at Northwestern University School of Law.

The Chair of the Search Committee is Professor Ben Cooper (email bcooper @ For more information about the position and to apply, please visit this link.  For more information on the establishment of the Clinic, please visit this link.

July 29, 2013 in Who Sentences? | Permalink | Comments (0) | TrackBack

US District Judge Young explains why he believes corporate plea deals merit special scrutiny

US District Judge William Young of the District of Massachusetts late last week issued another interesting (and lengthy) opinion about federal sentencing and the role of the sentencing judge.  In this new ruling, United States v. Orthofix, No. 12-10169 (D. Mass. July 26, 2013) (available for download below), Judge Young explain at lengthy why the public interest may not be served if judges too readily accept corporate plea deals.

As long time readers know, Judge Young's sentencing work always merits attention, and Orthofix does not disappoint.  There is too much ground covered in Orthofix to allow a simple summary, but here is part of this introduction which provides a preview for what follows:

This memorandum sets out the Court’s reasons for rejecting each of the (C) pleas from these two corporate criminal defendants.  In many ways, the Court’s decision to reject Orthofix’s (C) plea stands as the better subject for elucidation of the Court’s principled objection toward accepting (C) pleas from corporate criminals.  This is because, in contrast with the wholly unsatisfactory settlement proffered by APTx, see APTx’s Plea Hr’g 18:13 (“[T]his is a strikingly below guidelines sentence . . . .”), Orthofix’s plea was tendered as part of what was, substantially, “a fair and appropriate settlement,” Tr. Arraignment, Plea & Sentencing (“Orthofix’s Sentencing”) 25:8, Dec. 14, 2012, No. 12-10169-WGY, ECF No. 39. 

This memorandum articulates the Court’s view of the unusually complex considerations posed by the sentencing of corporate criminals and lays out the Court’s interpretation of the duties it must discharge, with prudence and circumspection, in performing its sentencing function.  The Court concludes that, in light of these considerations, it would be rare indeed for a corporate criminal to persuade this Court that its guilty plea is an appropriate candidate for acceptance under the fetters of Rule 11(c)(1)(C).

Download Orthofix and APTx Sentencing Mem

July 29, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, July 28, 2013

After extensive (and expensive?) jurisdictional wrangling, Jason Pleau agrees to plead guilty to avoid federal death penalty prosecution

As reported in this local piece from Rhode Island, standard-issue robbery murder case which prompted a high-profile legal tussle between state officials and the feds has now resulted in a standard-issue plea deal to take the death penalty off the table.  The piece is headlined "Death sentence avoided as Jason Pleau’s pleads guilty in 2010 killing of gas-station manager," and here are the details:

The saga of Jason Wayne Pleau, the accused killer whose case drew a governor and the U.S. attorney general into the national debate on the death penalty, has reached a resolution that could see his life spared, in return for spending the rest of it behind bars.

In a plea agreement filed in federal court Friday, Pleau, who faced the death penalty, agreed to plead guilty to charges in connection with his fatal shooting of David D. Main, a Woonsocket gas station manager, during a bank robbery in September 2010.

Pleau agreed to accept a life sentence in prison, with no release.  In return, U.S. Attorney General Eric Holder signed off on a decision by federal prosecutors not to seek the death penalty....

“Obviously, we’re all grateful that Jason Pleau isn’t facing the prospect of a death sentence,” said his lawyer, Robert B. Mann.

Pleau’s case attracted national attention when Governor Chafee, an opponent of the death penalty, refused to turn Pleau over to federal custody. 

Chafee issued a statement following Friday’s announcement by federal prosecutors.  “My thoughts are with Mr. Main’s family. The case today has reached a conclusion, and Mr. Main’s family can begin the long healing process. A life sentence is the appropriate punishment for this brutal crime and respects Rhode Island’s long-standing opposition to the death penalty.”

According to a signed plea agreement filed in U.S. District Court in Providence, Pleau, 35, will plead guilty to committing Hobbs Act robbery; and carrying, using, and discharging a firearm during and in relation to a federal crime of violence, death resulting....

A federal grand jury indicted Pleau in December 2010, but the case was delayed for nearly a year as Chafee became possibly the first governor in the nation to refuse to surrender a prisoner to federal custody based on opposition to capital punishment.

The 1st U.S. Circuit Court of Appeals rejected the governor’s argument, on a 3-to-2 vote, and the U.S. Supreme Court declined to intervene.

As the title of my post suggests, I wonder how much it cost the taxpayers of Rhode Island for its Governor to put up an aggressive fight to try to prevent federal authorities from being able to effectively prosecute a federal murderer. Ironically, losing this fight ultimately saved these same taxpayers the roughly $500,000 it will likely cost to keep Jason Pleau imprisoned until he dies.  Now federal taxpayers will be footing this bill.

July 28, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Saturday, July 27, 2013

"Big Marijuana lobby fights legalization efforts"

Mm imageThe title of this post is the headline of this intriguing new Politico piece concerning the latest politics of pot.  Here are excerpts:

Pot legalization activists are running into an unexpected and ironic opponent in their efforts to make cannabis legal: Big Marijuana.

Medical marijuana is a billion-dollar industry — legal in 18 states, including California, Nevada, Oregon and Maine — and like any entrenched business, it’s fighting to keep what it has and shut competitors out. Dispensary owners, trade associations and groups representing the industry are deeply concerned — and in some cases actively fighting — ballot initiatives and legislation that could wreck their business model.

That pits them against full legalization advocates, who have been hoping to play off wins at the ballot box last fall in Colorado and Washington state that installed among the most permissive pot laws in the world. Activists are hoping to pass full legalization measures in six more states by 2016.

From the point of view of dispensary owners, legalization laws — depending on how they’re written — can have little immediate upside and offer plenty of reasons for concern. For one, their businesses — still illegal under federal law — benefit from exclusive monopolies on the right to sell legal pot, but state measures still don’t end the risks of an FBI raid or Internal Revenue Service audit. Meanwhile, those same federal laws that prohibit growing, selling and using keeps pot prices high.

This spring, the Medical Marijuana Caregivers of Maine joined the usual coalition of anti-pot forces of active law-enforcement groups, social conservatives and public health advocates to oppose a state bill that would legalize possession of small quantities of the drug. The medical marijuana lobby argued that criminal organizations would start smuggling pot to neighboring states, and they complained that the bill’s tax plan was unworkable and unfair....

Full legalization advocates, like the National Organization for the Reform of Marijuana Laws, say it’s all about the money. “There are people who are benefiting financially and would prefer to see nothing change that,” said Erik Altieri, communications director for NORML.

“NORML believes the only way to truly ensure access for those patients who need cannabis for medical purposes is to legalize its use for all adults,” he added. “This will provide every adult safe and convenient access to quality cannabis, regardless of whether or not their state legislators think their specific condition ‘qualifies.’”

There wasn’t always a major divide in the cannabis camp. The two sides of the movement have long worked together on de-scheduling marijuana as a controlled substance and stopping federal raids on legal dispensaries.

Many owners of medical marijuana dispensaries got their start in the broader anti-drug war movement and are still on the same intellectual side of the issue — working to de-criminalize pot. “It’s like dentists and fluoride,” said Ethan Nadelmann, executive director of the Drug Policy Alliance. “People using fluoride reduces business for dentists. But nonetheless, dentists see fluoride as part of what they have to advocate for.”...

The split between the two sides of the pro-pot lobby is generally on the state level, where legislatures have been willing to take up the issue. Both sides are united in opposition to federal raids on medical marijuana dispensaries and support an overhaul of federal drug laws, but so far, Congress has shown little interest. “At the federal level, there really is no divergence of interest at this point. We have a narrower focus” said Betty Aldworth, deputy director of the National Cannabis Industry Association.

The association and Americans for Safe Access are two major national trade groups that push for strict neutrality on state-level ballot efforts. Americans for Safe Access advocates specifically for medical cannabis, while NCIA represents all marijuana retailers — recreational and medical.

In Washington state, pot dispensary operators said the new legalization law would put them out of business. Medical marijuana activists also were upset about a standard for driving under the influence, included in the 2012 ballot initiative. It proposed that police could jail them even if they weren’t high.

In Washington, Steve Sarich, executive director of the Cannabis Action Coalition, ran a vocal campaign against the ballot measure. Among his concerns: provisions in the law that allow cities to impose restrictive zoning codes on marijuana retailers, and the liquor control board’s lack of experience regulating marijuana. The initiative — called I-502 — was “designed to pass,” he said. “It was never designed to be implemented. I’m willing to bet you any amount of money you like that it won’t be implemented.”

In Colorado, opposition from the industry to the 2012 ballot measure was muted — but pot dispensaries won an important concession: the exclusive right to convert into recreational shops before anyone else can apply for a license....

“Their concerns are oftentimes valid,” Mason Tvert, said Marijuana Policy Project of Denver and who also helped run the pro-legalization campaign in 2012. “We’re taking about people who have risked their freedom and liberty and faced the threat of criminal penalties to open these businesses to meet the needs of the public.”

July 27, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, July 26, 2013

Kansas Gov calling special legislative session to deal with Allenye problems

A helpful reader alerted me to this local Kansas article reporting on the latest ripple from the Supreme Court's work last month in Alleyne.  The piece is headlined, "Brownback calls for special legislative session to address questions on ‘Hard 50’ law," and here are the details:

Kansas Gov. Sam Brownback has called for a special legislative session starting Sept. 3 to address legal questions about the state's so-called "Hard 50" sentencing law.  State Attorney General Derek Schmidt had asked for a special session because of a recent U.S. Supreme Court ruling that struck down a similar federal sentencing law.

“The ‘Hard 50’ sentence is a vital public safety tool that has been in place for more than 10 years,” Brownback said in a statement released today. “The sudden absence of the ‘Hard 50’ sentence poses a real and present danger to the public safety of all Kansans.”

Republican leaders of the Kansas Senate quickly issued a statement supporting the call for a special session. “I appreciate the assessment of the situation by the Governor and the Attorney General, and support their decision,” Senate President Susan Wagle, a Wichita Republican said in the statement. “After learning about the circumstances of the pending cases, and recognizing the critical time element involved with the appeals process, it’s clear we must act. The Senate will respond quickly and efficiently to protect public safety.”

Under the Kansas statute, people convicted of premeditated murder can be sentenced to life without the possibility of parole for 50 years if the trial judge finds certain aggravating factors. Otherwise, those defendants are typically given a sentence of 25 years to life.

The U.S. Supreme Court, however, issued a ruling in June saying that when statutes like the Hard 50 law call for enhanced penalties, the facts that justify the more severe sentence must be decided by the jury, not a judge. Days after the Supreme Court issued that ruling, it remanded a Kansas case back to the state supreme court to be reconsidered....

“While returning to Topeka for a special session is often a last resort, crafting legislation to keep our constituents safe from violent offenders is the proper response to the Alleyne Decision," Senate Majority Leader Terry Bruce, a Hutchinson Republican, said, referring to the U.S. Supreme Court's ruling in Alleyne v. United States. "Legislative action should be taken in a reasonable period of time and in a bipartisan manner.”

During a news conference Thursday, Schmidt said there were potentially dozens of other cases in Kansas that could be affected by the ruling. One of those involved a murder-for-hire scheme in which the victim was shot execution-style in the back of the head in front of her child. It was a case of mistaken identity, Schmidt said, and the victim was not the intended target.

July 26, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

If you have any concerns about female federal prisoners...

Danburythen you should be especially troubled by this new blog post by Todd Bussert titled "New Hardships For Female Prisoners." That post spotlights this new Slate piece by LawProf Judith Resnik, which highlights the main concern via its headline and subheading: "Harder Time: Why are the federal prison beds for women in the Northeast going to men — while the women get shipped to Alabama?". Here is an excerpt from the Slate piece:

This August, the Federal Bureau of Prisons plans to start shipping women out of its only prison for women in the Northeast, located in Danbury, Conn. — 70 miles from New York City, and in easy reach of visitors for the many prisoners who come from there.

Danbury (where Piper Kerman, who wrote Orange is the New Black, did her time) will soon have only 200 spots for women (in a separate low-security camp).  The prison’s other 1,100 beds will go to men.  Most of the women are slated to be sent to a new 1,800-bed facility in Aliceville, Ala. — 1,070 miles from New York City, a drive that takes nearly 16 hours.

Becoming the site of a new federal prison is good news for Aliceville, population 2,500.  As a New York Times editorial explained last year, Alabama Sen. Richard Shelby promoted the facility as an economic boost to the area.  It cost the federal government $250 million.  But as the newspaper also commented, the government bought a “white elephant.” Aliceville is hard for anyone without a car to get to. There is no train station or airport nearby.  Aliceville has no medical center or university, nor many lawyers, religious leaders, or other service providers.

The federal Bureau of Prisons houses about 220,000 people.  Fewer than 7 percent (about 14,500) are women, most of them sentenced for nonviolent crimes, such as drug offenses. Of the 116 facilities the bureau runs, 27 have some beds for women, and seven — counting Danbury — have been exclusively for women.  Danbury is the only prison placement in the Northeast for women.  The federal jails in Brooklyn, N.Y., and Philadelphia are for pretrial detainees.  Other federal facilities for women comparable to Danbury are many miles away, in West Virginia, Florida, and Minnesota....

Being moved far from home limits the opportunities of women being moved out of Danbury; it hurts them in prison and once they get out.  Recent research from Michigan and Ohio documents that inmates who receive regular visits are less likely to have disciplinary problems while in prison and have better chances of staying out of prison once released.

The Bureau of Prisons knows this, as it recognizes the importance of “family and community ties” in its classification system.  The bureau gives inmates points for family ties when assessing the degree of security in which to place individuals.  Getting visits also counts toward qualifying for a transfer to a less secure facility.

Most women come to prison from households with children.  According to the National Women’s Law Center, more than one-half of female federal prisoners have a child under the age of 18.  Last month, the director of the federal prison system sent a memo to all inmates to announce that his staff was “committed to giving you opportunities to enhance your relationship with your children and your role as a parent.”  In addition to letters and calls, he hoped that inmates’ families would bring their children to visit. “There is no substitute for seeing your children, looking them in the eye, and letting them know you care about them,” he wrote.

But for prisoners from New England and the mid-Atlantic states, the move to Aliceville closes off those possibilities.  Placement in Aliceville also makes it harder for lawyers to see their clients and provide help on problems ranging from losing custody of children to challenging convictions.  

What’s the justification for moving Danbury’s women to Aliceville? To make the argument for the large new complex, the Bureau of Prison claimed that Aliceville would benefit women, because the existing facilities for them were about 55 percent over capacity. What the BOP did not mention was that it planned to turn over women’s beds in Danbury to make room for lower security male inmates, also housed in overcrowded facilities.

The skyrocketing numbers of people in prison is a well-known tragedy.  Adding to it is the isolation to which women at Aliceville are being condemned.  The Bureau of Prisons itself describes women as mostly nonviolent and lower escape risks than men.  Why not, therefore, keep Danbury open, as well as send women to community-based facilities near their families, and provide educational options, job training, and treatment programs? Instead of taking a route consistent with its own policies, and newly announced commitments to parenting by prisoners, the government is sending hundreds of women on a long hard trip to Aliceville.

July 26, 2013 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, July 25, 2013

Arkansas struggling to work through how to lawfully complete executions

As reported in this local article, headlined "Arkansas Committee Looks for Ways to Administer Death Penalty," officials in The Natural State are having a very hard time coming up with a natural and constitutional method for carrying out executions:

Arkansas officials are considering what steps to take in the wake of comments by Attorney General Dustin McDaniel claiming Arkansas’ death penalty system is broken. McDaniel told the joint Judiciary Committee the nationwide unavailability of the lethal injection drug, a lack of medical personnel willing to administer the dose, and a continuing stream of costly litigation has rendered the state unable to perform its duty.

Some lawmakers suggested other methods used elsewhere. McDaniel said those options carry many of the same problems as well as an additional burden of meeting what the court’s deem to be our evolving societal values.

"Of course we don't know for sure how the courts would view an execution by firing squad, or gas chamber, or by electric chair. But I think I have a pretty good guess. Although the specific factual issues in a challenge to execution by one of those alternative methods would be different the legal issues regarding claims of cruelty and the possibility of undue pain or mistake would be exactly the same as the claims raised in the lethal injection cases," said McDaniel.

Republican Senator Jeremy Hutchison of Benton said challenges to carrying out the death penalty, especially the unavailability of the lethal drug, is not a reason to stop pursuing other options. "This is on the books and as long as juries are rendering capital punishment we are obligated as legislators, and the as the Attorney General, to do everything we can to see that it's carried out," said Hutchison.

McDaniel said he will continue working to uphold the law, but that the state has very few options and other states around the country are facing similar problems. McDaniel said options include the abolition of the death penalty, continuing litigation, and pressuring Congress to lift an FDA ban on imports of lethal barbiturates.

July 25, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

On-line petition for law professors to "Save Federal Defenders Services"

Professor Fredrick Vars via this post at PrawfsBlawg has started this valuable on-line petition:

Petition: Save Federal Defender Services

Sequestration imperils the constitutional right of criminal defendants to adequate legal representation.  About 90% of federal criminal defendants require court-appointed counsel. In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs.  It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.

Funding for prosecutors is apparently headed in the opposite direction. The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court.   This radical imbalance threatens the fundamental right to counsel.

Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services.  Just add a comment with your name, institutional affiliation (if applicable), and city of residence.

I have added my name to this effort, and a helpful reader sent me a link to this informative fact-sheet providing background for why everyone concerning with a fair and effective (including cost-effective) criminal justice system ought also join in.

Related posts on the criminal justice impacts of sequestration:

July 25, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (58) | TrackBack

Waaaaay below federal guideline prison sentences (but big fines) for UBS bid-riggers

As reported in this Wall Street Journal, headlined "US set back on bid-rig sentencing," a federal district judge in NYC yesterday handed down a set of white-collar sentences that were far below calculated guideline ranges and far below the sentences being sought by federal prosecutors.  Here are the details:

US District Judge Kimba Wood of the Southern District of New York handed Peter Ghavami, the former co-head of UBS' municipal-bond reinvestment and derivatives desk, an 18-month sentence. Prosecutors had sought at least 17½ years and as long as 21 years, 10 months for Ghavami, who also served as the Swiss bank's head of commodities at one point.

The much harsher sentence proposed by the government would have been longer than the 11-year term given in 2011 to Galleon hedge-fund founder Raj Rajaratnam for his insider-trading conviction.

But Judge Wood, a one-time nominee to become US attorney general who also sentenced former Drexel Burnham Lambert executive Michael Milken to 10 years in prison, raised questions about the government's method of calculating losses in the case, which it had pegged at about $25 million.

She also praised Ghavami's "admirable history" and noted that he faces other penalties including a $1 million fine and deportation to Belgium, where he is a citizen. Because Ghavami, 45 years old, is not a US citizen, he also has to serve in a "low security" prison instead of a "miminum security" camp.

One of Ghavami's former colleagues, Gary Heinz, 40, a former vice president on UBS' municipal-bond reinvestment desk, was given a 27-month sentence Wednesday, while Michael Welty, 49, another former vice president, got 16 months. Prosecutors had asked for at least 19½ years for Heinz and about 11 years or more for Welty.

Last summer, a New York jury found the three former UBS employees guilty of leading a scheme that caused municipalities to pay millions of dollars more for bond deals than they needed to pay. The case dealt with an obscure corner of the bond market in which local governments raise money from investors through bond deals, then invest the proceeds in investment products that banks and others are supposed to sell in a competitive process....

In the UBS bond-rigging case however, prosecutors sought stiff penalties for actions that took place before the financial crisis, from 2001 to 2006.  The three former UBS employees caused cities, states and other municipalities to lose $25 million, the government alleged. "For years, these executives corrupted the competitive bidding process and defrauded municipalities," said Scott D. Hammond, deputy assistant attorney general in the Antitrust Division's criminal-enforcement program, in a statement.....

"We're extremely pleased with the sentence," said Charles Stillman, a lawyer for Ghavami. Ghavami intends to start serving his sentence as soon as possible, instead of waiting to see how his appeal of the case turns out, Stillman added.  Ghavami's fine of $1 million was five times greater than the maximum suggested by the government.

Heinz and Welty were fined $400,000 and $300,000, respectively, both more than the government suggested.  Marc Mukasey, Heinz's lawyer, said "We're happy that the government's outrageous sentencing request was soundly rejected."  Welty's lawyer, Gregory Poe, said that the jury acquitted Welty of wire fraud and said he will appeal the conspiracy convictions, and "we hope to clear his name."  He added that his client is grateful that Judge Wood rejected the government's sentencing position.

Over the past half-decade, the Justice Department has pursued the muni-bond cases as part of an effort to punish Wall Street banks for shortchanging cities and states. Prosecutors have enjoyed some victories, so far gathering six convictions and 13 guilty pleas.  Several were sentenced before Wednesday, with prison terms ranging from six months to four years.  Firms affected by the investigation have paid $745 million in restitution, penalties and disgorgement....

It remains to be seen whether this week's sentencing setback will affect the government's strategy in the other pending sentencing hearings.  Two former JP Morgan Chase. employees, two former Bank of America employees and three others involved with the case await sentencing.  One case remains pending and awaiting trial.

Last year, three former employees of General Electric were convicted for their roles in conspiracies related to bidding for municipal-bond-proceeds reinvestment. Two were sentenced in October to three years in prison and the third received a four-year term.

At the hearing Wednesday, prosecutors argued that the former UBS officials deserved more prison time than the former GE employees, while Judge Wood said she didn't see the cases as that different.  She also expressed doubt that anyone could accurately quantify losses in cases where the bidding process had been corrupted. In the case of the three UBS officials sentenced Wednesday, federal prosecutors also sought fines of $20,000 to $250,000 in the case.  Prosecutors called their actions a "sophisticated financial fraud" that went on for years and "victimised municipalities and other bond issuers".

There are obviously lots of interesting aspects to this sentencing story.  I am especially eager to praise Judge Wood for using big financial penalties — which make the government money and seem especially fitting for crimes of greed — while refusing to use big imprisonment terms — which cost the government money and seem unlikely to impact public safety for non-violent white-collar criminals. Relatedly, given that this article suggests that all other comparable big-rigging defendants have received sentences ranging from 6 to 48 months, I find stunning and deeply troubling that federal prosecutors were advocating in these cases for sentences ranging from more than 130 months to 260 months. Nice effort to avoid unwarranted sentencing disparities via your advocacy here, DOJ. (Not!)

July 25, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, July 24, 2013

Should (and can) Alaska really be precluding plea deals with sentence reductions?

ALASKAThe (cumbersome) question in the title of this post is my first reaction to this notable local criminal justice story coming out of Alaska, which is headlined "State puts an end to sentencing deals in serious crimes." Here are the fascinating details:

State prosecutors will no longer negotiate plea deals for lesser sentences for Alaskans accused of serious crimes and domestic violence, the Alaska Department of Law said Tuesday.

The change of policy, which took effect Tuesday, bars plea bargains involving sentences for the most serious classes of felony cases, as well as all cases involving sexual assault, sexual abuse of a minor and domestic violence, said deputy attorney general Richard Svobodny. A plea bargain is an agreement between a prosecutor and defendant in which the defendant agrees to plead guilty in exchange for a lesser charge or a more lenient sentence, avoiding a trial. Nationally, between 90 and 95 percent of all criminal cases are settled through such agreements, according to a 2011 U.S. Department of Justice study. Attorneys say the statistic is roughly the same in Anchorage.

Under the new policy, prosecutors can offer defendants the opportunity to be charged with a less serious crime. But they can't offer a deal that changes the length of a sentence. Only a judge can do that. The idea is that judges should be the ones determining sentences, not prosecutors or defense attorneys, Svobodny said.

Attorneys say the policy could flood already-stretched courts with criminal defendants exercising their right to trial and generate huge new costs for prosecution and incarceration, which would eventually be borne by the public. "It's a major decision that's going to affect system-wide daily business in Anchorage courts," said Chester Gilmore, an Anchorage defense attorney. "Our model of criminal justice initially started with judges making those sentencing decisions and it should be handed back to them," he said.

The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple -- Touch Chea and Sorn Sreap -- in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman. Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.

A state review found that prosecutors made an inappropriately soft plea agreement with Active in a 2009 case after failing to recognize that he had already been convicted of a felony, Attorney General Michael Geraghty said in June. A judge and the Department of Corrections both failed to recognize the plea agreement mistake. The Active case became "part of the mix" in the decision to announce the new policy now, Svobodny said, although a change had been under discussion in the law department for more than a year....

Another influence was Gov. Sean Parnell's "Choose Respect" campaign. Parnell's office "worked closely" with the Department of Law on the change, said a spokeswoman.The "Choose Respect" campaign has emphasized the prosecution of sexual offenders and domestic violence perpetrators. "We feel the policy will better protect victims and ensure perpetrators are held accountable for their crimes," Parnell spokeswoman Sharon Leighow said.

Both prosecutors and defense attorneys say the rule will inevitably lead to more trials. Plea bargains aren't always appropriate but in many cases prosecutors and defendants agree they are the best way to resolve a case quickly and fairly, Gilmore said. The policy "takes away a lot of the reason anyone would have for not going to trial," he said....

In 1975, Alaska's then-attorney general banned all forms of plea bargaining. Dire predictions of system overload didn't pan out, though misdemeanor trials increased substantially in the immediate aftermath of the ban, a 1977 Alaska Judicial Council study found. A 1990 judicial council study found that the ban had eroded and the practice was again commonplace.

I suspect resourceful Alaskan prosecutors and defense attorneys will still find a way to strike sentence-impacting plea deals even in the wake of this fascinating new prosecutorial policy. Ergo, I am not sure that the state can, as a functional matter, really put an end to all sentencing deals in serious cases. More broadly, as the question in the title of my post suggests, I wonder if others question (as I do) whether this is a wise policy even if it could be practically sustained. Will rape victims and other victims of serious crimes in Alaska really be pleased to have to endure more trials and the extra burdens such trials might place on them? Will the resources the state will now likely have to devote to more trials to resolve criminal charges reduce the resources needed to fight crime in other ways in the state?

I could go on and on with philosophical and practical questions concerning what Alaska seems to be trying to do hear, but for now I will stop to hear others' reactions and thoughts about a criminal justice development that justifies watching closely in the months and years to come.  Is Alaska on the verge of becoming the Last Frontier State for plea bargaining?

July 24, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, July 23, 2013

Mixed DC Circuit ruling in suit against FDA allowing execution drug importation

As reported in this AP piece, the DC Circuit "ruled Tuesday that the Food and Drug Administration violated its duty by allowing a misbranded and unapproved new drug to be imported for use in executions by lethal injection."  But the ruling also "reversed another part of the lower court’s order and allowed state correctional departments to keep stocks of the drug they currently have."  Here is the concluding paragraph of the unanimous panel ruling today in Cook v. FDA, No. 12-5176 (DC Cir. July 23, 2013) (available here):

The FDCA imposes mandatory duties upon the agency charged with its enforcement. The FDA acted in derogation of those duties by permitting the importation of thiopental, a concededly misbranded and unapproved new drug, and by declaring that it would not in the future sample and examine foreign shipments of the drug despite knowing they may have been prepared in an unregistered establishment. The district court could not remedy the FDA’s unlawful actions, however, by imposing upon the interests of nonparties to this suit. The order of the district court pertaining to the thiopental already in the possession of the states, quoted in the paragraph above, is therefore vacated, but the underlying judgment of the district court is Affirmed.

July 23, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

Second Circuit finds stat max white-collar sentences procedurally unreasonable

The Second Circuit panel has today handed down a significant reasonableness ruling in US v. Juncal, No. 10-1800 (2d Cir. July 23, 2013) (available here), which should be of special interest to all white-collar sentencing practitioners. The last seven pages of the per curiam panel opinion and the entire nine pages of the concurrence by Distict Judge Underhill (sitting by designation) are must reads for sentencing fans, and the few paragraphs I will reprint here help highlight why.

The per curiam panel opinion find procedurally unreasonable 20-year sentences given to defendants who were part of a conspiracy "which involved a scheme to obtain a three billion dollar loan supposedly intended to finance construction of a pipeline across Siberia [that] resulted in no actual loss." Here is part of the panel opinion's explanation for why these sentences were procedurally unreasonable:

Here, appellants’ lawyers highlighted significant issues with the intended loss calculation both in their briefs and at sentencing. Given the low risk that any actual loss would result — what hedge fund would fall prey to a purported coalition of Buryatian nationals and Yamasee tribesmen using AOL email accounts to offer five billion dollars in collateral for a loan to build a pipeline across Siberia? — counsel argued that a 30 point mega-enhancement vastly overstated both the seriousness of the offense, and the danger of appellants to their community.  The Guidelines acknowledge that potentiality; application note 3(C) to U.S.S.G. § 2B1.1 indicates that a downward departure may be warranted where the offense level resulting from a loss calculation overstates the seriousness of an offense.  But the sentencing court never resolved appellants’ significant arguments.  At Sampson’s hearing the District Court did draw a comparison between other financial crimes and this case, but it never resolved the question raised by the appellants — whether treating intended loss like actual loss under all the circumstances of this case leads to a sentence consistent with the dictates of section 3553(a).

The concurring opinion by Judge Underhill is even more potent as it advocates for a broader ruling that the sentences here are substantively unreasonable, and here is how it gets started

In my view, the loss guideline is fundamentally flawed, and those flaws are magnified where, as here, the entire loss amount consists of intended loss.  Even if it were perfect, the loss guideline would prove valueless in this case, because the conduct underlying these convictions is more farcical than dangerous. If substantive review of sentences actually exists other than in theory, it must be undertaken at least occasionally.  This would have been an appropriate case in which to do so, because it raises so starkly the problems with the loss guideline. Until this Court weighs in on the merits of the loss guideline, sentences in high-loss cases will remain wildly divergent as some district judges apply the loss guideline unquestioningly while others essentially ignore it.  The widespread perception that the loss guideline is broken leaves district judges without meaningful guidance in high-loss cases; that void can only be filled through the common law, which requires that we reach the substantive reasonableness of these sentences.

July 23, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, July 21, 2013

Is an execution-free, state death penalty system better or worse than no death penalty at all?

The question in the title of this post is prompted by this local article from Pennsylvania, which carries the headline "Darisabel Baez's killer, like others with death warrants, has many appeals possible; And, there have been no executions in Pennsylvania since 1999."  Here is a brief excerpt from the piece:

No one has been executed in Pennsylvania since July 6, 1999.  There are 190 men and three women on death row, according to the Department of Corrections.

Pennsylvania Supreme Court Chief Justice Ronald D. Castille went on record in 2011, criticizing what he described as the delay tactics and frivolous filings used by the Federal Defenders office, which also represents some of York County's death row inmates.

[Chief Deputy Prosecutor Tim] Barker said that avenues of appeals for condemned inmates can "stretch out the process until it becomes frivolous."

"It's unfair to the victims (and their families) and society in general," he said.

The follow-up question I would like to ask Deputy Prosecutor Barker (and others who are strong advocates for the death penalty) is whether the way Pennsylvania operates its system of capital punishment is worse than having do death penalty at all. Not only have there been no executions in Pennsylvania for almost 15 years, I sense that it is unlikely there will be a resumption of executions in the state any time soon. Given this persistent reality, I wonder if even death penalty supporters would urge the Keystone State to abolish formally what is now functionally a legal fiction of a purported punishment.

(One might arguably view the 2012 death penalty abolition vote in California as something of a referendum on this question. But California completed three executions in 2005 and 2006, and voters in that state at least had a reasonable basis to hope and believe that executions might resume at some point in the not too distant future.)

July 21, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

"Clemency Reform: We're Still Waiting"

The title of this post is the headline of this recent commentary by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), appearing at The Huffington Post.  Here are excerpts:

A year ago, The Washington Post and ProPublica reported that the Obama administration was set to reverse its poor record on clemency. At the time, President Obama was coming under growing pressure from sentencing law experts, sentencing reform groups, and civil rights organizations for granting fewer commutations and pardons than any president in modern history. Frustration was high because, in 2008, then-candidate Obama had railed against lengthy mandatory minimum sentences for nonviolent offenders, a growing population within the federal prison system.

In an apparent attempt to address this frustration as Election Day 2012 approached, an unnamed administration official told the Post-ProPublica, "There will be 76 days between the election and inauguration for the president to exercise his [clemency] power." Advisers said he planned to act whether he won or lost the election.

It didn't happen. Since winning reelection, President Obama has not commuted a single sentence. Instead, during the first nine months of fiscal year 2013, the president has denied 2,232 requests for commutation, more than any other president in history denied in a single year.

Last week, the Justice Department sent a letter to the U.S. Sentencing Commission warning that the growing federal prison population was causing severe budgetary problems. The Department said policymakers were confronted with a stark choice: either "reduce the prison population and prison spending" or be prepared for "fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support for treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

Rather than jeopardize public safety by cutting investigators and prosecutors, the Department recommended that the Sentencing Commission (and Congress) reduce drug penalties for low-level offenders and "focus severe penalties on serious and repeat drug traffickers." The question our country faces, the Department wrote, is "how will those involved in crime policy ensure that every dollar invested in public safety is spent in the most productive way possible?"

If the administration wants to make certain every dollar of our nation's public safety budget is spent productively, as it should, President Obama should begin to exercise his executive clemency authority. For starters, he might look at the 2,000 individuals serving sentences of life without parole for drug crimes. He also should look at the 8,800 individuals serving lengthy crack cocaine sentences that were based on a formula that was repudiated by Congress when it passed the Fair Sentencing Act of 2010....

The pardon power can't fix 30 years of flawed policy, but it can provide meaningful -- and best of all, immediate -- relief to thousands who have already served long sentences and who pose no threat to public safety. It has been a year since the White House said it would get moving on clemency. We're still waiting.

I believe Julie wrote this commentary before the President made his remarks about the Martin/Zimmerman case on Friday.  But Prez Obama said just days ago that the "African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws -- everything from the death penalty to enforcement of our drug laws." Rather than simply talk about what he views as "history of racial disparities in the application of our criminal laws," perhaps Prez Obama might think about actually doing something about them by, for example, granting at least a few commutations to at least a few federal prisoners still serving extreme crack sentences under the pre-FSA 100-1 drug quantity sentencing ratio.

Sadly, it seems yet again that our nation's first African-American President (as well as its first African-American Attorney General) are far more eager to talk the talk than to walk the walk when it comes to criminal justice reform.

UPDATE:  I have just seen that Mark Osler has forcefully argued that the Obama Administration should be getting to work on crack clemencies rather than fly-speck the Zimmerman case in this commentary at MSNBC headlined "The speck in Florida’s eye, and the log in DOJ’s."  Here is one key paragraph from Mark's commentary:

For this administration to re-open the Zimmerman case, with all the resources that will take, would be the equivalent of pointing at the speck in Florida’s eye while ignoring the log in its own. While the Trayvon Martin case involved one tragedy, more than 5,000 African-Americans remain in prison under lengthy federal sentences under a sentencing regime which has now been rejected by all three branches of government. That scheme — which sentenced defendants to the same mandatory minimum term for either 500 grams of powder cocaine or just 5 grams of crack — was rejected by the administration, by the courts, and finally in 2010 by Congress, which reduced the ratio from 100-1 to 18-1.

July 21, 2013 in Clemency and Pardons, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Saturday, July 20, 2013

Lots of notable support for work of federal Over-Criminalization Task Force

As detailed at this official website, yesterday the House of Representatives Over-Criminalization Task Force had its second hearing on the topic of "Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law." This report from Main Justice discusses the discussion at the hearing.

Notable, there appears to be a lot of support from a lot of quarters for this Task Force's work, as these pieces reveal:

July 20, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"A Perfect Prosecution: The People of the State of New York v. Dominique Strauss-Kahn"

The title of this post is the title of this interesting new article about a non-prosecution by JaneAnne Murray now available via SSRN.  Here is the abstract:

The presumption of innocence may be the foundational principle of the American criminal justice system, but the presumption of guilt is its operational force. The U.S. Supreme Court acknowledged this reality in two notable criminal law decisions in 2012, Lafler v. Cooper and Missouri v. Frye, when it described the criminal process as “a system of pleas, not a system of trials”.

People v. Strauss-Kahn is an ideal lens through which to examine this process. It is both an excellent example of a transparent and objective invocation of the criminal sanction, and a sharp counterpoint to the vast majority of cases where law enforcement conclusions are trusted and rarely second-guessed. Stage by stage, the Strauss-Kahn case illustrates how to counterbalance the presumption of guilt and give expression to the presumption of innocence in the pretrial period through vigilantly-invoked and enforced due process protections.

Drawing from this examination, the paper will then explore how to approach this model process in the more standard cases, which typically see a fraction of the judicial, law enforcement, and defense resources afforded Dominique Strauss-Kahn. The Strauss-Kahn prosecution offers several insights, three of which will be sketched at the paper’s conclusion: a requirement that prosecutorial decision-making be subject to a reasonable doubt standard; early enforcement of the prosecutor’s obligation to disclose information that is favorable to the accused; and finally, a requirement that a prosecutor explain in writing any decision to dismiss the felony charges in indicted felony cases, so that the factual, legal and policy bases of these decisions (numbering almost one quarter of New York’s superior court felony cases annually) can be aggregated, analyzed and publicized.

July 20, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, July 19, 2013

Are folks eager to comment on the President's comments on Martin/Zimmerman case?

I have a feeling the answer to the question in the title of this post is yes, and that is why I provide this post and also this link to Politico's list of "Obama's 10 most important lines" in his comments this afternoon. Here are the top three of the top 10 that struck me as most blog-worthy for the SL&P readership:

"The fact that a lot of African-American boys are painted with a broad brush and the excuse is given, well, there are these statistics out there that show that African-American boys are more violent — using that as an excuse to then see sons treated differently causes pain."

"I just ask people to consider if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman, who had followed him in a car, because he felt threatened?"

"At least you ask yourself your own questions about, ‘Am I wringing as much bias out of myself as I can? Am I judging people, as much as I can, based on not the color of their skin but the content of their character?’ That would, I think, be an appropriate exercise in the wake of this tragedy."

And, as I too often fear I need to say on this topic and others, let's try to keep it civil (and relatively novel) in the comments, folks.

July 19, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (40) | TrackBack

ECHR on LWOP: thoughts on Vinter and possible US impact

As noted in this recent blog posting, a landmark ruling from the European Court of Human Rights earlier this month involving UK nationals declared that LWOP sentences without any prospect of release amount to inhuman and degrading treatment of prisoners.  As I mentioned in that post, I know very little about how ECHR rulings can impact domestic laws even in countries that have adopted the applicable convention.  

But as my title for this post hints, I am especially intrigued by what the decision in Case of Vinter and Others v. the United Kingdom (available via this link) could mean for sentencing law and practices in the US.  I suspect the simple answer is just "not much," but I am eager to cover any potential domestic post-Vinter storylines and will be posting soon some thoughts from my of my OSU colleagues on this front. 

Before getting into implications, though, I thought it worthwhile to reprint this effective summary of the Vinter ruling from the heart of a brief concurring opinion by Judge Power-Forde:

[W]hat tipped the balance for me in voting with the majority was the Court’s confirmation, in this judgment, that Article 3 encompasses what might be described as “the right to hope”.  It goes no further than that.  The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change.  Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope.  To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.

In addition to capturing what seems to me to be the essence of the lengthy opinions in Vinter, I think this sentiment indirectly reflects what has been moving the US Supreme Court in its recent Graham and Miller Eighth Amendment rulings.  Do other agree?  And do others expect, as I do, that Vinter is very likely to be cited a fair amount in the briefing (and perhaps even in some opinions) the next time SCOTUS takes up some follow-up issues raised in Graham and Miller?

Recent related post:

July 19, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Local judge gives poll worker five-year prison term for voter fraud

A colleague alerted me to this notable sentencing story from the Cincinnati area about a woman who received what seems to be a quite severe sentence for voter fraud.  The piece is headlined "Illegal voter gets 5-year prison term," and here are the details:

Calling her a common criminal who abused her authority as a poll worker by violating the principle of “one person, one vote,” a judge sent Melowese Richardson to prison Wednesday for five years following her illegal voting conviction.

“This is not a little thing. It’s not a minor thing. This is what our country’s based on – free elections,” Hamilton County Common Pleas Court Judge Robert Ruehlman told Richardson.

In a case watched around the country, Richardson was a Hamilton County poll worker from 1998 until her arrest earlier this year when she was charged with eight counts of illegal voting. In May, she accepted a plea deal and was convicted of four counts in exchange for the other four being dismissed.

She was convicted of voting twice in the 2012 election and voting three times – in 2008, 2011 and 2012 – for her sister, Montez Richardson, who has been in a coma since 2003.... Richardson told the judge she was bothered that Amy Searcy, the Board of Elections director, had criticized her moments before the sentencing....

The conservative, outspoken judge responded with scathing comments, blasting Richardson for suggesting she was being prosecuted because she was a black Democrat helping a black Democratic presidential candidate. “It has nothing to do with race. It has nothing to do with politics. It has nothing to do with disrespecting you. You did this to yourself,” Ruehlman told her.

“You’re very selfish, self-centered. I really believe President Obama, if he were asked about this today, he would be appalled. He would not want anybody to cheat to get elected.”

Ruehlman noted that two others convicted of illegal voting before Richardson got much lighter sentences but stressed their cases were different. The judge noted Richardson deserved a prison sentence, which was one year less than the maximum possible, because she has a lengthy criminal record, schemed repeatedly over five years to cast several illegal votes and used her training and expertise as a poll worker to try to evade detection.

“‘I’m Melowese Richardson. I can take the law into my own hands,’” the judge said, mocking what he believes is Richardson’s attitude.

Richardson previously was convicted of threatening to kill a witness in a criminal case against her brother, of stealing, of drunken driving and of beating someone in a bar fight.

Anything short of a prison sentence, Assistant Prosecutor Bill Anderson told the judge, would be an attack on the voting system. As a poll worker, “her job is actually to protect the integrity and sanctity of the voting system,” Anderson said. “(She) is an ideologue who was hell bent on stuffing the ballot box with as many Obama votes as possible.”

Bill Gallagher, Richardson’s lawyer, suspected she would be sent to prison but was surprised by the sentence. “I thought prison was a real possibility because of her record of 25 years ago,” Gallagher said. “I don’t think that the length of it was any where near what we expected.”

July 19, 2013 in Offense Characteristics, Race, Class, and Gender, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, July 18, 2013

"U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors"

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

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.   It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions.  Those questions will be explored as the review continues.

The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty.  Some opponents have long held that the execution of a person confirmed to be innocent would crystallize doubts about capital punishment.  But if DNA or other testing confirms all convictions, it would strengthen proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer.  The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined.  The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.

At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes. Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification.  However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.

The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.

Whatever the findings of the review, the initiative is pushing state and local labs to take similar measures.  For instance, the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases, in a state that has executed more defendants than any other since 1982.

Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.

July 18, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, July 17, 2013

With a new execution date set, must the Supreme Court now take up the Hill case from Georgia?

The question in the title of this post is prompted in part by this local news that "State officials have rescheduled the execution of Georgia death row inmate Warren Lee Hill for Friday," and this interesting commentary up at MSNBC by LawProf Stephen Vladick, which makes these points about the case:

Hill is not an innocent man. His capital sentence arises from his 1990 killing of a fellow prisoner while serving a life sentence for the murder of his girlfriend. In a country in which 32 states (and the federal government) still allow capital punishment, Hill might seem an unlikely candidate to become anything other than a statistic....

But if Hill’s execution is eventually carried out, it will set a very dangerous precedent — even for those who are not generally opposed to capital punishment. Hill is, by all accounts, mentally retarded (the pejorative term still in vogue in legal analysis). The Supreme Court held more than a decade ago that the execution of such defendants is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — because “there is a serious question as to whether either justification that [the Court has] recognized as a basis for the death penalty applies to mentally retarded offenders,” and because “[m]entally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.”...

The reasons why Hill is nevertheless facing lethal injection have been well-documented. Part of it is because Georgia makes it harder to prove mental retardation than any other state in the country (although Hill even meets Georgia’s “beyond a reasonable doubt” standard). Part of it is because the government mental health professionals who examined Hill changed their mind — and their diagnosis — about Hill’s mental capacity only after initially declaring him eligible for capital punishment. (They now agree that he should not be executed.)

Part of it is also because of the various procedural obstacles that Georgia law, federal law, and the Supreme Court have imposed in cases like Hill’s, where defendants aren’t able to raise a meritorious constitutional claim until after they’ve exhausted their direct appeal and their first round of post-conviction review. (In an amicus brief I co-authored, a group of habeas corpus experts explained why the Supreme Court nevertheless has the power to grant relief in Hill’s case, should it desire to do so.)...

Hill’s case is ultimately a test of a proposition far more fundamental than what is typically at stake in capital cases: Can the Constitution abide the execution of a prisoner, who the state’s own experts agree is categorically ineligible for the death penalty, entirely because of procedural flaws in his claims?  The Supreme Court has never held that the answer is yes, and has hinted rather strongly to the contrary in the context of “actual innocence” cases — including as recently as two months ago.

The time for hinting is running out — for Hill, for the Court, and for the country.

July 17, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

"Former Federal Prosecutors Endorse Safety Valve: Support Grows for Mandatory Minimum Sentencing Reform"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums. Here are excerpts:

A group of more than 50 former federal prosecutors and judges today sent a letter to Capitol Hill endorsing the Justice Safety Valve Act of 2013, legislation that authorizes judges to depart from a mandatory minimum sentence in cases where the minimum is not necessary to protect public safety and would be unjust given the facts and circumstances of the crime and defendant. Senators Rand Paul (R-KY) and Patrick Leahy (D-VT) introduced the Justice Safety Valve Act (S. 619) in the U.S. Senate, and Representatives Bobby Scott (D-VA) and Thomas Massie (R-KY) introduced the companion bill (H.R. 1695) in the U.S. House.

“The men and women who endorsed the bill today helped to make our country safer by prosecuting and sentencing dangerous criminals,” said FAMM President Julie Stewart. “They know that to improve public safety we must focus our scarce anti-crime resources on violent and repeat offenders.”

In their letters [available here and here] addressed to the Justice Safety Valve Act sponsors in the Senate and House, the former prosecutors and judges wrote:

As Congress looks for ways to improve upon recent gains in public safety, we believe that the reform in S. 619 would prove very valuable. … Under your legislation, dangerous criminals will continue to receive lengthy prison sentences.  For lower-level offenders facing a mandatory minimum sentence, however, courts will be given the power to impose a shorter sentence.  For example, a nonviolent drug seller facing a 10-year mandatory minimum might instead receive a sentence of seven or eight years if a court determines, after considering all the relevant facts, that the ten-year sentence is inappropriate and would punish the street seller more harshly than his more culpable codefendants.  In drug cases, for example, a court might determine that a shorter prison term combined with mandatory drug treatment would be more likely to prevent an individual from re-offending. …

We also support your bill because we believe that the money wasted on keeping nonviolent and nonthreatening offenders locked behind bars for years longer than necessary could be better spent on anti-crime programs that actually will enhance public safety.  This is especially true in the current budget climate.  We think public safety will be improved if limited government resources are targeted on prosecuting and incarcerating violent and repeat criminals.

Some recent and older related posts:

July 17, 2013 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, July 16, 2013

Notable comments on self-defense laws by Attorney General Eric Holder

Attorney General Eric Holder spoke at great length today about the Zimmerman case in this speech to the NAACP National Convention.  Here is the heart of an interesting legal discussion about self-defense laws that most caught my attention as a criminal law professor who will be teaching a group of brand new new law students about these topics only a few months from now:

Separate and apart from the case that has drawn the nation’s attention, it’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods. These laws try to fix something that was never broken. There has always been a legal defense for using deadly force if — and the “if” is important — no safe retreat is available.

But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely.  By allowing and perhaps encouraging violent situations to escalate in public, such laws undermine public safety.  The list of resulting tragedies is long and — unfortunately — has victimized too many who are innocent. It is our collective obligation — we must stand our ground — to ensure that our laws reduce violence, and take a hard look at laws that contribute to more violence than they prevent.

We must also seek a dialogue on attitudes about violence and disparities that are too commonly swept under the rug — by honoring the finest traditions established by generations of NAACP leaders and other nonviolent advocates throughout history; and by paying tribute to the young man who lost his life here last year — and so many others whose futures have been cut short in other incidents of gun violence that pass, too often unnoticed, in our streets: by engaging with one another in a way that is at once peaceful, inclusive, respectful — and strong.

As we move forward together, I want to assure you that the Department will continue to act in a manner that is consistent with the facts and the law.  We are committed to doing everything possible to ensure that — in every case, in every circumstance, and in every community — justice must be done.

July 16, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?

The question in the title of this post was my first thought after seeing this post by Nate Silver at his 538 blog headlined "Senate Control in 2014 Increasingly Looks Like a Tossup." I am not counting any Senate chickens at least until this time next summer, but I also do not think it is crazy for folks who favor significant federal sentencing reforms to actually believe such reforms might actually become more politically viable if the Senate were to change political hands while Barack Obama is still the President.

A lot would depend, of course, on the circumstances and results of the 2014 election cycle and especially on who would play leadership roles in a GOP-led Senate. But if, for example, Senator Rand Paul and other libertarian-leaning Senator were to become chairs of key Senate Judiciary subcommittees, I think the odds of significant federal criminal justice reforms getting through Congress might actually go up.

I fear that some commentors will ask what I am smoking when raising this notion, and I do fear that this post may be just some serious wishful thinking on my part. But, hey, if folks are going to start predicting election outcomes for 2014, why not have some fun speculating on what those outcomes could mean for sentencing law and policy?

Some recent and older related posts:

July 16, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, July 15, 2013

"Marathon bomb suspect asks judge for addition to death-penalty team"

The title of this post is this local report on what would appear to be a sensible and shrwed move by the defense team in the Boston boming case.  Here is how the article starts:

Accused Boston Marathon bomber Dzhokhar Tsarnaev wants to add another taxpayer-financed death-penalty specialist to his legal team — this time, a veteran attorney who helped spare a plane hijacker and a former member of al-Qaeda from execution.

In court papers filed today, Tsarnaev, through his lawyers, repeats an earlier request to appoint David Bruck, a Virginia lawyer whose past clients include Zayd Safarini, serving life for his role in the 1986 hijacking of Pan Am Flight 73 in Karachi, Pakistan; and Mohamed Rashed Daoud al-Owhali, one of four men serving life for the 1998 bombing of the United States embassy in Nairobi.

Tsarnaev’s legal team already includes Judy Clarke, who helped negotiate life sentences for Unabomber Ted Kaczynski and Olympic bomber Eric Rudolph.

“If this case did not present ‘exceptional circumstances’ justifying appointment of an additioanl lawyer learned in the law applicable to capital cases ... no case would,” Clarke wrote in her motion. “Media reports have described the global scope of the investigation, involving hundreds of agents and witness interviews. Counsel expect that the amount of discovery that this investigation will produce will be truly massive. Thus even were this not a potentially capital case, the magnitude of the task confronting Mr. Tsarnaev’s attorneys would be daunting.”

Tsarnaev, 19, pleaded not guilty in federal court last week to 30 charges, 17 of which carry the death penalty. His legal team tried to add Bruck to its ranks back in April. At that time, a judge denied the request but promised to review it after his indictment.

July 15, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, July 14, 2013

European Court of Human Rights finds UK use of LWOP sentences violated human rights convention

ECHRAs reported in this piece from The Guardian, last week brought a landmark ruling from the European Court of Human Rights.  The article's headlined provide the basics: "Whole-life jail terms without review breach human rights — European court; Three murderers, including Jeremy Bamber, have right to review of sentence, but ECHR judgment doesn't make release imminent."   Here is more about the ruling and early reaction thereto:

Whole-life jail sentences without any prospect of release amount to inhuman and degrading treatment of prisoners, the European court of human rights has ruled. The landmark judgment will set the ECHR on a fresh collision course with the UK government but does not mean that any of the applicants — the convicted murderers Jeremy Bamber, Peter Moore and Douglas Vinter — are likely to be released soon.

In its decision, the Strasbourg court said there had been a violation of article 3 of the European convention on human rights, which prohibits inhuman and degrading treatment. The judgment said: "For a life sentence to remain compatible with article 3 there had to be both a possibility of release and a possibility of review."

The court emphasised, however, that "the finding of a violation in the applicants' cases should not be understood as giving them any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue."

The appeal was brought by Vinter, who murdered a colleague in 1996 and after being released stabbed his wife in 2008; Bamber, now 51, who killed his parents, his sister Sheila Cafell and her two young children in 1985; and Moore, who killed four gay men for his sexual gratification in 1995.

The judges in the grand chamber at Strasbourg, the appeal court above the ECHR, found by a majority of 16 to one that there had been a violation of human rights....

Their decision means that the government will now be under pressure to introduce a formal review of whole-life sentences after 25 years. The current law governing release of life prisoners in England and Wales was unclear, the judges said. Those on a whole-life term can be freed only by the justice secretary, who can give discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated....

In its judgment, the grand chamber said: "The need for independent judges to determine whether a whole-life order may be imposed is quite separate from the need for such whole-life orders to be reviewed at a later stage so as to ensure that they remain justified on legitimate penological grounds."...

The new British judge on the court, Paul Mahoney, pointed out in his comments that the UK government was "of course free to choose the means whereby they will fulfil their international treaty obligation" to abide by the judgment....

During the original hearing in Strasbourg, Pete Weatherby QC, who represented the three claimants, told the court: "The imposition of a whole-life sentence crushes human dignity from the outset, as it removes any chance and therefore any hope of release in the future.  The individual is left in a position of hopelessness whereby he cannot progress whatever occurs."

Commenting on the decision, Rebecca Niblock, a criminal law solicitor at Kingsley Napley LLP, said: "No doubt there will be renewed calls to pull out of the European convention on human rights and repeal the Human Rights Act.  Yet Theresa May would do well to keep a sense of proportion: a right to have the sentence reviewed is quite different from a right to be released, and the number of prisoners affected is tiny — 49."

"England and Wales lag behind other European countries in the use of the whole-life sentence — the only other EU country which uses it is Holland.  The repeated calls to withdraw from the European convention carry a huge risk of undermining the UK's reputation abroad.  There is only so much the UK can say to other countries about their human rights records when they show disdain for judgments which go against them at Strasbourg."

I am unsure about how ECHR rulings impact domestic laws and procedures either in the nation brought before the ECHR or other nations who have adopted the applicable convention.   But I am sure, as evidenced by local press stories and commentaries here and here and elsewhere, that this ruling is not being celebrated within the UK.  Further, because the decision in Case of Vinter and Others v. the United Kingdom  (available via this link) is long and full of nuance, its actual impact may end up somewhat more muted than might be predicted or feared.

That all said, this ruling to me serves as another important reminder that lots of judges when given an opportunity to consider human rights rather than just politics ultimately conclude that a true LWOP sentence is a horrific punishment even for the most horrific of crimes.  The US Supreme Court rulings in Graham and Miller, though far more limited and far more divided that this ECHR ruling in Vinter, are in the same vein.  And I suspect over time other courts in various other settings will come to similar rulings about true LWOP sentences.

July 14, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (13) | TrackBack

Though he was found not guilty by the jury, are sentencing stories in the Zimmerman prosecution and verdict?

The question in the title of my post is my effort to provide a (final?) place for discussion of the high-profile state acquittal in Florida which a jury handed down late last night.  I suspect lots of folks are eager to talk about the substance of the prosecution and verdict, but I want to stress (and praise) the procedures in this post.  

I find quite notable and important the seemingly wide-spread acceptance by so many of the jury-based decision-making process and the use of a beyond a reasonable doubt standard of proof at Zimmerman's criminal trial.  And, as regular readers might guess, I wish to tie this reality back to my perception of the profound and enduring wisdom to be found in the Apprendi and Blakely line of cases (as for the Booker remedy, er... not so much).

Though perhaps we will see some future criticisms of the trial procedures in the Zimmerman case, my observation of early media and public reactions suggests a general acceptance of the process even among those who might profoundly disapprove of the outcome.  Indeed, I will be quite surprised if anyone — even those most bothered by the jury acquittal here such as the Martin family — will respond to the acquittal outcome by arguing that the result shows we should have professional judges rather than lay jurors resolving these kinds of cases or by advocating the use of a lesser proof standard than guilt beyond a reasonable doubt for criminal trials.  I surmise that this reality highlights just how deeply all Americans believe adjudication by lay jurors using a high standard or proof is fundamental to a fair and  criminal justice system.

And yet in sentencing in hundreds of courtrooms nationwide every day, once a guilty verdict has be entered by plea or conviction on any count, we still have what Judge Gerry Lynch once astutely called "our administrative system of criminal justice."  A lone state employee in the form of a judge uses informal and often hurried and cursory procedures to decide whether a convicted defendant will get a lenient of harsh sentence.  And the underlying facts in the Graham case (which made it to the Supreme Court for other issues) showed starkly how some judicial bureaucrats may often respond much too leniently at first and then much too harshly thereafter when administrating sentencing justice.

I do not mean this post to be a formal pitch for jury sentencing in all cases or an effort to assail the challenging and couragous decisions that federal and state sentencing judges must make every day.  Rather, I just want to highlight my belief that the apparent acceptance of the Zimmerman verdict even by those who dislike the outcome is a sign of the procedural wisdom of the Constitution's embrace of a unique and uniquely valuable set of procedures — procedures that cases like Apprendi and Blakely (and now Southern Union and Allenye) wisely seek to extend to even more and more criminal justice adjudications.

Prior posts on Zimmerman prosecution:

July 14, 2013 in Blakely Commentary and News, Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (31) | TrackBack

Saturday, July 13, 2013

Echoes of Alleyne showing something's the matter in Kansas "hard 50" Sentencing

This new local article, headlined "Supreme Court ruling threatens to invalidate Kansas hard 50 sentences," reports on one of the potential state echoes of the Supreme Court's Sixth Amendment ruling in Allenye last month.  Here are the essential details:

A U.S. Supreme Court decision that prompted the Kansas Attorney General’s Office to drop plans to seek a hard 50 sentence against convicted wife-killer Brett Seacat could invalidate the hard 50 sentence given to Scott Roeder, who was convicted of murdering abortion doctor George Tiller.

The ruling also may force prosecutors to abandon plans to seek hard 50 sentences in some other cases, including the case of a Wichita man who was convicted last week of stomping his girlfriend to death with steel-toed boots. It could prevent the state from seeking a hard 50 for a man convicted last month of strangling a Wichita woman in 2011 while on parole for murdering a woman in Lawrence more than two decades earlier.

District Attorney Marc Bennett said the ruling, known as the Alleyne decision, could have an impact on any hard 50 case in Kansas that is on appeal, and could change the way prosecutors deal with first-degree murder cases in the future. “Clearly it will be an issue that we will have to address,” he said.

Defense lawyer Richard Ney was more blunt in his assessment of the ruling. “The hard 50 is dead as far as it exists in Kansas right now,” he said. “For cases that are not final, and Roeder would be one of them, I think they’re certainly in question.”

If the state wants to keep its hard 50 sentencing law, Ney said, the Kansas Legislature will probably have to adopt a sentencing system that includes a separate penalty phase in any first-degree murder trial where prosecutors seek a 50-year minimum sentence.

When the state enacted a hard 40 sentencing law in 1990 – the precursor to today’s hard 50 law – it used such a system where the jury that found a defendant guilty of first-degree murder would sit at a separate penalty phase and determine whether to impose a hard 40 sentence. The state later turned the decision of whether to impose hard 50 sentences over to judges....

In releasing the Alleyne decision, the Supreme Court sent a similar case – Astorga v. Kansas – back to Leavenworth County District Court for resentencing. Kansas Attorney General Derek Schmidt cited both cases in his decision to abandon efforts to seek a hard 50 sentence in the Seacat case.

“Upon thorough review of the U.S. Supreme Court’s decision in Alleyne, the state does not believe the procedural and factual posture of this case allow for the application of (the hard 50 law) in its current form. Therefore, the state is no longer seeking the imposition of a mandatory term of imprisonment of 50 years,” he wrote in a court filing.

As it now stands, Kansas’ hard 50 law says a judge must weigh aggravating and mitigating factors before deciding whether to grant a prosecutor’s request to impose a hard 50 sentence. The law lists several aggravating factors that include a prior conviction for a crime that caused death or great bodily harm, the commission of an act that creates a great risk of death to more than one person, and the commission of a crime in an especially heinous, atrocious or cruel manner.

The law also lists mitigating factors that may include a defendant’s age, a defendant’s lack of criminal history and the fact that a defendant was a minor participant in the crime for which he or she was convicted.

If a judge rules that one or more aggravating factors exist, and decides that the existence of such factors is not outweighed by any mitigating circumstances, the law says the defendant shall be sentenced to life without parole for a minimum of 50 years.

The folks behind the Kansas Defenders blog have been all over the impact of Alleyne in the Sunflower State via a number of notable new posts here and here and here.

Prior related post on Alleyne ruling:

July 13, 2013 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

"Constitutionally Tailoring Punishment"

The title of this post is the title of this great-looking new article by Richard A. Bierschbach and Stephanos Bibas. Here is the abstract:

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants).  Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice.  These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on retail, individualized input and reflect the views and perspectives of multiple institutional actors.

This new understanding illuminates how both doctrines relate to the Court’s earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system.  It also underscores the need for other actors to complete the Court’s work outside the confines of rights-based judicial doctrines, by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.

July 13, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Blakely Commentary and News, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, July 12, 2013

DOJ delivers important messages in annual letter to US Sentencing Commission

Fulfilling its statutory obligation to deliver comments to the US Sentencing Commission, the US Department of Justice yesterday sent this very interesting 18-page letter to the USSC.  The letter cover a lot of important ground in important ways, and here are a few paragraphs that struck me as especially noteworthy (with key emphasis added by me):

From page 3: "At the state level, leaders in and out of government have recognized both the costs and benefits of the sentencing reforms of the late 20th Century. From that recognition - derived from a variety of studies of these 20th Century reforms - a new transformation in sentencing and corrections policy is taking place in much of the country. The dichotomy of determinate and indeterminate sentencing is breaking down and is being replaced by a pragmatism that recognizes that (1) budgets are finite; (2) imprisonment is a power that should be exercised sparingly and only as necessary; and (3) while determinate sentencing elements do indeed promote some of the core purposes of sentencing, reducing reoffending and promoting effective reentry are also core goals that can be successfully achieved and must be included in any effective sentencing and corrections framework."

From page 7: "The Budget Control Act of 2011 sent a clear signal that the steady growth in the budgets of the Department of Justice, other federal enforcement agencies, and the federal courts experienced over the past 15 years has come to an end.  Before sequestration, overall budgets had mostly been flat over the past four years.  However, even then, as prison and detention spending had increased, other criminal justice spending, including aid to state and local enforcement and prevention and intervention programs, had decreased. In fact, the trend of greater prison spending crowding out other crucial justice investments goes back at least a decade and has caused a significant change in the distribution of discretionary funding among the Department's various activities.

"Now with the sequester, the challenges for federal criminal justice have increased dramatically and the choices we all face - Congress, the Judiciary, the Executive Branch - are that much clearer and more stark: control federal prison spending or see significant reductions in the resources available for all non-prison criminal justice areas. If the current spending trajectory continues and we do not reduce the prison population and prison spending, there will continue to be fewer and fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support to treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

From page 9: "The reforms we are focused on - and that we think the Commission can help bring about - are changes to statutory and guideline drug penalties; improving reentry programming and providing greater incentives to offenders to participate in these programs; and simplifying and reforming the guidelines to better meet all the goals of the Sentencing Reform Act, including controlling the prison population.  We believe drug penalties can be reformed, like many states have done, to focus severe penalties on serious and repeat drug traffickers, while providing alternatives or reduced sentences for non-violent, less serious offenders. We believe that both changes to the statutory minimum penalties in title 21 and changes to the so-called 'safety valve' exception to mandatory minimum penalties are needed.

"We are already working towards reforming some mandatory minimum laws along these lines - and along the lines suggested by the Commission in its report on the subject. Similarly, prison credits or other incentives can be reformed to promote more effective and efficient use of prison resources while simultaneously reducing reoffending. The President's last two budgets have included proposals in this area, and we think now is the time to enact them. In addition, we believe the guidelines can be reformed - by making them simpler - to reduce litigation and prison costs, reduce manipulation of sentences by litigants, and improve sentencing consistency."

July 12, 2013 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (30) | TrackBack

Committee of prosecutors to consider capital charges againse Cleveland kidnapper Ariel Castro

As reported in this local article, there is a Cuyahoga County Capital Review Committee which will be making a recommendation about whether to pursue death penalty charges against notorious Cleveland kidnapper Ariel Castro.  Here are the basics:

The committee is reviewing the case based on the June’s 329-count indictment. The committee will decide whether or not to seek the death penalty. The CRC’s recommendation will then be presented to the county prosecutor.

Castro’s attorneys were invited to provide mitigating evidence to the committee to factor into their decision making process. Jaye Schlachet, Castro's attorney told NewsChannel5 Thursday that the mitigating evidence supplied to the CRC is not public record.

The prosecutor’s office said it’s unknown when the CRC’s decision will be made public at this time. If the county prosecutor accepts the CRC’s recommendation to seek a superseding indictment to include the capital specification, making it a death penalty-eligible case, the case shall be re-presented to a grand jury. Upon re-presentment, the grand jury shall be informed that the State is seeking to include capital specifications that will make the defendant eligible for the death penalty in a capital case.

The capital review committee consists of Cuyahoga County Prosecutor’s Office employees and must meet within 30 days of the case’s original indictment.

This website from the prosecutor's official website sets out "Cuyahoga County Prosecutor's Office Capital Case Charging Protocol."

Recent related posts:

July 12, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, July 11, 2013

Full Sixth Circuit grants en banc review in Blewett

A mere days after the Sixth Circuit panel in the Blewett case (which concerns possible retroactive relief for some crack defendants) decided not to alter its original opinion (details here), the full Sixth Circuit today entered this order:

ORDER filed granting petition for en banc rehearing filed by [AUSA] Ms. Candace G. Hill, to reinstate appeals. The previous decision and judgment of this court is vacated, the mandate is stayed. The Clerk has directed the parties to file supplemental briefs. Final briefing will be concluded on August 29, 2013. These cases will be argued before the en banc court on October 9, 2013, 1:30 P.M., EST.

This is not a big surprise, and I think it likely means that the full Sixth Circuit is not too keen on the equal protection arguments used by the Blewett panel.  I fear that the full Sixth Circuti might not also be too keen on the Eighth Amendment arguments I put forward in this case late last month (details here), but that is not likely to deter me from filing additional papers concerning my Eighth Amendment ideas come August. I also may ask the Sixth Circuit for argument time (through I am not especially confident that anything which transpires at oral argument in this kind of case is going to move the opinions of many of the judges).

 Related posts on Blewett:

July 11, 2013 in New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Years late, California gives up defense of three-drug execution protocol

Way back in 2009, Ohio started completing executions successfully using the one-drug lethal injection protocol that death penalty litigants were claiming would be more humane.  At that time, California's execution protocol had already been tied up in litigation for a couple of years, and I could think of no strong reason why California ought not just embrace a new one-drug protocol.  This local story, headlined "California death penalty: State abandons defense of three-drug executions," reports that prison officials have finally come to see the error of their ways:

California has abandoned the legal defense of its delay-ridden lethal injection procedures, moving ahead to adopt a single-drug option that has been embraced by other states trying to enforce their death penalty laws.

The Brown administration has decided against appealing a May ruling that invalidated the state's three-drug execution method, which has been mired in years of state and federal court legal tangles. Faced with a Wednesday deadline, the state chose not to seek a California Supreme Court review of the decision striking down the three-drug procedure because state officials failed to follow administrative rules when adopting them several years ago.

A prison system spokeswoman said the governor and other state officials will proceed with working out a method of executing condemned inmates with a single fatal dose of a sedative, which other states -- such as Ohio, Arizona and Washington -- have adopted to short-circuit legal challenges to their lethal injection procedures.

The governor has ordered prison officials to craft the single-drug option to "ensure that California's laws on capital punishment are upheld," the Department of Corrections said in a news release. However, the latest development will not kick-start executions in San Quentin's death chamber. Approving the single-drug method could take a year or longer, and then it must be reviewed by the federal courts, adding further delays to California's death penalty system.

More than 725 inmates live on California's death row, where there has not been an execution since early 2006 as a result of lethal injection legal challenges. Death row inmates sued over the three-drug execution method, arguing that it risked a cruel and inhumane death.

In response to a federal judge's concerns, former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown both tried to overhaul the three-drug procedures, revising training for execution team members, built a new lethal injection chamber and crafted new rules for carrying out executions. But the state has botched the effort, twice violating the state's administrative procedures rules.

In the May ruling, the 1st District Court of Appeal scrapped the regulations, finding, among other problems, that state officials never publicly explained why they opted for the three-drug method instead of the single-drug option when they held hearings in 2010.

California could face other obstacles even if challenges to the single drug option fail. States across the country, including California, are struggling to assemble reliable supplies of execution drugs because of resistance from drug manufacturers and other problems, prompting separate legal challenges in other courts.

July 11, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, July 09, 2013

After supplemental Blewett briefing, Sixth Circuit panel stands pat

As regular readers likely recall, almost two month ago a split Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  And last month, as reported in this post, the Sixth Circuit responded to the Government's en banc petition with a letter to the parties express seeking additional briefing "addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. "  I reported on the amicus brief covering Eighth Amendment issues that I wrote and filed on behalf of NACDL via this post, and I have been overdue in uploading these supplemental filings sent in by the parties:

Thanks to the fact that I am now in the case via my amicus efforts, I received via the automatic notification system this report on activity in the case this week:

Activity has occurred in the following cases: 12-5226 [USA v. Cornelius Blewett], judge order filed

ORDER filed. The judges of the panel adhere to their respective original opinions. The panel directs that the responses of the parties and the amicus brief of the National Association of Criminal Defense Lawyers be made part of the record in this case. Gilbert S. Merritt, Boyce F. Martin , Jr., and Ronald Lee Gilman, Circuit Judges.

This order is not especially surprising, but it is still noteworthy. And it now puts the onus on other judges of the Sixth Circuit to take up this case en banc within the next month, as the Sixth Circuit rules provides that "[a]ny active judge or any member of the panel whose decision is the subject of the rehearing may request a poll within 14 days from the date of circulation of the petition and the panel's comments. If a poll is requested, 14 days are allowed for voting." In other words, within the next 28 days, we should know for sure if the full Sixth Circuit will rehear the Blewett case or if instead the feds will have to ask SCOTUS to review the consequential work of the Blewett panel. Related posts on Blewett:

July 9, 2013 in New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Will a jury get a chance to embrace or reject death penalty in Boston bombing case?

The question in the title of this post is prompted by this lengthy new AP article headlined "Seeking death penalty in Boston case? A long road."  The article, inter alia, suggests reasons why a federal capital jury might not return a death sentence in the Boston bombing prosecution:

In the past 4½ years, the Justice Department has sought executions in several instances. But, in an indication of how protracted the process can be, none of the administration's cases has yet put anyone on death row.

Massachusetts abolished its own death penalty in 1984, but Tsarnaev is being prosecuted in federal court. Since the federal death penalty was reinstated in 1988, only three people, including McVeigh, have been executed. Others have pending appeals.

In cases where federal juries have chosen between life and death, they have imposed twice as many life sentences as death sentences — 144 to 73 — according to the Federal Death Penalty Resource Counsel Project, a two-decade-old group created by the Administrative Office of the United States Courts.

The jury pool for a case against Tsarnaev would come from a state that has rejected repeated efforts to reinstate the death penalty. However, a former U.S. attorney in Massachusetts, Michael J. Sullivan, says viewing the state as opposed to the penalty is not entirely correct. Voters have supported reinstating the death penalty in non-binding referenda. And when Sullivan was U.S. attorney in Boston, his team of prosecutors won a death penalty verdict. That case is on appeal....

Before the Justice Department decides to seek the death penalty, a case moves through three tiers of review by federal prosecutors. "There's going to be a lot of push in that U.S. attorney's office in Boston to seek the death penalty in this case," predicts former prosecutor Johnny Sutton, who chaired a panel of 17 U.S. attorneys advising the attorney general on law enforcement issues during the George W. Bush administration. Sutton was U.S. attorney for the Western District of Texas from 2001 to 2009.

On June 27, Carmen Ortiz, the U.S. attorney in Boston, said, "We will do everything that we can to pursue justice." Her comments followed the handing up of a 30-count indictment against Tsarnaev that included 17 charges carrying the death penalty or life imprisonment. In Washington, federal prosecutors in a Capital Case Unit conduct their own analysis of death penalty cases. They advise the Attorney General's Review Committee on Capital Cases, which makes recommendations to the attorney general. Defense lawyers can weigh in, too.

Prosecutors seem to have strong evidence against Tsarnaev, but even if jurors agree that he was behind the explosions that killed three and injured more than 260, execution is far from guaranteed. After a conviction, jurors must again be unanimous in their decision to impose the death penalty. In the terrorism case against Sept. 11 conspirator Zacarias Moussaoui, one juror declined to vote in favor of the death penalty, resulting in a life sentence.

In the Tsarnaev case, the decision could come down to whether the government can prove the attacks showed substantial planning and premeditation. The indictment against Tsarnaev contains extensive detail about his actions the day of the bombings and after, but contains a relatively small amount of information about prior weeks and months.

If Dzhokhar Tsarnaev's now-dead older brother, Tamerlan, was the planner and Dzhokhar played a lesser role, Dzhokhar's legal team could use that argument to his benefit. Another factor in Dzhokhar's favor: He had no prior criminal record. Tsarnaev also could benefit from what federal law calls "other factors," — anything in the defendant's background, record or character that weighs against a death sentence....

Two widely publicized domestic terrorism cases from the past — the Olympic Park bomber and the Unabomber — ended when defense attorney Judy Clarke negotiated plea agreements with the government.  Clarke now represents Tsarnaev.

As the last paragraph of this excerpt highlights, other notorious domestic terrorists have escaped not only a federal death sentence, but also a federal death trial via plea agreements.  I have been predicting for some time that a plea agreement with an LWOP sentence is the most likely "end game" for the Dzhokhar Tsarnaev prosecution.  And yet, I cannot help but wonder if the Boston victims might press for federal prosecutors to reject any plea offer and at least give a federal jury a chance to consider whether a death sentence is appropriate for this high-profile crime.

Some recent prior posts:

July 9, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, July 08, 2013

Effective review of modern state clemency procedures as Kentucky's is challenged

This recent AP article, headlined "Kentucky Alone In Lack of Formal Clemency Procedure," provides an effective review of different states' different approaches to the clemency process.   Here are excerpts:

The power of kings to spare a condemned person's life lies solely with the governor in Kentucky, which is one of a select few states where the chief executive can spare death row inmates, shorten sentences and forgive crimes without oversight or having to explain his actions.

A review of clemency laws and policies across the country by The Associated Press shows nearly all other states have regulations to follow and oversight - including in some cases having to explain a decision to legislators. "The trend in states is to spread the power and make it a little more democratic," said P.S. Ruckman, a political science professor at Rock Valley College in Rockford, Ill., who blogs about clemency. "Kentucky is on the wrong side of that trend."

Since the reinstatement of the death penalty in 1976, two condemned inmates in Kentucky have gotten reprieves and right now, the state is barred from executing anyone until a judge decides on the legality of the drugs used. The state has executed three people in that time.

Two death row inmates are challenging that power and the way the clemency system itself is set up. Robert Foley and Ralph Baze are awaiting execution for multiple killings. They filed suit in May in Franklin Circuit Court, asking a judge to halt executions until a new set of procedures will clearly spell out rules.

The attorney for the inmates, Meggan Smith, said if the clemency procedures were more open, inmates seeking a commutation or pardon may have a better chance and everyone involved would better understand how the decision is made. "What we are seeking is an open, transparent procedure, which will benefit the Commonwealth, victims' families, those seeking clemency, and the public in general," Smith said.

Kentucky's governor has absolute discretion in granting clemency - no recommendations, hearings or requests are needed for the state's top official to decide someone should not be put to death. It's a power similar to those available to governors in New York, New Mexico, North Carolina, North Dakota and Missouri....

Ruckman found the challenge to the clemency process novel. While there have been suits in federal court and in Kentucky contesting the scope of the powers, those have generally reaffirmed the ability of governors and presidents to pardon as they choose. Ruckman noted few suits have attacked the method by which clemency is granted.

Thirteen states - Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Indiana, Massachusetts, Montana, Oklahoma, Pennsylvania, South Dakota and Washington - mandate a hearing when a clemency petition is filed.

Fifteen states - California, Georgia, Idaho, Louisiana, Maine, Maryland, Michigan, Nebraska, Nevada, New Hampshire, New York, Tennessee, Texas and Utah - grant the governor or pardon board discretion to set a hearing when they determine one is necessary.

Two states - Alaska and Colorado - provide victims or others the opportunity to submit written comments on pending clemency petitions. Two states -Iowa and Kansas - permit a pardon board or governor to interview key witnesses concerning a petition.

Other states have a mix of processes, with the governor having to explain clemency decisions to lawmakers in some cases, while states such as South Carolina have an outside board make clemency decisions.

The president has almost unlimited discretion to grant clemency under the federal system. "When all is said and done, Kentucky leans toward the federal model," Ruckman said.

July 8, 2013 in Clemency and Pardons, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, July 07, 2013

Yale Law Journal provides 500+ pages of summer Gideon reading

I am already way behind on my summer reading, and the June 2013 Yale Law Journal issue all but ensures I will never catch up. This issue, which can be accessed in full via this link, includes this extraordinary collection of Gideon-related essays:

July 7, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, July 06, 2013

"Crime makes halting comeback as a political issue"

The title of this post is the headline of this notable new AP article.   Here are excerpts:

The ad seems like an artifact from an earlier political era — a grainy mug shot of a convicted murderer, flashing police lights, a recording of a panicked 911 call and then a question about Colorado's Democratic governor, up for re-election next year: "How can we protect our families when Gov. Hickenlooper allows a cold-blooded killer to escape justice?"

The online spot from the Colorado Republican Party appeared only hours after Gov. John Hickenlooper in May indefinitely suspended the death sentence of Nathan Dunlap, who killed four people in 1993 and was scheduled to be executed in August. The governor cited problems with the concept and application of the death penalty.

Eclipsed by economic issues and other social concerns, crime is slowly re-emerging as a campaign issue. From the 1960s to the early 1990s, Republicans hammered Democrats on crime for focusing too much on rehabilitation and not enough on punishment and imprisonment. That changed as crime rates plunged in the 1990s and Arkansas Gov. Bill Clinton inoculated Democrats by being an avid death penalty supporter, interrupting his 1992 presidential campaign to preside over an execution.

Now increasing numbers of states are turning away from mandatory prison sentences and embracing rehabilitation programs to thin out inmate populations and save taxpayer money. The shift has been particularly pronounced in conservative, Republican-dominated states like Georgia, Texas and South Carolina.

That growing consensus is facing its first test in two political bellwether states where demographics have pushed Republicans into a political corner. In Colorado, Republican Rep. Mike Coffman held his seat last year partly by attacking his challenger for failing to support a proposed state law to take DNA samples from people arrested on suspicion of committing felonies, and the GOP is hoping crime issues will help them unseat Hickenlooper and win back control of the state legislature in 2014. They have attacked Democrats for rejecting legislation to impose mandatory sentences of 25 years to life on sex offenders and for passing a law limiting prosecutors' ability to charge juveniles as adults. GOP leaders are trying to persuade the district attorney whose office prosecuted Dunlap to run for governor.

Republicans say they have no shortage of issues to run on in Colorado. But one, they say, stands out for its potency. "Crime, justice, law and order, public safety resonate in a more personal way than a chart and graph of GDP growth," said Ryan Call, chairman of the Colorado Republican Party.

In California, which has conducted the most ambitious criminal justice overhaul in the nation, Republicans are targeting Gov. Jerry Brown and legislative Democrats over the state's policy that sends lower-level offenders to local jails rather than state prisons. The law went into full effect in late 2011, but already there have been several highly publicized cases of convicts released from prison committing crimes like rape and murder. The most prominent Republican to emerge as a possible challenger to Brown, former Lt. Gov. Abel Maldonado, in May launched a ballot campaign to reverse the prison overhaul.

Frank Zimring, a University of California-Berkeley law professor who has written widely on crime and politics, noted that crime rates appear to have leveled out after a two-decade decline. He called the recent GOP efforts "the test run as to whether there could be a resurgence in hard-right, punitive" crime politics. In California, the Republican Party has no statewide office-holders and less than one-third of the seats in the state legislature. In those circumstances, Zimring said, "you consult your greatest hits playbook from previous eras."

It's unclear if those attacks will resonate in an era that still features historically low crime rates and one in which voters have shown a willingness to reconsider tough crime laws. In California, for example, a ballot measure to roll back part of the state's controversial 1994 three-strikes law — it requires 25 years to life in prison for people convicted of a third felony — passed with 70 percent support in November.

"There certainly are signs that politicians are trying to use it as a wedge issue," said Marc Levin of Right on Crime, a Texas-based group that pushes flexible sentences and rehabilitation programs from a conservative perspective. "But I'm struggling to see a legislator who got voted out of office in the last several years for supporting criminal justice reform."...

"It used to be 'how do we demonstrate that we're tough on crime?'" said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts. "Now it's 'how do we get taxpayers better returns on their criminal justice dollars?'"

July 6, 2013 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, July 05, 2013

A year later, Texas still working through its response to Miller

This New York Times article, headlined "Young Killers in Texas Await Change in Mandatory Life Sentences," reports on the struggles that the Lone Star State has had in fuguring out just how to respond to the Supreme Court's ruling last year in Miller v. Alabama.  Here are excerpts:

[Scottie] Forcey was convicted in 2009 of fatally shooting Karen Burke, a 52-year-old Alvarado convenience store clerk. He is the youngest of 23 Texas Department of Criminal Justice inmates who received mandatory sentences of life without parole for committing capital murder when they were younger than 18.

Now, as legislators work to comply with a United States Supreme Court ruling, those inmates could become eligible for parole after serving 40 years.

The justices ruled last year that sentences of life without parole for 17-year-old murderers violated the constitutional ban on cruel and unusual punishment. Either the courts or Gov. Rick Perry could change such sentences in Texas. But both are waiting for legislators to decide what punishment juveniles like Mr. Forcey should face. Lawmakers, who failed to pass legislation in two sessions this year, are trying now for a third time.

In Texas, 17-year-olds have faced the same sentencing options as adults convicted of capital murder: the death penalty or life without parole. In 2005, the Supreme Court prohibited the death penalty for anyone under 18, deciding that the less-developed brains of juveniles rendered them less culpable. That left only life without parole as the punishment for 17-year-olds.

After the court’s decision last year, in Miller v. Alabama, prosecutors said they had no sentencing options for 17-year-old killers. They asked lawmakers to make them subject to the same punishment Texas law requires for 14- to 16-year-old capital murderers: life with parole eligibility after 40 years.

Lance Long, a Harris County assistant district attorney, recently told lawmakers that until they decided on a sentencing option, such murder trials were being delayed across Texas. “None of these cases are anything but very, very, very serious,” Mr. Long said.

The Texas Senate’s Criminal Justice Committee has approved a bill that would require a sentence of life with parole eligibility after 40 years. The House, however, has indicated it wants to give juries the option to sentence 17-year-olds to life without parole if other factors — like evidence of abuse or mental illness — are considered. In previous sessions this year, both chambers approved bills addressing the sentencing question, but time ran out before they could get final approval.

Mr. Perry has told prosecutors that when lawmakers decided on a new sentencing bill, he would consider recommending commutation for inmates like Mr. Forcey who were sentenced under the old law. “It really only seems fair and just,” said Justin Wood, the legislative liaison for the Harris County district attorney’s office in Houston.

July 5, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, July 04, 2013

"Judges refuse to delay order to release 9,600 California inmates"

The title of this post is the headline of this latest report from California concerning the on-going (and seemingly never-ending) prison litigation. Here are the highlights:

The federal judges who last month ordered Gov. Jerry Brown to release 9,600 state inmates or find another cure to overcrowding refused Wednesday to delay their edict while the governor appeals their cap on the prison population to the U.S. Supreme Court.

The judges' June 20 order, still in effect, requires the Brown administration to begin preparations for freeing inmates immediately unless it has another way to comply with the population limit.

Brown and his lawyers had asked the jurists — U.S. District Judges Lawrence Karlton and Thelton Henderson and 9th Circuit Appeals Justice Stephen Reinhardt — to delay the order to give the state time to take its appeal to the high court. They vowed Wednesday to persist in that effort.

"We will seek a stay from the U.S. Supreme Court," said state Department of Corrections and Rehabilitation spokeswoman Deborah Hoffman. She said the state would begin complying with the existing order, but "we look forward to making our case to the Supreme Court justices that no further reduction in the prison population is needed."

In the interim, California authorities must provide a system to identify inmates eligible for early release. State officials told federal judges in a filing late Wednesday that they were doing so but also were "assessing alternatives" to early releases for good behavior and had asked the court's medical overseer for a list of "low-risk elderly" inmates who might be paroled early.

Corrections Secretary Jeffrey Beard said the state also is prepared to continue to send inmates out of state, though the Legislature has not acted on a request for $300 million to fund those transfers. Senate Leader Darrell Steinberg (D-Sacramento) has said he does not intend to take up that proposal.

In its request for a stay, the state contended that enacting the judges' requirement that inmates receive increased good-behavior credits to shorten their prison terms would result in changes that "cannot be stopped or undone," at a risk to public safety.

Lawyers representing inmates in the two class-action lawsuits underlying the release order countered that to do nothing would "prolong ongoing irreparable harm — including illness and death" among the 132,000 prisoners they represent. The lawsuits assert that overcrowding results in constitutionally inadequate care for inmates.

In rejecting Brown's request for more time Wednesday, the judges noted that California has been under the population reduction order for four years and said the state had a "long history of ... noncompliance."...

Inmates' lawyers said they doubted the Supreme Court would grant Brown a stay. "The Court has laid to rest every argument that Governor Brown has for not promptly reducing the prison population to constitutionally acceptable levels so that prisoners can get adequate healthcare," said Don Specter, lead attorney for the Prison Law Office, representing inmates in the core medical care lawsuit.

Although California is weeks away from opening its 34th prison, a medical facility near Stockton, officials have not taken other steps to reduce crowding beyond Brown's "realignment" program. That policy took effect in late 2011, requiring counties to house low-level felons and parole violators who otherwise would have been sent to state prisons.

A few recent related posts:

July 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Missouri Gov vetoes bill to take juve sex offenders off state registry

As reported in this AP story, headlined "Nixon vetoes sex offender measure," the Governor of Missouri is apparently concerned this holiday week that a bill passed by his state's legislature will provide for too potential much freedom for juvenile sex offenders. Here are the basics:

Gov. Jay Nixon on Wednesday vetoed legislation that he said would remove sex offenders who commit their crimes as juveniles from websites that let the public know who they are, a day after he signed a measure that strengthens laws against sexual offenses.

Nixon said the vetoed measure is too broad. “It would grant this relief to juvenile sex offenders regardless of the sexual offense for which they were convicted to include forcible rape, forcible sodomy and child molestation,” said Nixon, who was state attorney general before becoming governor.

“Moreover, the bill would deprive victims of sex offenses the opportunity to be heard before an offender is removed from the very websites that are designed to protect victims and other members of the public.”...

State lawmakers return to the Capitol in September to decide whether they will try to override any vetoes.

On Tuesday, Nixon signed a criminal justice bill that includes a change to what constitutes rape. It had been defined as having sex with another person by use of “forcible compulsion,” which includes the use of a substance to physically or mentally impair another without his or her knowledge or approval. The new law broadens that to include instances in which someone is incapacitated, is incapable of consent or lacks the capacity to consent.

July 4, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, July 02, 2013

Does postponement of Jacksons' sentencing suggest big rulings are in the works?

High-profile white-collar federal sentencing proceedings always intrigue me, especially when they involve a cocktail of dynamic doctrinal and policy issues as is the case in the upcoming sentencings of former Rep. Jesse Jackson Jr., and his wife Sandi. But , as reported here by the Chicago Tribune, it now appears we will have to all wait a bit longer for the Jacksons' day of sentencing reckoning:

The South Side Democrats had been scheduled to learn their fates Wednesday, until the delay was announced by U.S. District Judge Amy Berman Jackson, who is not related to the pair.  A court spokesman said neither the prosecution nor defense asked for the postponement.

"The matter was rescheduled to accommodate the court's schedule and workload — neither side requested a continuance," said Jenna Gatski, a spokeswoman for the U.S. District Court.

Jackson Jr. pleaded guilty to misusing about $750,000 in campaign cash. Sandi Jackson, a former Chicago alderman, pleaded guilty to failing to report about $600,000 on income tax returns over several years.

The postponement was announced after a telephone conference call between the judge and the Jacksons, the court said. Bill Miller, a spokesman for the U.S. attorney for the District of Columbia, said the sentencings would not take place this week.

Jackson Jr., 48, faces 46 to 57 months in prison under federal sentencing guidelines, which are not mandatory. His lawyers want a sentence lower than what the guidelines suggest and assert that Jackson Jr., who reportedly has bipolar disorder, could not get proper medical care in prison. Federal prosecutors want him to serve a four-year sentence and to be placed on supervised release for three years after that.

Sandi Jackson, 49, faces one to two years in prison. Her attorneys want her sentenced to probation, saying the couple's two children, ages 9 and 13, need their mother. Prosecutors want her imprisoned for 18 months and put on supervised release for a year.

The question in the title of this post is my reaction to report that neither side sought a postponement and the indication that the change was "to accommodate the court's schedule and workload."  I would be very surprised if Judge Amy Berman Jackson had a trial or lots of other litigation matters crop up in the middle of this summer holiday week; reading these latest tea leaves now has me wondering (and weirdly excited) that this postponement is based in part on the judge's plans to issue a significant written opinion on federal sentencing law, policy and practice along with her sentencing ruling. (Or maybe the judge just has tickets to see Bryce Harper back playing again for the Washington Nationals during their homestand this week, and she decided it was more fitting to catch a baseball game than to deprive liberty right before we all celebrate Independence Day.)

Related posts:

UPDATE:  This local article now reports that the Jacksons' sentencings have now been set for August 14.

July 2, 2013 in Booker in district courts, Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Released sex offenders in Great Britain soon to be required to take regular polygraph tests

Keep-calm-and-protect-kids-from-sex-offenders-6As reported in this article from across the pond, a novel (and apparently somewhat efficacious) approach to sex offender monitoring is being expanded in part of Great Britain after a successful pilot program.  The article is headlined "Lie detector tests set to be introduced to monitor sex offenders: Politicians expected to approve law allowing compulsory polygraph tests of sex offenders released into community," and here are excerpts:

MPs are expected to clear the way for the introduction of compulsory lie detector tests to monitor convicted sex offenders across England and Wales from next January.

The national rollout of US-style mandatory polygraph tests for serious sex offenders who have been released into the community after serving their prison sentence follows a successful pilot scheme. The trial was carried out from 2009-11 in two Midlands probation areas and found that offenders taking such tests were twice as likely to tell probation staff they had contacted a victim, entered an exclusion zone or otherwise breached terms of their release licence.

Continuing concerns about the reliability of the tests and misinterpretation of the results mean they still cannot be used in any court in England and Wales. But it is expected that the compulsory polygraph tests will be used to monitor the behaviour of 750 of the most serious sex offenders, all of whom have been released into the community after serving a sentence of at least 12 months in jail.

The tests involve measuring reactions to specific questions by monitoring heart rate, blood pressure, breathing and levels of perspiration to assess whether the subject is being truthful. The results will be used to determine whether they have breached the terms of their release licence or represent a risk to public safety and should be recalled to prison.

The power to introduce compulsory lie detector tests was put on the statute book six years ago in the Offender Management Act 2007. On Tuesday MPs will debate secondary legislation in the form of a statutory instrument to come into force from 6 January 2014. The House of Lords will be asked to approve it later this month.

The justice minister Jeremy Wright said: "Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.

"We recently announced the creation of a National Probation Service tasked with protecting the public from the most high-risk offenders. They will be able to call on this technology to help stop sex offenders from reoffending and leaving more innocent victims in their wake."

Hertfordshire police used the tests in a pilot scheme in 2011 to help decide whether to charge suspected sex offenders and gauge the risk they posed to the public. "Low level" sex offenders were involved in the original pilot. At least six revealed more serious offending and were found to pose a more serious risk to children than previously estimated. A further trial was ordered but at the time the Association of Chief Police Officers voiced caution about the adoption of such tests: "Polygraph techniques are complex and are by no means a single solution to solving crimes, potentially offering in certain circumstances an additional tool to structured interrogation," a spokesman said.

Polygraph testing is used in court in 19 states in America, subject to the discretion of the trial judge, but it is widely used by prosecutors, defence lawyers and law enforcement agencies across the US.

I find curious that this article speaks of "US-style mandatory polygraph tests"; I am not aware of any US jurisdiction that uses mandatory polygraph testing as part of a program of sex offender monitoring.  That said, I would not be at all surprised if some jurisdictions in the US were to consider such a requirement if there is good reason to believe that such testing does a reasonable job of sorting out more (and less) dangerous released sex offenders.

Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty.  For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).

July 2, 2013 in Criminal justice in the Obama Administration, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (19) | TrackBack

Monday, July 01, 2013

"Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship"

The title of this post is the title of this new paper on SSRN authored by Paul Litton. Here is the abstract:

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in lethal injections.  In widely publicized litigation, death row inmates argue that the participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations.  However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or at least permit physician participation.

Both the anti- and pro-physician-participation literature share a common premise: the ethics of physician participation should be analyzed independently from the moral status of capital punishment.  This considerable literature implausibly divorces the ethics of physician participation from the moral status of the death penalty.  Any ethical position on physician involvement requires some judgment about the moral status of the death penalty and the importance of physician involvement.  The article examines anti- and pro-participation arguments to show that each one either is unpersuasive without discussion of the death penalty’s moral status or implicitly assumes a view on the social worth of the death penalty.

The article then articulates the practical implications of its arguments for both lawmakers and professional medical organizations.

July 1, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack