Sunday, June 02, 2013

"Monitoring the Plea Process"

The title of this post is the title of this notable new paper by Susan Klein now avaiable via SSRN. Here is the abstract:

Gideon versus Wainwright heralded a new age in American criminal prosecutions.  Indigent blacks in the South would have the same opportunity to fight felony criminal charges and receive the same sentencing discounts of favorable guilty pleas as rich white northerners, and the innocent would be accurately separated by adversarial testing from the guilty. Yet fifty years later, indigent defendants (who comprise 80% of total defendants), often get substandard counsel, and innocent individuals are rarely, but sometimes convicted or plead guilty.  Some of the blame falls squarely on the Court for settling on the contours of our current two-pronged test in Strickland versus Washington, that determines when counsel is ineffective and the defendant is accordingly prejudiced.  Some blame falls on legislators for failing to adequately fund defense counsel.  Our criminal justice evolved from an adversarial system to what Judge Lynch calls, "a defacto administrative regime". The criminal justice system is the plea bargaining system.

In this essay, the author posits that last term's Lafler versus Cooper and Missouri versus Frye gave us another chance to both police equality of sentences for the guilty, and to mandate better investigation of the underlying offense to ferret out the innocent. Information and resource disparity skews the system.  The defense bar cannot buck a system stacked so heavily against them.  Large-scale structural reform such as legislation or proper funding for defense is equally unlikely.  Plea bargaining has failed.

Professor Klein suggests that our most politically feasible hope for reform is for federal and state judges to amend the rules of criminal procedure in order to monitor and record the discovery and plea negotiation process via nonwaivable conferences.  A second proposal is for the Department of Justice and local District Attorneys' Offices to implement internal guidelines to regulate the timing and content of plea negotiations and discovery procedures.  Though the Court imposed its new Sixth Amendment duties on the defense bar, it is prosecutors who have the incentive to ensure the finality of guilty pleas and to stave off potentially harsher legislative or judicial action in this area.

June 2, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, June 01, 2013

Following prosecutor recommendation, Texas jury gives repeat felon 50-year sentence for theft of ribs

Babybackribs-011A helpful reader alerted me to this notable local article concerning a notable jury sentencing outcome emerging this past week from the Texas state courts.  The piece is headlined "Theft of ribs gets five-time felon 50 years in prison," and here are the details:

All Willie Smith Ward wanted was his baby-back ribs, but it cost him 50 years in prison. 

His problems started when he tucked a large rack under his shirt and tried to leave the H-E-B store at 1102 Speight Ave. without paying in September 2011.

A jury in Waco’s 19th State District Court also didn’t like the 43-year-old Ward’s previous five felony and four misdemeanor convictions and recommended that Ward be sentenced to 50 years in prison as a habitual criminal.  Jurors took two minutes Wednesday to convict Ward on robbery charges and about an hour to decide his punishment. 

Ward’s theft of the $35 rack of pork ribs turned into a robbery when he threatened a grocery store employee who saw the huge bulge under Ward’s shirt and tried to stop him in the parking lot.

“This verdict shows that the citizens of this county will not tolerate a continued disrespect and disregard for other people and their property,” said Assistant District Attorney J.R. Vicha, who prosecuted Ward with Chris Bullajian.  “People who choose to do so will be dealt with seriously and appropriately.”

The employee testified that he asked Ward what was under the shirt and the slab of ribs fell to the ground. He asked Ward what else he was hiding and Ward said, “I got a knife.” The employee told Ward, “Now you just turned a ticket into a 
serious crime.”

“If you don’t leave me alone, I’ll show you what I got,” Ward said, according to the employee’s testimony. Ward then ran off.

Ward has previous felony convictions for burglary, attempted robbery, aggravated assault, leaving the scene of an accident and possession of cocaine and four misdemeanor convictions, including two thefts.

He will have to serve at least a quarter of his sentence before he becomes 
eligible for parole.  A court official said Ward rejected a 20-year prison sentence in a plea offer from prosecutors 
before trial.

Though I suspect this sentencing story could make a lot of news as an example of extreme sentencing, the last three sentences of the story confirm my instinct that this headline-making case was actually resolved in a relatively fair and effective manner.  Let me explain.

For starters, it appears that Willie Smith Ward (aka the "Baby Back Bandit") will only be serving about 12 years in prison for sure, at which point he will be eligible for parole. And given his considerable and serious criminal history as well as the threats of violence involved in this latest crime, a prison term requiring at least a decade behind bars does not seems that extreme and does seem likely to increase public safety.

Second, for a crime in which it would appear guilt was not in doubt, the local prosecutor was here prepared to give the Baby Back Bandit a huge sentencing discount if he pleaded guilty. This seems to mean that, simply by accepting responsibility for his latest crime, the Baby Back Bandit would have receive a much lower sentence which would have made him parole eligible in only five years.

Last but not least, unlike in the federal sentencing system with mandatory minimum sentencing terms that often enable prosecutors to select and mandate an extreme sentence for certain crimes without any jury or judicial review, in this case the prosecutor was only able to make a sentencing recommendation and it was up to a jury to decide if an extreme sentencing term was justified. The fact that local jurors decided to "throw the book" at the Baby Back Bandit (and actually spent some real time debating the sentence) reinforces my confidence that this sentencing outcome is not as extreme as it might seems upon first consideration.

One last thought: Should this habitual offender consider pitching himself to Chili's in the hope they might want to bring back its most (in)famous commercial jingle, perhaps along with the 'Nsync folks?

June 1, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, May 31, 2013

State appeals court agrees California officials have blundered efforts to resume executions

Execution-tableAs reported in this local article, headlined "California's death penalty on hold again," another California court has ruled that the state has failed to act appropriately in efforts to get its execution protocol in order.  Here are the basics of the latest ruling and related California execution protocol developments:

California's death penalty system remains in limbo for the foreseeable future, a state appeals court on Thursday scrapped the state's latest attempt to update its lethal injection procedures.  In a 28-page ruling, the 1st District Court of Appeal found that state prison officials failed to comply with administrative rules when crafting new regulations more than two years ago.  [This ruling can be accessed at this link.]

The unanimous decision of the three-justice panel sends California back to the drawing board, unless the Brown administration takes the case to the California Supreme Court and keeps more than 700 Death Row inmates on an indefinite reprieve.   The appeals court upheld a Marin County judge, who faulted the prison department for a variety of procedural missteps, including offering no public explanation for why San Quentin officials opted to continue with a three-drug lethal injection method instead of a single-drug execution option being embraced by a number of other states.

State officials have indicated in court papers they are exploring the single-drug option, which involves putting condemned inmates to death with one dose of a sedative.  Ohio, Washington and Arizona are among the states that have moved to that option to short circuit legal challenges to the three-drug method....

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said the ruling was not surprising, although he disputed the court's finding that violating the administrative rules justifies halting executions.  Switching to the single-drug method should thwart further legal challenges to California's lethal injection procedures, he said.

However, even if the Brown administration moves to single-drug executions, prisons will again have to comply with the administrative procedures to institute the new method, a process that can take more than a year. And states across the country, including California, are struggling to assemble supplies of execution drugs because of resistance from drug manufacturers and other problems.

California has had a moratorium on executions since 2006 as a result of legal challenges to its execution procedures in both the state and federal courts.  Death Row has more than 725 inmates awaiting execution, including more than a dozen who have exhausted their legal appeals and would be eligible for immediate execution. Several of those inmates have mounted the lethal-injection court challenges.

In response to a federal judge's concerns, former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown have both tried to overhaul the state's lethal injections, revising training for execution team members and building a new execution facility at San Quentin.  But the state's updates have been blocked twice for violating the administrative code, for the most part by failing to offer adequate public review of the proposed changes.

As highlighted in this prior post, there has been talk in California for more than three years about moving to a one-drug lethal injection protocol. I believe that talk has not turned into action in large part because there seem to be very few officials in California who are truly eager to move the state closer to being able to resume executions. 

I am certain death penalty advocates will justifiably assail the foot-dragging we keep seeing from California officials concerning efforts to resume executions in the state.  But I am also certain that fiscal conservatives could be praising the disaffinity of state officials to seek to resume executions.  Because of the flurry of litigation in both state and federal court which every pending execution necessarily generates, Gov. Brown and other executive officials are probably saving the California taxpayers some money by letting condemned prisoners rot on the state's death row rather than trying aggressively to get the long line toward the execution chamber moving again.

A few older related posts about the litigation over lethal injection in California:

May 31, 2013 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Thursday, May 30, 2013

Non-prosecution deal worked out for Chuck Hagel's son on state marijuana charge

As reported in this Washington Post piece, the son of a notable political figure just managed to avoid pursuit of a criminal prosecution on minor marijuana charges.  The piece is headlined "Chuck Hagel’s son, Ziller Hagel, has marijuana charges dismissed," and here are the details:

Ziller Hagel, the 20-year-old son of Defense Secretary Chuck Hagel, was in Fairfax County District Court Wednesday morning, where charges stemming from a marijuana arrest last year were dismissed, records show.

Hagel, who attends college in the Chicago area, was arrested on the misdemeanor charge last June, but his case was continued several times last year and earlier this year....

Nina J. Ginsberg, an attorney for Hagel, said the arrest happened after police officers spotted him in a parked car near a park area at night, listening to music by himself. “They searched his car and found a tiny amount of marijuana, but no evidence whatsoever that he had used it or where it came from,” she said.  “We had a real issue of whether they could prove it was there and whether there was a legitimate right to search the car.”

Hagel was ready to fight the charges; instead, he worked out a deal with prosecutors to complete 100 hours of community service, after which charges could be dropped. Ginsberg said his first hearing last summer was deferred pending results of a lab test, others to give him more time to finish a community service project slowed by an illness.

May 30, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Two weeks later, has there been any significant and noteworthy Blewett blowback?

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

Right after the ruling there was reasonable and justified speculation that the federal prosecutors would quickly move for the full Sixth Circuit to review and reverse the Blewett decision en banc.  Indeed, I expected that we a petition for rehearing en banc would be filed within a matter of days.  But here it is nearly two weeks later, and I am still awaiting any report of a DOJ en banc filing in response to Blewett.  I believe it is still likely that such a petition will be coming down the pike very soon, but the delay so far now has me wondering and speculating as to whether the feds might just decide to seek summary reversal of Blewett in the US Supreme Court rather than just fight this consequential fight in the Sixth Circuit.

Meanwhile, though I predicted in this post that there could be hundreds, if not thousand, of Blewett claims brought by incarcerated federal crack offenders convicted within the Sixth Circuit, as of this writing I have not seen any reports or evidence of significant efforts by significant numbers of defendants to get some relief from Blewett.  I did find, thanks to Westlaw, a notable ruling by Judge Tarnow in the Eastern District of Michigan granting relief to a defendant based on Blewett in US v. Frost, No. 08–20537–4, 2013 WL 2250768 (ED Mich May 22, 2013), noting that Cecil Frost only now can get resentenced "because the Sixth Circuit Court's ruling in Blewett cures [the] unjust outcome" that precluded his resentencing because he had been sentenced before the effective date of the FSA.

It is hard to assess at this stage whether Frost represents the tip of a large Blewett-resentencing ice berg, or instead that Frost is a rare case involving a defendant and a district judge eager and able to operationalize Blewett quickly.  The question in the title of this post is an effort to seek help from practioners and others to figure out whether and how Blewett blowback might be brewing.

Related posts on Blewett:

May 30, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Former Acting AG Jim Comey appears in line to be next head of FBI

ComeyAs reported in this New York Times article, "President Obama plans to nominate James B. Comey, a former hedge fund executive who served as a senior Justice Department official under President George W. Bush, to replace Robert S. Mueller III as the director of the Federal Bureau of Investigation." Here is more from this article concerning what I consider to be a fine and shrewd pick by the President:

By choosing Mr. Comey, a Republican, Mr. Obama made a strong statement about bipartisanship at a time when he faces renewed criticism from Republicans in Congress and has had difficulty winning confirmation of some important nominees. At the same time, Mr. Comey’s role in one of the most dramatic episodes of the Bush administration — in which he refused to acquiesce to White House aides and reauthorize a program for eavesdropping without warrants when he was serving as acting attorney general — should make him an acceptable choice to Democrats.

It is not clear when Mr. Obama will announce the nomination. Senior F.B.I. officials have been concerned that if the president does not name a new director by the beginning of June, it will be difficult to get the nominee confirmed by the beginning of September, when Mr. Mueller by law must leave his post.

The White House declined to discuss Mr. Comey on Wednesday. But according to the two people briefed on the selection, Mr. Comey traveled from his home in Connecticut in early May to meet with the president at the White House to discuss the job. Shortly afterward, he was told that he was Mr. Obama’s choice, and they met again for a further discussion.

Mr. Comey, 52, was chosen for the position over the other finalist, Lisa O. Monaco, who has served as the White House’s top counterterrorism adviser since January. Some Democrats had feared that if the president nominated Ms. Monaco — who oversaw national security issues at the Justice Department during the attacks in Benghazi, Libya, last September — Republicans would use the confirmation process as a forum for criticism of the administration’s handling of the attack.

May 30, 2013 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, May 29, 2013

"Colorado governor signs recreational marijuana regulations into law"

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

Governor John Hickenlooper on Tuesday signed into law measures to regulate the recreational use of marijuana in Colorado, including blood-level limits for motorists and setting up a voter referendum to impose a tax on the non-medical sale of cannabis.

Colorado House of Representatives Assistant Majority Leader Dan Pabon said the legislation reflected the "will of the voters" who charged lawmakers with setting up the regulatory system after approving legalization in a vote last November.

One of the bills signed by Hickenlooper calls for a referendum in November on setting a 15 percent excise tax and an additional 10 percent sales tax on marijuana sales.

Other measures included in the legislative package are setting blood limits for driving while under the influence of marijuana at 5 nanograms per milliter, and limiting purchases of marijuana to non-Colorado residents at one-quarter of an ounce.

"The laws ... signed today put the health and safety of our kids front and center," said Pabon, a Democrat. "They drive a stake into the heart of a large black market while creating a regulated, legitimate industry."

House Republican leader Mark Waller, who sponsored the driving-under-the-influence legislation, said Colorado is in "new and foreign territory" in implementing its marijuana laws and it was vital to add a public safety component. "Equipping law enforcement with the tools they need to ensure people make safe decisions behind the wheel is critical to maximizing public safety," he said.

May 29, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

"5 things about the controversy surrounding AG Eric Holder"

The title of this post is the headline of this new CNN article which does a nice job talking through the array of issues now swirling around the US Attorney General.  Especially in the wake of this recent post (and some comments it engendered), these closing sentiments from the piece struck me as blog-worthy:

5. What happens now?

There will be more congressional hearings and investigations, more political rancor and the possibility of some fallout if further disclosures reveal Holder knowingly misled Congress or inappropriately concealed information.

His defiance in the face of the House contempt citation indicates Holder won't voluntarily step down unless pressured to do so by Obama, who has steadfastly maintained confidence in him.

The question will be whether Holder becomes a liability for the president.

If the multiple controversies (IRS targeting, Benghazi, reporters phone records) continue to dominate the political discussion, Obama could decide a drastic gesture is needed to try to move past a climate of crises. However, nothing at this point suggests that is imminent or under consideration.

Recent related post:

May 29, 2013 in Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, May 28, 2013

DC Circuit allows suit against US Sentencing Commission for limiting crack relief to go forward

H&WIn an interesting (and ground-breaking?) unanimous panel ruling that should make fans of Henry M. Hart and Herbert Wechsler smile, the DC Circuit today ruling that a crack defendant's civil rights lawsuit against the US Sentencing Commission could go forward. The notable ruling in Davis v. US Sentencing Commission, No. 11-5264 (DC Cir. May 28, 2013) (available here), gets started this way:

Appellant Brian Davis was sentenced to prison for crimes involving powder and crack cocaine before Congress and the Sentencing Commission took steps to reduce the disparity in sentencing ranges between the two.  Unfortunately for Davis, these efforts were directed at crimes involving lesser amounts of cocaine than his.  In a suit that seeks declaratory relief and possibly damages, Davis claims that these efforts violate the Equal Protection Clause because they do not reach his crimes.  This appeal does not take up the merits of Davis’s claims, but their form.  The district court dismissed his suit on the ground that the only relief available to Davis is in habeas.  For the reasons set forth below, we reverse.

I nearly fell out of my desk chair when I read the last word of the last line of this opening paragraph, and the rest of the opinion surprised me as well.  In order to reach its conclusion, the DC Circuit panel (1) had to reverse an established circuit precedent based on intervening Supreme Court rulings and also (2) had to rule that the district court erred when concluding the claim made by Davis against the USSC was “patently insubstantial.”

In the end, because Davis v. USSC is a narrow procedural ruling, it still remains very unlikely Davis will ultimately prevail in his suit, and I also doubt that this ruling today by the DC Circuit will prove to be all that consequential.  Nevertheless, I think for Fed Court fans, as well as sentencing fans, the opinion in Davis v. USSC is today's must-read.

May 28, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

By 12-4 vote, Sixth Circuit affirms federal death sentence for Michigan murder in national forest

Today via a lengthy en banc ruling, the Sixth Circuit affirmed a federal death sentence against various challenges in US v. Gabrion, No. 02-1386 (6th Cir. May 28, 2013) (available here). Here is the break-down of the votes among the 16 circuit judges involved:

KETHLEDGE, J., delivered the opinion of the court, in which BATCHELDER, C.J., and BOGGS, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, and DONALD, JJ., joined.  CLAY, J. (pp. 35–37), delivered a separate opinion concurring in the judgment only, in which COLE, J., joined.  MOORE, J. (pp. 38–65), delivered a separate dissenting opinion, in which MARTIN, WHITE, and STRANCH, JJ., joined.

And here is how the opinion of the court gets started:

Marvin Gabrion was scheduled to be tried in Michigan state court for a rape charge on June 5, 1997. But that trial never happened. Two days before the trial was set to begin, Gabrion abducted Rachel Timmerman — the 19-year-old woman he allegedly raped — and took her to a remote location in the Manistee National Forest, bound and gagged her and weighed her down with concrete blocks, put her in an old metal boat, and then threw her overboard, alive, into a shallow, weedy lake, where she drowned.  Gabrion also abducted and killed Timmerman’s infant daughter.

Timmerman’s murder was a federal offense because it occurred in a National Forest. See 18 U.S.C. § 1111(b).  A federal jury later convicted Gabrion of murder and recommended that he be sentenced to death.  The district court sentenced him accordingly. Gabrion now challenges his conviction and sentence on numerous grounds.  We reject all of his arguments, and affirm.

May 28, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Two notable 5-4 AEDPA rulings, both in favor of habeas defendants, from SCOTUS

Though surely disappointing to all civil lawyers, today the Supreme Court issued only two criminal justice opinions.  Here is an abridged account from the SCOTUSblog coverage of today's rulings:

[1] Trevino v. Thaler.  Opinion by Breyer, but in his absence it is being announced by Kennedy.  Fifth Circuit is vacated and remanded.  Vote appears to be 5-4.

Holding: When as here a state's procedural framework by reason of its design and operation makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance claim on direct appeal, the exception recognized in Martinez v. Ryan applies. (It is an exception to the procedural bar rule.)  The Chief dissents, joined by Alito; Scalia wrote a dissent, joined by Thomas....

Comment From Peter Goldberger: Trevino is an important win for capital post-conviction petitioners in Texas, Louisiana and Mississippi....

[2] Justice Ginsburg has second opinion, in McQuiggin v. Perkins.  Sixth Circuit is vacated and remanded. The opinion is 5-4.  So much for unanimity....

Holding: Actual innocence if proved serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar or expiration of the AEDPA statute of limitations, as in this case.... Scalia dissents, joined by the Chief and Thomas and in part by Justice Alito.

In other words, a big day for habeas defendants thanks to the four Democratic-appointed Justices plus criminal-justice swinger Justice Kennedy.  And thanks to these rulings, I think it is time to come up with a new name for what AEDPA really now means — perhaps something like Another Equitable Death Penalty Allowance (though I bet readers can do better).

May 28, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

SCOTUS grants cert to resolve mens rea required for 924(c) accomplice liability

Thanks to SCOTUSblog, I see that the Supreme Court has started the short week with a cert grant of note concerning federal criminal law and a sentencing issue whicj has split the circuits.  The grant is in Rosemond v. United States (SCOTUSblog page here), and here is how the folks at SCOTUSblog describe the issue now to be resolved by the Justices (in its next Term):

Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

May 28, 2013 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, May 27, 2013

Latest scandals aside, shouldn't AG Eric Holder be getting ready to move on?

Though I have not be following too closely the various scandals consuming the Obama Administration these days, a Fox News headline about one of them got me thinking about the question in the title of this post.  This recent Fox News story is headlined "DOJ acknowledges Holder on board with warrant for Fox reporter's emails," and here are excerpts:

The Justice Department acknowledged late Friday that Attorney General Eric Holder was on board with a search warrant to obtain the personal emails of a Fox News reporter, as media and civil liberties groups continued to raise concerns about the case. 

Following prior reports indicating that Holder had likely signed off on the search warrant, the Justice Department acknowledged Holder's involvement and defended the decision. It insisted the call to seek these files -- in the course of an investigation into a leak allegedly made by State Department contractor Stephen Jin-Woo Kim -- was legal.

"The Department takes seriously the First Amendment right to freedom of the press," the department said in a written statement, provided late Friday at the start of the holiday weekend. "In recognition of this, the Department took great care in deciding that a search warrant was necessary in the Kim matter, vetting the decision at the highest levels of the Department, including discussions with the Attorney General."...

President Obama directly addressed these complaints for the first time on Thursday, announcing a review of DOJ policies on investigations that involve reporters. "I've raised these issues with the attorney general, who shares my concern," Obama said, adding that Holder would report back by July 12. The acknowledgement, however, that Holder was involved in the search warrant decision raised additional questions about whether the attorney general's review of his own actions would be impartial.

Attorney Jesselyn Radack, who works with the Government Accountability Project and has represented accused leakers, told FoxNews.com she's not convinced by the administration's latest effort. "I don't think there needs to be a review of the internal guidelines. ... There needs to be a review of why they weren't followed," she said, adding Holder appears to have a "conflict of interest" in the review.

But Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said his group was "encouraged to hear" the review was initiated.  He told FoxNews.com on Friday that the country still needs a national media shield law -- something the DOJ agreed with in its statement Friday.

Beyond the peculiar notion of AG Holder investigating a matter in which he is accused of wrong-doing, I must admit to a broader sense of Holder fatigue and a deep concern that the combination of persistent political opposition and many (mini?) scandals now necessarily means he is a diminished leader and administrator of the US Department of Justice.  Notably, many major figures in the Obama first-term cabinet have moved on, and yet AG Holder remains despite the fact that he has been, arguably, the most controversial member of the Obama cabinet.

Among the reasons I would like to see AG Holder move on is because there is an impressive list of Democratic state AGs who might be tapped to bring fresh energy and ideas to the US Justice Department.  Personally, I would love to see a woman with some serious state-level experience --- e.g., Martha Coakley from Massachusetts, or Kamila Harris from California, or Lisa Madigan from Illinois --- now in the role of US Attorney General. Among other benefits, a current state AG placed now in the US AG role could and likely would be able to advise Prez Obama and his team how best to get the feds out of a lot of criminal justice areas best left to the states (e.g., marijuana reform/regulation).

May 27, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack

Saturday, May 25, 2013

Is capital punishment uniquely unfair to jurors required to make life/death decision?

The question in the title of this post is prompted by this new AP article headlined "Arias trial jury foreman says death decision unfair for 12 average people who aren't lawyers." Here are excerpts:

They were 12 ordinary citizens who didn't oppose the death penalty. But unlike spectators outside the courthouse who followed the case like a daytime soap opera and jumped to demand Jodi Arias' execution, the jurors faced a decision that was wrenching and real, with implications that could haunt them forever.

In an interview Friday, jury foreman William Zervakos provided a glimpse into the private deliberations, describing four women and eight men who struggled with the question: How heinous of a killing deserves a similar fate?

"The system we think is flawed in that sense because this was not a case of a Jeffrey Dahmer or Charles Manson," Zervakos told The Associated Press. "It was a brutal no-win situation. ... I think that's kind of unfair," the 69-year-old added. "We're not lawyers. We can't interpret the law. We're mere mortals. And I will tell you I've never felt more mere as a mortal than I felt for the last five months."...

Zervakos described a deliberations room full of tears and spinning moral compasses as each juror struggled to come to grips with their own beliefs about what factors — including Arias' young age at the time of the killing and her lack of criminal history — should cause them to show mercy and spare her life.

"You've got Travis Alexander's family devastated, that he was killed, that he was brutally killed. You've got Jodi Arias' family sitting in there, both families sitting and seeing these humiliating images and listening to unbelievably lurid private details of their lives, and you've got a woman whose life is over, too," Zervakos said. "I mean, who's winning in this situation? And we were stuck in the middle."...

"You heard (prosecutor Juan) Martinez say she was only 27. ... She's old enough that she should have known better," Zervakos said. "I didn't look at it that way. I'm looking at 27 years of an absolutely normal everyday young woman that was living a life that was perfectly normal. Then something changed the trajectory of her life after meeting Travis Alexander, and it spiraled downhill from there."

The same jury on May 8 convicted Arias of first-degree murder in Alexander's killing, but couldn't reach a decision Thursday after about 13 hours of deliberations on whether she should live or die. Judge Sherry Stephens was forced to declare a mistrial of the penalty phase and dismissed the panel. A conference with the judge and attorneys is set for June 20 to determine how both sides want to proceed. In the interim, Stephens set a July 18 retrial date.

The mistrial set the stage for a whole new proceeding to determine whether the 32-year-old former waitress should get a life sentence or the death penalty for murdering Alexander five years ago....

Prosecutors now have the option to take the death penalty off the table and avoid a new penalty phase. The judge would then determine whether to sentence Arias to spend her entire life behind bars, or give her life with the possibility of release after 25 years. Given Arias could not afford her own defense, taxpayers footed the bill for court-appointed attorneys at a cost so far of nearly $1.7 million, a price tag that will only balloon if the case moves forward.

Should the state decide to seek death again, jury selection alone could take months, given the difficulty of seating an impartial panel in a case that has attracted global attention and become daily cable TV and tabloid fodder with tales of sex, lies and violence, said jury consultant Jo-Ellan Dimitrius. "Will it be impossible? No. Will it be tough? Absolutely," she said.

Recent related posts on the Arias case:

May 25, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Effective ProPublica reports on the problems of prosecutorial misconduct

The investigative journalism website ProPublica has now published another installment in its notable series of pieces concerning the problems of prosecutorial misconduct.  The series is titled "Out of Order: When Prosecutors Cross the Line," and here are links to all the pieces from the beginning:

May 25, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 24, 2013

"Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."

The title of this post is the headline of this notable new National Review commentary by David Keene, a former president of the National Rifle Association and the American Conservative Union, explaining why conservatives should support the Justice Safety Valve Act.  Here are extended excerpts:

Like many conservatives, I supported many [mandatory minimum sentencing] laws when they were enacted and still believe that, in some narrow situations, mandatory minimums makes sense. But like other “one-size-fits-all” solutions to complicated problems, they should be reviewed in light of how they work in practice.

Fortunately, Senators Rand Paul (R., Ky.) and Patrick Leahy (D., Vt.) have crafted a smart and modest reform bill that will fine-tune these laws to eliminate many of the unforeseen and, frankly, unfair consequences of their application when the facts demand more flexibility. This bipartisan measure deserves conservative support.

The bill, the Justice Safety Valve Act of 2013, maintains existing federal mandatory-sentencing laws. It enables judges to depart from the minimums in certain cases, however, such as when the mandatory sentence is not necessary to protect public safety and seems blatantly unfair in light of the circumstances of the offense. In so doing, their proposal fulfills the primary objective of criminal-justice policy: protecting public safety, while promoting our constitutional separation of powers and saving taxpayers the expense of unnecessary and counterproductive incarceration.

Many people, conservatives as well as liberals, have come to believe that most mandatory-minimum-sentencing laws should be repealed. These laws give prosecutors nearly unchecked power to determine sentences, even though courts are in a better position to weigh important and relevant facts, such as an offender’s culpability and likelihood of reoffending.

Federal mandatory-minimum-sentencing laws are especially problematic. Not only do they transfer power from independent courts to a political executive, they also perpetuate the harmful trend of federalizing criminal activity that can be better prosecuted at the state level.

For years, conservatives have wisely argued that the only government programs, rules, and regulations we should abide are those that can withstand cost-benefit analysis. Mandatory minimum sentences, by definition, fail this basic test because they apply a one-size-fits-all sentence to low-level offenders, even though the punishments were designed for more serious criminals.

Economists who once wholeheartedly supported simple pro-prison policies now believe they have reached the point of diminishing returns. One is University of Chicago economist Steven D. Levitt, best known for the best-selling Freakonomics, which he co-authored with Stephen J. Dubner. Levitt recently told the New York Times, “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration,” and, today, “I think we should be shrinking the prison population by at least one-third.”

In other words, the initial crackdown was a good thing, but we are now suffering the effects of too much of that good thing. If Levitt’s estimate is even close, right now we are wasting tens of billions of dollars locking people up without affecting the crime rate or enhancing public safety. In fact, spending too much on prisons skews state and federal budgetary priorities, taking funds away from things that are proven to drive crime even lower, such as increasing police presence in high-violence areas and providing drug-treatment services to addicts.

The Paul-Leahy bill will help restore needed balance to our anti-crime efforts. Repeat and violent criminals will continue to receive and serve lengthy prison sentences, but in cases involving lower-level offenders, judges will be given the flexibility to impose a shorter sentence when warranted.

The Paul-Leahy bill is a modest fix that will affect only 2 percent of all federal offenders, and even they won’t be spared going to prison. They will simply receive slightly shorter sentences that are more in line with their actual offenses. The bill will improve public safety, save taxpayers billions of dollars, and restore our constitutional separation of powers at the federal level while strengthening federalism. This is a reform conservatives should embrace.

Some recent and older related posts:

May 24, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Would a death sentence given by a second sentencing jury to Jodi Arias survive constitutional challenges?

As reported in this Reuters article, an "Arizona jury failed on Thursday to reach a unanimous verdict on whether Jodi Arias should be put to death for the brutal murder of her ex-boyfriend, prompting the judge to set a date for a new sentencing phase of the trial."  Here is more on the latest development in this high-profile capital case:

Arias, a former waitress from California, was found guilty this month of murdering Travis Alexander, whose body was found slumped in the shower of his Phoenix-area home in June 2008. He had been stabbed 27 times, had his throat slashed and been shot in the face.

Maricopa County Superior Court Judge Sherry Stephens, who had told the jury on Wednesday to resume deliberations after the panel indicated it was struggling to reach consensus, set July 18 as the date for a retrial of the penalty phase and ordered a status hearing for June with attorneys in the case.

Arias, a petite figure who had earlier pleaded with the eight men and four women on the jury to spare her life for the sake of her family, appeared to breathe a sigh of relief. Alexander's relatives wept and hugged in court....

Following the penalty phase deadlock, the state has the option to retry the sentencing portion of the trial and have a new death penalty jury impaneled. Should such a jury also deadlock, capital punishment would be taken off the table. Should prosecutors opt against a full penalty-phase jury retrial, the judge would be left to hand down a verdict of life in prison.

Maricopa County Attorney Bill Montgomery said in a statement that his office appreciated the jury's work and would now assess its next steps, but was proceeding "with the intent to retry the penalty phase."...

Among the issues that came up during the sentencing deliberations was whether a life term meant Arias would spend the remainder of her life in prison or would have the possibility of parole after 25 years.

Defense attorney Jennifer Willmott had advised jurors that if they sentenced Arias to life in prison, they were "sentencing her to die in prison," and there was no procedure in place to grant parole. Prosecutor Juan Martinez countered that while there was no mechanism now to grant Arias parole, one could be put in place later.

Some legal analysts questioned whether prosecutors should go forward with a new penalty-phase jury proceeding. "The jury that looked at all the evidence and heard five months of testimony could not agree that a death sentence was appropriate. Even though the state can take a second bite, this case should end now," said Dale Baich, an assistant federal public defender who represents death-row prisoners' appeals.

"The trial phase and the aggravation are going to have to be presented to this new jury, and Maricopa County has spent a lot of money on this case already. The question is, do they want to spend more?" Baich said....

Legal analysts also questioned how an impartial jury could be seated for a new penalty phase considering the wide attention the case had attracted. "This case has taken on the character of a circus rather than a trial," said Michael Kimerer, a criminal defense attorney in Phoenix. "I don't see how you are going to do it."

As the question in the title of this post suggests, even if Arias were to be sentenced to death by a new sentencing jury, there will be a wide of array of constitutional challenges that Arias could raise on appeal of a death sentence imposed by that new jury. Critically, there is established precedent from both the Ninth Circuit and the US Supreme Court that suggest the Double Jeopardy Clause permits giving prosecutors another shot at a death sentence through a second sentencing proceeding. But Arias could still reasonably raise a double jeopardy claim by urging these courts to reconsider these precedents and/or by claiming that some unique aspects of her case (e.g., that she presented a self-defense claim at her guilt trial or that Arizona has a unique three-stage capital sentencing process) should call for a different outcome on her behalf.

Beyond Double Jeopardy claims, Arias might also reasonable pursue Fifth Amendment due process claims and/or Eighth Amendment claims on appeal of a death sentence if imposed after a new sentencing phase trial before a new jury. As the article above suggests, all the publicity surrounding the first trial will make it hard to be confident that any new jury — especially after jurors are subject to the necessary "death-qualification process" — will be able to come without having prejudged some critical issues. In addition, the "evolving" nature of the Eighth Amendment means that any and every person sent to death row reasonable can, and usually will, challenge almost any and every novel aspect of the death sentencing process.

In part because of all these challenges facing prosecutors now and in the future, I would not be surprised if prosecutors might consider a deal that would allow Arias to secure an LWOP sentence in exchange for giving up some of her appeal rights. But whether Arias herself or the victim's family have an interest in such a deal, and how they might express their interests to Arizona's prosecutors, will surely impact whether and how a deal of any kind is struck.

Recent related posts on the Arias case:

May 24, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

"Implicit Racial Bias in Public Defender Triage"

The title of this post is the title of this intriguing new piece co-authored by law professor L. Song Richardson and psychology professor Phillip Atiba Goff. The piece is available now via SSRN, and here is the abstract:

Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded.  Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not.  Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions.  There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime.  This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.

A few recent related posts:

May 24, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, May 23, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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