Monday, November 05, 2012

A few criminal justice headlines on Election Eve

I may be too exhausted from fast-forwarding through a stunning number of election ads to put together a detailed SL&P election 2012 guide in the next few days. Fortunately, a lot of the highlights for sentencing fans can be found in old and new media stories, such as these I noticed this morning:

November 5, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, November 04, 2012

"Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker"

The title of this post is the title of this notable new empirical paper by Professors Sonja Starr and M. Marit Rehavi now available via SSRN. Here is the abstract:

Current empirical estimates of racial and other unwarranted disparities in sentencing suffer from two pervasive flaws.  The first is a focus on the sentencing stage in isolation. Studies control for the “presumptive sentence” or closely related measures that are themselves the product of discretionary charging, plea-bargaining, and fact-finding processes.  Any disparities in these earlier processes are built into the control variable, which leads to misleading sentencing-disparity estimates.  The second problem is specific to studies of sentencing reforms: they use loose methods of causal inference that do not disentangle the effects of reform from surrounding events and trends.

This Article explains these problems and presents an analysis that corrects them and reaches very different results from the existing literature.  We address the first problem by using a dataset that traces cases from arrest to sentencing and by examining disparities across all post-arrest stages.  We find that most of the otherwise-unexplained racial disparities in sentencing can be explained by prosecutors’ choices to bring mandatory minimum charges.  We address the problem of disentangling trends using a rigorous method called regression discontinuity design.  We apply it to assess the effects of the loosening of the U.S. Sentencing Guidelines in United States v. Booker.  Contrary to prominent recent studies, we find that Booker did not increase disparity, and may have reduced it.

November 4, 2012 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

Great symposium at Washington & Lee on Gideon a half-century later

GideonAs detailed in this posting, the folks at Washington & Lee School of Law have on tap at the end of this week a terrific symposium titled "Gideon at 50: Reassessing the Right to Counsel."  Here are the details via the posting:

Fifty years ago the landmark case Gideon v. Wainwright established the right to counsel for criminal defendants. An upcoming symposium at Washington and Lee School of Law will explore the legacy of this case, its impact on the criminal justice system, and the future of the right to counsel.

The symposium is scheduled for Nov. 8-9 in the Millhiser Moot Court Room, Sydney Lewis Hall on the grounds of Washington and Lee University.  The event is free and open to the public.

W&L professor and symposium co-organizer J.D. King, who directs the school’s Criminal Justice Clinic, notes that this is not a celebration of the case, but rather a cold, hard assessment of what has gone right and what has gone wrong since Gideon became law.

“One of the failings of the criminal justice system is that while we do provide lawyers to people who can’t afford their own, there is no meaningful check on how good those lawyers are,” says King.  “The reality of indigent defense is that in many cases defendants get a lawyer in physical presence only.”

Another problem, says King, is how Gideon and the right to counsel has been limited to apply only to so-called “serious” cases, that is, cases that could result in incarceration. However, there are more serious consequences that can result from a misdemeanor conviction now than there were when Gideon was decided.

“You can get deported, kicked out of your housing, lose student aid, not a get a job because of a background check, or wind up on the sex offender registry, all for misdemeanors for which you were not entitled to counsel,” says King.

The symposium is especially timely, adds King, as the fiscal crisis of the last several years has put increased strain on funding for public defender systems.  Indeed, in many states, including Virginia, defendants eventually bear the burden of the cost of their attorney, which can force them to waive their right to counsel from the outset.

The symposium will bring together scholars and practitioners representing a range of views on the issues.  Symposium attendees include Norman Reimer, executive director of the National Association of Criminal Defense Lawyers and Robin Steinberg, founder of the visionary defense support service The Bronx Defenders, as well as leading academics from law schools around the country.

The symposium is sponsored by the W&L Law Review, the Frances Lewis Law Center, the National Association of Criminal Defense Lawyers and the Foundation for Criminal Justice. A complete list of panelists, symposium schedule and registration information is available online at this link.

November 4, 2012 in Who Sentences? | Permalink | Comments (8) | TrackBack

Saturday, November 03, 2012

"Many death row inmates oppose bid to halt executions"

The title of this post is the headline of this notable piece appearing in the Los Angeles Times yesterday.  Here are excerpts:

Police and death row inmates agree on one thing, a law enforcement group told its members: They both oppose next week's ballot measure to replace the death penalty with life without parole.

That statement, in a newsletter from the Los Angeles Police Protective League opposing Proposition 34, highlighted what some California criminal defense lawyers have been saying for months.  Many death row inmates who are years away from execution would rather gamble on being executed than lose their state-paid lawyers, a preference that seems to be confirmed by a limited, informal survey of some on California's death row.

"That is a significant sentiment, since the death penalty in California is mostly life without parole anyway," said Don Specter, director of California's Prison Law Office, who personally supports the initiative.  "So the chances of them getting executed are not that high, and if Prop. 34 passes, their cases will be treated differently."

California has not executed an inmate in six years and has put to death only 13 offenders since 1978.  If Proposition 34 passes, death row inmates will be merged into the general prison population and have their sentences commuted to life without parole.  "If you are thinking you are going to get your conviction overturned, you certainly have a better chance if you are sentenced to death rather than life because you are provided with more legal assistance," said Kent Scheidegger, legal director of a law-and-order group fighting Proposition 34. "There is no question about that."

If Proposition 34 passed, convicted murderers, like other felons, would still be entitled to appeal their convictions in state court with government-paid lawyers.  But except in rare circumstances, they would not be given lawyers to investigate and file habeas corpus petitions, which raise evidence the trial court did not hear and which can be heard in federal court once state appeals are exhausted.

Proposition 34 has divided even some opponents of the death penalty.   The Chicago-based Campaign to End the Death Penalty decided not to endorse the measure in part because the group opposes life without parole.  The organization said it sent 220 queries about the measure to San Quentin's death row and received about 50 replies.  No more than four inmates favored the measure, the group said.

The death row survey was far from scientific, however, and the views of the condemned might depend on how far their appeals have progressed.  About 14 inmates have exhausted their appeals and could be executed fairly quickly once executions resume in California, supporters of capital punishment say.  "Death row inmates have a variety of views," said Natasha Minsker, an American Civil Liberties Union policy director who is running the campaign to pass Proposition 34.  "There are some who are very eager for it to pass, and some who don't want it to pass."...

Unlike capital inmates, the lifers must either file their own habeas petitions, persuade a judge to appoint a lawyer for them or find an advocate willing to take on their case. Governors have the power to commute life sentences as well as death sentences, though in some cases they must first obtain the approval of the California Supreme Court....

Scheidegger, the lawyer with the conservative Criminal Justice Legal Foundation, said he would not be surprised if death row lawyers felt stronger about abolishing the death penalty than their clients.  "The lawyers tend to be obsessively focused on the death penalty, and the inmates want them to focus more on the conviction," Scheidegger said. Although death penalty verdicts are rarely overturned, "people do cling to hopes of very unlikely events," Scheidegger said. "That is why we have the lottery."

This story — along with the oft-stated claim by some death penalty abolitionists that a sentence of LWOP is in some respects worse and harsher than death — leads me to wonder if some of the defendants sentenced to death in California might arguably have an ex post facto claim if Prop. 34 were to pass and seek to convert all their death sentences into LWOP sentences. 

I am not sufficiently well-versed with ex post facto doctrines to know whether any California capital defendant might have any reasonable legal basis to complain about having his sentence converted to LWOP.  But I do know that those on California's death row become much less "special" and are sure to garner much less local, national and international support from most criminal justice reform advocates if they are just lifers rather than condemned killers.  Thus I am not surprised by this story, though it makes me further wonder if some marginal voter who really wants to "stick it" to those on California's death row might be actually inclined to vote for rather than against Prop 34 after reading this story.

Some very recent related posts (with lots of notable comments):

November 3, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, November 02, 2012

Record-high government-sponsored departure rate in latest quarter of post-Booker data

Late yesterday, I got this e-mail alert via the US Sentencing Commission:

The United States Sentencing Commission's Preliminary Quarterly Data Report for the third quarter of fiscal year 2012 is now available on the Commission's website [at this link]. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first three quarters of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.

Only late today did I finally get a chance to look through these new numbers and the only big story within is what I highlighted via the title of this post coming from Table 4 of this big quarterly data report: during the third quarter of FY 2012 (which runs from April 1 to June 30), the rate of government-sponsored departures hit a record high of 28.7%. For some statistical context, the average rate of government-sponsored departures post-Gall has generally been under 26% (although the last six quarters all show rates above that modern historical average).

Interestingly, though the rate of non-government-sponsored below-guideline sentences has actaully declined each of the last three quarter, the rate of within-guideline sentencing hit a modern record low of 53.1% in the third quarter of FY 2012 because of the record-high rate of government-sponsored departures during this period. 

The first sensible explanation I can devise for this latest data is that they reflect the impact of the Justice Department's decision way back in January (reported here and here) to authorize so-called "fast-track" departures in all districts, not just in a select few pre-authorized fast-track districts. I suspect that this decision may have led not only to an uptick in government-sponsored fast-track departures, but perhaps also some other types of "government-sponsored" departures in plea agreements for those who might not quite fit the standard fast-track criteria.

November 2, 2012 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Obama Has Granted Clemency More Rarely Than Any Modern President"

The title of this post is the headline of this story by Dafna Linzer of ProPublica, which tells a tale familiar to regular readers of this blog (and a story which I hope and tentatively predict will change after next week). Here is how the lengthy piece gets started:

A former brothel manager who helped the FBI bust a national prostitution ring. A retired sheriff who inadvertently helped a money launderer buy land.  A young woman who mailed ecstasy tablets for a drug-dealing boyfriend, then worked with investigators to bring him down.  All of them and hundreds more were denied pardons by President Obama, who has granted clemency at a lower rate than any modern president, a ProPublica review of pardons data shows.

The Constitution gives the president unique power to forgive individuals for federal offenses. While pardons do not wipe away convictions, they can restore a person's full rights to vote, possess firearms and obtain business licenses, as well as remove barriers to certain career opportunities and adoptions.  For many applicants, a pardon is simply an opportunity for a fresh start.

But Obama has parceled out forgiveness far more rarely than his recent predecessors, pardoning just 22 individuals while denying 1,019.  He has given pardons to roughly 1 of every 50 individuals whose applications were processed by the Justice Department.  At this point in his presidency, Ronald Reagan had pardoned 1 of every 3 such applicants. George H.W. Bush had pardoned 1 in 16.  Bill Clinton had pardoned 1 in 8.  George W. Bush had pardoned 1 in 33.

Obama also has been stingy with commutations, applications for early release by those still serving federal prison sentences.  Under Reagan and Clinton, applicants for commutations had a 1 in 100 chance of success.  Under George W. Bush, that fell to a little less than 1 in 1,000.  Under Obama, an applicant's chance is slightly less than 1 in 5,000.

Though the data above covers familiar ground for those who follow these matters, this press story goes on to report a lot of notable new information.  Here is a sample:

Several administration officials who agreed to discuss pardons on the condition of anonymity said the president pardoned nearly every person recommended by Rodgers for approval in his first two years in office, but that such applicants were few and far between.  While the number of applicants has increased in recent years, Obama — based on Rodgers' recommendations — is denying more people more swiftly than any of his recent predecessors, the data shows....

Currently, two government officials said, there are about a dozen positive recommendations and hundreds of negative ones waiting for the president to act on.  At least one commutation request is pending.  The White House also has asked for a fresh review of the case of Clarence Aaron, who is serving a triple life-sentence, without parole, for his role in a drug conspiracy.  ProPublica and The Washington Post published a story about Aaron's case in May.

November 2, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Latest poll shows death penalty repeal leading in California

Field pollAs reported in this new front-page Sacramento Bee article, advocates for repeal of the death penalty in California have some (surprisingly?) good news in the latest polling data.  The article is headlined "Field Poll shows measure to end death penalty gaining, but still lacking 50%," and here are excerpts:

With concern over the cost of capital punishment rising, California voters may be poised for a historic vote to abolish the state's death penalty, a new Field Poll indicates.

Support for the measure, Proposition 34, remains below 50 percent. But the poll released this morning found 45 percent of likely voters favor replacing the punishment with life in prison, while 38 percent oppose doing away with capital punishment. Another 17 percent say they remain undecided.

The latest survey shows support for abolishing the death penalty rising as Election Day nears. A Field Poll released in September found 42 percent in favor of the measure and 45 percent opposed, with 13 percent undecided at that time.

"It's certainly an encouraging poll for the Proposition 34 supporters, but it still has a long way to go," Field Poll Director Mark DiCamillo said. "It's got to get above 50 percent, and it's moving in the right direction." DiCamillo said many measures tend to lose support after voters take a closer look at the issues, but Proposition 34 "is actually gaining strength as voters learn more about it."

That may stem from the fact that there is an increasing number of likely voters – 53 percent in the new poll – who have concluded that maintaining the death penalty is more expensive than keeping inmates in prison for the rest of their lives. The proponents of Proposition 34 have based their campaign on that notion, saying California could save hundreds of millions of dollars by doing away with the death penalty and that the state has spent $4 billion to execute only 13 inmates since the death penalty was reinstated in 1978.

"The single issue that reasonates is cost," said Sacramento attorney Don Heller, who wrote the initiative that restored the death penalty in California in 1978 but now opposes capital punishment. "Even when you address the issue of potentially executing an innocent person, it's the cost that reasonates. All of a sudden it's being brought home, when counties are going bankrupt and cities are going bankrupt, that there's just not enough money out there."

Death penalty supporters dispute the cost savings claims and questioned the latest poll figures, especially the finding that 17 percent of voters are undecided on such an issue. "This poll shows that Proposition 34 continues to be under 50 percent," said Peter DeMarco, a spokesman for opponents of the measure. "It's never been above 50 percent since the beginning of the campaign. And I think the 17 percent undecided is significantly inaccurate for an issue that is of such familiarity in California."

DeMarco said he believes that when voters are asked to actually decide, they will trend toward keeping the death penalty in place. He noted that numerous law enforcement groups, prosecutors and political leaders have spoken out against Proposition 34....

The poll of 1,566 likely voters was taken in two waves of telephone questioning, the first from Oct. 17-24 and the second from Oct. 25-30, and the initiative gained support in the later survey period. In the first wave, the measure was nearly tied, with 41 percent saying they would vote to abolish the death penalty and 40 percent opposed. It was in the second round of interviews that support rose to 45 percent.

I think it is fair to predict that repeal of California's death penalty via voter initiative would be a transformative moment in the modern history of the death penalty in the United States.  Depite these latest poll numbers, I am still expecting/predicting that Proposition 34 will fail.  Nevertheless, I find the trends here fascinating and perhaps yet another example of Justice Thurgood Marshall's (in)famous hypothesis in Furman that the more informed people are about the actual operation of the death penalty, the less likely they are to support its administration.

Some very recent related posts (with lots of notable comments):

November 2, 2012 in Campaign 2012 and sentencing issues , Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, November 01, 2012

Seeking input and insights concerning recent SCOTUS criminal procedure arguments

As detailed in this SCOTUSblog round-up post, yesterday and today has had notable criminal justice action in the Supreme Court:

The Court heard argument yesterday in two cases involving the use of drug-detection dogs.  In Florida v. Jardines, the Court considered whether a dog sniff at the front door of a suspected marijuana grow house by a trained narcotics detection dog constitutes a Fourth Amendment search. In Florida v. Harris, the Court considered whether an alert by a trained drug-detection dog provides sufficient probable cause to search a vehicle....

After postponing Tuesday’s oral arguments because of Hurricane Sandy, the Court [also has heard] arguments in two cases this morning.  In Bailey v. United States, the Court will consider whether police executing a search warrant can detain someone who left the premises to be searched before the search began.  At The Atlantic, Daniel Epps argues that the case “should tell us something about just how interested Justice Scalia is in rethinking Fourth Amendment law in his remaining years on the Court.”

The Court [also now has heard] argument in Chaidez v. United States, in which it will consider whether Padilla v. Kentucky, in which it held that criminal defendants receive ineffective assistance of counsel when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies retroactively.

I have left out a bunch of links and commentary from the SCOTUSblog round-up, though I urge anyone interested in these issues to click through to see what others are already saying about these cases. Not surprisingly, Chaidez has garnered the least attention so far, even though it is probably the only case from these two days of argument likely to get hard-core sentencing fans excited.  The oral argument transcript from Chaidez is available at this link, and I hope to find time late tonight to read and comment upon what the Justices had to say about Padilla and retroactivity.

November 1, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"The Sixth Amendment Rights to Fairness: The Touchstones of Effectiveness and Pragmatism"

The title of this post is the title of this paper by Robert Mosteller now available via SSRN. Here is the abstract: <
P>The Sixth Amendment is aptly described by Akhil Amar as the “heartland of constitutional criminal procedure.”  It is a major part of the Framers’ designed to ensure a fair trial and provides the opportunity for the accused to challenge the prosecution’s case and to demonstrate innocence.  However, as woeful inadequate funding for indigent defense undercuts the reality of the constitutional right to counsel and as trials become more and more rare, a broader focus is needed.

In a time in which it is painfully obvious that we have limited resources available to meet public needs and a reticence to extend legal doctrines, those interested in progressive reform should look beyond developing new legal doctrine.  The fundamental Sixth Amendment interest in fairness can be furthered by administrative mechanisms and aided by actors in the criminal justice system beyond defense attorneys.  The victories may not be stirring or draw public note, but for the individuals not prosecuted or incarcerated erroneously, they can be extraordinarily significant and fulfill the basic promise of the Sixth Amendment.

November 1, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, October 31, 2012

If nothing else, pot legalization initiatives in 2012 have produced serious buzz

With now less than a week to go before election day, the mainstream media is starting to discuss more broadly the possibility that one or more state will legalize marijuana.  Here is just a sampling of some of the notable recent media stories from outside the trio of states (Colorado, Oregon, Washington) in which voters are soon to have their say on state pot prohibition:

UPDATE This new AP story provides more interesting marijuana reform food for thought. It is headlined "Mexican think tank says Colorado, Washington, Oregon pot legalization would cut cartel profit."

October 31, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Federal district judge refuses to apply arson mandatory minimum (on constitutional grounds?)

This local article from Oregon reports on what appears to be a significant sentencing decision by a federal district judge concerning the application of a mandatory minimum provision.  Here are the details:

Rejecting mandatory minimum five-year sentences as “grossly disproportionate” to the crimes, a federal judge in Eugene on Tuesday sentenced an Eastern Oregon rancher to three months in prison and his adult son to one year and a day for deliberately setting fires on federal land.

A federal jury in June convicted the Harney County pair after a two-week trial in Pendleton. Jurors convicted Dwight Hammond Jr., 70, on a single count of arson for “intentionally and maliciously” setting the 2001 Hardie-Hammond Fire in the Steens Mountain federal management and protection area.  They convicted Steven Dwight Hammond, 43, of the same crime and of a second arson count for similarly setting the 2006 Krumbo Butte Fire.  It burned in the same area and in the Malheur National Wildlife Refuge.  The jury acquitted both men on arson charges in two 2006 fires.

U.S. Judge Michael Hogan agreed with the Hammonds’ defense lawyers that setting fire to juniper trees and sagebrush in the wilderness was not the type of crime that Congress had in mind when it set mandatory sentences of five to 20 years for anyone who “maliciously damages or destroys, or attempts to damage or destroy by means of fire” any federal property. The mandate was part of the Antiterrorism and Effective Death Penalty Act of 1996.

Prosecutors alleged that the father-son owners of Hammond Ranches Inc. set a series of fires on U.S. Bureau of Land Management land where the Hammonds had grazing rights. Prosecutors said the fires were set to reduce the growth of juniper trees and sagebrush, and to accelerate the growth of rangeland grasses for the Hammonds’ cattle....

In a sentencing memo, the defense lawyers noted that both men have served on the French Glen School Board, Community Club and Site Council, and were “instrumental” in founding and financing the French Glen Education Foundation, which funds extracurricular activities for area students.  The Hammonds also regularly host an annual science and careers fair for seven rural schools, contribute money and food to the Harney County 4-H and FFA clubs, and donate meat to the Harney County Senior Center, the memo said.

Assistant U.S. Attorney Frank Papagni acknowledged that the Hammonds, “both of them, have done many wonderful things for the community.”  But he urged Hogan to follow the law, noting that Steven Hammond’s nephew — Dwight Hammond’s grandson — testified that he “thought he was going to get burned up” when flames moved toward him as the then-13-year-old followed his uncle’s orders to light brush with matches.

The arsons also endangered the lives of BLM firefighters and hunters camping near one of the blazes, the government alleged.  “Congress decided that this particular offense should carry a mandatory, statutory minimum term of five years,” Papagni wrote in the government’s sentencing memo.  “The evidence of defendants’ guilt was substantial. The jury’s verdict of guilt for this particular offense mandates imposition of the required statutory minimum term, as the statute constrains this court’s discretion.”

Hogan disagreed, imposing the lesser terms. He also sentenced both Hammonds to three years of postprison supervision and required them to surrender their firearms. The judge also allowed the men to stagger their sentences in order to keep operating their ranch. He ordered Dwight Hammond to report to prison in January, with Steven Hammond to begin his sentence upon his father’s release.

As the title of this post indicates, it seems from the first sentence of this report that Judge Hogan concluded it would be unconstitutional based on the Eighth Amendment to apply a five-year mandatory minimum under the circumstances.  (Side notethis companion article reports that this sentencing took place on Judge Hogan's last day on the bench.) 

It will be interesting to follow if federal prosecutors seek to appeal this sentence to the Ninth Circuit.  I predict that the feds will fear a "bad panel" and thus a "bad ruling" from the Ninth Circuit and thus will decide not to appeal.

October 31, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (35) | TrackBack

Tuesday, October 30, 2012

Three former California Govs (but not the Terminator) advocate against terminating the death penalty

As reported in this Reuters article, which is headlined "Trio of former California governors seeks to preserve death penalty," some former chief executives of the Golden State are speaking out about the state's death penalty ballot initiative. Here are the details:

A trio of former California governors urged voters on Tuesday to preserve the death penalty in the state by defeating a ballot initiative seeking to abolish capital punishment on cost grounds, and a recent poll showed the measure gaining support but falling short of passing.

The initiative, if passed by voters next week, would automatically commute the sentences of 725 death row inmates in California, which has nearly a quarter of the nation's condemned prisoners but has executed none in the last six years.

"Prop. 34 is a horrible injustice," said former Democratic Governor Gray Davis, referring to the ballot proposition.  "Like a giant eraser, it would wipe out the death penalty convictions of 700 killers on death row."

Those convicts are responsible for killing 200 children and 43 police officers, said Davis, who was governor from 1999 to 2003 and who was joined in opposing death penalty repeal by former Republican governors Pete Wilson and George Deukmejian.  "Don't let the bad guys on death row win," Davis said.  The governors were joined at a Los Angeles hotel by relatives of murder victims, prosecutors and police officers.

California Governor Jerry Brown, a Democrat, and his Republican predecessor, Arnold Schwarzenegger, have been silent on the initiative.

The push by the former governors follows a poll of 1,504 registered voters released on Friday by USC Dornsife and the Los Angeles Times that showed support for repeal at 42 percent, with 45 percent opposed.  The poll had a margin of error of 2.9 percent.  Those numbers represented a much narrower gap than in a September survey by the same group that showed the pro-repeal side at 38 percent compared to 51 percent who wanted to keep the death penalty.

October 30, 2012 in Campaign 2012 and sentencing issues , Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (8) | TrackBack

Tenth Circuit continues to struggle through ACCA's ever-elusive residual clause

A helpful reader alerted me to a series of recent notable Tenth Circuit decisions regarding application of the Armed Career Criminal Act and sent along this detailed summary for posting (which probably only hard-core ACCA fans will enjoy, but they should enjoy it lots):

Federal practitioners know that the meaning of the ACCA/4B1.2(a)(2)’s residual clause is one of the most frequently occurring yet confusing issues in federal sentencing law. And the confusion does not seem to be subsiding. Perhaps best illustrating this are three cases issued by the Tenth Circuit within just a two-week time span.

First came US v. Sandoval, No. 11-1303 (10th Cir. Oct. 9, 2012) (available here). The issue there was whether a prior conviction for “heat-of-passion” assault should be classified as a violent felony under the ACCA’s residual clause.  The heat-of-passion offense read:  "If assault in the second degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person."

The Sandoval court held that such a crime is an ACCA violent felony. But, in doing so, the opinion contained some telling language. The opinion began by explaining: “This is another of those cases, now becoming legion[FN1] where we must decide if a prior conviction constitutes a violent felony under the Armed Career Criminal Act (ACCA).” Footnote 1 then explained how courts continue to face this issue and yet “[t]he law is not well-settled.”  A few pages later, the opinion lamented how Sykes, the Supreme Court’s latest excursion into residual-clause land, is “not a model of clarity."  Footnote 8 then went on for four paragraphs about the confusion.

Sandoval raises a number of very interesting questions.  Among them:

1) What is the meaning of Begay post-Sykes?

2) Is a heat-of-passion offense akin to the type of mens rea crime at issue in Begay, or is Sykes the more analogous case?

3) Is a Begay analysis ever needed when the offense at issue is not one of strict liability, negligence, or recklessness?

4) If so, is a heat-of-passion offense “similar in kind” to the ACCA example crimes, none of which involve either the victim’s provocation or an irresistible passion of a reasonable person?

5) Is Begay's "in kind" analysis solely limited to an inquiry about being "purposeful, violent and aggressive," or can an offense be different from the example crimes "in kind" in a different way?

The first question is the big one, and questions two through five seem to inextricably follow from the first. Despite this confusion, the Tenth Circuit held that a heat-of-passion offense — where A) the victim provokes the offense, B) the offender is acting pursuant to an irresistible passion in a reasonable person, and C) there is no deliberation — is similar to the ACCA enumerated crimes. With so many important questions involved, this may be the perfect post-Sykes case to clarify the US Supreme Court’s residual clause precedents.

Nine days later, the Tenth Circuit returned to the uncertainty surrounding the residual clause in US v. Duran, No. 11-1308 (10th Cir. Oct. 18, 2012) (available here).  There, the Circuit held that aggravated assault by recklessly causing bodily injury does not satisfy the residual clause (this time under USSG § 4B1.2(a)(2)). Even though the prior offense required causing bodily injury to the victim, the Circuit reasoned that Begay prevents reckless conduct from satisfying the residual clause.  This certainly appears to be the correct outcome; Sykes itself implies that reckless crimes are outside of the residual clause.  Nevertheless, the Tenth Circuit panel still questioned its earlier precedent on that issue, and wondered aloud “if Begay is still good law.” See footnote 1.

Finally, four days after that, the Tenth Circuit again found itself in residual-clause land with US v. Maldonado, No. 11-2168 (10th Cir. Oct. 22, 2012) (available here). This time, the Tenth Circuit held that California’s first-degree burglary statute, although not constituting the generic, enumerated offense of burglary, did satisfy the ACCA’s residual clause.  The court reached this result by applying “a two-part test, asking first whether the offense poses a serious potential risk of physical injury to another and second, whether the offense is ‘roughly similar’ in kind and degree of risk as the enumerated crimes in the ACCA.” The Circuit stressed again — as it did in Sandoval and Duran — that part two of the test is “subject to some debate,” noting how the Supreme Court is “splintered” on part-two.  See footnote 6.  The Maldonado panel also felt it important to remind us of Sandoval’s commentary on this confusion. See footnote 7.

The Tenth Circuit is not alone in tiring of the “legion” of cases it must decide on the ever-elusive meaning of the residual clause.  And its frustration over this uncertain area of the law is warranted.  Tellingly, the three opinions are each authored by a different judge, and they constitute seven of the nine active Tenth Circuit judges and one Senior Judge. Ultimately, the Supreme Court should heed the Tenth Circuit’s frustration and clarify this “splintered” issue sooner rather than later.  (Or, for that matter, declare the clause void for its vagueness.)  The issue is too important and commonly occurring to continue leaving the lower courts without much-needed guidance.

October 30, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, October 29, 2012

Sandy requires SCOTUS to rework schedule for hearing two criminal cases

As reported here, the "Supreme Court of the United States will not convene on Tuesday, October 30 due to weather conditions related to Hurricane Sandy."  As a result, "oral arguments scheduled to be heard on October 30 have been rescheduled for Thursday, November 1."  As SCOTUSblog details here, two criminal cases are the ones rescheduled:

The two cases that will go over from Tuesday to Thursday are Chaidez v. United States (11-820), on retroactivity of the decision in Padilla v. Kentucky on required legal advice to clients when they are considering guilty pleas that may lead to their deportation from the United States, and Bailey v. United States (11-770), on whether police may detain a suspect away from the site of a search for which they have a warrant, while they carry out the search.

As of this writing, SCOTUS is still planning to be open and hear arguments in the two "dog-sniff" Fourth Amendment cases on Wednesday.  Orin Kerr has an astute preview of these cases in this lengthy post at The Volokh Conspiracy.

October 29, 2012 in Who Sentences? | Permalink | Comments (0) | TrackBack

Split Ninth Circuit panel reverses death sentence for murder on row since 1978

As reported in this Los Angeles Times piece, a Ninth Circuit panel on "Monday overturned the death sentence of California’s longest serving death row inmate on the grounds that his defense lawyer failed to investigate and present mitigating evidence during the penalty phase of his murder trial."  Here is more:

A three-judge panel of the 9th Circuit U.S. Court of Appeals decided 2-1 that Douglas R. Stankewitz, convicted of murdering Theresa Greybeal in Fresno in 1978, should be re-sentenced to life without possibility of parole unless prosecutors retry the penalty phase of his murder case....

The 9th Circuit majority said Stankewitz’s lawyer presented only a “paltry” amount of evidence in trying to persuade jurors against a death sentence, ignoring extensive documentation of the defendant’s “deprived and abusive upbringing,” potential mental illness, long history of substance abuse and use of drugs leading up to the murder....

Judge Raymond C. Fisher, writing for the court, said the jury might have opted for a life sentence had it learned of Stankewitz’s life story and his heavy use of drugs in the hours before the murder. Stankewitz's defense lawyer “did not obtain a psychological examination of Stankewitz, despite his belief that Stankewitz was not mentally competent, and did not pursue any of the evidence of Stankewitz’s history of drug and alcohol abuse,” wrote Fisher, a Clinton appointee....

Judge Diarmuid F. O’Scannlain, a Reagan appointee, dissented. O’Scannlain contended the lower court applied the wrong legal standard and argued that the case should have been returned to the district court for reconsideration under a different standard.

The full opinion in Stankewitz v. Wong, No. 10-99001 (9th Cir. Oct. 29, 2012), is available at this link.

October 29, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21) | TrackBack

FBI reports crime was down yet again in 2011 (though BJS said it was up)

As reported in this official press release, based on "figures released today by the FBI, the estimated number of violent crimes in 2011 declined for the fifth consecutive year.  Property crimes also decreased, marking the ninth straight year that the collective estimates for these offenses declined." Here is more:

The 2011 statistics show that the estimated volumes of violent and property crimes declined 3.8 percent and 0.5 percent, respectively, when compared with the 2010 estimates. The violent crime rate for the year was 386.3 offenses per 100,000 inhabitants (a 4.5 percent decrease from the 2010 rate), and the property crime rate was 2,908.7 offenses per 100,000 persons (a 1.3 percent decrease from the 2010 figure).

These and additional data are presented in the 2011 edition of the FBI’s annual report Crime in the United States [available here]. This publication is a statistical compilation of offense and arrest data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault, as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson.  (Although the FBI classifies arson as a property crime, it does not estimate arson data because of variations in the level of participation by the reporting agencies.  Consequently, arson is not included in the property crime estimate.) The program also collects arrest data for the offenses listed above plus 20 additional offenses that include all other crimes except traffic violations.

These data are a bit of a head-scratcher, in part because, as noted in this prior post, the US Bureau of Justice Statistics' annual national crime victimization survey showed an increase in both violent crime and property crime for 2011.  So now I do not know whether to worry about crime going up or to worry about whether we can be sure if crime is going up or going down.

Some related posts on the great modern crime decline: 

October 29, 2012 in National and State Crime Data, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS offering more habeas fun this Term with new cert grants

As reported in this SCOTUSblog post, the US Supreme Court this morning granted cert in four new cases, and two involve habeas review:

[The] new cases includ[e] a plea to give convicted individuals a new chance to claim that their defense lawyers in state court failed to perform adequately.  That is an issue that arose in the wake of last Term’s decision in Martinez v. Ryan.  The new case on that question is Trevino v. Thaler (11-10870).

[Another of the] granted cases [includes] a test of whether a convicted individual’s claim of innocence of the crime will be treated as an excuse for failing to pursue a federal habeas challenge on time (McQuiggin v. Perkins, 12-126).

October 29, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"The End of Laughing at Marijuana Reformers"

The title of this post is the headline of this new piece at The Atlantic, which gets started this way:

Voters in Colorado, Oregon and Washington will decide on election day whether to legalize marijuana in their states. All three initiatives have a chance of passing, and two are ahead in polls. In Massachusetts and Arkansas, voters may legalize medical marijuana. And last year, a Gallup poll found that a majority of American voters supported legalizing marijuana for the first time.

The political taboo against marijuana has been fading for awhile. When Bill Clinton admitted he'd smoked weed as a college student, he felt the need to add that he hadn't inhaled, and observers still wondered if it would cost him votes. Barack Obama admitted that he did inhale as a college student. Yet his personal history with narcotics hasn't stopped him from presiding over a draconian War on Drugs and responding to several questions about drug reform with jokes.

It's hard to believe dismissiveness of that sort can last much longer. A state measure legalizing marijuana would signal a huge shift in public opinion and force the federal government to react. And whatever happens at the ballot box this November, a clever nonprofit is highlighting the fact that more and more prominent people of diverse ideological backgrounds say reform is needed.

October 29, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (25) | TrackBack

Sunday, October 28, 2012

Nebraska working on various "Miller fix" sentencing proposals

The local story from Nebraska, headlined "Changes likely for sentencing of juvenile murderers," discusses the developing work of the state's (unicameral) legislature in response to the Supreme Court's Eighth Amendment Miller ruling earlier this year. Here are the details:

Nebraska lawmakers likely will be forced by a U.S. Supreme Court ruling to change how Nebraska sentences people convicted of committing murder while they are juveniles. Meanwhile, defense lawyers will argue the issue before the Nebraska Supreme Court next month. "We've already got some language drafted" for a propoed bill, said Omaha Sen. Brad Ashford, chairman of the Legislature's Judiciary Committee.

The court ruled in the cases from Arkansas and Alabama of two 14-year-old boys who were convicted of murder and sentenced to life in prison with a chance for parole.  Justice Elena Kagan wrote in the majority opinion that mandatory life without parole for those younger than 18 when they committed their crime violates the Eighth Amendment’s prohibition on cruel and unusual punishments....

The Nebraska Supreme Court will hear arguments Nov. 6 in a Douglas County case involving Eric A. Ramirez, who was sentenced to two terms of life in prison without parole for his part in a 2008 robbery spree that left two people dead.  Ramirez, then 17, was the shooter.  After the June U.S. Supreme Court ruling, the Nebraska high court ordered additional briefs in his appeal.

The June ruling does not prevent states from imposing life sentences without the possibility of parole for homicide, but it says that a defendant’s age must be considered when passing sentence.  In 2011, state lawmakers passed a bill which removed the words "without parole" from state statutes....

In Nebraska, 26 people convicted of committing murder while juveniles are serving life without the possibility of parole, according to the Nebraska Commission of Public Advocacy.

In 2011, several bills from Omaha Sen. Brenda Council dealing with the issue of sentencing juveniles convicted of murder failed to get enough traction in the Legislature:

* LB251 would have permitted youths convicted of murder and sentenced to life without parole to petition for resentencing after 20 years in prison.

* LB202 would have allowed youths sentenced to life without parole to petition for resentencing after 15 years. The bill would have created an intense, three-part review process that would result in the possibility of a lesser sentence for an offender who has matured and proved him or herself to have changed.

* LB203 would have removed life imprisonment as a possible penalty for youths convicted of murder. It would have allowed the court to take into consideration the maturity, age, physical and mental condition of offenders younger than 18. Those 16 to 18 at the time the crime was committed could have been sentenced to 50 years. Those younger than 16 could have been sentenced to 40 years.

October 28, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Post-modern sentencing reforms: restricting judicial discretion to be harsh

The story of "modern" sentencing reforms in the 1980s and 1990s was mostly about legislatures enacting sentencing statutes and guidelines that greatly limited judicial discretion to be lenient in response to relatively serious offenses.  But, as this local story from California highlights, what I will call "post-modern" sentencing reforms now involve legislatures enacting sentencing statutes and guidelines that greatly limit judicial discretion at sentencing to be harsh in response to relatively less serious offenses.  The story from California is headlined "State's prison overhaul changes sentencing structures but leaves judges with little discretion," and it starts this way:

Since the overhaul of California's state prisons in October 2011, nearly 90 people convicted of felony crimes were sent to Santa Cruz County Jail instead of prison under the new sentencing guidelines established by AB 109.

With prison realignment, state officials have carved out a number of types of felony crimes that no longer carry the option of a prison sentence. Instead, offenders convicted of these crimes serve their time locally, be it in county jails or through alternative programs such as drug treatment programs and electronic monitoring.  It's also meant more people are getting placed on probation.

The new structure gives judges limited discretion when it comes to sentencing, said Judge John Salazar, presiding judge of Santa Cruz County Superior Court.  When it comes to sentencing for crimes designated as jail-eligible, judges have the discretion to impose two types of sentences to County Jail.  Previously, felony offenders were more likely sent to prison.

Judges may commit the offender to County Jail, or they can impose what's called a split sentence, with a portion served in jail and the rest on mandatory supervision.  Eighty-eight people who would have been sentenced to prison before realignment now have been given County Jail sentences, said Jim Hart, the county's chief deputy of corrections.

Crimes that now carry potential jail, not prison sentences, are typically those considered "triple nons" -- nonviolent, nonserious and nonregisterable sex offenses.  These include many drug offenses and property crimes.  Before AB 109, these offenders would have been sent to prison.

How the actual jail portion of a sentence is served is left up to the jail staff to decide. Although judges can recommend or authorize certain types of alternative incarceration programs, Salazar said.  Once a person is handed a jail sentence, it is the jail staff that determines if and whether that individual can serve it in a way other than being locked up in jail 24 hours a day.

As noted in prior posts here and here, the latest sentencing reforms in Ohio have also restricted judicial discretion to send certain offenders to prison (and, not surprisingly, it is now prosecutors rather than defense attorneys complaining about these new restrictions on judicial sentencing discretion).  Similarly, a number of other states also dealing with overcrowded and costly prisons have likewise created new sentencing structures to urge or require sentencing judges to look at alternatives to prison.

This new story from California highlights one especially notable (and not always recognized) aspect of these post-modern reforms: in addition to restricting judicial discretion, these reforms have often shifted on-the-ground discretion from both judges and prosecutors now to corrections officials and thsoe who create and operate prison alternatives.  Whether this kind of shift will be good for justice and public safety in the long run will be important to watch in the years and decades to come.

October 28, 2012 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, October 26, 2012

Latest California polling data suggests hard-core sentencing will be up real late on election night

La-me-death-penaltya1-20121025-gI have an inkling (and certainly a hope) that we will know the outcome of the 2012 presidential election not all that long after 9pm EST on November 6th: the polls will by then be closed in the crucial swing states of Colorado, Florida, Iowa, New Hampshire, Ohio, and Virginia.  But this big Los Angeles Times article, which provides the latest poll numbers on the two big sentencing reform ballot initiatives in California, suggests that hard-core sentencing fans should plan for very late night watching election returns from the Golden State. the article is headlined "Support for end to California death penalty surges; Nearly half of registered voters still back capital punishment, but the margin has shrunk to 3 percentage points; Voters also favor easing the three-strikes law." Here are excerpts:

Voter support for a ballot measure to repeal California's death penalty has jumped dramatically, though not enough to ensure its passage, a new USC Dornsife/Los Angeles Times poll has found. Support for a separate measure that would ease the state's three-strikes sentencing law remained high, with more than 60% in favor of amending it.

The survey, conducted last week, showed that the gap between supporters and opponents of Proposition 34, the capital punishment measure, is now very small — only 3 percentage points — compared with last month.  Still, less than half of respondents said they would vote for the measure, which would replace the death penalty with life imprisonment without the possibility of parole.

Forty-two percent said they would vote for Proposition 34, with 45% saying no. In September, the gap was 38% to 51%, a 13-point difference.  A significant 12% of respondents said they did not know how they would vote, nearly identical to the 11% who had not decided last month.  "There is no question there has been a sharp shift," said Dan Schnur, who heads the Jesse M. Unruh Institute of Politics at USC.  The results suggest that passage is "not impossible" but still "very difficult," Schnur said.

When voters heard more information about Proposition 34, such as its financial ramifications and details of the effect on prisoners, responses flipped: 45% were in favor and 42% against — still very close to the survey's margin of error, which is 2.9 percentage points.

The latest USC Dornsife College of Letters, Arts and Sciences/Los Angeles Times poll [with crosstabs available here] questioned 1,504 registered voters by telephone from Oct. 15 to Oct. 21, before the Proposition 34 campaign launched radio and television ads. Greenberg Quinlan Rosner Research, a Democratic firm, did the survey with American Viewpoint, a Republican company. 

Proposition 34 would apply retroactively to condemned inmates, require convicted murderers to work in prison and contribute to victim restitution funds, and direct $100 million to law enforcement over four years.  It could save the state as much as $130 million a year, according to California's nonpartisan legislative analyst.  California has more than 727 inmates on death row, the most in the nation....

Natasha Minsker, campaign manager for Proposition 34, said the poll's findings prove that "this election is absolutely moving in our direction."  But Peter DeMarco, a strategist for the opposition, expressed confidence that the shift was too small to make a difference....

La-me-death-penalty-inside-20121025-g

Meanwhile, support for the three-strikes measure, Proposition 36, has held relatively steady in recent weeks, with 63% of voters in favor, 22% opposed and 15% undecided or not answering.  Last month, the initiative was leading by 66% to 20%.  "Unless the opponents can convince voters that the criminals being impacted by this measure are still dangerous, the initiative looks pretty safe at this point," Schnur said. 

The three-strikes law allows prosecutors to seek sentences of 25 years to life for any felony if offenders were previously convicted of at least two violent or serious crimes, such as rape or residential burglary. Proposition 36 would amend the law so offenders whose third strikes were relatively minor felonies, such as shoplifting or drug possession, would no longer be eligible for life terms.  Of the state's nearly 8,900 third-strikers, about a third were convicted of drug or minor property crimes.

This week, the proposition's campaign unveiled a television ad in which the district attorneys from Los Angeles, San Francisco and Santa Clara counties tell voters that the amendment would ease prison overcrowding, save the state millions of dollars and "make the punishment fit the crime."  Opponents point out that the current law already allows prosecutors and judges to spare a third-striker the maximum sentence and argue that flexibility is needed to protect the public.

I suspect that the polling on these sorts of initiatives can be subject to lots of statistical noise, so I am quite chary about making book on these latest poll numbers.  That all said, it will be big news if either of these sentencing reform initiatives pass, and huge news if they both do.  Thus, I now have yet another reason to wish Election Day 2012 was here already.

October 26, 2012 in Campaign 2012 and sentencing issues , Death Penalty Reforms, Elections and sentencing issues in political debates, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

"How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison"

The title of this post is the headline of this new commentary authored by US District Judge Mark Bennett and published in The Nation. Here are is how it gets going:

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA.  Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release.  The majority of these women, men and young adults are nonviolent drug addicts.  Methamphetamine is their drug of choice.  Crack cocaine is a distant second.  Drug kingpins? Oh yes, I’ve sentenced them, too.  But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa — a bucolic area home to just one city with a population above 100,000 — is a sleepy place with few federal crimes.  You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge.  Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco — combined.  While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine.  More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine.  Add crack cocaine and together they account for 87 percent.

Crack defendants are almost always poor African-Americans.  Meth defendants are generally lower-income whites.  More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence.  These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights.  Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine.  They are the low-hanging fruit of the drug war.  Other than their crippling meth addiction, they are very much like the folks I grew up with.  Virtually all are charged with federal drug trafficking conspiracies — which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth.  They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges.  All of them pled guilty.  Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions.  Most were unemployed or underemployed.  Several were single mothers.  They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment.  Yet all of them faced mandatory minimum sentences of sixty or 120 months.  One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum.  She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison.  It is deeply inspiring to see the positive changes most have made.  Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around.  They are shocked — and glad — to see me, and it’s important to them that people outside prison care about their progress.  For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do.  I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless.  They destroy families and mightily fuel the cycle of poverty and addiction.  In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

October 26, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

Thursday, October 25, 2012

"An odd conservative split on Propositions 34 and 36"

The title of this post is the headline of this notable new piece in the Los Angeles Times, and here is how it starts:

A fascinating dichotomy has emerged between the two criminal justice initiatives on the Nov. 6 California ballot.  Both are aimed at reducing harsh sentences and thus saving the state money, yet one has attracted support from conservatives and is expected to win handily, while the other is opposed widely by conservatives and trailing in the polls.  Why?

Proposition 36, which would tweak the state's three-strikes sentencing law by making it less likely that third-strikers who commit minor crimes end up with life terms, has been endorsed by Republican law-and-order types such as L.A. County Dist. Atty.  Steve Cooley, and such GOP heavy-hitters as tax watchdog Grover Norquist of Americans for Tax Reform.  Bipartisan support for the measure probably explains why its passage is all but assured.  A USC Dornsife/Los Angeles Times poll last month found 66% of voters supporting the measure with only 20% opposed, and although other surveys have pegged the race as a closer call, none have shown a margin of less than 2-to-1 in favor of the initiative.

That's a sharp contrast with Proposition 34, which would replace the state's death penalty with a sentence of life without the possibility of parole.  The USC/Times poll found it trailing 38% to 51%.  And while it does have some conservative backers, they're not as influential as those supporting Proposition 36.  Perhaps the most prominent is Don Heller, a Republican prosecutor who drafted the ballot initiative that reinstated California's death penalty in 1978 but who now thinks it was a terrible mistake.  The overwhelming majority of Proposition 34's supporters are Democrats or liberal organizations such as the American Civil Liberties Union.  A Field Poll last month found that 50% of Democrats support it, but only 23% of Republicans.

What's puzzling about this is that in many ways, the two initiatives are quite similar.  In his statement endorsing Proposition 36, Norquist said: "The Three Strikes Reform Act is tough on crime without being tough on taxpayers.  It will put a stop to wasting hundreds of millions in taxpayers' hard-earned money, while protecting people from violent crime." One could say the exact same thing about Proposition 34, which has not met Norquist's favor.

October 25, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Should judges be angry at sentencing?

The question in the title of this post is prompted by this new article by Professor Terry Maroney, titled "Angry Judges."   The interesting article covers a lot more that criminal law and procedure issues, but here is one intriguing passage discussing judicial anger and sentencing:

Judicial anger at criminal sentencing often can be justified as well, and for a similar set of reasons. By the time of sentencing, blameworthy conduct already has been shown. Assuming, as the judge must, the accuracy of that finding, the judge is entitled to respond emotionally to any harm the defendant has caused.  Expressing anger vividly demonstrates to victims and their survivors that they are within the judge’s zone of care. It communicates, in a way that other demonstrations could not, that they are members of the valued community.  It also demonstrates judicial respect for the defendant. As one feels anger only where a human agent has chosen to inflict an unwarranted harm, showing anger reveals the judge’s assessment that the defendant is a fellow human possessed of moral agency.  By using his authoritative position to send moral messages to the wrongdoer, the judge ideally frees others in society from feeling a need to do so themselves, including through vigilante action.

In contrast, judicial anger might be used not to send deserved moral messages but to belittle, humiliate, or dehumanize.  This is a particular danger in criminal sentencing, but it is by no means limited to that setting.  For example, rather than force the defendant to hear both an account of the harm he has caused and the judge’s moral condemnation of those acts, she might call him a “lowlife” or “scumbag.”  Insults, gratuitous displays of power, extreme sarcasm, mocking, and demeaning language all reflect that the judge is using anger to assert her dominance.  Assertions of power are, to be sure, sometimes appropriate.  Anger at lawyers, witnesses, and parties may be helpful in reminding those persons that the judge is in charge of both the courtroom environment and the processes of litigation.  Belittling actions appear meaningfully different.  Acting so as to humiliate or belittle strongly suggests that anger is no longer operating in isolation: instead, it has become corrupted with contempt.  Contempt, like anger, reflects a judgment that a fellow human has acted badly.  Unlike anger, it goes on to value that fellow human as “vile, base, and worthless.”  It explicitly positions its target as an inferior, not just hierarchically but as a human being, and motivates public assertions of that inferior status.  When judicial anger becomes intertwined with contempt, it loses its claim to justification, for it has internalized a fundamentally bad judicial value: superiority.  While judges have a legitimate claim to authority, they have no such claim to superiority.

October 25, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, October 24, 2012

"Prosecutorial Discretion, Hidden Costs, and the Death Penalty: The Case of Los Angeles County"

The title of this post is the title of this notable new paper with interesting data and an interesting perspective on the operation of the death penalty in California. The paper is authored by Nicholas Petersen and Mona Lynch, and here is the abstract:

This article analyzes the processing of homicide cases in Los Angeles County from 1996 to 2008 to measure the time-costs of pursuing cases capitally and to examine how prosecutorial discretion in homicide charging is exercised in this jurisdiction.

To answer these questions, we explore two related outcomes: (1) the odds of a “death-notice” filing and (2) time-to-resolution.  According to Model 1, death-eligible cases with multiple special circumstances are significantly more likely to be prosecuted capitally than those with only one special circumstance. In light of the limited financial information regarding capital punishment at the county level, Models 2-4 utilize Cox Proportional Hazard regression to investigate the time-costs associated with death-eligibility. Estimates indicate that capital cases take significantly longer to reach resolution than noncapital cases.  Furthermore, the filing of special circumstances increases survival time in noncapital cases. In addition to highlighting the time-costs of trying cases capitally, these findings reveal those associated with the prosecution of special circumstance cases, even when the death penalty is not ultimately sought.

By examining capital costs at the county level, this analysis contributes to the ongoing policy reform debate in California that aims to address the state’s “dysfunctional” death penalty system.

October 24, 2012 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Third time around, "Millenium Bomber" gets (reasonable?) longer term of 37 years in prison

As reported in this AP piece, the so-called "Millenium Bomber" was sentenced for a third time today after his first two sentences had been reversed by the Ninth Circuit as unreasonable.  Here is what happened:

Algerian terrorist Ahmed Ressam was sentenced Wednesday to 37 years in prison for plotting to bomb Los Angeles International Airport around the turn of the new millennium. Ressam was arrested in December 1999 as he drove off a ferry from Canada into Washington state with a trunk full of explosives. U.S. District Judge John C. Coughenour had twice ordered him to serve 22-year terms, but both times the sentences were reversed on appeal.

Ressam's attorneys had conceded that he should face at least three decades to satisfy the appeals courts, but no more than 34 years. The Justice Department had sought life in prison because of the mass murder he intended to inflict, and because he recanted his cooperation with federal investigators....

Ressam's case has been vexing because he started cooperating after he was convicted and was interviewed more than 70 times by terror investigators from the U.S., Canada, Great Britain, Spain, Italy, Germany and France.  Information he provided helped convict several terror suspects; prompt the famous August 2001 FBI memo titled "Bin Laden determined to strike in U.S.;" and contribute to the arrest of suspected Osama bin Laden lieutenant Abu Zubaydah, who remains in custody without charges at Guantanamo Bay, Cuba.

However, Ressam subsequently recanted all of his cooperation when it became clear that the prosecutors weren't going to recommend that he serve less than 27 years in prison. The recanting forced the Department of Justice to drop charges against two suspected co-conspirators, Samir Ait Mohamed and Abu Doha.

In previously sentencing Ressam, Coughenour noted that before he went to trial, the government offered him a 25-year sentence if he would plead guilty -- no cooperation necessary. Ressam refused, but Coughenour said that any discount for Ressam's cooperation, while it lasted, should start from that 25-year offer.  The appeals court rejected that rationale.

I suspect that federal prosecutors will be disinclined to appeal yet again, even though based on time already served and time off for good behavior Ressam could possibly be free again not long after 2030. At this stage, I suspect prosecutors recognize it might be very hard to convince the Ninth Circuit that a sentence now 15 years longer is still unreasonable.

A few prior posts on the Ressam sentencings:

October 24, 2012 in Booker in district courts, Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"States consider moving beyond medical marijuana"

The title of this post is the headline of this lengthy new USA Today piece.  Here are excerpts:

Now that medical marijuana is permitted in about one-third of the nation, advocates hope to move beyond therapeutic uses with ballot questions in three states that could legalize pot for recreational use.  Voters in Colorado, Washington state and Oregon face proposals to change state laws to permit possession and regulate the sale of marijuana — though the plant with psychoactive properties remains an illegal substance under federal law.

Approval in even one state would be a dramatic step that most likely would face legal challenges but could also bring pressure on the federal government to consider modifying the national prohibition on marijuana that has been in place since 1937, backers say.  "One of these states crossing that Rubicon will immediately set up a challenge to the federal government," says Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws.

Independent polls have shown proponents leading in Washington and Colorado a month or more before the election, but the outcome remains in doubt, and both sides are aware of what happened in California in 2010: The similar Proposition 19 lost 53.5% to 46.5% after an early lead in favor disappeared. "It's a similar trajectory here," says Laura Chapin,​ spokeswoman for a group opposing Colorado's Amendment 64, who predicts the proposal will be defeated....

Medical-marijuana proposals are on the ballot in three states: Arkansas, Massachusetts and Montana. The ballot issues arise as the conflict between the federal ban and more permissive states has been growing....

In California, federal prosecutors have been shutting down medical-marijuana dispensaries, sometimes threatening landlords with asset forfeiture for leasing space to pot shops.  Yet federal prosecutors typically do not go after cases of simple possession of small quantities.  In Washington state, former federal prosecutors and law enforcement officials are among the supporters of legalization.

Campaigns have been intense in Washington and Colorado.  In Oregon, St. Pierre says, marijuana advocates are less hopeful and support is not as well-financed. Former Seattle police chief Norm Stamper, who supports Washington's Initiative 502, says some police and prosecutors have grown frustrated at the futility of marijuana prohibition and see regulation by states as a way to take the trade out of the hands of criminals and free up the justice system to focus on more serious matters....

In Washington state, the issue is being sold as a chance to license, regulate and tax marijuana and impose a tough legal standard banning driving a vehicle while impaired by marijuana.  Backers added the drugged-driving provision after seeing opponents of California's proposition two years ago attack it for failing to address driving after smoking or otherwise ingesting pot.

Colorado's proposal would authorize state-licensed production and retail facilities but leave it to lawmakers to follow up with any driving restrictions, says Mason Tvert, co-director of a group pushing the amendment.

New Approach Washington is airing $2 million worth of TV ads in favor of Initiative 502, campaign director Alison Holcomb says.  Among them are ads featuring endorsements from two former U.S. attorneys from the Bush and Clinton administrations and a former Seattle FBI chief....

In Colorado, Chapin's opposition group, Vote No on 64, has no TV ads. It touts opposition to the measure by Democratic Gov. John Hickenlooper, Denver Mayor Michael Hancock, area teachers, ministers and law enforcement groups.  In Washington, the opposition group No on I-502 is led by Steve Sarich, a medical-marijuana entrepreneur, who calls the legalization initiative "a Trojan horse" for the strict anti-drugged-driving provision....

Holcomb ... says approval of the legalization initiative would demonstrate to the federal government that, as in the repeal of the prohibition on alcohol in the early 20th century, the public is ready for change.  "This is one of those issues that has to percolate up from the states," she says.  "Congress and the administration need to see that the will of voters has shifted and we are ready to try something different."

October 24, 2012 in Pot Prohibition Issues, Who Sentences? | Permalink | Comments (13) | TrackBack

Tuesday, October 23, 2012

Eleventh Circuit decides only SCOTUS can decide Ring invalidates Florida's capital sentencing process

The Eleventh Circuit has a terrifically interesting habeas opinion concerning Florida's death sentencing procedures today in Evans v. Florida DOC, No. 11-14498 (11th Cir. Oct. 23, 2012) (available here). Here is the first paragraph of the opinion and two key paragraphs from the heart of the opinion which summarize the issues and the panel's analysis:

Confident that he knew what the future would bring, one of Shakespeare’s characters boasted that “[t]here are many events in the womb of time which will be delivered.” William Shakespeare, Othello, Act I, Scene 3, lines 412–13.  On the subject of lower courts predicting that the Supreme Court is going to overrule one of its own decisions, however, Judge Hand cautioned against “embrac[ing] the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.”  Spector Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting).  The Supreme Court has made Hand’s warning a clear command by repeatedly instructing lower courts that when one of its earlier decisions with direct application to a case appears to rest on reasons rejected in a more recent line of decisions, we must follow the directly applicable decision and leave to the high Court the prerogative of overruling its own decisions.  As will become apparent, those instructions are dispositive of the State’s appeal from the grant of habeas corpus relief in this case....

The State appeals the part of the district court’s judgment that granted Evans habeas relief from his death sentence on the theory that application of the jury sentencing provisions of the Florida statute violated his Sixth Amendment rights, as interpreted in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).  Florida’s procedures comply with the Sixth Amendment and Ring, according to the State, because a judge may sentence a defendant to death only after considering and giving “great weight” to a jury’s advisory sentence.  See, e.g., Ault v. State, 53 So. 3d 175, 200 (Fla. 2010) (“[T]he court must independently consider the aggravating and mitigating circumstances and reach its decision on the appropriate penalty, giving great weight to the jury's advisory sentence.” (citing Tedder v. State, 322 So. 2d 908 (Fla. 1975))).  And a jury cannot advise in favor of death unless it finds beyond a reasonable doubt at least one statutory aggravating circumstance. See, e.g., Ault, 53 So. 3d at 205.  Evans, on the other hand, contends that the district court got it right because under Florida’s sentencing procedure a judge and not the jury actually finds the facts necessary to establish an aggravating circumstance, which makes the defendant death eligible.

Three lines of Supreme Court decisions are relevant to our decision in this case.  The first line of decisions specifically upholds the advisory jury verdict and judicial sentencing component of Florida’s capital punishment statute.  The second line involves the unconstitutionality of Arizona’s former capital sentencing procedures under which a judge, without any input from the jury, found the facts necessary to authorize a death sentence. The third and decisive line of decisions instructs us to follow directly applicable Supreme Court decisions until that Court itself explicitly overrules them.

October 23, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Latest campaign front news concerning California death penalty repeal initiative

This new local article, headlined "California's Prop. 34: Battle over fate of state's death penalty heating up," reports on the latest campaign developments two weeks before California's go to the polls to decide whether to repeal the state's death penalty. Here are excerpts:

[T]he two rival campaigns are unveiling ads this week relying on very different messages to appeal to voters being asked for the first time to abandon the death penalty since it was restored more than three decades ago. In short, the pro-Proposition 34 forces are asking voters to save California money and rid the state of the justice system's most costly and controversial law. And law enforcement foes of the measure are reminding the public of the notorious killers who wind up on death row, from Richard Allen Davis to mass murderer Charles Ng.

Proposition 34 backers on Monday launched a series of statewide television and radio ads, bankrolled by a campaign that has pulled in more than $6.5 million from a roster of the rich and famous. Actors Martin Sheen and Edward James Olmos provide the introductions to the television ad, which features a Los Angeles man who spent more than 20 years in prison for a murder he did not commit.

The radio spots focus on the central theme of the Proposition 34 campaign: that the California death penalty system is too flawed and expensive to maintain and should be scrapped to save what backers say could be a billion dollars or more in the coming decade. Don Heller, a former Sacramento prosecutor who co-authored the 1978 law and has now renounced the death penalty, anchors the radio ads. "These ads are going to be important," said former Los Angeles District Attorney Gil Garcetti, a one-time death penalty supporter now backing the campaign.

Meanwhile, the cash-strapped opposition to Proposition 34, with just a few hundred thousand dollars in campaign funds raised so far, is relying on Web advertisements that offer up a new death row villain to profile every few days, highlighting victims' families and law enforcement officials who've encountered the worst killers in California. The ads thus far have included Ng and the most recent released on Monday about Tahua "Tao" Rivera, sentenced to die for the 2004 slaying of a Merced police officer.

Using what they call a "grass roots" campaign, the No on Proposition 34 leaders are also taking their show on the road. That includes a public event Tuesday in San Jose, where Santa Clara County District Attorney Jeff Rosen, San Mateo County District Attorney Steve Wagstaffe and Marc Klaas, father of murder victim Polly Klaas, will speak out against the measure.

October 23, 2012 in Campaign 2012 and sentencing issues , Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, October 22, 2012

"Effects of change in California criminal justice system difficult to discern"

The title of this post is the headline of this notable new article appearing in the Sacremento Bee.  Here are excerpts:

Critics of a year-old law shifting responsibility for thousands of convicted felons to the counties have seized on the brutal beating of a San Joaquin County woman -- allegedly by a man released from jail just days before the attack -- as evidence that the law is eroding public safety.   But criminal justice experts say that understanding the law's effects will take more time and more information than a few headline-grabbing cases can provide.

Parolee Raoul Leyva allegedly beat Brandy Marie Arreola, then 20, into a coma in April. Shortly before the attack, Leyva had been sentenced to jail for 100 days for violating the conditions of his parole. 

He was released after two days because of overcrowding in the jail.  Before the passage last year of the criminal justice reform law -- AB109 -- he would have been subject to prison time, rather than jail, for the parole violation.  Critics of prison realignment, as AB109 is commonly known, say crime rates are surging because fewer people such as Leyva are going to prison, and some may be getting out of jail early because of overcrowding.

Leyva's last prison term was for motor vehicle theft, a nonviolent offense.  Crimes classified as nonviolent are now met with jail or community supervision instead of prison. Violations of parole by nonviolent offenders also mean jail time rather than prison for the offender.

The law's enactment followed a court order to reduce the state's prison population.  The prisons were at double their capacity at the time of the order.  Since then, the prison population has dropped by more than 26,000 inmates.

"It's diminishing public safety," said Lynne Brown, director of Advocates for Public Safety, a group that represents law enforcement officers who want to repeal AB109.   Republican legislators agree, and they have called for a special session of the Legislature to change or kill the law.  They say that crime has increased in Sacramento, Stockton, Oakland and Los Angeles, according to preliminary numbers from police departments.

But police data actually show a mixed picture.  In Sacramento, Part I crimes, those that are reported to the FBI and eventually become the uniform crime rate for a city, are up by 8.1 percent this year compared with the same period in 2011. Homicides, however, decreased by 18.5 percent, according to Sacramento Police Department crime data.

Violent crime is currently down in Los Angeles by 7 percent and property crime is the same year-to-date.  In Oakland, Part I crimes have increased by 20 percent, according to the Oakland Police Department.  Some increases -- like those for rape (up 21 percent) and robbery (up 20 percent) -- are striking.  Part II crimes -- including minor assault, drug possession, vandalism and fraud – have decreased by 10 percent....

But determining the effect of a single policy on crime rates is difficult, said Joan Petersilia, professor of law at Stanford University and co-director of the Stanford Criminal Justice Center. "That is one of the hardest questions to answer in crime," Petersilia said. Factors that influence crime rates range from the economy and the unemployment rate to family life, Petersilia said.

Shrinking police forces in cities struggling with tight budgets might also have an effect, noted Barry Krisberg, director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at UC Berkeley....

Counties have responded to the law in different ways, from sending people back into the community with ankle bracelets to putting people who once would have gone to prison in jail.  Realignment in Los Angeles, which is increasing its jail population, is different from realignment in San Francisco, where the focus is on rehabilitation and reducing the jail population.  "Realignment isn't one thing," Krisberg said.  "It's 58 things."

The law did not include any method for assessing the impact of the policy change. Counties that have accepted technical assistance from the state are required to report on their realigned population, but there are no set standards for what specific data counties must report.

Researchers, including Petersilia, are working on studies funded by foundations. "The state is not collecting data on this," Krisberg said.  "I think it is scandalous."  Nuanced analysis is essential to understanding the effects of realignment, Petersilia said.  "We do a great disservice when we ask if it is working and only look at one measure."

October 22, 2012 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, October 21, 2012

Kentucky Commission on Human Rights urges state abolition of death penalty

As reported in this local article, headlined "Human Rights Commission passes resolution to abolish death penalty in Kentucky," last week a state civil rights commission formally called for repeal of Kentucky's death penalty. Here are the details:

Arguing that capital punishment is often applied unfairly against minorities and the poor, the Kentucky Commission on Human Rights board has passed a resolution opposing the death penalty in Kentucky.

The commissioners, at a meeting Wednesday in Lexington, urged the Kentucky General Assembly to repeal the law that allows the use of the death penalty in murder convictions. The commission also urged Gov. Steve Beshear to sign any such law brought before him. The resolution unanimously passed by the commissioners will be submitted to Beshear and to each state legislator.

As of April 1, Kentucky had 35 inmates on death row at the Kentucky State Penitentiary in Eddyville, according to the NAACP Legal Defense and Educational Fund. Marco Allen Chapman was the last Kentucky inmate executed, by lethal injection in 2008....

The commission resolution read: “Since 1976, when Kentucky reinstated the death penalty, 50 of the 78 people sentenced to death have had their death sentence or conviction overturned, due to misconduct or serious errors that occurred during their trial. This represents an unacceptable error rate of more than 60 percent.”

The resolution said statistics show “the death penalty is disproportionately imposed on minorities and the poor. African Americans constitute 12 percent of the U.S. population, but represent 42 percent of prisoners on death row.” It cited figures from Amnesty International that more than 20 percent of black defendants executed since 1976 were convicted by all-white juries.

A press release from the Kentucky Commission on Human Rights concerning this resolution is available at this link.  I find notable, and somewhat troubling, that this resolution cites national statistics on race and the application of the death penalty, but fails to discuss Kentucky's statistics.

I suspect the failure to discuss Kentucky's racial data in the application of the death penalty is a result of the fact that vast majority of murderers on Kentucky's death row are white.  Indeed, based on the pictures on this page of the 34 Kentucky death row defendants from the state Department of Corrections, it appears that 29 are white (85%) which is spot on with the percentages of white in Kentucky's general population.  (Of course, the proper statistical comparision is death sentences as compared to capital murderers, but those are hard numbers to find without serious research.  Then again, one would hope a state commission might do this kind of research before passing a resolution on a topic of great importance.)

October 21, 2012 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (39) | TrackBack

Saturday, October 20, 2012

Deputy AG Cole says federal prohibition to be enforced regardless of pot legalization initiatives

This new Reuters article, headlined "U.S. stance on marijuana unchanged by legalization votes: official," reports on new (and not very surprising) comments from a Justice Department official about state marijuana initiatives. Here are excerpts:

A top Justice Department official has told "60 Minutes" the federal government is ready to combat any "dangers" of state-sanctioned recreational pot, amid criticism of the Obama administration for its relative silence on legalization drives in three states.

Voters in Colorado, Washington state and Oregon are set to vote on November 6 on whether to legalize and tax marijuana sales, raising the possibility of a showdown with the federal government, which views pot as an illegal narcotic.

Deputy Attorney General James Cole, in comments to "60 Minutes" posted on Saturday to the website of CBS affiliate KCNC-TV in Denver, said his office's stance on pot would be "the same as it's always been" if voters approved legalization.

"We're going to take a look at whether or not there are dangers to the community from the sale of marijuana and we're going to go after those dangers," Cole told "60 Minutes" in an outtake from a report on Colorado's medical marijuana industry due to air on Sunday, according to the CBS affiliate.

Cole's statement is an indication the federal government, which has raided medical pot dispensaries in several of the 17 states that allow cannabis as medicine, could also take aim at state-sanctioned recreational marijuana.

It also represents a break with the Obama administration's relative silence about the pot referendums, which has led to uncertainty about whether federal officials would stop states from taxing and regulating sales of pot in special stores to those 21 and older, as proposed under each of the three state initiatives before voters....

In 2010, Holder issued a toughly worded letter that said his office "strongly" opposed the California proposal and would "vigorously enforce" drug laws against participants in the recreational pot trade, even if state law permitted it. Holder's statement is credited with helping to convince some California voters to reject the proposal.

"Compared to what they did two years ago in California, to have their federal posture be essentially a wait-and-see approach is encouraging," said Ethan Nadelmann, head of the Drug Policy Alliance, which through affiliates has funded marijuana legalization campaigns.

Polls show the American public is increasingly leaning toward legalizing pot, but no state has taken that step. Nadelmann said pot legalization is popular with young people and independents, two groups of voters crucial to President Barack Obama's re-election campaign, and that his administration is "being smart in basically not weighing in at this time."

Some recent and older related posts:

UPDATE: The "60 minutes" segment from which this story emerges will be broadcast on Sunday, October 21, and here is a link to a preview, which provides this introductory paragraph:

Colorado's thriving medical marijuana business isn't just named for the color of today's green, potent pot. It's the color of the money being made in the medical marijuana industry.  Steve Kroft goes to the Rocky Mountain state to report on a business that's legal there and 16 other states, but in the eyes of the federal government is still as illegal as dealers selling heroin or LSD.  "Rocky Mountain High" will be broadcast on 60 Minutes Sunday, Oct. 21 at 7:30 p.m. ET and 7:00 p.m. PT.

October 20, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (8) | TrackBack

"Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases"

The title of this post is the title of this new article appearing on SSRN and authored by Tigran Eldred. Here is the abstract:

The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-known: severe underfunding, excessive workloads and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided.  Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings.

To answer this question, this article focuses on the psychology of ethical decision-making. Relying on research that reveals the subtle ways that self-interest can cause people to overlook unethical behavior, it argues that defense lawyers will tend to be “ethically blind” to their own poor performance.  Concluding that lawyers who suffer from ethical blindness cannot be expected to improve the quality of legal representation on their own, it recommends ways to reduce psychological barriers to competent representation that have proven successful in other contexts.

October 20, 2012 in Who Sentences? | Permalink | Comments (5) | TrackBack

Effective review of evolution in lethal injection execution processes in the states

Web101912LethalDrugsFINALThe Austin American-Statesman has this lengthy article on modern state lethal injection protocols, which is headlined "Execution changes occur without public scrutiny, input." Here are excerpts:

On July 9, when Texas switched from three drugs to just one to execute its most heinous criminals, Rick Thaler, the state’s No. 3 corrections official, signed off on the change without fanfare after consulting with prison officials in other states.

No public hearings. No legislative action. No public vote by the prison system’s nine-member governing board, which routinely votes on tweaks to prison policies, such as hazardous-duty pay bumps for individual employees and donations of vegetable and Bibles.

Under a state law enacted years ago, Thaler — a former guard and warden with no medical training — alone decided the change on how Texas’ ultimate punishment is administered. His signature on the revised 10-page execution policy was all it took to upend almost three decades of precedent using three drugs in executions.

Lethal injection faces increasing scrutiny nationwide with states scrambling to keep their death chambers operating as their supplies of drugs run short, and because of that, critics of the death penalty say, the execution process is much more haphazard than it once was....

For their part, Texas prison officials say they are simply doing what they must to carry out the law, and they echo the response of colleagues across the country: Courts have approved all the changes so far. The changes occur at a time when the death penalty appears to be under increasing siege across the country. Five states have suspended executions because of pending court challenges, five others have in recent years abolished executions altogether and, by some polls, public support for the death penalty appears to be at its lowest point in decades....

For the [last] three decades, the three-drug cocktail was the execution norm in most states: Sodium thiopental, a fast-acting barbiturate that put the convict to sleep; pancuronium bromide, a paralytic that stopped breathing, and potassium chloride, a drug that stopped the heart.

Court challenges to the execution drugs dead-ended, and prison officials in Texas and other states kept their death chambers buzzing. Of the 848 prisoners executed nationally by lethal injection in 30 years, 487 of them died in Texas — a state that executed just 361 convicts in its electric chair in 40 years.

By this summer, as its existing lethal drug supply expired, Texas found pancuronium bromide unavailable. It was then, on July 9, just days before a scheduled execution, that Thaler signed off on using a single drug. The change was approved without public notice, with little explanation and without even the agency’s nine-member governing board voting on it. Under agency policy, Thaler, director of the prison agency’s Correctional Institutions Division, is delegated sole responsibility for the execution procedure.

As Texas Department of Criminal Justice spokesman Jason Clark explained it, the reason for the July change was that “the agency’s stock of the second drug expired and the agency was unable to obtain a new shipment.”...

Other states also have made the switch to different drugs or one drug without much, if any, public debate. In fact, several states, including Oklahoma, have enacted laws keeping most details about their execution process secret — the suppliers, the amounts on hand and the expiration dates....

Megan McCracken, an attorney and death penalty expert with the University of California’s Berkley School of Law, said the fast-changing methods and drugs used in executions highlight a flaw in the system: There is no solid medical justification for the selection and use of specific drugs. “(Texas) is able to change protocols with little or no oversight, no public input, little or no public knowledge,” she said. “When the Legislature delegates rule-making authority to an agency, that should not take it completely out of the light of day.”

She and Denno said the fast switches of drugs could portend legal issues ahead — because, as McCracken says, it seems to be occurring “with little or no medical examination or input. … Are (states) approaching this from the standpoint of what’s most humane, or are they just looking at what’s most expedient?”

“This has always been a sloppy process from the start, and recently it seems to have gotten worse now than it ever was,” Denno said. “Any attorney now worth their salt will be challenging the lethal injection procedure.”

October 20, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, October 19, 2012

"Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases"

The title of this post is the title of this interesting-looking new piece up on SSRN authored by Todd Haugh. I would be eager to read this article based solely on the first sentencing of the abstract, which is "Ted Kaczynski and Bernie Madoff share much in common." But especially with the sentencing of Rajat Gupta scheduled for next week (basics here), I now think this piece should be a weekend must-read for lots of folks. Here is the full abstract:

Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions — mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity — Kaczynski’s and Madoff’s plight at sentencing — may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, and sentencing options, Madoff’s attorneys offered almost nothing to mitigate his conduct, simply accepting his fate at sentencing. In the end, Kaczynski’s attorneys were able to convince the government, the court, and their client that a life sentence was appropriate despite that he committed one of the most heinous and well-publicized death penalty-eligible crimes in recent history. Madoff, on the other hand, with almost unlimited resources at his disposal, received effectively the same sentence — 150 years in prison — for a nonviolent economic offense. Why were these two ultimately given the same sentence? And what can Madoff, the financier with unimaginable wealth, learn from Kaczynski, the reclusive and remorseless killer, when it comes to federal sentencing?

The answer lies in how attorneys use sentencing mitigation strategies. This Article contends that federal white collar defendants have failed to effectively use mitigation strategies to lessen their sentences, resulting in unnecessarily long prison terms for nonviolent offenders committing financial crimes. The white collar defense bar has inexplicably ignored the mitigation techniques perfected by capital defense attorneys, and in the process has failed to effectively represent its clients. After discussing the development of the mitigation function in capital cases and paralleling it with the evolution of white collar sentencing jurisprudence, particularly post-Booker, this article will present seven key mitigation strategies currently used by capital defense teams and discuss how these strategies might be employed in federal white collar cases. The goal throughout this Article will be to highlight new strategies and techniques available in defending white collar clients and to enhance sentencing advocacy in federal criminal cases.

October 19, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

For free health care from well-paid medical personnel, commit a serious crime in California

The snarky title of this post is prompted by this new AP story, which is headlined "High pay a costly legacy of Calif. prison receiver."  Here is how it starts:

A doctor at California Medical Facility was paid more than $410,000 last year, while a registered nurse at High Desert State Prison made nearly $236,000 -- more than twice the statewide average in both cases.  A pharmacist at Corcoran State Prison was paid more than $196,000, nearly double what is typical across the state. 

Compensation for medical providers has soared in the prison system since a federal judge seized control of inmate health care in 2006 and appointed an overseer with the power to hire and set pay levels.  As the official begins to wind down his oversight, the medical hiring and salary increases have helped lead to an improvement in inmate care, but it has increased the bill for taxpayers too. 

It has also led to criticism that the official -- called a receiver -- provided a "Cadillac" level of care for convicted felons.  A state review found that only Texas pays its state prison doctors more that California.

"The problem that we had is that the receiver was not accountable to anybody," said former state Sen. George Runner, a Republican who has frequently criticized the program. "So the receiver could just do or choose to spend whatever amount of money he thought was necessary to solve his problem, and unfortunately now the state is stuck with that," he said.

The receiver for medical care, J. Clark Kelso, said the state has been free to collectively bargain health care providers' salaries since a court order increasing their wages expired three years ago.

The receiver's goal was to correct a prison medical system that was ruled unconstitutional for its substandard care and, at one point, contributed to an inmate death each week through negligence or malfeasance.  To do that, the receivership increased salaries, created new positions at high pay and hired hundreds of employees to fill longtime vacancies.

Total spending on medical, dental and mental health care for inmates, numbering 124,700, has more than doubled over the last decade, from $1.1 billion in fiscal year 2003-04 to a projected $2.3 billion this year.  The number of medical, mental health and dental workers in the prisons more than doubled over six years, from 5,100 in 2005, the year before the receivership was created, to 12,200 last year.  More than 1,400 were administrators who don't directly treat inmates, according to a state Assembly oversight committee.

October 19, 2012 in Prisons and prisoners, Who Sentences? | Permalink | Comments (8) | TrackBack

High-profile state jury acquittal of New Jersey's "Weedman" on distribution charges

WeedmanThis local article, headlined "'NJWeedman' acquitted; Still faces prison time for possession," reports on a notable verdict in a high-profile state marijuana distribution case.  Here are the details:

Although a jury acquitted Ed “NJWeedman” Forchion of drug distribution on Thursday, the medical marijuana activist could still spend time behind bars for his love of pot.  Forchion, a Pemberton Township native who has long been a champion for the legalization of marijuana, was found guilty for possessing marijuana in a trial in May but a verdict could not be reached on the more serious distribution charge.

Forchion, who had been living in California, was arrested in Mount Holly in 2010 with a pound of pot in his trunk. After the retrial this week, the jury in Superior Court in Burlington County deliberated for only a short time on Thursday before returning a verdict of not guilty.  “I’m vindicated,” an upbeat Forchion said in an interview after the verdict announcement on Thursday.  “The people just don’t believe in the marijuana laws anymore.”

Forchion, 47, grew up in Browns Mills but later opened a medical marijuana dispensary in California.  He was arrested in April 2010 when he returned to New Jersey to visit his children and was stopped in Mount Holly with a pound of pot in his trunk. Since then, Forchion has heavily promoted his case in an effort to further argue against New Jersey’s marijuana laws.

Forchion was allowed to talk to jurors in both cases about his status as a licensed medical marijuana patient in California.  But he was barred from using his oft promoted “jury nullification” argument that would have asked jurors to disregard the state’s laws on marijuana use in determining a verdict that was instead based upon their own view of the substance.  “I think the jurors agree with me,” Forchion said Thursday.

But while avoiding the much more hefty weight of the drug distribution charge, Forchion still faces up to 18 months in prison when sentenced Jan. 17 for drug possession.  Forchion said he hopes the judge will consider the fact he is enrolled in a cancer study in California for painful tumors in his legs.

Forchion, who says he relies on marijuana to control pain from his tumors, has maintained that he never had any intent to peddle his “medicine” to others....  Forchion, a laid back, dread-locked Rastafarian who holds nothing back when it comes to his penchant for the wacky weed, has gained a large following of supporters.  He even admitted to jurors on Thursday he had eaten pot-laced cookies and brownies throughout the proceedings in court.

Recent related article:

October 19, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, October 18, 2012

SCOTUS stays a Texas execution, refuses stay in Florida case

As detailed in orders here and here, this afternoon the Supreme Court granted a stay to stop the execution of Texas death row inmate Anthony Haynes who was due to be executed this evening (background in this local press report), and denied a stay and the cert petition for Florida death row inmate John Ferguson (background in this local press report).

October 18, 2012 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Pennsylvania legislature passes "Miller fix" bill with additional juvenile provisions

As reported in this local article from Pennsylvania, a "bill to adjust sentences for juveniles who commit murder and keep regular juvenile offenders out of detention centers goes to the governor for signing after winning final approval Wednesday in the Senate." Here is more:

The measure, approved 37-12, is a response to the U.S. Supreme Court decision in June striking down state laws that require juveniles convicted of homicide to life in prison without a chance of parole.

It establishes a sentencing tier for murder tied to the age of a juvenile offender.  For example, a juvenile under age 15 would serve at least 25 years for first-degree murder. Under current state law, individuals convicted of first degree murder face a minimum life term regardless of age.

The bill, sponsored by Sen. Stewart Greenleaf, R-12, Willow Grove, requires courts to consider the least restrictive punishment for regular juvenile offenders. This is a response to abuses in the sentencing of juveniles to a for-profit detention center uncovered by the Luzerne County Courthouse scandal....

The bill includes a provision sponsored by Rep. Gerald Mullery, D-119, Newport Twp., to expand the scope of the state Office of the Victim Advocate to include victims of juvenile crime. The office is currently prohibited from advocating for victims of juvenile crime.

This AP article provides a bit more detail on the Miller fix part of this legislation:

The bill would create a new set of sentencing options, with penalties that depend on the age of the defendant and whether they're convicted of first- or second-degree murder. Defendants 14 or younger would serve at least 20 years for second-degree convictions and 25 years for first-degree convictions.  Offenders who are 15- to 17-years old would face at least 25 or 35 years.

This new state legislation, which I assume will get signed into law by the Governor of Pennsylvania, provides a great example of how even narrow constitutional rulings by the judiciary can often prod dynamic and broader criminal justice reforms by other government branches.

October 18, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, October 17, 2012

Fifth Circuit holds district judge cannot accept plea agreement and then strike appeal waiver provision

The Fifth Circuit has an intriguing new ruling addressing whether a "district court had the authority to strike [defendant]’s appeal waiver" while still accepting his guilty plea agreement. The decision comes in US v. Serrano-Lara, No. 11-41269 (5th Cir. Oct. 16, 2012) (available here), and here is a key passage from the panel's ruling:

Here, the district court’s striking of the appeal waiver was tantamount to rejection of the plea agreement under Rule 11(c)(5).  Hence, the court should have followed the procedure enunciated in that rule.  On the other hand, a court choosing to accept a plea agreement does not then have the option to perform a judicial line-item veto, striking a valid appeal waiver or modifying any other terms.

Our prior holdings, together with the persuasive authority of our sister circuits, counsel in favor of prohibiting a district court from striking a valid appeal waiver.  Therefore, we hold that the district court did not have the authority to strike Serrano-Lara’s appeal waiver, and he has thus waived his right to appeal.

October 17, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"Rajat Gupta Should Walk Free Wednesday"

The title of this post is the headline of this notable commentary by Walter Pavlo in Forbes with a notable sentencing recommendation for a high-profile federal white-collar sentencing scheduled for next week. Here are excerpts:

On October 24, former McKinsey director, former Goldman Sachs director, former Proctor & Gamble director, former American Airlines director, former Bill & Melinda Gates Foundation director, Rajat Gupta will stand before Judge Rakoff to be sentenced on criminal counts that he was part of an insider trading scheme. The operative word in describing Gupta these days is Mr. “Former” of everything. His life as a professional is over, but that doesn’t mean it should end with a prison sentence.

Gupta no longer sits as an esteemed member on various boards, nor is he sought after by universities to address students ... he is a convicted felon and now we await the crescendo of this criminal prosecution when the prison sentence is announced on Wednesday. Oh and what a spectacle it will be. There will be so much excitement as court artists will capture the moment in chalk, journalists will make a bolt for the courtroom door to fill in the blank (Prison Years) they have in the stories they wrote on Tuesday, and photographers will grab a photo of Gupta entering and leaving the courthouse. If one photographer is lucky he/she will get one of Gupta and his family crying and hugging outside the courtroom. CNBC, FOX and Bloomberg will recruit some former federal inmate to recount his prison experience so that we, the interested public, understand what the Harvard MBA Gupta will expect upon showing up at some prison. The truth is, Gupta shouldn’t be going to prison at all.

Judge Rakoff has an opportunity to give Mr. Gupta a year or two of probation. Ample punishment has already been doled out to Gupta and prison is just a poor excuse as a way to hold him up as an example to the rest of us. Gupta should be treated fairly and fairness would be sending him home to his family and not to some prison camp that would offer no benefit to society.

Such a sentence will put people on notice that there is justice and fairness in our courts. A justice that takes into account a person’s value to society and the detriment of taking that person away. Prison, in the case of Gupta, would not be a remedy, it would simply add to the misconception that prison is the panacea for all criminal cases. My hope is that Judge Rakoff uses this case and this man to make that statement.

Related posts on upcoming Gupta sentencing:

October 17, 2012 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, October 16, 2012

Rooting for crime and punishment questions at tonight's town-hall Prez debate

600x399101In this post before the first debate in Denver between the Prez candidates, I correctly predicted that there would not be a single question dealing with criminal justice issues (despite the reality that a significant portion of federal government spending and a massive portion of state government spending is devoted to these big government programs).  Tonight's scheduled town-hall tussle on Long Island is probably going to follow the same script.  But I think there is at least a slim chance that one of the real people being allowed to ask real questions might be allowed to really press the candidates on the really interesting issues for sentencing fans like federal pot prohibition or mass incarceration or even the administration of the federal death penalty or perhaps state felon disenfranchisement. 

For old-times sake, I tracked down the last memorable discussion of crime and punishment in a town-hall debate.  Specifically, almost exactly 12 years ago, on October 17, 2000 to be precise, the death penalty came up during the town-hall debate between then-Governor George W. Bush and then-Vice President Al Gore.  Here are excerpts from this capital Q&A from a dozen years ago via this debate transcript:

Mr. ANDERSON:  In one of the last debates held, the subject of capital punishment came up, and in your response to the question, you seemed to overly enjoy, as a matter of fact, proud that Texas leads the the nation in execution of prisoners.  Sir, did I misread your response, and are you really, really proud of the fact that Texas is number one in executions?

Gov. BUSH:  No, I'm not proud of that. The death penalty is very serious business, Leo. It's an issue that good people obviously disagree on. I take my job seriously, and if you think I was proud of it, I think you misread me, I do.  I was sworn to uphold the laws of my state.  During the course of the campaign in 1994 I was asked, `Do you support the death penalty?' I said I did if administered fairly and justly, because I believe it saves lives, Leo. I do.  I think if it's administered swiftly, justly and fairly, it saves lives....

There have been some tough cases come across my desk.  Some of the hardest moments since I've been the governor of the state of Texas is to deal with those cases.  But my job is to ask two questions, sir: Is the person guilty of the crime, and did the person have full access to the courts of law?  And I can tell you, looking at you right now, in all cases those answers were affirmative.  I'm not proud of any record.  I'm proud of the fact that violent crime is down in the state of Texas.  I'm proud of the fact that we hold people accountable, but I'm not proud of any record, sir. I'm not....

Vice Pres. GORE:  I support the death penalty. I think that it has to be administered not only fairly, with attention to things like DNA evidence, which I think should be used in all capital cases, but also with very careful attention if, for example, somebody confesses to the crime and somebody's waiting on death row, there has to be alertness to say, 'Wait a minute, have we got the wrong guy?'  If the wrong guy is put to death, then that's a double tragedy, not only has an innocent person been executed but the real perpetrator of the crime has not been held accountable for it and in some cases may be still at large.  But I support the death penalty in the most heinous cases.

Mr. LEHRER:  Do both of you believe that the death penalty actually deters crime? Governor?

Gov. BUSH:  I do. That's the only reason to be for it.... I don't think you should support the death penalty to seek revenge. I don't think that's right.  I think the reason to support the death penalty is because it saves other people's lives.

Vice Pres. GORE:  I think it is a deterrence.  I know it's a controversial view but I do believe it's a deterrence.

Back to the present day, In this prior post and in many others, I have already detailed some of the federal criminal justice questions I would love to hear asked of the candidates this season.  Perhaps readers will join in my on-going (and seemingly futile?) debate game by adding some queries of interest  via the comments.

A few recent and older related posts: 

October 16, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

"Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"

The title of this post is the headline of this new AP article, which includes these passages:

It’s not all hippies backing November’s marijuana legalization votes in Colorado, Oregon and Washington.  Appealing to Western individualism and a mistrust of federal government, activists have lined up some prominent conservatives, from one-time presidential hopefuls Tom Tancredo and Ron Paul to Republican-turned-Libertarian presidential candidate and former New Mexico Gov. Gary Johnson.

“This is truly a nonpartisan issue,” said Mark Slaugh, a volunteer for the Colorado initiative who is based in Colorado Springs, which has more Republicans than anywhere else in the state.  “States’ rights! States’ rights!”  Slaugh cried as he handed out flyers about the state’s pot measure outside a rally last month by Republican vice presidential candidate Paul Ryan.  Quite a few passing Republicans took the flyer....

Most Republicans still oppose legalization.  Presidential candidate Mitt Romney vows to enforce federal law.  When Ryan told a Colorado Springs TV station in September that medical marijuana was “up to Coloradans to decide,” his campaign quickly backtracked and said he agreed with Romney.

When activists make their appeal, it goes like this: States should dictate drug law. Decades of federal prohibition have failed where personal responsibility and old-fashioned parenting will succeed.  Politicians back East have no business dictating what the states do....

Tancredo launched a radio ad this week in which he compares marijuana prohibition to alcohol prohibition as a “failed government program” that, in this case, “steers Colorado money to criminals in Mexico.”

“Proponents of big government have duped us into supporting a similar prohibition of marijuana — even though it can be used safely and responsibly by adults,” Tancredo said.

Pot supporters have lined up other surprising allies this year, even as many Democrats oppose the measures.  Conservative stalwart Pat Robertson, for example, said marijuana should be legal.

In Washington state, Republican U.S. Senate hopeful Michael Baumgartner is running a longshot bid to unseat Democratic U.S. Sen. Maria Cantwell, who opposes it.  “It’s taking a different approach to a very expensive drug war, and potentially a better approach,” he said.

In Oregon, at least one Republican state Senate candidate backs legalization. Cliff Hutchison reasoned that legalizing pot would “cut wasteful government spending on corrections and reduce drug gang violence.”...

Pro-pot conservatives have counterparts on the other side — Democrats who say pot shouldn’t be legal without a doctor’s recommendation.  Democratic governors in Colorado and Washington oppose legalization.  Oregon’s Democratic governor has not taken a stand. President Barack Obama’s administration has shut down medical marijuana dispensaries in California and Colorado.

Republican Colorado state Sen. Steve King is a frequent critic of Colorado’s medical marijuana law.  Conservatives abhor government, but they also fear legalization would increase children’s drug use, he said. “It’s pretty easy to come in and say, ‘Let’s decrease government.’ And I’m all for that. This just isn’t the place to start,” King said. “We have a next generation to protect,” he said.

October 16, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Only 18 months after murder, South Dakota executes prison guard's killer

South Dakota completed an execution early this morning, which (thanks to the murderer) took place a very short time after the crime.  Here are the details from this Reuters report:

South Dakota on Monday executed an inmate convicted of beating a prison guard to death during a failed escape attempt, in the state's first execution in five years. Eric Robert, 50, was put to death by lethal injection at the state prison in Sioux Falls. He was pronounced dead at 10:24 p.m. (11:24 p.m. EDT), the corrections department said.

Robert's execution came 18 months after authorities say he and fellow inmate Rodney Berget beat guard Ronald Johnson to death with a lead pipe and attacked other officers in an escape attempt on Johnson's birthday in April 2011....

Robert pleaded guilty to first-degree murder in the killing of Johnson, waived a jury for sentencing, told the judge during sentencing that he would kill again if he did not receive the death penalty and opposed efforts to halt his execution. Corrections officials said his last words were: "In the name of justice and liberty and mercy I authorize and forgive Warden Douglas Weber to execute me for my crimes. It is done."

According to court records, Robert was five years into an 80-year sentence for kidnapping a young woman when he and Berget planned their escape from the prison in Sioux Falls. The men entered an area of the prison they were not allowed to be in and attacked Johnson with a lead pipe. Robert then put on the guard's pants, shoes, jacket and baseball cap and Berget hid on a cart, court documents show. Robert tried to push the cart with Berget inside through a prison exit, but was challenged by an officer, setting off a fight with several guards before they surrendered, they show....

Executions have been rare in South Dakota -- there have only been two since 1913. "In this case, Eric Robert admitted to his crime and requested that his punishment not be delayed," South Dakota Governor Dennis Daugaard said in a statement.

But the state might have a second execution in October.  South Dakota is scheduled to execute Donald Moeller for the 1990 rape and murder of 9-year-old Becky O'Connell the week of October 28 to November 3.  The prison warden schedules the specific date and time.

Before Robert's execution, 31 prisoners had been executed in the United States in 2012, according to the Death Penalty Information Center.

Though I am not an expert on such things, I suspect the relatively short period between crime and execution in this case might be a modern death penalty record.

October 16, 2012 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (24) | TrackBack

Monday, October 15, 2012

Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?

The question in the title of this post are prompted by this new piece at the Huffington Post, which is headlined "States Legalizing Marijuana Will Violate Federal Law, Trigger Constitutional Showdown: DEA, Drug Czars." The piece starts this way:

On a Monday teleconference call, former Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy voiced a strong reminder to the U.S. Department of Justice that even if voters in Colorado, Oregon and Washington pass ballot measures to legalize marijuana use for adults and tax its sale, the legalization of marijuana still violates federal law and the passage of these measures could trigger a "Constitutional showdown."

The goal of the call was clearly to put more pressure on Attorney General Eric Holder to make a public statement in opposition to these measures. With less than 30 days before Election Day, the DOJ has yet to announce its enforcement intentions regarding the ballot measures that, if passed, could end marijuana prohibition in each state.

"Next month in Colorado, Oregon and Washington states, voters will vote on legalizing marijuana," Peter Bensinger, the moderater of the call and former administrator of DEA during Ford, Carter and Reagan administrations, began the call. "Federal law, the U.S. Constitution and Supreme Court decisions say that this cannot be done because federal law preempts state law."

Bensinger added: "And there is a bigger danger that touches every one of us -- legalizing marijuana threatens public health and safety. In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed. Drug treatment admissions are up and the number of teens using this gateway drug is up dramatically."

Bensinger was joined by a host of speakers including Bill Bennet and John Walters, former directors of the While House Office of National Drug Control Policy; Chief Richard Beary of the International Association of Chiefs of Police (IACP); Dr. Robert L. DuPont, founding director of the National Institute on Drug Abuse (NIDA) and who was also representing the American Society of Addiction Medicine (ASAM) and several others.

The position being pushed here by past and current drug warriors seems to have a little bit of a "chicken little" sky-is-falling quality to it.  Nevertheless, the apparent urgency of these respected voices confirms my strong belief that this is a topic very worthy of discourse on the Presidential campaign trail.  I am cautiously (and perhaps foolishly) optimistic that the next Prez debate's town hall format has the best chance to bring these issues into national discourse.  But even if it does not, I hope some members of the media might follow-up on these matters in interviews with both of the presidential contenders.

Some recent and older related posts:

October 15, 2012 in Campaign 2012 and sentencing issues , Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (18) | TrackBack

"John Paul Stevens, Originalist"

The title of this post is the title of this intriguing paper now on SSRN by Professor (and former Stevens clerk) Diane Marie Amann. Here is the abstract:

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as "practitioner of judicial restraint," "legal realist," "pragmatist," or "originalist." This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens's jurisprudence paid heed to the fourth method, "originalism."  It looks in particular at Justice Stevens's opinions in recent cases involving firearms, national security, and capital punishment.  Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind of originalist -- as a Justice duty-bound to identify and enforce principles, such as liberty and fairness, that the Framers embedded in the Constitution.  To do so, Justice Stevens has practiced a fifth methodology, one that synthesizes many sources and interpretive techniques in an effort to reach a decision that serves a contemporary understanding of justice.

I must note that this Essay mentions Baze in its discussion of Justice Stevens as an originalist, but makes no mention of Apprendi.  For that reason, I suspect that this piece is more provocative than comprehensive in making the case for a special kind of Stevens-filtered originalism.  Still, with the last section of the Essay headed "Justice Stevens, Justice Scalia, and the Substance of Liberty," I think this is still a must-read.

October 15, 2012 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, October 14, 2012

"The Skeptic's Guide to Information Sharing at Sentencing"

The title of this post is the title of this notable new article by ProfessorRyan Scott, which is now available via SSRN. Here is the abstract:

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges.  Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases.  According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.

This Article takes a skeptical view of the information sharing model, arguing that it suffers from three fundamental weaknesses as an alternative to other structured sentencing reforms. First, there are information collection challenges.  To succeed, the model requires sentencing information that is written, comprehensive, and representative.  Due to acute time constraints, however, courts cannot routinely generate that kind of information.  Second, there are information dissemination challenges.  Sharing sentencing information raises concerns about the privacy of offenders and victims.  Also, the volume and complexity of sentencing decisions create practical difficulties in making relevant information accessible to sentencing judges.  Third, the model’s voluntariness is an important drawback.  The information sharing model rests on the heroic assumption that judges will respond to information about previous sentences by dutifully following the decisions of their colleagues.  That is unrealistic.  Judges just as easily can disregard the information, ignore it, or even move in the opposite direction.

Despite those grounds for skepticism, information sharing can play a valuable role as a supplement to other sentencing reforms.  In particular, information sharing would benefit from a system of sentencing guidelines, whether mandatory or advisory, and from open access to the information on the part of defense counsel and prosecutors.

October 14, 2012 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Notice-and-Comment Sentencing"

The title of this post is the title of this intriguing-looking new article by Professors Richard Bierschbach and Stephanos Bibas, which is now available via SSRN.  Here is the abstract:

As the real policymakers of criminal justice, prosecutors and other criminal-justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend.  But they make those value-laden decisions out of sight, with little public input into or oversight of the tradeoffs involved.  This gap between prosecutors as agents and the public as their principal leaves prosecutors free to pursue their own self-interests, risking arbitrary outcomes, endangering the legitimacy of criminal justice, and undercutting public confidence and respect.  Administrative law has long grappled with similar issues, seeking to constrain and legitimate agency decisions made in the public interest by soliciting and responding to public input.  But criminal justice has no comparable mechanisms for public participation.

We propose a system of “notice-and-comment sentencing,” modeled loosely on notice-and-comment rulemaking, to review the range of decisions that cash out at sentencing. That approach would provide the public with advance notice, solicit a broad range of views, require responses to significant criticisms, and elicit statements of reasons to ground appellate oversight.  Notice and comment would operate at the wholesale level on prosecutors’ charging and plea-bargaining policies, as well as sentencing commissions’ guidelines and possibly police enforcement policies.  It might also operate at the retail level within categories of especially significant crimes, soliciting factual information and possibly policy views about individual cases and creating feedback loops on the application of wholesale policies in concrete contexts.  Notice-and-comment sentencing would not only better constrain agents and blend expert and lay perspectives, but also enhance legitimacy and increase public confidence in seeing justice done.

October 14, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

One of thousands of post-Miller personal (and sentencing) stories

The front page of today's New York Times includes this notable account of one set of stories surrounding one Pennsylvania juvenile murder case dealing with the potential impact of the Supreme Court's Miller ruling. The piece is headlined "Juvenile Killers and Life Terms: a Case in Point," and here is how it gets started:

To this day, Maurice Bailey goes to sleep trying to understand what happened on Nov. 6, 1993, when as a 15-year-old high school student he killed his 15-year-old girlfriend, Kristina Grill, a classmate who was pregnant with his child.

“I go over it pretty much every night,” said Mr. Bailey, now 34, sitting in his brown jumpsuit here at the Fayette State Correctional Institution in western Pennsylvania, where he is serving a sentence of life without parole for first-degree murder.  “I don’t want to make excuses. It’s a horrible act I committed. But as you get older, your conscience and insight develop. I’m not the same person.”

Every night, Bobbi Jamriska tries to avoid going over that same event.  Ms. Jamriska, Kristina’s sister, was a 22-year-old out for a drink with friends when she got the news. Ten months later, their inconsolable mother died of complications from pneumonia.  Weeks later, their grandmother died.  “During that year, I buried four generations of my family,” Ms. Jamriska said at the dining room table of her Pittsburgh house, taking note of her sister’s unborn child.  “This wrecked my whole life. It completely changed the person I was.”

When the Supreme Court in June banned life sentences without parole for those under age 18 convicted of murder, it offered rare hope to more than 2,000 juvenile offenders like Mr. Bailey.  But it threw Ms. Jamriska and thousands like her into anguished turmoil at the prospect that the killers of their loved ones might walk the streets again.

The ruling did not specify whether it applied retroactively to those in prison or to future juvenile felons.  As state legislatures and courts struggle for answers, the clash of the two perspectives represented by Mr. Bailey and Ms. Jamriska is shaping the debate. Resentencing hearings have begun in a few places, but very slowly.

The governor of Iowa commuted the mandatory life sentences of his state’s juvenile offenders but said they had to stay in jail for 60 years before seeking parole, which critics said amounted to life in prison.  Some Iowa resentencing is starting in courts despite that proclamation.

In Florida, a few hearings are in early stages even though an intermediate court ruled that juveniles serving mandatory life terms did not have the right to be resentenced.  In North Carolina, life without parole has been changed from a requirement to an option, with a 25-year minimum sentence for those seeking parole.

Here in Pennsylvania, which has the most juvenile offenders serving life terms — about 480 — the State Supreme Court is examining retroactivity while the legislature works on a bill that would put felons like Mr. Bailey behind bars for a minimum of 35 years.

The United States Supreme Court decision said that sentences of life without parole for juveniles failed to take account of the role of the offender in the crime (killer or accomplice), the family background (stable or abusive) and the incomplete brain development of the young.  Recent research has found that youths are prone to miscalculate risks and consequences, and that their moral compasses are not fully developed.  They can change as they get older.

UPDATE: I just came across this separate article from the Detroit Free Press providing a Michigan perspective on these post-Miller issues.   The piece is headlined "Supreme Court ruling may give those sentenced to life as juveniles a chance at freedom," and it highlights that "[w]ith 358 juvenile lifers, Michigan ranks second in the country behind Pennsylvania, which has 475 juvenile lifers ... [and] accounts for nearly 14% of the more than 2,600 prisoners serving life sentences without parole for crimes committed when they were juveniles."

October 14, 2012 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, October 13, 2012

Noting the intriguingly unpredictable politics around Washington's marijuana initiative

This New York Times article, headlined "Marijuana Referendum Divides Both Sides," provides an intriguing reports on the political debates in Washington state over its ballot initiative to repeal the state's pot prohibition. Here is how the piece starts:

Most efforts to legalize marijuana possession have generally run aground in the face of unified opposition. Mothers Against Drunk Driving led the charge in helping to defeat a ballot measure in California in 2010. Law enforcement groups, not too surprisingly, have also been largely opposed in the past.

But in Washington State, as a measure that would legalize possession of small amounts of marijuana heads toward a vote next month, the opposition forces have been divided, raising hopes by marijuana advocates of a breakthrough. A poll conducted last month by Elway Research showed that 50 percent of voters either definitely or probably were in favor of legalizing the possession of an ounce of marijuana or less.

Some former law enforcement officials have appeared in television ads in favor of the legalization. Safety concerns about drugged driving have been muted by a provision of the measure, called Initiative 502, that would create a standard to measure impairment. A promised flood of tax money to drug and alcohol treatment programs from legal marijuana sales has also kept some antidrug groups on the sidelines.

But if opponents are in disarray or disagreement, supporters of legalization are as well. And that is making the outcome hard to predict, both sides say. In fact, some of the most vehement opposition to the initiative is coming from what might seem the least likely corner of all: medical marijuana users. Organized through a group called No on I-502, they say the plan, especially the new legal standard of impairment while driving, creates a new legal risk for regular users because THC, marijuana’s primary psychoactive ingredient, can stay in the bloodstream for days after consumption, and thus be measurable by a blood test whether a person is impaired or not.

Some recent and older related posts:

October 13, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack