Thursday, April 04, 2013

"Pretrial Detention and the Right to Be Monitored"

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

The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it.  In the context of pretrial justice, however, we have the opposite problem.  Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system.  Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention.  But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.

This paper develops two related claims.  First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk.  In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense).  Moreover, the usual objections to government monitoring -- the intrusion on individual privacy and the threat of surveillance extending to new segments of society -- have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.

Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action.  The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts.  Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically.  To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them.  The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary.  Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.

Long-time readers know I am a fan of both the Eighth Amendment and of the potential of technocorrections to reduce the modern incarceration "footprint."  I thus find especially intriguing and appealing the notion that the Eighth Amendment might give defendants a right to demand a technocorrections alternative to incarceration in some settings.

April 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, April 03, 2013

Some notable headlines in wake of state prosecutors' decision to seek death penalty for James Holmes

I was intrigued to see this set of notable anti-death penalty headlines and commentaries in a bunch of major news sources this afternoon as a follow-up to the recent decision by Colorado state prosecutors to seek a death sentence in the Aurora mass shooting case:

From The Atlantic here, "In Aurora Shooting Case, a Public Pushback Against the Death Penalty"

From The Guardian here, "Even Aurora shooter James Holmes shouldn't get the death penalty"

From CNN here, "Why death penalty for Holmes wouldn't bring justice"

From the Daily Beast here, "Why My Mother Would Save Aurora Shooter James Holmes"

Also from the Daily Beast here, "Death Penalty Is the Wrong Punishment for James Holmes"

I think most of the authors of these pieces are committed abolitionists, so their positions on this high-profile case is not all that surprising.  But I still think it is notable and significant that so many commentators are quick to take up the challenge of seeking to explain and justify their opposition to the death penalty even in a case in which the crime is so horrific.

Recent and older related posts (with lots of comments):

April 3, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

For blogging about circuit sentencing opinions, three is a magic number

Schoolhouse_Rock_3_Number_Red_Juniors_POPBecause I have been on the road a lot lately (and will be on the road again starting tomorrow), I have had precious little time to keep up with or blog about notable recent circuit sentencing opinions.  And today I feel extra overwhlemed, in part because potentially blog-worthy opinions have been handed down in the last few days in nearly every federal circuit.  But, as the title of this post and the classic picture is meant to suggest, on this the third day of the month there are three new opinions from all three of the three-magical circuits that merit taking the time for a blog shout-out:

From the Third (3 x 1) Circuit, we get US v. Zabielski, No. 11-3288 (3d Cir. Apr. 3, 2013) (available here), which starts this way:


In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the United States Sentencing Guidelines could not constitutionally be applied as diktats.  Rather than scrap the Guidelines entirely, the Court left them intact as advisory and trial judges may vary from them, within reason, after applying the relevant provisions of 18 U.S.C. § 3553(a).  Before doing so, it is important that trial judges accurately calculate the Guidelines range and correctly rule on departure motions.  Failure to accomplish either of these tasks typically will cause us to vacate and remand for resentencing.  In some cases, however, the procedural error committed by the sentencing court is so insignificant or immaterial that prudence dictates that we hold such error harmless.  Because we view this appeal as one of those cases, we will affirm Appellant Mark Zabielski‘s judgment of sentence.


From the Sixth (3 x 2) Circuit, we get US v. Doyle, No. 12-5516 (6th Cir. Apr. 3, 2013) (available here), which starts this way:

After moving to Tennessee, Rashan Doyle was charged with failure to register as a sex offender, in violation of 18 U.S.C. section 2250(a), to which he pleaded guilty without a plea agreement.  The district court sentenced Doyle to three years and one month in prison followed by ten years of supervised release, upon which the district court imposed four special conditions, numbered three, four, six and eight.  Doyle appeals the district court’s imposition of these four special conditions of supervised release.  Because the district court erred procedurally by failing to explain its reasons for imposing the special conditions, and because the record does not otherwise illuminate the reasons for them, we VACATE the district court’s imposition of the special conditions of supervised release and REMAND for resentencing proceedings consistent with this opinion. 

From the Ninth (3 x 3) Circuit, we get US v. Augustine, No. 12-50061 (9th Cir. Apr. 3, 2013) (available here), which starts this way:

In the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111–220, 124 Stat. 2372, Congress addressed the inequitable disparity between the sentences prescribed for crack and powder cocaine offenses. The question in this case is whether a defendant sentenced for a crack cocaine offense before the FSA was enacted is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2).  We hold, consistent with all circuits to have addressed the issue, that the FSA’s lowered mandatory minimums are not available to such individuals.


April 3, 2013 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Judge to retire after sending racist Obama email"

The title of this post is the headline of this notable new AP article following up on a federal judiciary story that generated some blog-worthy discussions around a year ago.  Here are the basics (followed by  back-story links to prior posts):

Montana's chief federal judge will retire following an investigation into an email he forwarded that included a racist joke involving President Barack Obama.

U.S. District Judge Richard Cebull had previously announced he would step down as chief circuit judge and take a reduced caseload, but he informed the 9th U.S. Circuit Court of Appeals that he now intends to fully retire May 3. The appellate court posted a statement by Chief Judge Alex Kozinski on its website Tuesday announcing Cebull had submitted the retirement letter.

The March 29 letter comes after the appellate court's Judicial Council issued a March 15 order on the investigation into the February 2012 email, but appellate court spokesman David Madden could not say whether Cebull resigned because of the order. "The misconduct process is confidential. I am not privy to what the order said nor do I know what Judge Cebull's motivations were," Madden said in Wednesday email.

The council's order will remain confidential during an appeal period, which concludes May 17, Madden said. The council will make an announcement after Cebull's retirement takes effect, he said, but added that he was unable to answer when the order or the letter will be released to the public.

A Cebull aide directed calls for comment to Clerk of Court Tyler Gilman, who said Wednesday that Cebull would not have any comment other than the court's statement. He declined to release the resignation letter or describe what it said.

Cebull wrote a letter of apology to Obama and filed a complaint against himself after The Great Falls Tribune published the contents of the email, which included a joke about bestiality and the president's mother.

The Billings judge forwarded the email from his chambers to six other people on Feb. 20, 2012, the newspaper reported.  Two other groups also demanded an investigation, with one, the Montana Human Rights Network, starting an online petition calling for Cebull's resignation.

Kim Abbott, the network's co-director, said Wednesday she was pleased with the announcement but hopes to see the results of the investigation.  "The email really called into question his ability to treat women and people of color fairly, so we're happy Montanans will get to appear before a different judge," Abbott said.

The complaints were referred to a special committee appointed by the appellate court to investigate whether Cebull's email constituted misconduct.  Kozinski's statement said the committee submitted a report to the Judicial Council in December after "a thorough and extensive investigation" that included interviews with witnesses and Cebull and going over related documents. The council issued its order based on that report....

Cebull previously said he would take senior status March 18, which would have allowed another judge to be appointed while he continued working with a reduced caseload. U.S. Sen. Max Baucus then formed a committee to replace Cebull and another judge taking senior status, with Baucus recently recommending that Obama appoint state District Judge Susan Watters of Billings to take Cebull's spot on the bench.

The new chief federal judge, U.S. District Judge Dana Christensen, plans to meet with other judges to discuss how to handle the Cebull's cases, Gilman said. Cebull was a Billings attorney for nearly 30 years before becoming a U.S. magistrate in Great Falls in 1998. He became a district judge in 2001 and has served as chief judge of the District of Montana since 2008.

Related prior posts (all from March 2012):

April 3, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 02, 2013

Guest post by Norm Pattis on his new book, "Juries and Justice"

Juries-and-Justice_Cover_thumbI was pleased to receive from noted criminal defense and civil rights lawyer Norm Pattis the following guest-post concerning the themes in his new book, "Juries and Justice: Saving a System Under Fire":

Juries, we like to tell ourselves, are one of the crown jewels of the American experiment in republicanism.  King George III’s interference with the right to jury trials was, after all, one of the reasons cited for rebellion in the Declaration of Independence. Yet today, a summons to jury duty is regarded by many as akin to a trip to the dentist’s office.  Attend jury selection some time and listen to the excuses people offer as to why they cannot serve.  It’s depressing.  Is it possible that one reason for the decline in interest in jury service is that we have transformed jurors into little more than assembly line workers?

At the time of the founding, jurors had the right to decide both facts and law.  In other words, juries could, and did, nullify the law when they thought the law was unfairly, or improperly, applied.  Thus, while John Peter Zenger was undoubtedly guilty in the 1730s of publishing seditious, unlawful comments about William Cosby, the governor of New York, his jury voted to acquit, expressing its sense that the law was wrong.  Today, Zenger would have been convicted by a jury told that it had to follow the law regardless of whether jurors agreed or disagreed with the law.

Jury nullification is prohibited in the federal courts.  In 1895, the Supreme Court ruled a defendant had no right to have a jury informed of its ability to nullify.  Sparf v. United States, 156 U.S. 51 (1895).  Only a handful of states permit lawyers to argue nullification to juries today.  New Hampshire, for example, passed legislation in 2012 permitting the practice.

What irony, then, to permit prosecutors to argue that a defendant must be held “accountable,” the favorite trope of prosecutors nationwide, while at the same time hobbling a jury’s ability to render a decision about whether the prosecution has responsibly used its power to charge a person with a crime.

Jury service offers ordinary people an opportunity to sit in judgment over the day-today conduct of government officials in a way that voting does not.  By the time a candidate for office has been vetted, funded, and groomed by the major parties and Political Action Committees, the candidates too often appear beholden to big money.  Is it any wonder that the stock market has “recovered,” creating great wealth for a few, while many remain out of work, apparently locked out of an economy that doesn’t work for them?

Why not give jurors the chance to express themselves by nullifying the law as a matter of political protest?  Why, for example, can’t jurors simply say “no” when the prosecution seeks to imprison a young man or woman for casual drug use, but decides not to prosecute a banker who engaged in what amounted to fraud by selling bad mortgages?

Jury nullification is risky.  Didn’t juries nullify in the deep South in the 1960s by refusing to convict southerners of acts of racially motivated violence?  In other words, isn’t the rule of law imperiled when it plays a subordinate role to a jury’s passion and prejudice?

That risk is real.  But, on balance, the greater risk seems to be a people adrift, without a real sense of efficacy.  If government were held accountable for the consequences of the day-to-day decisions it makes in jury rooms, a habit of participation might be fostered in a people consigned to playing the role of passive consumers every so often on polling day. Tweedledum and Tweedledee might be forced to listen if jurors were given choices in jury rooms about whether the law served purposes the people endorse.

I say empowering juries could empower communities, and make government more responsive to the felt necessity of the times.  We can increase a sense of the legitimacy of public institutions by getting jurors more involved in deciding not just whether a defendant is guilty of the crime charged, but whether the government has used our resources wisely in deciding to prosecute in the first instance.

I say it’s time to restore the right to nullify in courts throughout the land.  Will it yield chaos and unpredictability?  Perhaps.  Who said order for order’s sake is a good thing? Justice is too important to be left to judges and lawyers.  Ordinary people live with the consequences of what goes on in a courtroom; these people should have a greater role in deciding the cases they hear.

April 2, 2013 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Protests scuttle private prison group's plans to get name on university stadium

As reported in this prior post a few weeks back, the private prison corporation GEO Group Inc. had a deal in the works to give a huge check to a university in Florida and to get a stadium named after it in return.  But, as highlighted in this new Huffington Post piece, the deal is off:

It was a move that baffled sports marketing experts: Florida Atlantic University struck a deal in February to name its football stadium after a private prison company.

But after more than a month of backlash from students, faculty and human rights groups, the GEO Group Inc. pulled out of the $6 million deal with Florida Atlantic on Monday, citing the "distraction" it had caused for the company and the university.

"What was originally intended as a gesture of GEO's goodwill to financially assist the University's athletic scholarship program has surprisingly evolved into an ongoing distraction to both of our organizations," GEO Group chairman and chief executive George Zoley said in a statement released by the university on Monday.

Soon after the deal was announced in mid-February, it got attention in national news outlets and garnered a segment on the Colbert Report. Citing lawsuits against the company and federal reports detailing horrible conditions at a GEO-operated youth prison in Mississippi, host Stephen Colbert quipped: "This criticism is just one of the downsides of paying millions of dollars to have people pay attention to your company …. People start paying attention to your company."

The GEO Group is based in Boca Raton, Fla., just a few miles from Florida Atlantic University. Zoley, the company's chairman and chief executive, received bachelor's and master's degrees from the university and was a former chairman of the board of trustees. The university had been seeking a corporate sponsor for two years to pay down the debt on its newly built stadium, and the GEO Group pledged to pay $6 million over 10 years in exchange for the naming rights.

Student groups at Florida Atlantic quickly coalesced against the GEO Group Stadium deal, dubbing the facility "Owlcatraz" -- a play on the university's mascot, an owl. They staged a sit-in outside the university president's office in February and demanded that university leadership organize forums and discussions about GEO's human rights record.

The school's faculty senate overwhelmingly passed a resolution against the stadium name last month, noting that GEO Group's business practices "do not align with the missions of the university."...

The GEO Group's revenue has nearly tripled over the last decade, as the private prison company has captured greater shares of state and federal prison populations, including facilities that hold undocumented immigrants. GEO has also donated more than $1.2 million to the Florida Republican Party over the last three election cycles. Republicans in the state legislature last year came close to approving a massive expansion of private prisons in south Florida, an opportunity that the GEO Group mentioned frequently in calls with investors....

In a statement, Florida Atlantic President Mary Jane Saunders said Zoley and the company "have been loyal supporters of this university" and that she was thankful for all organizations that give to support "our mission, our pursuit of academic excellence and valuable contributions to this community."...

It is unclear where the university will get the money needed to pay off debt for its stadium. FAU had been searching for more than two years for a corporate sponsor before GEO Group agreed to pay $6 million over 10 years. The university built the $70 million football stadium in 2011, borrowing more than $45 million.

Some recent and older related posts: 

April 2, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

"Legal Punishment as Civil Ritual: Making Cultural Sense of Harsh Punishment"

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

This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment.  The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution.  It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more to do with culture than crime.

This approach has been largely overlooked by legal scholars, yet ritual studies enhance understanding of law and legal institutions. A ritual perspective illuminates the religious history of criminal justice, challenges traditional dogmas that hold punishment as a rational response to crime, and explains why some people must suffer so that others may feel secure.

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

Monday, April 01, 2013

"James Holmes' Victims Applaud Death Penalty Plan: 'I Want Him Dead'"

The title of this post is the notable headline of this ABC News report on the (not-very-surprising) decision today by Colorado prosecutors to seek the death penalty for mass murderer James Holmes. Here are excerpts:

Friends of Aurora shooting victims applauded prosecutors' decision today to seek the death penalty for James Holmes, with one friend saying he wanted to be in the room if Holmes is executed.

"I don't know if it's painful. I want him dead. I just want to be there in the room when he dies," Bryan Beard said outside the Colorado courthouse. "He took one of my friends from this Earth. Death equals death." Beard's close friend Alex Sullivan was one of the 12 people killed in the shooting on July 20 last year. It was Sullivan's 27th birthday.

Prosecutors from the Arapahoe County District Attorney's Office said at a hearing today in Aurora, Colo., that they will seek execution for Holmes if he is convicted. "For James Eagan Holmes, justice is death," District Attorney George Brauchler said in court.

A couple of victims' relatives cried. Holmes' parents were also in court. He looked at them when he came in. After the announcement, Holmes' father nodded his head and put his arm around his wife.

Brauchler said his office has reached out to 800 victims and that he had personally spoken with relatives of 60 victims who died and were injured. Brauchler said he didn't speak to anyone about the decision.

"They are trying to execute our client and we will do what we need to do to save his life," public defender Tammy Brady said in a voice shaking with anger. "We are asking the court not to rush this."

Judge Carlos Samour, the case's new judge, set the trial date for Feb. 3, 2014, but the date could change if the defense finds it is not ready early next year. "I want to be aggressive in moving this case along, and at the same time I want to make sure it's done right," Samour said.

The decision follows several days of wrangling between the defense and prosecution over Holmes' offer to plead guilty in a bid to avoid the death penalty. Despite the announcement, experts predict a long road ahead for Holmes, 25, and the case....

Family members are divided on whether Holmes should get death, according to investigative sources. Some are philosophically opposed to the death penalty, others support it and still another group wants death for Holmes, but they don't want to endure a trial.

Recent and older related posts (with lots of comments):

April 1, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Unanimous SCOTUS summary reversal of Ninth Circuit on right-of-appoint-counsel

A long day of meetings has meant it has taken me nearly all day to note today's notable Sixth Amendment ruling from the Supreme Court in Marshall v. Rodgers, No. 12-382 (S. Ct. Apr. 1, 2013) (available here).  The Rodgers ruling is a unanimous, per curiam summary reversal of the Ninth Circuit, and the start and end of the short SCOTUS opinion highlights its nuances:

Respondent Otis Lee Rodgers, challenging his state conviction, sought a writ of habeas corpus from the United States District Court for the Central District of California. He claimed the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to ap- point an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counseled representation. The District Court denied respondent’s petition, and he appealed to the Court ofAppeals for the Ninth Circuit, which granted habeasrelief.  678 F. 3d 1149, 1163 (2012).  Because the Court of Appeals erred in concluding that respondent’s claim issupported by “clearly established Federal law, as determined by the Supreme Court of the United States,” U. S. C. §2254(d)(1), its judgment must be reversed....

The Court expresses no view on the merits of the underlying Sixth Amendment principle the respondent urges.  And it does not suggest or imply that the underlying issue, if presented on direct review, would be insubstantial.  This opinion is instead confined to the determination that the conclusion of the California courts that there was no Sixth Amendment violation is not contrary to “clearly established Federal law, as determined by the Supreme Court of the United States.” §2254(d)(1).

The petition for a writ of certiorari and respondent’smotion to proceed in forma pauperis are granted.  The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

April 1, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 31, 2013

Two notable (and notably distinct) new capital punishment papers

I tend not to read most of the (voluminous) academic commentary about the death penalty because they usually build to the same type of abolition-oriented conclusions.  But appearing on SSRN in the the past few weeks are these two different kinds of discussions of the death penalty:

The Case Against the Case Against the Death Penalty by Chad Flanders:

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders.  This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment.  The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor of the death penalty.  Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory’s ability to serve as a theory of punishment in general.

Punishment theory provides little basis for sound arguments against the death penalty. Perhaps one could mount a better attack on the death penalty using ideas outside of punishment theory, such as “dignity,” “decency” or “civilization,” but so far, the death penalty's opponents have not met their burden of persuasion.

The Death Penalty Spectacle by Tung Yin:

The death penalty in America has long been a spectacle of sorts, but a recent case in Oregon has verged into the absurd, where the inmate and the Governor are engaged in titanic litigation...except that the inmate is suing to allow his execution to go forward, and the Governor is fighting back in the courts to uphold the reprieve that he issued (and which the inmate purported to reject).

This case is a fascinating commentary on, if nothing else, the fiscal waste of having a death penalty in a state that rarely sentences defendants to death (about one per year on average), and doesn’t execute them unless they “volunteer.” On the other hand, while abolition of the death penalty sounds pretty appealing, this inmate’s case raises a tricky question: he was already serving a life without parole sentence when he murdered another inmate. How should society punish someone like this? Another life sentence is meaningless, and even if one rejects retribution and deterrence as legitimate punishment rationales, incapacitation seems appropriate – executing him would prevent him from killing any other inmates (or guards).

There are, of course, other ways of protecting other inmates: maybe the murderous inmate could be kept in solitary confinement for the rest of his life. The direction of European courts, which have been ahead of our abolitionist movement, as well as the experience here with Ramzi Yousef, one of the deadliest terrorists in U.S. custody, suggests, however, that such conditions may become the new Eighth Amendment battleground. But how is society to protect other inmates if it can neither execute nor place in solitary confinement someone who murders other inmates?

March 31, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, March 29, 2013

"Gideon Skepticism"

The title of this post is the title of this notable new piece on SSRN by Alexandra Natapoff. It provides a provocative perspective in a month that has included lots of Gideon celebrations now that the decision is 50 years old.  Here is the abstract:

The criminal defense lawyer occupies a special doctrinal place in criminal procedure. It is the primary structural guarantor of fairness, the single most important source of validation for individual convictions. Conversely, if a person did have a competent lawyer, that generates a set of presumptions that his trial was in fact fair, the evidence sufficient, and his plea knowing and voluntary. This is a highly problematic legal fiction. The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices.

A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about. In response to these limitations, criminal scholarship offers a variety of skeptical counter-narratives about the ability of defense counsel to police the accuracy and fairness of their clients’ guilty pleas and sentences.  Such skepticism is particularly appropriate in the misdemeanor context, in which millions of cases are created and rushed through an assembly-line process without much evidence or scrutiny.

In this world, the presence or absence of counsel is just one piece of a much larger puzzle of systemic dysfunction.  Accordingly, while the right to counsel remains an important ingredient in fair trials and legitimate convictions, it cannot bear the curative weight it has been assigned in the modern era of overcriminalization and mass judicial processing. Other legal actors and institutions should share more responsibility for protecting defendants, a responsibility that now rests almost entirely and unrealistically on the shoulders of defense counsel.

March 29, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Two notable resentencing stories via the New York Times

Continuing its recent notable extra interest in an array of modern sentencing stories, today's New York Times has two pieces that are both must reads for all sentencing fans.  And because neither story enables simply summarization, I will just here reprint the headlines and the links:

Ever the nerdy and obsessed sentencing law professor, I could readily imagine teaching a week of classes about either of these noteworthy cases.  But I wonder if readers think one or the other of these modern sentencing stories merits some extra blog attention.

March 29, 2013 in Death Penalty Reforms, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

"Toward a Common Law of Plea Bargaining"

The title of this post is the title of this notable new article by Wesley Oliver available via SSRN. Here is the abstract:

This article contends that Missouri v. Frye and Lafler v. Cooper, holding that defendants have a right to an effective criminal negotiator, are landmark decisions, but not because they will cause the reversal of any substantial number of convictions. These opinions could have a far greater impact than that. These opinions may cause criminal defense lawyers to embrace their role as negotiators. The recognition that negotiation is as central to their duty under the Sixth Amendment as litigation should cause them to study the negotiation tactics and experiences of their colleagues just as they now very effectively learn from their trial and appellate skills. The opinions also encourage trial courts, in crafting remedies for ineffective assistance of counsel during plea bargaining, to inquire into a reasonable prosecutor’s motives for offering a plea lost by counsel’s ineffectiveness. In so doing, post-conviction courts would be crafting advisory guidelines for the exercise of prosecutorial discretion.

Plea bargaining has become an unregulated process, with enormous power vesting in the hands of prosecutors, over the forty years since the Supreme Court acknowledged the existence of criminal negotiations. Separation of powers concerns and respect for the power of parties to contract have caused academic proposals for direct judicial regulation of the plea bargaining process to be largely ignored. By nudging defense lawyers to re-envision their role in the system and giving post-conviction courts an opportunity, as they are crafting remedies, to comment on the appropriate exercise of prosecutorial discretion, the Supreme Court has created circumstances permitting the indirect regulation of plea bargaining.

Decades of cases from the Supreme Court have made limitations on prosecutors in this process seem constitutionally impossible. In a decision appearing to relate only the role of defense counsel, the Court may have found a way, consistent with long-standing constitutional principles, to impose some oversight on the previously unchecked prosecutor.

March 29, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

You be the sentencing judge: what is a fair and effective sentence of 86-year-old mercy killer?

I thought that, while folks continue to vigorously debate how Colorado prosecutors should deal with mass murderer James Holmes in the comments to this recent post, it would also be interesting to hear how readers might sentence a very different killer due in court today in Arizona.  This USA Today article, headlined "Man charged in 'mercy killing' set for sentencing: 86-year-old World War II veteran said his wife was set to be admitted to a hospital, then a nursing home," sets out the essential of another hard case:

George Sanders appeared frail and tired in the hours after he shot his ailing elderly wife in the head, wrapped in a blanket as he sat being questioned by a detective.

"She never wanted to outlive me and be left at the mercy of someone else," Sanders tells a Maricopa County sheriff's detective in an interrogation recorded the day his wife, Virginia Sanders, 81, was found shot in the couple's home.  "We loved each other so much," Sanders said.  "It was a wonderful life in spite of all the hard things we had at the end."

The 86-year-old was initially charged with first-degree murder for the Nov. 9 shooting of his wife but later pleaded guilty to manslaughter in what attorneys on both sides have called a "mercy killing."

Sanders could face probation or up to 12 1/2 years in prison at his sentencing hearing Friday....

The World War II veteran told authorities his wife was diagnosed with multiple sclerosis in 1969, and the couple moved from Washington state to the retirement community of Sun City outside Phoenix about seven years later for the warm, dry climate as she was now in a wheelchair.  "We did a lot of things together, always loved each other," he told the detective, adding that her health began to deteriorate over the last few years.  "I took care of her through that day and night," Sanders said.

Eventually, as his own health deteriorated, he said the couple hired a caregiver.  He said his wife had been diagnosed with gangrene on her foot just a few days before the shooting and was set to be admitted to a hospital, then a nursing home.  "It was just the last straw," Sanders said.  "She didn't want to go to that hospital ... start cutting her toes off."

He said he talked it over with his wife and she begged him to kill her. "I said, 'I can't do it honey,'" he told police. "She says, 'Yes you can.'"

Sanders said he got his revolver and wrapped a towel around it so the bullet wouldn't go into the kitchen.  "She says, 'Is this going to hurt,' and I said, 'You won't feel a thing,'" he said. "She was saying, 'Do it. Do it. Do it.'  And I just let it go," Sanders added.

I have highlighted in this story the sentencing range provided by state law for this crime. Because the Arizona legislature apparently believes that some persons convicted of manslaughter should get a sentence of only probation, and because I have a hard time thinking of too many more mitigated cases of manslaughter, I would likely impose a sentence of probation on Mr. Sanders. But perhaps others have a different perspective on what they think sentencing justice demands in this kind of case.

UPDATE: This report via ABC News has a headline with the ultimate sentencing outcome: "Man, 86, Gets Probation in Ariz. Mercy Killing."  Here is a snippet from the story:

The judge, who complimented the prosecutor for being "courageous" in recommending probation, allowed Sanders to walk out of the courtroom.  Judge John Ditsworth said his sentence of two years' probation was "individualized and tempers justice with mercy."

"It is very clear that he will never forget that his actions ended the life of his wife," Ditsworth said as Sanders stood at a podium, his hands clasped and shaking.  "In this set of facts, there was a perfect storm of individual circumstances which placed Mr. Sanders in a position where had to make a decision," Ditsworth said.  "This set of facts hits close to home for all of us."

March 29, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, March 28, 2013

You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?

Regular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant. Recently, however, I have enjoyed the debate engendered by encouraging readers to imagine being a prosecutor tasked with a tough sentencing decision, and this story from Colorado highlights that some state prosecutors are in now in the capital sentencing spotlight in a high-profile mass murder case:
The man accused of murdering 12 people during the Aurora movie theater massacre is willing to admit to the killings if doing so will save his own life.

In a surprise motion filed Wednesday, lawyers for James Holmes said he has offered to plead guilty in exchange for a life in prison with no chance of parole. The offer was first made prior to the arraignment hearing earlier this month, according to the motion. "Mr. Holmes is currently willing to resolve the case to bring the proceedings to a speedy and definite conclusion for all involved," the lawyers wrote in their motion.

The move swings the spotlight onto prosecutors, who have said they will announce during a court hearing Monday whether they will seek the death penalty. Prosecutors are talking with theater shooting victims and their families to hear their opinions on capital punishment for the case.

Holmes' attorneys wrote in their motion that prosecutors have not accepted the offer. Denver defense attorney Dan Recht said the offer narrows prosecutors' decisions to a single question: Is death the only acceptable punishment in the case? "Holmes can't offer any more than he is offering," said Recht, who has been following the case. "The choice for the prosecution could not be clearer."

All right all you would-be prosecutors out there: do you accept this plea offer from James Holmes? Should the views of theater shooting victims and their families be central to this decision or just one of a number of other factors to consider?

March 28, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (51) | TrackBack

Sixth Circuit panel grants habeas relief to Tennessee defendant sentenced in violation of Blakely

Sadly, I no longer get ample opportunities to blog about Blakely Sixth Amendment sentencing issue these days -- though I suppose this could change if (and when?) the Supreme Court give these issues a new boost via a big ruling in Alleyne in the near future.  Joyfully, this morning brings a little Blakely-era nostalgia via the Sixth Circuit's habeas grant in Lovins v. Parker, No. 11-5545 (6th Cir. Mar. 28, 2013) (available here).   This extended decision gets started this way:

After a Tennessee state court jury convicted petitioner Derry Lovins of second-degree murder, the state trial court judge made additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three years based on those findings.  In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the threeyear sentence enhancement was unconstitutional under the rule of Blakely v. Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts that were not found by a jury.  The history of Lovins’s requests for relief in state court is byzantine, but the legal principles are not.  Lovins’s direct appeal was not final until almost three years after the Blakely decision, and therefore Blakely applies to his case under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane, 489 U.S. 288 (1989).  For this reason, and because the procedural default doctrine does not bar our review of the merits of Lovins’s Blakely claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT a writ of habeas corpus on the Blakely sentencing claim only.  We AFFIRM the district court’s denial of relief on all of Lovins’s other claims.

March 28, 2013 in Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, March 27, 2013

"On Emotion, Juvenile Sex Offenders, and Mandatory Registration"

The title of this post is the title of this paper authored by Catherine Carpenter recently made available via SSRN. Here is the abstract:

It is both unremarkable and true that juveniles are different from adults. United States Supreme Court decisions over the past decade have highlighted the extent of the differences.  Yet, played out against the backdrop of sex offender registration laws, the conversation takes an abrupt turn.  Rather than differentiating between adult and juvenile offenders, federal sex offender registration laws require juveniles convicted of certain sex offenses to face the same onerous registration and notification burdens as their adult counterparts.

Tracking the shift in sex offender registration models from “likely to reoffend” to “conviction-based" assessment, this article argues that “conviction-based” assessment is an unstable proposition when applied to child offenders for two fundamental reasons. First, juvenile offenders lack intentionality and purpose that adult offenders possess, thereby diminishing the value that a conviction carries.  Further, and more importantly, studies reveal that the commission of juvenile sex crimes does not portend future predatory behavior, raising the question of the purpose of registration for this class of offenders.

Ultimately, the legislative push to require juvenile sex offenders to suffer serious register and notification burdens demonstrates convincingly the pitfall that impacts the entire debate over sex offender registration.  Emotional rhetoric controls the legislative agenda, even in the face of compelling arguments to the contrary.

March 27, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Death penalty repeal moves forward in Delaware while faltering in Colorado

The latest sign of the sentencing times is that death penalty repeal bills are getting extended consideration in many states.  And, as these two local article reveal, the fate of these bills are often unpredictable.  Here are the headlines and leads from the latest developments in two states:

From Delaware, "Delaware Senate votes to repeal death penalty":

Senate Bill 19, an act to repeal the death penalty in Delaware, narrowly passed the state Senate Tuesday with a vote of 11-10.  A discussion spanning almost three hours in the Senate Chamber garnered impassioned testimonies from police officers, legislators and families as well as state attorneys of either support or opposition for the death penalty.

The bill’s primary sponsor, Karen E. Peterson, D-Stanton, issued an amendment to the bill which she introduced that afternoon.  The amendment removed the retroactive provision which stated that “any person who has been sentenced to death prior to the effective date of this act shall instead be punished by imprisonment for the remainder of the person’s natural life without benefit of probation or parole or any other reduction.”  Meaning, the 17 men on Delaware’s Death Row would still get the death penalty.

From Colorado, "Death penalty repeal effort blocked by two Democrats":

Two Democrats broke ranks Tuesday and voted against a bill to repeal Colorado’s death penalty, killing the measure and ending a week-long legislative soap opera surrounding it.

A week after the House Judiciary Committee delayed a vote on House Bill 1264 after hearing nine hours of public testimony, the panel took up the measure again Tuesday afternoon.  Even as the hearing began, the sponsors scrambled to determine whether they had the votes to pass the legislation out of the committee; and, upon realizing they did not, they pushed ahead with an up or down vote anyway rather than tabling the measure.

After an hour of discussion, the measure went down on a 4-6 vote with two Democrats, Reps. Lois Court of Denver and Brittany Pettersen of Lakewood joining the panel’s four Republicans and voting no.

March 27, 2013 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, March 26, 2013

Pennsylvania Supreme Court addresses Miller's impact for some of its state's juvenile murderers

As reported in this local news article, headlined "Supreme Court: Juvenile killer to get new sentencing,"  Pennsylvania's top court handed down today a long-awaited ruling concerning the sentencing of juvenile offenders in the Keystone State.  Here are the basics via this news report:

Teenage killer Qu'eed Batts will receive a new sentencing hearing for the gang-ordered murder he committed in Easton when he was 14, but he could still end up spending the rest of his life in prison nonetheless.

That's what advocates on both sides of Batts' case said Tuesday following a long-anticipated Pennsylvania Supreme Court ruling on how the state should address Batts and nearly 500 other once-youthful murderers whose automatic life without parole sentences were declared unconstitutional last year by the nation's highest court.

Given the federal ruling that such sentences are cruel and unusual punishment, Batts must be given a new sentencing hearing in which he receives a maximum sentence of life and a minimum sentence determined by the judge, said the opinion by Justice Thomas Saylor.

But what that minimum sentence might be was unanswered by court, with advocates for juveniles acknowledging that it probably could still be a life sentence, or a prison term that is so long that it is, in essence, life.  "That could be anything," said Robert Schwartz, the executive director of the Juvenile Law Center of Philadelphia, which argued on behalf of Batts.  "It appears that it also could be a minimum of life.  There is absolutely nothing to guide [the sentencing judge's] discretion."

In reaching its decision, the Supreme Court addressed an issue that it struggled with during oral arguments in September: What to do over the fate of Batts and other juveniles murderers serving a now-unconstitutional sentence.  The court rejected the stance taken by the Juvenile Law Center: that youths serving life terms should be resentenced under the charge of third-degree murder, which can bring at most 20 to 40 years in prison.

Northampton County First Deputy District Attorney Terence Houck said the ruling was a victory for prosecutors that leaves open the possibility that Batts should never be released, as Houck plans to argue at resentencing.  "All they are saying is that there has to be a minimum.  That minimum can be 150 years," Houck said, adding: "I don't think Batts should ever get out.  He's the poster boy for life in prison."  Batts, now 21, shot to death 16-year-old Clarence Edwards and wounded 18-year-old Cory Hilario in 2006 in the West Ward....

Under state law, murders in the first and second degree must result in a life sentence, with no other punishment possible — the exact scenario the nation's top court deemed unconstitutional for those under 18....

Pennsylvania leads the nation in the number of juveniles jailed for life, according to the Campaign for the Fair Sentencing of Youth, which opposes that penalty.  Pennsylvania has 444 such inmates, followed by Michigan at 346 and Louisiana at 332, the Washington, D.C.-based group says.  The Juvenile Law Center puts Pennsylvania's number closer to 480, including one inmate in Graterford State Prison who has spent 59 years behind bars.

The extended majority opinion in Pennslyvania v. Batts is available at this link, and a brief concurrence is available at this link.  A quick read of the ruling suggests to me that Deputy DA Terence Houck is right to view this ruling as a victory for prosecutors: in addition to rejecting claims that the defendant should be subject to sentencing under a lesser-degree of homicide, the Batts court also rejected any claim that the Pennsylvania Constitution's prohibition of "cruel punishment" should be interpreted to give juvenile defendants any more protection than the US Constitution and its prohibition on "cruel and unusual punishment."

Finally, while the news report suggests this ruling resolves the fate of all juve LWOP sentences in Pennsylvania, my quick review of the Batts opinion suggests that the ruling does not address any Miller retroactivity rulings.  For some reason, I had thought retroactivity issues were before the Pennsylvania's top court, but the Batts ruling states in its first sentence that it "concerns the appropriate remedy, on direct appeal, for the constitutional violation occurring when a mandatory life-without-parole sentence has been imposed on a defendant convicted of first-degree murder, who was under the age of eighteen at the time of his offense" (emphasis added).

How Appealing has a round up of additional press coverage concerning the Batts ruling here.

March 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Notable coalitions in 5-4 SCOTUS ruling on front-door drug sniffs as searches

Though not concerning matters at the heart of sentencing law and policy, today's lone Supreme Court ruling concerning application of the Fourth Amendment should hearten anyone eager to see five-four split SCOTUS rulings that do not swing only on what Justice Kennedy thinks.  Today's SCOTUS ruling in Florida v. Jardines (available here) concerning whether a dog sniff at a front door is a search had this notable line up of Justices:
SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO,J., filed a dissenting opinion, in which ROBERTS, C.J., and KENNEDY and BREYER, JJ., joined.

From a quick review, I do not see much more that gets me all that excited or interested in Jardines, but maybe hard-core Fourth Amendment fans and/or dog lovers will provide a different view via the comments.

March 26, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack