Wednesday, May 15, 2013

"Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers"

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

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

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

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

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

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

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

Tuesday, May 14, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some recent and older related posts:

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

Gov Brown bringing California prison fight back to SCOTUS

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

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

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

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

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

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

Monday, May 13, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Noting some new GOP sentencing reform voices inside the Beltway

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some recent and older related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few related posts (mostly pretty old):

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

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

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

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

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

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

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

Recent related post:

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

Sunday, May 12, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Illinois Lieutenant Governor announces support for state medical marijuana bill

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

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

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

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

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

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

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

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

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

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

Recent related post:

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

Saturday, May 11, 2013

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

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

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

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

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

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

Friday, May 10, 2013

"Marijuana taxes as a cash cow? Think again"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 09, 2013

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

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

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

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

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

Cleveland police report supports Aggavated Murder capital charges against Ariel Castro

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

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

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

2903.01 Aggravated murder.

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

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

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

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

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

Recent related post:

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

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

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

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

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

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

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

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

Wednesday, May 08, 2013

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

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

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

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

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

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

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

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

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

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

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

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

Download Skilling Sentencing Agreement final.cfv

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

"Federal Public Defense in an Age of Inquisition"

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

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

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

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

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

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

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

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

Some recent and older related posts:

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

Tuesday, May 07, 2013

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

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

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

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

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

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

Some recent and older related posts:

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