Wednesday, May 23, 2012

News groups bring suit to ensure access to full Idaho execution process

As reported in this AP article, the "Idaho Press-Tribune, along with the Associated Press and 16 other organizations, sued the state of Idaho Tuesday to force officials to let witnesses watch executions from start to finish, arguing that the media has a First Amendment right to view all steps of a lethal injection execution." Here is more about the suit:

The group asked a U.S. District Court judge to require the state to increase witness access to its executions, starting with the upcoming execution of Richard A. Leavitt, a convicted killer scheduled to be put to death on June 12....

Idaho, like most states with lethal injection, bars witnesses from watching as a condemned inmate is brought into the execution chamber, strapped to the table and has IVs inserted into his or her arms.  The news organizations say reporters must be able to view executions from start to finish so they can accurately report the events — and any complications that may emerge — to the public....

“This lawsuit is really all about obtaining access to the entire execution process for viewing purposes. It’s very important in a society such as ours to have full transparency in regards to the exercise of government authority,” said Chuck Brown, the attorney representing the news organizations.

The states that grant access to part of the death penalty process say they do so to protect the anonymity of the execution team.  Idaho Department of Correction spokesman Jeff Ray said the department had not yet had a chance to review the lawsuit, and that the state’s attorneys would respond to the claims in court.

The lawsuit relies heavily on a 2002 San Francisco-based federal appeals court ruling that found that witnesses should be allowed to view executions from the moment the condemned enters the death chamber until their final heartbeat.  Since the ruling, only one state under the court’s nine-state jurisdiction is following it: California, where the case arose. Idaho, Arizona, Washington, Montana and Nevada have all barred witnesses from the first half of lethal injection executions.

Most states nationwide do the same.  Of the 27 states that have lethal injection outside of the circuit’s jurisdiction, only Ohio and Georgia allow witnesses to see the entire process....

The Idaho organizations decided to sue after state officials limited access to the execution of Paul Ezra Rhoades. Put to death in November, Rhoades was the first person to be executed in the state in 17 years, and only the second in the last half-century.  Media interest in the event was intense, and the department selected four journalists to view the proceedings.

May 23, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, May 22, 2012

Effective coverage of modern reentry issues

The Christian Science Monitor has this terrific, lengthy piece discussing modern reentry challenges facing the nation in the months and years ahead.  The piece is headlined "US prison inmates returning to society: How will they be received?".  Here are excerpts:

From California to New York, Texas to Michigan, a record number of convicted criminals are either being released from cells or serving time in community-based programs as states, under pressure to cut costs, adopt new philosophies on how to handle nonviolent offenders and many inmates incarcerated in the 1970s and '80s near the end of their terms. In some cases, lawsuits designed to reduce overcrowding are forcing authorities to open prison doors as well.

These days roughly 700,000 ex-cons are hitting US streets each year -- a new high, according to Marc Mauer, executive director of the Sentencing Project, a Washington-based advocacy group. While the vast majority of the inmates are nonviolent, some ... served sentences for serious crimes and are now winning parole in higher numbers.

The result is an unprecedented test -- of authorities' ability to monitor the newly released prisoners, of social service groups' capacity to help them forge new lives, of the inmates' willingness to start over, of communities' tolerance to let them do so.

Nowhere is this social experiment playing out with more intensity than in California, the nation's largest jailer. It is looking to move as many as 33,000 prisoners out of state penitentiaries over the next year alone, many of whom could end up on the streets. It will provide the country's clearest look at how ready many criminals are to be on the outside -- and society's readiness to have them there.

America's arc in getting to this point involved a lot of clanking cell doors.  From 1973 to 2009, the US prison population grew by more than 700 percent -- the result of an uptick in crime, huge numbers of drug arrests, and tough sentencing laws.  At the end of that time more than 1.6 million people sat behind bars in federal and state penitentiaries, the largest inmate population in the world.

Yet in 2010, for the first time in 38 years, the US prison population declined.  Experts cite myriad reasons for the modest (0.3 percent) drop: a decrease in crime in many cities, more use of alternative sentencing, and fewer people put back in prison for parole violations.  Early release of inmates for good behavior was also a factor.

Half the states in the country reported a decrease in their prison populations last year. The number of inmates in Michigan, which hit a peak of 51,500 in 2006, now sits around 43,500.  The state has closed down 17 penitentiaries and prison camps as a result.

Similarly, New York State has emptied more than 15,000 prison beds over the past decade, mostly through sentencing reform.  New Jersey's prison population has dipped, too, in part because of early parole grants.  Even rawhide-tough Texas gave up plans five years ago to build eight new prisons, channeling the money instead into probation programs, outpatient treatment, and drug courts.

"We're starting to see a triumph of sound science over sound bites," says Adam Gelb, who studies criminal justice issues at the Pew Center on the States, a Washington research group. "State leaders from both parties are adopting research-based strategies that are more effective and less expensive than putting more low-risk of-fenders into $30,000-a-year taxpayer-funded prison cells."

While states are emptying cell beds for different reasons, the one common motive is the high cost of keeping so many people behind bars.  States now spend more than $51 billion a year on prisons -- the equivalent of the gross domestic product of Syria.  Prisons represent one of the fastest-growing items in state budgets at a time of pressing fiscal penury. Many states face fraught decisions over whether to spend money on classrooms or concertina wire.

Reducing prison budgets, in part by sentencing nonviolent offenders to programs outside prison walls, is one of the few issues many groups on the left and right now agree on. "There's more cooperation on this topic than on any other that I can think of right now," says Marc Levin of Right on Crime, a conservative group whose supporters include former presidential candidate Newt Gingrich, antitax crusader Grover Norquist, and former Florida Gov. Jeb Bush.

May 22, 2012 in Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack

Interesting new JPI study on monies (over?)spent on police forces

Rethinking_the_blues_cover-full;size$350,454As reported in this press release, the Justice Policy Institute today has published a notable new report on police forces. According to the press release, this new report, titled "Rethinking the Blues: How we police in the U.S. and at what cost," asserts that modern "police forces have grown from locally-funded public safety initiatives into a federally subsidized jobs program, with a decreasing focus on community policing and growing concerns about racial profiling and 'cuffs for cash,' with success measured not by increased safety and well-being but by more arrests." The report's executive summary is available at this link, and here are excerpts:

Although crime rates are at the lowest they have been in over 30 years, the number of arrests has declined only slightly between 2009 and 20102 and the U.S. still spends more than $100 billion on police every year.  This money goes to fund 714,921 sworn police officers and an increasing number of militarized police units.

Police play a role in protecting communities from violent and property crime. However, police forces have morphed over the years from a locally-funded and managed entity to protect public safety, to also serving as a federally-funded jobs initiative, an engine for surveillance, and a militaristic special forces agency engaged in a war on drugs, gangs, and youth.  Federal government funds and involvement have helped create large police forces that are disconnected from communities and operate in a punitive rather than preventative way resulting in more arrests, more prison, and more costs to taxpayers, among other negative effects on communities.  It is not just the sheer number of police that lead to more arrests and more prison, but also the style of policing, which treats entire communities as though they should be contained, surveilled, and punished....


1. Reform laws and sentencing so police don’t have to pick and choose.  State and federal policymakers must take sentencing reform seriously, reducing the harmful impacts of harsh sentences, and must examine both drug laws and those related to other lesser offenses to determine where they might be rolled back or eliminated completely.

2. Reallocate resources to positive social investments known to improve public safety. Research shows that investing in services and programs that keep people out of the justice system is more effective at improving public safety and promoting community well-being than investing in law enforcement.

3. Focus law enforcement on the most serious offenses. Arrests for low-level offenses have less of an impact on public safety, but still use up considerable law enforcement resources.  Focusing law enforcement efforts on the more serious offenses will allow officers to use their resources more effectively, thereby improving public safety.

4. Implement policies that allow police to issue citations over arrests for certain offenses.  A number of cities across the country have started to recognize the waste involved in arresting people for certain low-level offenses, which result in people spending days and sometimes longer in jails.

May 22, 2012 in Criminal Sentences Alternatives, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

"The Kinder, Gentler Drug Czar Still Wants to Lock You Up for Pot"

The title of this post is the headline of this amusing new piece by Russ Belville at The Huffingon Post.  Here are excerpts:

Drug Czar Gil Kerlikowske has a new article on The Huffington Post where he once again attempts to fulfill his statutory duty to scare the bejeezus out of Americans who might be considering the legalization of marijuana in three states and the medicalization of marijuana in a dozen others.  This time he cites stats from something called ADAM, warning that over half of arrestees in ten surveyed metro areas tested positive for drugs! You need to be afraid, very afraid, of the crime-seeking drug junkies!

He opens by setting the "Kinder Gentler Drug Warrior" frame established by his former adviser, Kevin Sabet, Ph.D. -- the idea that both legalization and prohibition are ideological extremes.  Gateway Gil has even begun using our terminology ("we can't arrest our way out of this problem") to pretend that the Obama Administration presents a rational, compassionate third approach...

How does that "third way" work? Well, instead of busting you for smoking pot and putting you in a cage, the kinder gentler drug warrior will bust you for smoking pot and put you before a judge in a drug court who lets you "choose" between rehab and a cage.  Then in rehab, they'll force you to swallow and regurgitate lies about your "problem" marijuana use, require you to pee in a cup and, should that turn up positive, put you in a cage for smoking pot for a longer time than if you'd just chosen the cage in the first place.  See, in the old "War on Drugs" paradigm, we only created jobs and revenue for cops, judges, lawyers, and prison guards.  With the "Kinder Gentler War on Drugs," we add jobs for rehabs, pee testers, and probation officers, too.

They say if you want to understand an organization's priorities, don't look at their mission statement, look at their budgets.... The Obama Administration has, indeed, increased funding for treatment and prevention over the Bush Administration's budgets.  But Obama has increased funding for law enforcement, interdiction, and international funding, too. In overall terms, Obama has devoted $102 billion in his first term to the War on Drugs, while in Bush's last four years, the figure is $91 billion.  The percentage of the War on Drugs that is still dedicated to the "war" side averages at 59.3 percent throughout the first four years of Obama, when it averaged 59.0 percent in the last four years of Bush.

Some recent and older related posts on drug courts and drug politics: 

May 22, 2012 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, May 21, 2012

Federal judge rules Texas officials can be liable for sex offender conditions

This new article from the Austin American-Stateman, which is headlined "Judge: Parole officials can be held liable over sex offender restrictions," reports on a notable ruling from a federal judge concerning suits against how Texas has managed its sex offender registry.  Here are the details:

In the latest rebuke of state policies for classifying parolees as sex offenders, an Austin federal judge has ruled that top state parole officials can be held personally liable for continuing missteps.

U.S. District Judge Lee Yeakel of Austin, in an order issued late Friday, blasted the state's continuing refusal to provide due process hearings before imposing restrictive sex-offender conditions on felons never convicted of a sex crime.  Yeakel for the first time ruled that the seven-member state Board of Pardons and Paroles, 12 parole commissioners, state parole director Stuart Jenkins and other parole officials can face monetary damages for their actions.

It's a significant determination that, if not reversed on appeal, could prove costly for both the officials and taxpayers, if several pending inmate lawsuits are successful.  A jury verdict in another case two years ago cost the state approximately $80,000, officials involved in that case said earlier....

The order was the latest setback for the Texas Board of Pardons and Paroles and state corrections officials, who have insisted for years that, to ensure public safety, they could impose the stringent conditions on parolees without a due process hearing.

Although previous court rulings have required the hearings, the state has not routinely offered them until recently — and only then under certain circumstances.  Yeakel's order — the latest ruling to indicate that federal courts have lost their patience with the state — came in a suit filed by parolee Buddy Jene Yeary.

Last fall, the judge blocked the state from enforcing the sex offender restrictions — officially known as Special Condition X — on Yeary, an unusual step for a judge to take. According to state records, Yeary pleaded guilty to drug charges in 2003 in Johnson County, south of Fort Worth, and was sentenced to 25 years in prison. Though he was initially indicted on charges of aggravated sexual assault of a child, his sentence order states that "the sex offender registration requirements (in state law) do not apply to the defendant," according to the suit.

Despite that, state records show that when Yeary was paroled in the summer of 2007, parole officials required him to register as a sex offender, placed him under the restrictive sex-offender conditions of release and ordered him to participate in a sex offender treatment program.

In his order Friday, Yeakel ruled that the state has for six years been aware that it must provide hearings to parolees in such cases and that officials' continuing failure to do so leaves them open to liability.  "In light of the resistance of the state of Texas to providing parolees with the procedural due process guaranteed them by the Constitution, even after receiving repeated mandates from federal and state courts, the court is unconvinced that Texas will not return to its unconstitutional policies and practices," the 31-page order states. "Any stigmatic injury suffered by Yeary due to the imposition and continued enforcement of Special Condition X may entitle Yeary to compensatory damages."

Yeakel refused to dismiss Yeary's lawsuit, as state officials had asked.  Instead, he said it would head to a trial....

The ruling comes after years of legal decisions requiring state parole officials to provide hearings before they impose sex offender restrictions on felons never convicted of a sex crime. In addition to federal courts, the state Court of Criminal Appeals last fall ordered the restrictions removed from the parole conditions for a Houston kidnapper because he was not afforded a due process hearing before they were imposed and because he had not been convicted of a sex crime.

May 21, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Public policy groups urge Senate Judiciary Committee to investigate US Pardon Attorney Office

As this new press release reports, Families Against Mandatory Minimums "today released a letter signed by more than three dozen criminal justice reform, religious and civil rights organizations urging the Senate Judiciary Committee to investigate the Office of Pardon Attorney (OPA) at the U.S. Department of Justice."  The text of this letter is available at this link, and here is an excerpt:

The news story jointly published by ProPublica and The Washington Post on May 14 [blogged here] revealed disturbing new information about misconduct in the Office of the Pardon Attorney (OPA) at the U.S. Department of Justice with regard to applicants for sentence commutations. The story follows an earlier report released last December about OPA’s role in the pardon process.  For those of us who were already concerned that the OPA was hindering the clemency process, the two stories confirmed our fears.  It is time for action. We urge you to investigate the activities of the OPA since at least 2001 and to hold an oversight hearing as soon as possible to review the serious questions that have been raised in these news reports....

The OPA was created ostensibly to assist the president in the exercise of this important function.  The recent media investigations into the OPA’s activities, however, suggest that there are troubling racial disparities in the application of pardons and that OPA is withholding or misrepresenting critical information from the presidents it is supposed to serve.  Taxpayers should not be forced to subsidize an office that is abusing its power, nor should applicants for executive clemency face a deck that is stacked against them in secret.

Related posts concerning federal clemency practices:

May 21, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Detailing declines in capital indictments and sentences in Ohio

This new article from my own Columbus Dispatch, which is headlined "Death-penalty cases drop: New sentencing options and changes in attitudes mean fewer are being sent to Death Row," provides an accounting of changes in the administration of the death penalty in Ohio in recent years.   Here are excerpts:

Franklin County sent 17 people to Death Row from 1985 to 2003, an average of nearly one a year.  Then things changed.  The death sentence imposed last week on Caron E. Montgomery was the county’s first in nearly nine years.

The numbers have declined statewide, as well.  Since the state’s current death-penalty statute was enacted in 1981, the number of Ohioans sentenced to death fell from a record 24 in 1985 to one in 2009.  Last year, three people were sent to Ohio’s Death Row. 

“I don’t think there’s any one reason for it,” said Ohio Public Defender Timothy Young. “I think it’s a combination of reasons.”   The reasons include a change in cultural attitudes about the death penalty, the financial burden associated with trying and appealing such cases and the availability of life without parole as an alternative, he said.

Franklin County Prosecutor Ron O’Brien said his office began reassessing how it handles potential death-penalty cases in 2005.  “We’re looking at mitigating factors now, just as a judge or jury would, and not just at the crime,” he said. “We’re asking, ‘What is the realistic possibility of obtaining the death penalty in this case?’  ”

Death-penalty indictments in Franklin County dropped dramatically as a result, from 34 in 2004 to five in 2005. Last year, three death-penalty indictments were filed in the county. O’Brien said he changed his approach to the cases after working with the U.S. attorney’s office in early 2005 on the federal death-penalty case against Daryl Lawrence, who was convicted of murdering Columbus police Officer Bryan Hurst and sentenced to death by a federal jury....

The Lawrence case also coincided with a 2005 change in state law that allowed a life sentence without parole to be imposed for aggravated-murder cases that didn’t qualify for the death penalty.  Previously, life without parole was only possible in death-penalty cases. “Suddenly, prosecutors didn’t have to file a death-penalty indictment to get to life without parole,” Young said.

He thinks that’s among the reasons for a statewide decline in death-penalty indictments, from 98 in 2004 to 56 in 2011.  Only Cuyahoga County continues to indict a significant number of death-penalty cases.  In the past three years, 115 were indicted there, accounting for 53 percent of all death-penalty cases in the state.... But for all those indictments, Cuyahoga County sent only three defendants to Death Row in the past three years.

All 33 states with the death penalty on the books now allow judges and juries to consider life without parole as an alternative, said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C....  “Juries are hesitant about the death penalty because of all the revelations about wrongful convictions,” Dieter said. “Life without parole is seen as an acceptable alternative.”

Recent related post:

May 21, 2012 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, May 20, 2012

"Plea-bargaining cases: Form over substance"

The title of this post is the headline given to this notable commentary in the National Law Journal by Harlan Protass concerning what the significant SCOTUS rulings in Lafler and Frye did not do. Here are excerpts:

Lafler and Frye no doubt provide an important remedy to criminal defendants who didn't receive effective assistance from their lawyers in plea negotiations and, thus, were subjected to less favorable outcomes. But neither decision provides any real support to attorneys actually looking to effectively help their clients decide whether or not to go to trial. Rather, only changes in the rules governing governmental disclosure obligations will.

Fifty years ago in Brady v. Maryland (1963), the Supreme Court recognized the importance of disclosing favorable information to criminal defendants bearing on either their guilt or punishment.... Since then the Supreme Court has held in U.S. v. Agurs (1976) that the duty to disclose exculpatory evidence applies even if there has been no request by a defendant or his lawyer and, in U.S. v. Bagley (1985), that the information government lawyers must disclose includes impeachment as well as exculpatory evidence....

Disclosure of all Brady material is obviously important for purposes of  trial. But it's also critical to defense counsel seeking to size up a case and advise their clients concerning the key question of whether or not to go to trial.  After all, it's difficult to give good legal advice without a full picture of the government's case.  Effective assistance of counsel in the context of plea negotiations therefore is difficult to provide without all Brady material in hand....

[But] uncertainty continues as to when favorable Brady material must be disclosed. According to the NACDL, most courts apply a vague and confusing rule requiring disclosure only "in time for the defense to reasonably use the evidence."  Moreover, most federal district courts don't have clear directives specifying the timing of disclosure.  And DOJ's own guidelines still provide ­prosecutors with broad discretion concerning the timing of Brady disclosures....

Various proposals have been made to change the timing of Brady disclosures, thereby giving defense lawyers a real chance in plea negotiations — in other words, the materials they need to provide the effective assistance of counsel contemplated by Lafler and Frye. For example, proposed legislation entitled the "Fairness in Disclosure of Evidence Act of 2012" would require — "without delay after arraignment and before entry of any guilty plea" — prosecutors to turn over all evidence that "may reasonably appear favorable" to a criminal defendant....

Lafler and Frye surely provide important procedural protections for criminal defendants. They permit relief even after trial for the failure of a defense lawyer to communicate a plea offer or provide competent advice concerning such an offer.  Notwithstanding those benefits, discovery reform, rather than post-conviction procedural protections, is the best means for assuring that criminal defendants receive effective assistance of counsel when considering government plea offers.

May 20, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Federal civil commitment of sex offenders subject to new legal challenges

This lengthy article, headlined "Prisoners challenge extended confinement for sex crimes," provides an effective report on the nature and status of the legal issues surrounding sex offenders that the feds have civilly committed after they have completed their prison terms. Here are excerpts:

The high walls surrounding the Federal Correctional Complex at Butner leave no doubt that it’s a prison.  But for dozens of men held behind those walls, there is a growing question of whether they should be prisoners.

They have served their time and now are being imprisoned not for what they did, but what they might do.  They are sex offenders being held -- sometimes for years -- under a recent federal law that allows the detention of those deemed so dangerous the government will not risk their release even when their sentence is complete.  Now, with the bulk of the detainees being held at Butner, federal courts in North Carolina are trying to sort out who should remain in and who should be released from this legal limbo.

Lawyers for the detainees say the extended captivity reflects a law that applies a different and unfair standard to sex offenders.  They also say many detainees do not meet the level of threat the 6-year-old law requires for indefinite detention.  “The law doesn’t seem fair to me,” said Raleigh attorney John Keating Wiles, who has represented several of the men.  “Traditionally, we don’t take away people’s liberty because they might commit a crime.”

The U.S. Department of Justice has sought to extend the confinement of at least 136 sex offenders since 2006, but almost half the attempts have been rejected by the courts or dropped by the government.  Of the men being held for hearings, some, indeed, have criminal histories and behavioral offenses inside prison that raise questions about their release into the community.

In some cases, though, it is unclear whether the problems are deviant sexual compulsions or broader mental impairments and illness compounded by drug and alcohol abuse.  By law, a federal judge must rule on whether a detainee is too dangerous to be released.  In the Eastern District of North Carolina, a visiting judge from Michigan has been brought in, and several district judges have been assigned to help clear a backlog of cases that stacked up in the first four years after the law was passed.

Many cases were stalled by the lawsuit brought on behalf of Graydon Comstock, one of the first to be detained as sexually dangerous after serving time for receiving child pornography.  In 2011, a year after the U.S. Supreme Court ruled the government had that authority, a federal court ruled on the merits of classifying Comstock as sexually dangerous and found he did not qualify for commitment.

Eric J. Brignac, a federal public defender who has been involved with many of the cases in the state’s Eastern District, said the commitment procedure has highlighted a societal challenge. “It’s that tension between liberty and security,” Brignac said....

Each case essentially becomes a battle of the experts, with the government presenting doctors, psychologists and mental health analysts to bolster its claims. The defense brings in experts who offer their own assessments. It is up to a judge to sort through the opinions and evidence....

Thomas Shane Matherly, 36, who was scheduled for release in November 2006 but awaits a hearing on whether he’s sexually dangerous, was in New Bern in March in a federal courthouse making an argument similar to that made by the so-called “enemy combatants” detained at Guantanamo Bay. He argued that he is being wrongly held and is seeking damages of more than $50 million for emotional pain and suffering.

Court filings in his case offer a picture of life inside Butner for sex offenders caught in the legal limbo.  His life is like that of a prisoner. He wears an inmate uniform and eats in the prison mess hall. Matherly contends that he and others in a similar circumstance often are called “baby rapers” and “child molesters,” taunts that “very likely could lead to a physical confrontation at some point.”

In some ways, Matherly contends, his detention under the civil procedure has been more restrictive than when he was serving his sentence for possessing child pornography. Prisoners can take classes in blueprint reading, carpentry, car care and electrician skills, he contends, but detainees may not.  Narcotics Anonymous and Alcoholics Anonymous sessions are not available to the detainees, he says.  The detainees are not given as much access to the recreation yard, he complains, or the recreation center with TVs, pool tables, basketball courts, exercise equipment, a band room and hobby-craft rooms.

“The government cannot have it both ways,” Matherly stated in court documents seeking damages. If the confinement is part of a civil process, he further stated, he should not be confined like a criminal. “Civil means civil,” Matherly stated, “with all the rights that accompany it.” Matherly argues that he has “the right to be free from harm.”...

The men branded by the government as sexually dangerous ostensibly are being held because they are mentally ill and need treatment, but few have enrolled in the sexual offender treatment program.  Lawyers and mental health workers advise them to be careful what they say in therapy, acknowledging that it could be used against them at trial....

Some question whether the underlying notion behind the new commitment procedure is about treating the sickest and most dangerous or more about issuing life sentences in cases where criminal law would not otherwise allow. Though prison statistics show low recidivism rates among sex offenders, high-profile cases of repeat offenders have left a lingering belief to the contrary.  “In general, sex offenders are seen as different,” said Brignac, the public defender.  “I think, in part, it is because we see them as incurable.”

May 20, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, May 18, 2012

What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?

The question in the title of this post is prompted by this recent commentary by Harlan Protass in the Des Moines Register headlined "Jail sentence doesn't fit the crime." Here are snippets:

Sholom Rubashkin, a first-time, non-violent offender, was convicted in 2009 of bank fraud related to his operation of a kosher slaughterhouse in Postville.  He is no Boy Scout.  He committed financial fraud, was convicted at trial and deserves punishment.  Like any defendant found guilty of having committed a federal crime, Rubashkin also was constitutionally entitled to consideration of all arguments for leniency, an explanation of the reasons for the sentence he received, and review of that punishment by a higher court.

But when Chief District Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa disregarded her obligation to consider Rubashkin’s grounds for mercy and instead just sentenced him to 27 years behind bars, she left the appellate judges who examined Rubashkin’s case with no means for determining whether the penalty she imposed was fair, just or reasonable.  That’s why it’s so important for the U.S. Supreme Court to hear Rubashkin’s appeal....

A series of recent Supreme Court decisions prohibit judges from mechanically adhering to federal guidelines.  Rather, judges are supposed to use their own judgment when meting out sentences, including consideration of all factors that might mitigate the sentence suggested by the guidelines. Simply put, judges are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to reflect a host of penal objectives.

In Rubashkin’s case, Judge Reade paid only lip service to these legal requirements.  She dispatched her obligation to consider factors other than the federal guidelines in a mere four pages of her 52-page sentencing decision.  She essentially gave the back of her hand to the mitigating detail presented by Rubashkin’s lawyers, including his responsibility for 10 children, his extensive charitable activities, the absence of any indication that he was motivated by greed, and, most significantly, the disproportionality of the sentence recommended by federal guidelines as compared to those handed down in fraud cases of similar size and scope.

On appeal, the U.S. Court of Appeals for the Eighth Circuit essentially ignored Judge Reade’s omissions, inaccurately stating that she had “explicitly discussed each possible basis” for a shorter sentence than that called for by federal guidelines.  In doing so, that court failed to fulfill its own obligation to ensure that sentences conform with the constitutional standards set by the Supreme Court.

To ensure the promise of a fair and just criminal justice system, it is critical that the Supreme Court, which is currently considering his request for a hearing, review Rubashkin’s case.  It should find that judges must state on the record — in a written statement of reasons or during the sentencing hearing itself — that they considered and how they accounted for each and every mitigating factor.

This is of particular importance to those who receive sentences measured in decades, not years, like the 27-year prison term that Rubashkin received.  The alternative — silence by sentencing judges — is constitutionally unacceptable, not only for the likes of Rubashkin, but also for any other citizen who might one day run afoul of the law.

As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I concur with this commentary's advocacy for SCOTUS review in this case focused on sentencing issues.  In addition, as detailed in this ABA Journal report, my amicus brief was one of six filed in support of cert.  One amicus brief, authored by former SG Seth Waxman, concerns recusal issues based on the presiding judge's pre-trial involvement with prosecutors as "was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr." And, other amicus briefs "were filed by the National Association of Criminal Defense Lawyers ..., the Association of Professional Responsibility Lawyers, a group of 40 legal ethics professors, and the Justice Fellowship. Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit's new trial standard."

All this amicus support, together with the fact that former SG (and SCOTUS magician) Paul Clement is representing Rubashkin before the High Court, surely raises significantly the odds of a cert grant.  But, while making a cert grant more likely, it is hard to ever assert that a cert grant in a federal criminal case is "probable."  Indeed, in this effective Slate commentary focused upon the judicial bias issues raised by the case, Emily Bazelon concludes with this sober assessment:

The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias.  When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too.  The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade.  But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well.  Judges shouldn’t be able to make up their own rules for policing themselves.

As this Supreme Court docket sheet reveals, the feds will not be filing a response to all the cert advocacy until at least early July, and thus the Justices will not be considering this case directly until well into summer.  To its credit, SCOTUS recently has not shield away from taking up high-profile criminal cases raising high-profile issues (see, e.g., US v. Skilling), and thus I am a bit more optimistic that Bazelon that SCOTUS will take up the Rubashkin case.  But I am eager to hear from readers as to whether they think this might be just wishful thinking on my part.

May 18, 2012 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Gall reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

North Carolina prosecutors convene to strategize about Racial Justice Act claims

This local piece from North Carolina, headlined "Prosecutors will learn how to fight Racial Justice Act," reports on the next chapter in the on-going story concerning the law and practices surrounding the state's Racial Justice Act. Here are the details:

A month after a Cumberland County judge ruled for the defendant in the first case under the Racial Justice Act, about 60 prosecutors from across North Carolina are coming to Forsyth County today to learn how to fight motions filed under the law.

Forsyth County prosecutors are preparing for two pending motions under the Racial Justice Act, a law adopted in 2009 that allows defendants and death-row inmates to use statistics and other evidence to prove that race played a significant role in their cases.

The motions filed under the act deal with statistics from a study by two Michigan State University law professors finding racial disparities in the application of the death penalty. Successful motions can lead to changing a death sentence to life in prison without the possibility of parole.

Forsyth County prosecutors are consulting with statistical experts and other witnesses who might be used in other Racial Justice Act cases across North Carolina. Forsyth County District Attorney Jim O'Neill said giving other prosecutors a chance to hear those experts in a one-day session saves money.

He declined to comment on specifics of the training because it deals with pending litigation, but he said in general that the Racial Justice Act has resulted in expensive legal actions.

O'Neill said he and other prosecutors tried to warn legislators that the Racial Justice Act would cost millions of dollars in taxpayer money, to no avail. "This training session is my attempt to save at least some money for the taxpayers," he said....

O'Neill and other prosecutors have opposed the Racial Justice Act, calling it a backhanded attempt to end the death penalty. They have also said the law would clog the court system. More than 95 percent of the people on death row have filed under the act....

Peg Dorer, executive director of the N.C. Conference of District Attorneys, said the Racial Justice Act cases are unusually complex because they deal with statistics. "It has nothing to do with the facts of the case," she said. "It has to do with statistical cases in the study."

Tye Hunter, executive director of the Center for Death Penalty Litigation in Durham, said he has no problem with prosecutors having a training session but hopes they also deal with the racial disparities the Cumberland judge said are inherent in the death penalty. "I think what Judge Weeks said in his order was that he hoped this would be an opportunity for prosecutors to look at what they had done in the past and avoid making the same mistakes in the future," he said.

Recent related posts on first NC Racial Justice Act ruling:

May 18, 2012 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, May 17, 2012

Juve priors, sentencing enhancements and Almendarez-Torres makes SCOTUS relist watch

Hard-core Apprendi/Blakely fans (and perhaps only hard-core fans) should be excited to discover this paragraph that lurks deep within this latest installment of John Elwood's always amusing reviews at SCOTUSblog of relisted and held cases on the Supreme Court docket:

Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments.  The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” -– and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case.  (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” -– the four Almendarez-Torres dissenters plus himself -– “now recognizes that Almendarez-Torres was wrongly decided.”)  I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres –- despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here.  As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement.  But Staunton did not receive that protection.  Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response.  The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.

May 17, 2012 in Almendarez-Torres and the prior conviction exception, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding

US District Judge William Young of the District of Massachusetts, who has produced a regular supply of interesting (and lengthy) opinions about the role of juries in the modern criminal justice system, today issued another interesting (and lengthy) opinion such in US v. Gurley, No. NO. 10-10310 (D. Mass. May 17, 2012) (available for download below).  Judge Young's work always merits attention, and the 51-page sentencing opinion in Gurley does not disappoint.  There is far too much ground covered in Gurley to allow a simple summary, but here is the start of the main legal discussion section -- which begins on page 24 of the opinion! -- to provide a flavor of why Gurley is today's federal sentencing must-read:

I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.

The issues presented to this Court are whether the Court “must” apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.

I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury’s recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.

Download 10-cr-10310Gurley Mem

May 17, 2012 in Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Could Justice Breyer's affinity for sentencing guidelines make him a crime magnet?

The question in the title of this post is my silly reaction to this notable news report headlined "Justice Breyer’s Georgetown home hit by burglar."  Here are the basics:

It’s been an unpleasant couple of months for Stephen Breyer. In February, the Supreme Court justice was robbed at his Caribbean vacation house by a man wielding a machete. And more recently, we’ve learned, he suffered a burglary at his Georgetown home.

A housekeeper discovered the break-in May 4.  It appears no one was home when it happened, Supreme Court spokeswoman Kathleen Arberg confirmed to our colleague Robert Barnes.  Arberg could not say what was stolen but confirmed that no material from the court was missing. D.C. police did not immediately provide information on the incident.

It all but certain that, in both recent incidents, the offenders involvedhad no idea that they were victimizing the Supreme Court Justice who wrote the Booker remedy opinion.  Nevertheless, one cannot help but be a bit amused by the notion that some Greek God of Crime and Punishment (Nemesis, perhaps) has some comical vision of divine SCOTUS karma.

May 17, 2012 in Celebrity sentencings, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

State judge makes personal plea for right to use medical marijuana

Today's New York Times has this remarkable new op-ed authored by Justice Gustin Reichbach, who serves on one of New York's state Supreme Courts in Brooklyn. The op-ed is headlined "A Judge’s Plea for Pot," and here are excerpts:

Three and a half years ago, on my 62nd birthday, doctors discovered a mass on my pancreas. It turned out to be Stage 3 pancreatic cancer.  I was told I would be dead in four to six months.  Today I am in that rare coterie of people who have survived this long with the disease.  But I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana....

My survival has demanded an enormous price, including months of chemotherapy, radiation hell and brutal surgery.... Nausea and pain are constant companions. One struggles to eat enough to stave off the dramatic weight loss that is part of this disease. Eating, one of the great pleasures of life, has now become a daily battle, with each forkful a small victory. Every drug prescribed to treat one problem leads to one or two more drugs to offset its side effects. Pain medication leads to loss of appetite and constipation. Anti-nausea medication raises glucose levels, a serious problem for me with my pancreas so compromised. Sleep, which might bring respite from the miseries of the day, becomes increasingly elusive.

Inhaled marijuana is the only medicine that gives me some relief from nausea, stimulates my appetite, and makes it easier to fall asleep.  The oral synthetic substitute, Marinol, prescribed by my doctors, was useless.  Rather than watch the agony of my suffering, friends have chosen, at some personal risk, to provide the substance.  I find a few puffs of marijuana before dinner gives me ammunition in the battle to eat.  A few more puffs at bedtime permits desperately needed sleep.

This is not a law-and-order issue; it is a medical and a human rights issue.  Being treated at Memorial Sloan Kettering Cancer Center, I am receiving the absolute gold standard of medical care.  But doctors cannot be expected to do what the law prohibits, even when they know it is in the best interests of their patients.  When palliative care is understood as a fundamental human and medical right, marijuana for medical use should be beyond controversy....

Cancer is a nonpartisan disease, so ubiquitous that it’s impossible to imagine that there are legislators whose families have not also been touched by this scourge.  It is to help all who have been affected by cancer, and those who will come after, that I now speak.

Given my position as a sitting judge still hearing cases, well-meaning friends question the wisdom of my coming out on this issue.  But I recognize that fellow cancer sufferers may be unable, for a host of reasons, to give voice to our plight.  It is another heartbreaking aporia in the world of cancer that the one drug that gives relief without deleterious side effects remains classified as a narcotic with no medicinal value.

Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease.  I implore the governor and the Legislature of New York, always considered a leader among states, to join the forward and humane thinking of 16 other states and pass the medical marijuana bill this year.  Medical science has not yet found a cure, but it is barbaric to deny us access to one substance that has proved to ameliorate our suffering.

Ever the would-be strategic litigator, I cannot help but wonder if anyone has given serious thought to bringing a federal declaratory judgment action with Justice Reichbach pressing the claim that it would be a violation of Fifth, Eighth and/or Tenth Amendments for him to be subject to criminal prosecution for his use of marijuana under these circumstances.  The Supreme Court has ruling that federal prohibition of pot has no statutory exception for medical use and that this prohibition is a legitimate exercise of Congress's Commerce Clause powers.  But the Justices have never ruled directly concerning whether there may be an individual liberty right for a very sick person to be able to obtain and use the only drug that seems to provide personal medical relief without fear of federal prosecution. 

May 17, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (57) | TrackBack

"Since When Don't We Put a Price Tag on Justice?"

The question in the title of this post is the headline of this new Huffington Post commentary by Professor Ty Alper, which advocates for California's ballot initiative to eliminate the state's death penalty.  Here are excerpts:

Faced with unassailable evidence that the death penalty in California costs hundreds of millions of dollars per year, death penalty supporters tend to respond with what is intended to be a conversation stopper: "You can't put a price tag on justice."

But wait a minute. Don't we already? Only in a world with unlimited resources could we run government programs with no regard for their price tags....

My kids go to public school in California and I teach at a public law school. I would love to be able to say, "You can't put a price tag on an education." But that would be ridiculous. It happens all the time.

The implication in the death penalty context, of course, is that only the most heartless among us would relish telling the mother of a murder victim that the person who killed her child is not going to be executed because, well, it just costs too much.

But here's what we need to remember: about half of all rapes and murders in California go unsolved. A 2009 survey asked law enforcement officials what interfered with effective law enforcement. The number one answer was lack of resources. (Last on the list was "insufficient use of the death penalty.") Thousands of rape kits across the state sit unexamined, because there is no money to conduct DNA testing.

The victims of unsolved murders and rapes are no less deserving of justice than the victims of solved crimes. The SAFE California initiative that will be on the ballot in November would eliminate the death penalty, save $1 billion that we desperately need over the next five years, and create a "$100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases."...

I'd love to live in a California with no price tags. Until then, the price tag on the death penalty is busting our state's budget.

May 17, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

NY Chief Judge pushing for new courts to try older teens for non-violent offenses

This article from the New York Law Journal discusses a prominent jurist advocating for a novel way for the criminal justice system to handle crimes by older teens.  The article is headlined "Lippman Urges Passage of Bill to Up Age of Criminal Responsibility," and here is how it starts:

Chief Judge Jonathan Lippman has begun an aggressive campaign to achieve his top legislative priority: passage of a court system reform that would raise to 18 from 16 the age of criminal responsibility for non-violent crimes.

"You've got to sell it and you have to explain it and you've got to gather the support and build some momentum. That's how things get done in this state," Lippman said in an interview yesterday after he delivered his pitch on juvenile justice to about 150 prosecutors at the New York Prosecutors Training Institute's continuing legal education program in Brooklyn.

"We're continually talking to the different stakeholders," he said. "We're talking to everybody who is a part of this legislative process, both in Albany and the players around the state."

The bill, sent to the state Legislature last month, would establish a "Youth Division" in state superior courts — Supreme Court in New York City and County Courts upstate — to hear misdemeanor and non-violent felony charges against 16- and 17-year-olds (NYLJ, March 2). The hybrid court parts would blend the rehabilitative approach of Family Court with adult criminal courts procedure and protections.

Lippman said many stakeholders — such as prosecutors, probation departments, the defense bar and county government and municipalities — agree in essence with the courts' initiative. However, questions have been raised about its costs and mechanics.

May 17, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, May 16, 2012

"Death as bargaining chip? Ohio prosecutor slammed"

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

Within days of a drug-related slaying in suburban Cleveland, six men were indicted on charges that carried the possibility of a death sentence.  Six months later, all had been allowed to plead to lesser charges, including four who received probation and never went to prison.

In short, the men quickly went from facing the possibility of being strapped to a gurney and having 5 grams of pentobarbital injected into their veins, to prison sentences more typical for robbers and thieves.  "It probably was a negotiating tool," said defense attorney Reuben Sheperd, who represented defendant Alex Ford.  "You'll be more motivated than you were in other circumstances."

Such scenarios are typical in the county home to Cleveland, where prosecutor Bill Mason pursues dozens of offenders on capital charges each year at added expense to taxpayers and at the risk of some defendants ending up on death row for charges that would be minor elsewhere, even as the number of death penalty prosecutions plummets in Ohio and nationwide, according to an analysis of records by The Associated Press.

Elsewhere in Ohio, prosecutors are pursuing only the most heinous crimes as death penalty cases and are refusing to plea bargain, or are using a 2005 law that allows them to seek life with no chance of parole and never place capital punishment on the table.  Mason denies he uses the death penalty as a negotiating tool but also says he never rules out the possibility of lesser charges as more information about a case comes to light....

Defense attorneys have long complained about the high number of capital indictments in Cuyahoga County, a practice that precedes Mason but that he continued after first taking office in 2000.  But now one of the state's most conservative and pro-death penalty prosecutors is weighing in.

Joe Deters, prosecutor in Hamilton County, renewed questions about Cuyahoga County's approach during meetings of an Ohio Supreme Court task force.  The group, which meets again Thursday, is looking for ways to improve the state's death penalty law. "To use the death penalty to force a plea bargain, I think it's unethical to do that," Deters said in an interview.

Hamilton County, home to Cincinnati, has sent the most inmates to Ohio's death row — 61 over 30 years — though the county has indicted fewer than 200 people in three decades. Deters doesn't accept plea bargains once he decides to pursue a death penalty case.

Mason says a committee of assistant prosecutors reviews the evidence of each death penalty case and encourages defense attorneys to produce reasons that could weigh against the death penalty.  "When we seek the death penalty it is not to secure a plea bargain, but instead to equally apply the law," Mason said.

Despite the higher number of capital indictments, Mason's record of winning death sentences is no better than other counties, some of them smaller than Cuyahoga, with about 1.3 million residents.  From 2009 to 2011, for example, Cuyahoga County indicted 135 defendants on charges that could result in a death sentence, according to records maintained by Mason's office. 

Only two of those offenders were sent to death row, including Anthony Sowell, convicted in 2011 of killing 11 women.  The rest either pleaded guilty, usually with the death penalty charges withdrawn, or were convicted but not sentenced to death.  In six cases, charges were dismissed.

By contrast, Butler County in southwest Ohio, with 368,000 residents, recorded three death sentences during the same time but indicted just six people on capital charges. "The proof of guilt in a death penalty case has to be near absolute, not a crap shoot," said Butler County prosecutor Michael Gmoser. In addition, "The case has to shock the conscience of the community," he said....

Mason's approach runs counter to a 40-year-old U.S. Supreme Court decision that threw out the country's death penalty laws in part over the arbitrariness of the laws in place at the time, said Ohio state public defender Tim Young.  The risk of someone ending up on death row for a crime that might be a far lesser offense elsewhere "seems like a wildly dangerous use" of the death penalty, Young added.

I have never quite fully understood just why it would be considered completely inappropriate for a prosecutor to use death penalty charges a lot, especially given that (1) death sentences are never mandatory, (2) death charges cannot be brought unless and until a defendant commits an especially bad form of murder, and (3) only the threat of a death sentence seems likely to encourage a very guilty murder defendant to be willing to plead guilty to an offense that carries a life or LWOP term.

In contrast, there is little doubt (and too little criticism) of the tendency of prosecutors to use severe mandatory prison terms charges as a bargaining chip not only to secure a plea, but also to force a defendant to become a cooperator against others.  In many federal cases, I too often see examples of prosecutors using threats of mandatory prison terms to require non-violent drug and gun offenders to give up their rights in cases that are quite suspect and far more mitigated than any potential capital case.

In other words, I worry more about overcharging more in the application of mandatory prison terms than in capital cases.

May 16, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Big win at polls for medical marijuana supporter in Oregon AG race

As highlighted in this Reuters article, which is headlined "Supporter of Oregon medical pot law wins attorney general race," a significant primary victory for a vocal supporter of medical marijuana suggests the 2012 election cycle might be a real turning point for pot policies.  Here are the basics:

In a primary election race for Oregon's top law enforcement post, the candidate who pledged to protect medical marijuana patients scored a decisive victory Tuesday night over a rival who led a cannabis crackdown last year.

Retired judge Ellen Rosenblum, strongly backed by proponents of liberalized marijuana laws, captured 63 percent of the vote in the Democratic primary for state attorney general, trailed by former U.S. Attorney Dwight Holton with 36 percent, according to early returns.

Because no Republicans sought their party's nomination for attorney general, the Democratic primary victor, Rosenblum, becomes the presumptive winner in November's general election, making her the first woman to claim that office.

With Rosenblum and Holton taking similar stances on issues such as consumer protection, civil rights and the environment, their diametrically opposed views on medical marijuana emerged as a key point of contention in the race, so much so that the campaign was seen largely as a referendum on drug policy generally.

"As attorney general, I will make marijuana enforcement a low priority, and protect the rights of medical marijuana patients," Rosenblum said on her website before the election. By contrast, Holton called Oregon's medical marijuana law, which has left distribution and cultivation of pot largely unregulated, a "trainwreck" that was putting pot "in the hands of kids" and others who are using it for purposes other than pain management.

In a brief victory statement issued shortly after election officials began to tally the ballots, Rosenblum said she was "honored to have been selected by the voters of Oregon as their choice for the Democratic nominee (for) Attorney General of Oregon." She made no mention of marijuana or any other specific issues. Nor did Holton, who in his concession statement thanked, among others, the coalition of organized labor groups that backed his candidacy.

But medical marijuana advocates seized on Rosenblum's win as a sign that voters were at odds with the federal government's recent crackdown on storefront cannabis shops in states that have legalized personal use, possession and cultivation of pot for healthcare reasons....

The primary contest unfolded as two groups in Oregon are racing to collect enough signatures for two separate ballot initiatives seeking to legalize marijuana for recreational use in the state. If their efforts are successful, Oregon voters will join those in Colorado and Washington state who will decide on the matter in November. A total of 16 states, plus the District of Columbia, allow medical marijuana, though cannabis remains classified as an illegal narcotic under federal law.

Some experts predicted a Rosenblum triumph could resonate well outside of Oregon's largely Democratic-registered electorate. "A victory for Rosenblum could have symbolic power which would reach beyond the state into the national debate," said University of Oregon political science professor Joe Lowndes.

May 16, 2012 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (12) | TrackBack

NY legislature, responding to contrary court ruling, quick to make CP viewing criminal

As reported in this new Reuters story, headlined "N.Y. Senate passes bill to make viewing child porn on Internet a crime," legislatures have a way of moving fast when it comes to going after people who view the wrong kind of porn. Here are the details:

The New York State Senate on Tuesday passed legislation to make it a crime to view child pornography on the Internet, as lawmakers rushed to close a loophole opened by a state appeals court just a week earlier.

State law currently prohibits the possession and promotion of child pornography. But a May 8 ruling by the New York Court of Appeals held that viewing child pornography on the Internet without taking further action such as printing or saving files does not necessarily constitute possession.

The ruling caused an instant furor among state lawmakers, who are acting with unusual speed to pass corrective legislation.

The bill passed by the Senate on Tuesday would make it a felony to "knowingly access with intent to view any obscene performance which includes sexual conduct by a child less than sixteen years of age."...

About 15 states have criminalized the viewing of child pornography, many of them in response to court decisions, according to the National Center for Missing and Exploited Children.

May 16, 2012 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Continued great reporting on the toughest state in incarceration nation

As noted in this post from this past weekend, the New Orleans Times-Picayune is published a huge eight-part series on the severity of punishment and prison overcrowding in the Bayou state. This series is titled "Louisiana Incarceration: How We Built the World's Prison Capital," and every piece in the series merits a full read. Today's installment is headlined "Prison sentence reform efforts face tough opposition in the Legislature," and here are a few excerpts from the outset:

Even as prison populations have strained the state budget and prompted fiscal conservatives to join liberals in calling for changes, the political calculus in Louisiana has evolved slowly since a series of tough sentencing laws in the 1970s, '80s and '90s bloated the state's inmate counts.

If anything, the balance has remained tilted toward law enforcement. After a prison-building boom in the 1990s, Louisiana sheriffs now house more than half of inmates serving state time -- by far the nation's highest percentage in local prisons. Their financial stake in the prison system means they will lose money if sentences are shortened. They typically house the same drug pushers, burglars and other nonviolent offenders who will be the likely targets of any serious efforts to change the system.

"The three easiest votes for a legislator are against taxes, against gambling and to put someone in jail for the rest of their lives," said state Sen. Danny Martiny, R-Kenner, a veteran policymaker who has led the judiciary committees in both the House and Senate.

This lengthy piece goes on to detail how challenging it can be to forge a needed political consensus for any ameliorative sentencing reforms.

May 16, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 15, 2012

Ninth Circuit panel grudgingly allows Arizona execution to go forward

As reported in this AP article, the Ninth Circuit "is refusing to block an Arizona execution scheduled for Wednesday." Here is a quick summary of all the action:

Separate three-judge panels of the U.S. 9th Circuit Court of Appeals in San Francisco on Tuesday each denied an appeal filed on behalf of Samuel Villegas Lopez. One of the appeals challenged the state's execution procedures while the other argued that Lopez was denied effective legal representation.

Meanwhile, Lopez's lawyers have asked the Arizona Supreme Court to block his execution so a lower court can consider whether Lopez's rights to a fair clemency hearing have been violated.

Lopez is scheduled to be executed for the 1986 murder of Estefana Holmes of Phoenix.

I never cease to be amazed at all the eve-of-execution litigation that can take place more than a quarter-century after a murderer's offense.  And, as detailed in opinions linked here, a panel of the Ninth Circuit seems amazed by how Arizona is going about administering its execution protocols (even as it ultimately concludes Arizona should be allowed to move forward with its execution plans).

May 15, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Sixth Circuit panel produces pair of notable opinions in CP sentencing reversal

Judicial administration fans, as well as sentencing fans, will want to find time to check out today's Sixth Circuit panel decision in US v. Aleo, No. 10-1569 (6th Cir. May 15, 2012) (available here). The start of the majority opinion highlights what the opinion covers and what it is notable:

In this case, we deal with two appeals arising out of the criminal conviction and sentencing of Craig Aleo. Craig Aleo appeals his sentence (Part I), and his trial attorney, John Freeman, appeals the sanction imposed upon him by the district court (Part II).

Craig Aleo was sentenced to the statutory maximum sentence of 720 months of imprisonment after he pleaded guilty to one count each of producing, possessing, and transporting and shipping child pornography. His guidelines range was 235–293 months. Because we cannot find a justification within the factors enumerated in 18 U.S.C. § 3553(a) to justify the variance imposed by the district court, we reverse and remand for resentencing.

Craig Aleo’s trial counsel, John Freeman, was sanctioned $2,000, based on the district court’s inherent power to sanction, because he filed a motion asking the court to compel the government to make a formal motion regarding any victim who wanted to speak at trial pursuant to the Crime Victim Rights Act (CVRA), naming the victim, and providing a preview of the victim’s statement.  Because there is no objective evidence that trial counsel filed this motion in bad faith, we reverse.

And the start of Judge Sutton's concurring opinion highlights why judicial administration aficianados ought also find Aleo of interest:

I join the court’s decision in full, including its conclusion that the district court abused its discretion when it invoked its inherent power to impose sanctions on defense attorney John Freeman for filing a frivolous motion.  I write separately to express skepticism about a lower federal court’s power ever to use inherent authority, as opposed to the contempt power established by statute (18 U.S.C. § 401) and implemented by rule (Fed. R. Crim. P. 42), to punish a defense attorney in a criminal case for filing a frivolous motion.

May 15, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Carlos De Luna Execution: Texas Put To Death An Innocent Man, Columbia University Team Says"

The title of this post is the headline of this new Huffington Post piece, which reports on a team of notable researchers making the notable claim that they have concluded that Texas executed an innocent man way back in 1989.  Here are excerpts from the HuffPo report:

Columbia University law professor James Liebman said he and a team of students have proven that Texas gave a lethal injection to the wrong man. Carlos De Luna was executed in 1989 for stabbing to death a gas station clerk in Corpus Christi six years earlier. It was a ghastly crime. The trial attracted local attention, but not from concern that a guiltless man would be punished while the killer went free.

De Luna, an eighth grade dropout, maintained that he was innocent from the moment cops put him in the back seat of a patrol car until the day he died. Today, 29 years after De Luna was arrested, Liebman and his team published a mammoth report in the Human Rights Law Review that concludes De Luna paid with his life for a crime he likely did not commit. Shoddy police work, the prosecution's failure to pursue another suspect, and a weak defense combined to send De Luna to death row, they argued.

"I would say that across the board, there was nonchalance," Liebman told The Huffington Post. "It looked like a common case, but we found that there was a very serious claim of innocence."

Police and prosecutors treated the killing of Wanda Lopez at the Sigmor Shamrock gas station on February 4, 1983, like a robbery gone bad. A recording of the chilling 911 call from Lopez, a 24-year-old single mom working the night shift, captured her screaming and begging her killer for mercy.

De Luna, then 20, was found hiding under a pickup truck a few blocks from the gory crime scene. A wad of rolled-up bills totaling $149 was in his pocket. Eyewitness testimony formed the bedrock of the case against him. Now, that testimony is perhaps most contested aspect of his conviction....

Among the key findings in the Columbia team's report:

  • The eyewitness statements actually conflict with each other. What witnesses said about the appearance and location of the suspect suggest that they were describing more than one person.

  • Photos of a bloody footprint and blood spatter on the walls suggest the killer would have had blood on his shoes and pant legs, yet De Luna's clothes were clean.

  • Prosecutors and police ignored tips unearthed in the case files that Carlos Hernandez, an older friend of De Luna, who had a reputation for wielding a blade, had killed Lopez. The defense failed to track down Hernandez, who bore a striking resemblance to De Luna.

"If a new trial was somehow able to be conducted today, a jury would acquit De Luna" said Richard Dieter, executive director of the Death Penalty Information Center, who read a draft of Liebman's report. "We don't have a perfect case where can agree that we have an innocent person who's been executed, but by weight of this investigation, I think we can say this is as close as a person is going to come."...

One of De Luna's attorneys, James Lawrence, told HuffPost he doesn't count him among the clients who've been wrongfully accused of capital crimes. "The fact that he wouldn't help us and this was his life on the line -- that's the one thing that kept bothering the living daylights out of me," Lawrence said.

Since the Supreme Court reinstated capital punishment in 1976, there have been 1,295 executions, according to the Death Penalty Information Center. Texas leads with 482 executions.

The ease with which De Luna was prosecuted and the obscurity of his death are what makes his case so important, said Liebman. "There are many cases out there that nobody has ever looked at and are probably at risk of innocence," said Liebman. "It's a cautionary tale about the risks we take when we have the death penalty."

Intriguingly and helpfully, the details of this investigation and a lot of related materials can be accessed directly via a website maintained at this link by the Columbia Human Rights Law Review.   This Editors' Note page explains what one can find there:

In order to enhance the narrative-style of the prose and provide an uninterrupted version of the Article that would be easily accessible to a non-legal audience, HRLR is publishing Los Tocayos Carlos in print version without footnotes or endnotes.  Instead, at the conclusion of each Chapter of the Article (including the Foreword, Prologue, and Epilogue) we are including a source list that describes, in full citation form, the sources the authors used to research and write that section.

Accompanying the publication of this Issue is a website that features a version of Los Tocayos Carlos with standard footnotes.  The web version of the Article contains approximately 3,434 footnotes, each reviewed thoroughly by several members of HRLR’s Staff and Editorial Board, which provide the reader with a fuller understanding of the basis for the authors’ factual assertions and inferences. Furthermore, the footnotes provide hyperlinks to view the cited sources, allowing readers to access, download, and view for themselves the original sources instantaneously. Additional materials provided by the authors are showcased on the website as well. Included on the website are video and audio taped interviews of individuals closely involved in the narrative, family trees, diagrams, timelines, and charts. These materials are designed to enrich readers’ understanding of the events leading up to and surrounding Wanda Lopez’s murder on February 4, 1983 and Carlos DeLuna’s execution on December 8, 1989.  The web version of the article can be found on HRLR’s general website,

May 15, 2012 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (34) | TrackBack

Detailing the ugliness of modern clemency practice in Arizona

Brewer-ObamaWhile the journalists at ProPublica continues to do great work exposing the ugliness of the clemency process in the federal system (details here and here), reporters at the Arizona Republic have detailed in this recent lengthy article that the clemency norms in that state are just as ugly.  Here are the basics from an article headlined "Arizona prisoners rarely granted clemency":

By his 14th birthday, Tommy Londo was addicted to crack cocaine. With both parents in prison, he grew up on the streets of Phoenix, homeless and uneducated. He spent his teens in and out of mental hospitals and shelters. After he was arrested in 2004 for selling a $20 lump of crack to an undercover police officer, prosecutor Eric Rothblum described him as "a clear societal liability." Londo was sentenced to 15 years and nine months in prison.

Seven years later, in 2011, Arizona's Board of Executive Clemency unanimously agreed that Londo had turned his life around. He was working on his GED, was drug-free and had earned a certificate for good behavior in prison.

The board recommended commuting Londo's sentence to five years, stating in a letter to Gov. Jan Brewer that Londo was someone who "has made outstanding progress." The board noted, too, that the judge who sentenced Londo had called the prison term required by Arizona's mandatory-sentencing laws "excessively harsh" given the situation.

Brewer denied Londo clemency without comment last June. Londo has plenty of company. Statistically, if you are convicted of a felony in Arizona, you are more likely to be struck by lightning than granted clemency by the governor. Excluding the cases of inmates nearing the end of a terminal illness, Brewer is on track to grant the fewest clemency cases in more than two decades -- even when a judge and unanimous board recommend a shorter sentence.

Recent board members interviewed by The Arizona Republic believe clemency will be granted even less frequently in the future. Indeed, Brewer's decision to replace three of the five clemency-board members at once last month has led to legal and political turmoil: Departing board members say they were ousted for voting to grant clemency; and attorneys for an inmate scheduled to be executed Wednesday will be in Maricopa County Superior Court on Monday, seeking a court order to nullify the appointments, arguing that they violated state laws. If the court agrees, it would invalidate dozens of board decisions from the past three weeks and could stall the clemency process....

Budget cuts have reduced the number of clemency cases the board can hear to one-fourth as many as three years ago, creating a nearly two-year, 900-case backlog. This withering of clemency brings both personal fallout, in ruined lives and separated families, and a financial cost to taxpayers, who pay to house and feed inmates who could otherwise be working and paying taxes. In Londo's case, it will cost taxpayers at least $200,000, based on Department of Corrections per-inmate prison-cost estimates of $22,166 a year....

From 1913, when Arizona established a board of pardons and paroles, until 1993, fewer than 60 inmates a year applied for commutation, on average. In 1993, the state adopted so-called "truth in sentencing" laws, which effectively abolished parole. The new code requires offenders to serve at least 85 percent of their sentence before becoming eligible for community supervision; for many felonies, 100 percent of the sentence must be served. The laws, along with mandatory minimums that took discretion in sentencing out of the hands of judges, left commutation as the only avenue for most offenders to seek a reduced sentence. By 2005, commutation applications soared to more than 1,200 a year....

Brewer is the first governor in at least 34 years who has not issued a single pardon. She has denied each of the clemency board's 13 recommendations. By comparison, Janet Napolitano issued 22 pardons over six years, Jane Dee Hull issued seven over 5.3 years, Fife Symington issued 13 over 6.5 years, and Rose Mofford granted 13 over three years....

There is an exception to Brewer's aversion to clemency: She has granted 19 requests to release inmates medically judged to have only days or weeks to live and who weren't considered a public-safety threat. Otherwise, in her three years and four months in office, she has routinely denied unanimous board recommendations for clemency, leaving scores of prisoners serving longer sentences than the board found they deserved.

Brewer declined requests for an interview. Her spokesman, Matthew Benson, issued a statement saying that every case is reviewed and that Brewer "fulfills this solemn responsibility with the seriousness owed, and always mindful of the victims harmed by these crimes."

Perhaps the most-debated commutation rejected by Brewer is the case of William Macumber, who was convicted in 1975 of a 1962 double homicide and sentenced to life in prison. In a unanimous recommendation three years ago, the board said he had served excessive time in prison and had a record of behavior showing he is not a threat to society. Most importantly, the board called his conviction a miscarriage of justice, saying that "the evidence that now exists certainly casts serious doubt on Mr. Macumber's conviction."

Former state Judge Thomas O'Toole told the board that another man confessed to committing the murders to him in 1967, but attorney-client privilege required him to remain silent about the confession until after his client died.

Montgomery's office strenuously opposed Macumber's clemency petition, calling his petition misleading. Brewer denied commutation in November 2009, sparking critical national-media coverage. In October 2010, Brewer fled her own televised news conference after Macumber's son asked the governor about her decision.

"The parole board says he's innocent, yet she still won't do anything," says P.S. Ruckman Jr., an Illinois political-science professor who publishes a blog on clemency, He is highly critical of Brewer and other governors who he says don't appear to take their pardon powers seriously. "Sometimes the law has a disproportionate impact and may be too rigid. That's what the pardon power is for," he says. "Brewer has the power and discretion to have a larger sense of justice and to do something about it. That's her duty."

Since taking office, Brewer has granted five commutations, aside from those for inmates at death's door. Four of these reduced sentences by less than 2.5 years. The biggest reduction was for Christopher E. Patten, who was sentenced to seven years for manslaughter as the driver of a vehicle in a 2005 drive-by shooting in Phoenix. The judge noted that Patten was forced at gunpoint to drive the vehicle, turned himself in to police and testified against the shooters at the risk of his life. He served just under two years before the governor granted a commutation in October 2009. Aside from those granted to dying inmates, Brewer hasn't granted any commutations in the last 17 months and has rejected 39 recommended by the board, out of 1,180 applications, according to board records. That does not include the nearly 900 cases in the backlog.

This story makes me wonder if there may have been a big misunderstanding concerning the (in)famous interaction between Gov Brewer and Prez Obama captured in the photo posted above.  Rather than having a testy encounters, perhaps Gov Brewer was telling Prez Obama how pleased and impressed she was that the Prez has been as much of a clemency scrooge as she has been.

Related posts concerning federal and state clemency practices:

May 15, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Fascinating DOJ report on number of prosecuted Wall Street executives

Yesterday's Wall Street Journal had this notable report on an exchange of letters between Senator Charles Grassley and the US Department of Justice concerning how many Wall Street executives have been prosecuted and convicted for financial crisis misdeeds.  The article is headlined "Missing: Stats on Crisis Convictions," and here are excerpts:

It is a question that has been asked time and again since the financial crisis: How many executives have been convicted of criminal wrongdoing related to the tumultuous events of 2008-2009?  The Justice Department doesn't know the answer.

That is because the department doesn't keep count of the numbers of board-level prosecutions. In a response earlier this month to a March request from Sen. Charles Grassley (R.,Iowa), the Justice Department said it doesn't hold information on defendants' business titles.  "Consequently, we are unable to generate the [requested] comprehensive list" of Wall Street convictions stemming from the 2008 meltdown, the letter from the Department of Justice to Mr. Grassley said.

The explanation raises eyebrows among legal experts.  Adding up the numbers of financial chief executives and chief financial officers put behind bars for their role in the crisis shouldn't be too difficult, they say.

"It's not a big number to count, that's for sure," said Chris Swecker, who ran the Federal Bureau of Investigation's criminal division from 2004 to 2006.  William Black, a former bank regulator, said the government used to keep these figures....

The Securities and Exchange Commission highlights on its website its civil crisis-related enforcement actions against senior corporate officers -- a total of 55 so far.  Mr. Black, an associate professor of economics and law at the University of Missouri-Kansas City, said it seems "smart" of the Justice Department to no longer keep score of boardroom prosecutions.  "I can tell you why you wouldn't keep the data," he said. "Because it would be really embarrassing."

A spokeswoman for the Justice Department said the numbers of financial-fraud cases being brought has increased since the crisis. "When we find sufficient evidence of criminal conduct, we will not hesitate to bring charges," she added....

In the three years since the crisis peaked in October 2008, the Justice Department has filed financial-fraud cases against 14,843 defendants, according to the letter to Mr. Grassley.  Over that time, it said, more than 1,100 people have been sentenced to prison for mortgage fraud.

The letter names 17 CEOs and other senior corporate officers convicted of significant financial crimes.  Most of the 17 committed frauds that weren't directly related to the financial crisis.  They include Allen Stanford, convicted in March of running a Ponzi scheme; Raj Rajaratnam, jailed last year for insider trading; and Zevi Wolmark, who pleaded guilty this year to bid-rigging in the municipal-finance market. Courtney Dupree, convicted last year of a $21 million bank fraud, makes the Justice Department's list.

But only one of the cases mentioned by the Justice Department in the letter to Mr. Grassley concerns alleged wrongdoing by a Wall Street firm directly related to the financial crisis: the criminal charges filed this year against three former Credit Suisse Group AG CSGN.VX +0.16% employees for allegedly inflating mortgage-bond values.

Mr. Grassley said the letter "substantiates my suspicion" the government "isn't going after the big banks, big financial institutions or their executives."  The Justice Department is instead "hiding behind a bunch of mortgage fraud prosecutions," Mr. Grassley said in a statement.

But officials said the scarcity of crisis-related prosecutions might reflect a lack of criminal behavior, rather than any failure of law enforcement.... The only criminal trial against Wall Street executives for alleged wrongdoing related to the crisis involved two former Bear Stearns hedge-fund managers. Their acquittal on all charges in 2009 was a significant setback for federal prosecutors.

The WSJ has provided links to Senator Grassley's letter and DOJ's response, both of which are interesting reading, though I think one needs an on-line subscription to get this access.

May 15, 2012 in Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, May 14, 2012

"Laissez-faire with strip-searches: America's two-faced liberalism"

The title of this post is the headline of this recent commentary appearing in The Guardian authored by Professor Bernard Harcourt.  The piece, which I have been meaning to post for some time, makes for a very interesting read and it gets started this way:

There is a deep tension in contemporary US political thought between the notion of freedom that tends to dominate in the socio-economic domain and the concept of liberty that predominates in the penal sphere.  In socio-economic matters, the idea of freedom tends to be shaped by classic economic liberalism: the belief that an invisible hand shapes favorable public outcomes, that individuals need robust protection from the government, that the state should refrain from interfering in commerce and trade.  In the law enforcement and punishment context, by contrast, the dominant way of thinking about liberty gives far more ground to the government, to the police and to the state security apparatus.

This tension, when it gets acute, gives rise to what I would call "two-faced" or "Janus-faced liberalism".  Over the last 40 years, during a period characterized by increased faith in free markets, in deregulation, and in privatization, America's Janus-faced liberalism has worsened and fueled the uniquely American paradox of laissez-faire and mass incarceration.  In the country that has done the most to promote the idea of a hands-off government, our government runs, paradoxically, the single largest prison system in the whole world.

This past month, the great American paradox took a distinctly dystopian turn, particularly at the US supreme court.  The oral argument on the constitutionality of President Obama's Affordable Care Act, in conjunction with the court's decision on the constitutionality of strip-searching all persons arrested even on the most minor traffic infractions, crystallize this worrisome trend.  My sense is that I am not alone in this assessment; there appears to be growing recognition across the US that this two-faced liberalism may, in fact, be pushing the country, inch-by-inch, in the direction of a police state.  This is surely true of the recent strip-search case, Florence v County of Burlington.

May 14, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

CJLF petitions to have death-penalty-repeal initiative taken off California ballot

As reported in this new local article, headlined "Bump California death penalty measure from November ballot, group says," a new legal challenge has been presented to the California ballot initiative concerning the death penalty. Here are the details:

A law-and-order organization on Monday asked a state appeals court to bump a measure off the November ballot that would repeal California's death penalty, arguing that it violates the so-called "single subject" rule because it proposes multiple reforms.

The ballot language is "deceptive" and conflicts with state rules that limit voter initiatives to a single subject the Criminal Justice Legal Foundation argues in a petition filed with the Sacramento-based 3rd District Court of Appeal.

The foundation brought the lawsuit on behalf of Phyllis Loya, the mother of a Pittsburg police officer fatally shot in 2005 whose killer was sent to death row by a Contra Costa County jury.

The SAFE California Act would abolish the death penalty, clear the state's death row and replace capital punishment with life in prison without the possibility of parole. But the measure also provides for shifting as much as $100 million used for death penalty costs to a fund that would pay for solving murder and rape cases.

The lawsuit argues that the measure contains conflicting proposals that combine unrelated reforms into a single ballot argument. "This kind of manipulation ... is exactly what the single-subject rule was put in the constitution to prevent," said Kent Scheidegger, the foundation's legal director.

Supporters of the ballot measure predicted the appeals court would reject the legal arguments.

May 14, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Professor Bowman's latest potent pitch for a Booker fix

I have long respected (and even have sometimes agreed with) Frank Bowman's informed perspectives on federal sentencing policy and practice.  Thus I am pleased to see his latest and greatest advocacy for reform of the post-Booker system now available on SSRN.  This latest piece, which is forthcoming in the Federal Sentencing Reporter, is titled "Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System."  Here is the abstract:

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

First, the post-Booker advisory system is conceptually indefensible.  It retains virtually every feature excoriated by critics of the original sentencing guidelines.  Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place.  More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system — that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never.  Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system.

Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system.

Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences.  I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.

May 14, 2012 in Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Intriguing victim rights' issues raised by 9/11 husband's anti-death penalty position

The New York Post has this interesting new exclusive story headlined "Husband of 9/11 victim goes to Gitmo to spare plotters from death sentence."  Here are excerpts:

The husband of a woman killed on 9/11 went to Guantanamo Bay on a shocking secret mission — to try to save the lives of the al-Qaeda monsters who planned the murder.

Blake Allison — one of 10 relatives of victims to win a lottery for tickets to the arraignment of confessed 9/11 mastermind Khalid Sheik Mohammed and four of his evil accomplices — had told people he was making the trip because "I wanted to see the faces of the people accused of murdering my wife."  But while there, the 62-year-old wine-company executive held a clandestine meeting with the terrorists’ lawyers, in which he offered to testify against putting their clients to death.

A vocal critic of capital punishment, Allison wants to convince the US government to spare the lives of KSM and his minions even if a military commission convicts them of a slew of death-penalty charges.  “The public needs to know there are family members out there who do not hold the view that these men should be put to death,” Allison told The Post. “We can’t kill our way to a peaceful tomorrow.”

Allison’s 48-year-old wife, Anna, was a software consultant on her way to visit a client in Los Angeles when her plane, American Airlines Flight 11, was smashed into World Trade Center Tower 1 on Sept. 11, 2001.

In a lengthy conversation from his home in New Hampshire, Allison explained his controversial view — one he admits is not shared by his late wife’s relatives or by the other family members of victims he met at Guantanamo.  “My opposition to the death penalty does not say I don’t want the people who killed my wife and [the other 911 victims] brought to account for their crimes,” he said.  “But for me, opposition to the death penalty is not situational.  Just because I was hurt very badly and personally does not, in my mind, give me the go-ahead to take a life.”

He said that “9/11 was a particularly egregious and appalling crime,” but added, “I just think it’s wrong to take a life.”

Allison, who has remarried, is under no illusion that the terrorists have reformed — and would not gladly kill more Americans.  After staring at the fiendish faces of KSM, Ramzi bin al Shibh, Walid bin Attash, Mustafa al-Hawsawi and KSM nephew Ali Abdul Aziz Ali, Allison said he is certain they have “no apparent remorse and would do it again.”

Still, he said, “I’ve been opposed to the death penalty for decades, before my wife was murdered on 9/11.  I’m still opposed to it.”

He said he spoke to other family members at Guantanamo and came to realize he was alone in his view. “I know they’re sincere in their beliefs,” he said. “They want what they perceive as justice for their loved ones. I would never tell anybody in my position what they should feel.”

The defense lawyers were pleased, but probably not terribly surprised to see him.  Allison had previously testified on behalf of 9/11 conspirator Zacarias Moussaoui — the so-called 20th hijacker — who had faced the death penalty but was sentenced to a life term, which he’s serving in the Supermax prison in Colorado....

He said his opposition to execution is rooted in his Episcopalian faith. “When Martin Luther was being asked to recant by the hierarchy of the Roman church for all his Protestant actions, he said, ‘Here I stand. I can’t do otherwise.’ That’s the way I feel. First and foremost, I don’t think it’s right to take a life. It’s grounded in my religious faith. The New Testament is very clear about this.”

As the title of this post highlights, I think there are some unique federal legal issues raised by Blake Allison's status as a crime victim and his vocal opposition to the death penalty when combined with the distinctive realities of the military commissions being used to try KSM and his ilk for the 9/11 mass murders.  As regular readers know, after the 2004 passage of the federal Crime Victims Rights Act (basics here), Allison has an distinct and enforceable right to notice about and a "right to be reasonably heard" in any and all "public court proceeding." But what being "reasonably heard" and even what qualifies as a "public court proceeding" is an uncertain legal issue in the context of the military commission process.  Among other interesting questions raised here is whether and how Allison could complain and/or appeal using the CVRA if he feels he is not having his rights as a victim respected by the feds through the military commission process.

May 14, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, May 13, 2012

ProPublica reveals more ugliness in federal clemency process

The Washington Post has published here the latest installment of ProPublica's on-going investigative reporting on the federal clemency system.  This lengthy piece is headlined " Clarence Aaron was denied commutation, but Bush team wasn’t told all the facts," and here are excepts:

Clarence Aaron seemed to be especially deserving of a federal commutation, an immediate release from prison granted by the president of the United States.  At 24, he was sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs.  Of all those convicted in the case, Aaron received the stiffest sentence.

For those reasons, his case for early release was championed by lawmakers and civil rights activists, and taken up by the media, from PBS to Fox News.  And, ultimately, the prosecutor’s office and the sentencing judge supported an immediate commutation for Aaron.

Yet the George W. Bush administration, in its final year in office, never knew the full extent of their views, which were compiled in a confidential Justice Department review, and Aaron’s application was denied, according to an examination of the case by ProPublica based on interviews with participants and internal records.

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.  Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application.  In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

Kenneth Lee, the lawyer who shepherded Aaron’s case on behalf of the White House, was aghast when ProPublica provided him with original statements from the judge and prosecutor to compare with Rodgers’s summary.  Had he read the statements at the time, Lee said, he would have urged Bush to commute Aaron’s sentence....

The work of the pardon office has come under heightened scrutiny since December, when ProPublica and The Washington Post published stories showing that, from 2001 to 2008, white applicants were nearly four times as likely to receive presidential pardons as minorities.  The pardon office, which recommends applicants to the White House, is reviewing a new application from Aaron.  Without a commutation, he will die in prison....

The number of pardons awarded has declined sharply in the past 30 years, as have commutations.  Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one.  Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.  A former pardon office lawyer said some applicants have been turned down “en masse”with little, if any, review, a claim the Justice Department disputes....

Between 1980 and 2010, requests for commutations rose sharply, reflecting lengthier sentences and the elimination of paroles for federal inmates, while the number of successful applicants plummeted.  Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful.  Under Bush, approvals fell to barely better than one in 1,000.

Related posts concerning ProPublica series and federal clemency practices:

May 13, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Saturday, May 12, 2012

Another obvious mandatory sentencing injustice in Florida "warning shot" case

As reported in this CNN story, headlined "Florida woman sentenced to 20 years in controversial warning shot case," another high-profile shooting case in Florida has produced a different kind of criminal justice controversy.  Here are the details:

Saying he had no discretion under state law, a judge sentenced a Jacksonville, Florida, woman to 20 years in prison Friday for firing a warning shot in an effort to scare off her abusive husband.

Marissa Alexander unsuccessfully tried to use Florida's controversial "stand your ground" law to derail the prosecution, but a jury in March convicted her of aggravated assault after just 12 minutes of deliberation.

The case, which was prosecuted by the same state attorney who is handling the Trayvon Martin case, has gained the attention of civil rights leaders who say the African-American woman was persecuted because of her race.

After the sentencing, Rep. Corrine Brown confronted State Attorney Angela Corey in the hallway, accusing her of being overzealous, according to video from CNN affiliate WJXT. "There is no justification for 20 years," Brown told Corey during an exchange frequently interrupted by onlookers.  "All the community was asking for was mercy and justice," she said.

Corey said she had offered Alexander a plea bargain that would have resulted in a three-year prison sentence, but Alexander chose to take the case to a jury trial, where a conviction would carry a mandatory sentence under a Florida law known as "10-20-life." The law mandates increased penalties for some felonies, including aggravated assault, in which a gun is carried or used.

Corey said the case deserved to be prosecuted because Alexander fired in the direction of a room where two children were standing. Alexander said she was attempting to flee her husband, Rico Gray, on August 1, 2010, when she picked up a handgun and fired a shot into a wall.  She said her husband had read cell phone text messages that she had written to her ex-husband, got angry and tried to strangle her.

She said she escaped and ran to the garage, intending to drive away.  But, she said, she forgot her keys, so she picked up her gun and went back into the house. She said her husband threatened to kill her, so she fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do," she said.  "That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."...

A jury convicted Alexander in March and Judge James Daniel denied her request for a new trial in April.  Daniel handed down the sentence Friday after an emotional sentencing hearing during which Alexander's parents, 11-year-old daughter and pastor spoke on her behalf.

Several people had to be escorted from the courtroom after breaking out singing and chanting about a perceived lack of justice in the case, but Daniel made a point to say that he had no choice under state law. "Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," Daniel said.

Brown, the Jacksonville congresswoman, told reporters after the sentencing that the case was a product of "institutional racism."

"She was overcharged by the prosecutor.  Period," Brown said.  "She never should have been charged."  Brown has been more complimentary about Corey's work in the Trayvon Martin case, where her office filed second degree murder charges against neighborhood watch volunteer George Zimmerman in the February 26 death of the unarmed African-American teen-ager.

It is sad, very disappointing and ultimately quite harmful that Rep. Corrine Brown is apparently so eager to assert that the injustice in this case reflects "institutional racism" and misuse of prosecutorial discretion.  It seems far more appropriate to complain that the injustice in this case reflects structural flaws in Florida's sentencing laws and mistakes by the state legislature to fail to provide a safety-valve from the application of broad mandatory sentencing provisions.

As the CNN story reveals, the prosecutor apparently had the ability and authority to prevent application of Florida's "10-20-life" sentencing law if Marissa Alexander had been wiling to forgo her constitutional right to trial to have the judicial system consider her self-defense claims.  But after Alexander decided to exercise her trial rights, then her conviction apparently deprived a judge or any other authority the ability and authority to sentence her to anything less than 20 years in prison.  Without knowing more about the case, I am not sure if the three-year term offered in the plea or even a lesser sentence would have been appropriate, but it seem obvious to me that a 20-year term is grossly excessive for Alexander's offense conduct.

Bemoaning this case as a reflection of "institutional racism" brings far more heat than light to this dark (but not uncommon) example of mandatory sentencing injustice.  A focus instead on the problems with letting only prosecutors and not judges decide if a case merits an exception to strict sentencing rules could help this case engender needed structural reforms rather than more racial polarization.  Helpfully, the folks at FAMM are effectively using this case to bring attention to these critical sentencing matters, but I fear that the eagerness of Rep. Corrine Brown to play the race card will eclipse FAMM's efforts to use this kind of case to foster sober and needed sentencing reforms.

Though I am not certain of the sentencing commutation authority of Florida's Governor, this case seems to cry out for executive clemency.  Though involving a very offense environments, I am reminded of the high-profile "border agent" case from a few years ago in which two federal border agents got saddled with a sentences of more than a decade after failed self-defenses claims due mandatory federal gun sentencing provisions.  On his last day in office, as detailed here, President George W. Bush justifably commuted the sentences of these border agents.  I hope Florida's Governor has both the power and the wisdom to use the same means to undue an obvious sentencing injustice in this case.

May 12, 2012 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (34) | TrackBack

Victim calls sentence for deadly DWI offense an "insult to humanity"

Regular readers know of my long-standing criticisms and concerns about what often seem to me to be unduly lenient sentences for drunk driving offenses. These readers will thus not be surprised that this recent local article from North Carolina caught my attention. The piece is headlined "Victim's father: Drunken driver sentences 'an insult to humanity'," and here are excerpts:

Kristie Lee is buried on her family's farm in Wayne County, a constant reminder of a life cut short. The 37-year-old mother of two was leaving a Mount Olive church on Oct. 17, 2010, when a drunken driver hit her car head-on, killing her.

A court found Hermelindo Castro guilty in her death and sentenced him to the maximum penalty under the law -- 3 ½ years in prison. Lee's family members say that sentence is too short. They're not alone. “It is not just an insult to a father, but it's an insult to humanity,” said Doug Jernigan, Lee’s father.

In cases like Lee’s, victims' families often want to blame the judge for what they see as a light sentence that doesn't fit the seriousness of the crime. However, North Carolina judges are bound by strict, structured sentencing guidelines, leaving them with few options. “I just don't believe it's that much different than taking a loaded gun and going into a place of business and firing,” said Kimberly Smith, Lee’s sister.

Wayne County Superior Court Judge Arnold Jones shares their frustration and has taken a rare stand for a judge by speaking out against what he believes are inadequate sentencing guidelines for felony death by vehicle. “Yes, it is frustrating. I'm human. I get frustrated. A lot of people do,” Jones said. “But I've still got to uphold my oath, and that's what I'm going to do to the best of my ability.”

The judge has dealt with many families who have lost loved ones to drunken drivers and says that talking to them “has been the most difficult and heart-wrenching thing I've had to do.” “What are we going to do to protect your children and my children from this kind of thing happening to them?” Jones said.

Sen. Buck Newton, R-Nash, has met with ... families about the possibility of sponsoring legislation to increase the penalties in cases [involving drunk driving deaths]. A similar bill, Senate Bill 393, was proposed last year, but never got out of committee. “Good people get killed. Good people get maimed. Terrible things happen when people drink and drive,” Newton said.

Most drivers who cause a death while drunk are charged with felony death by vehicle. In rare cases, North Carolina district attorneys will charge them with second-degree murder. However, those cases can be difficult to prove because prosecutors need to show an aggravating circumstance, such as a prior drunken driving charge, and prove malice to a jury, which can be a tough sell.

Raleigh defense attorney Karl Knudsen says he believes that, for lawmakers, upping the penalties for drunken driving deaths is more about politics than logic. “Nobody ever lost a vote being too tough on drinking and driving,” Knudsen said, adding that not everyone deserves the harshest penalties. “There are going to be people that are very good people who are going to unintentionally cause a death that they are going to regret for the rest of their lives.”

Some related posts on sentencing drunk drivers:

May 12, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, May 10, 2012

"Drug crime sends first-time offender grandmom to prison for life"

628x471The title of this post is the headline of this new article from the Houston Chronicle, which carries the subheadline "Houstonian, who has no secrets to trade, is doing more time than drug lords."  Here is more about the crime and punishment of the woman pictured here:

The U.S. government didn't offer a reward for the capture of Houston grandmother Elisa Castillo, nor did it accuse her of touching drugs, ordering killings, or getting rich off crime.  But three years after a jury convicted her in a conspiracy to smuggle at least a ton of cocaine on tour buses from Mexico to Houston, the 56-year-old first-time offender is locked up for life -- without parole.  "It is ridiculous," said Castillo, who is a generation older than her cell mates, and is known as "grandma" at the prison here. "I am no one."

Convicted of being a manager in the conspiracy, she is serving a longer sentence than some of the hemisphere's most notorious crime bosses -- men who had multimillion-dollar prices on their heads before their capture. The drug capos had something to trade: the secrets of criminal organizations.

The biggest drug lords have pleaded guilty in exchange for more lenient sentences.  Castillo said she has nothing to offer in a system rife with inconsistencies and behind-the-scenes scrambling that amounts to a judicial game of Let's Make A Deal.

"Our criminal justice system is broke; it needs to be completely revamped," declared Terry Nelson, who was a federal agent for over 30 years and is on the executive board of Law Enforcement Against Prohibition. "They have the power, and if you don't play the game, they'll throw the book at you."

Castillo maintains her innocence, saying she was tricked into unknowingly helping transport drugs and money for a big trafficker in Mexico. But she refused to plead guilty and went to trial....

Gulf Cartel lord Osiel Cardenas Guillen ... once led one of Mexico's most powerful syndicates and created the Zetas gang. He pleaded guilty in Houston and is to be released by 2025. He'll be 57.

As the federal prison system has no parole, Castillo has no prospect of ever going home. "Any reasonable person would look at this and say, 'God, are you kidding?' " said attorney David Bires, who represented Castillo on an unsuccessful appeal.  "It is not right."...

Castillo is adamant about her innocence. "Put yourself in my shoes. When you are innocent, you are innocent," she said. "I don't say I am perfect. I am not … but I can guarantee you 100 percent that I am innocent of this."

At the urging of her boyfriend, Martin Ovalle, Castillo became partners with a smooth-talking Mexican resident who said he wanted to set up a Houston-based bus company.  But the buses were light on passengers and shuttled thousands of pounds of cocaine into the United States and millions of dollars back to Mexico.  Her lawyers argued she was naive.

Castillo claims she didn't know about the drug operation, but agents said she should have known something was wrong when quantities of money and drugs were repeatedly found on the coaches. "After hearing all the evidence as presented from both the government and defense in this case, the jury found her guilty … ," said Kenneth Magidson, chief prosecutor here.

Former federal prosecutor Mark W. White III said if Castillo had something to share, she might have benefited from a sentence reduction for cooperating. "Information is a cooperating defendant's stock in trade," White said, "and if you don't have any, … the chances are you won't get a good deal."

May 10, 2012 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (34) | TrackBack

Rhode Island Gov to appeal to SCOTUS to resist turning over murderer to feds

As reported in this AP article, the "tug-of-war over an inmate in Rhode Island custody in a possible death penalty case escalated Wednesday as Gov. Lincoln Chafee said he will appeal to the U.S. Supreme Court a federal court ruling allowing the inmate to stand trial in federal court."  Here is more:

Chafee said the court's close vote shows a split in the interpretation of the Interstate Agreement on Detainers Act, which allows governors to refuse to surrender inmates. The U.S. 1st Circuit Court of Appeals voted 3-2 on Monday that Jason Pleau, 34, may stand trial in federal court where he faces a possible death penalty prosecution over a fatal robbery.

Rhode Island does not have the death penalty. The governor invoked the concept of states' rights in the fight over Pleau, who is accused of fatally shooting a gas station manager outside a Woonsocket bank in 2010.

"Given the close vote of the full court, which demonstrates a genuine split in the interpretation of the law, the state of Rhode Island must seek to protect both the strong states' rights issues at stake and the legitimacy of its longstanding public policy against the death penalty," Chafee said in a statement....

Federal prosecutors have not said whether Pleau would face the death penalty if convicted of killing 49-year-old David Main. Rhode Island-based U.S. Attorney Peter F. Neronha said in a statement after the Appeals Court ruling that his office is ready to move forward with the case. A spokesman for Neronha would not comment on Chafee's announcement....

Main's sister, Deborah Smith, told Chafee in an email Tuesday that his fight to keep Pleau in state custody is "obstructing justice." She told the governor it is time to stop wasting taxpayers' money.

Chafee said he regrets that the case continues to cause pain for Main's family. "I extend once again my most sincere condolences to them for their terrible loss, which resulted from such a senseless crime," he said.

Related prior posts:  

May 10, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Wednesday, May 09, 2012

South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds

The South Carolina Supreme Court has a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender.  The ruling in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here), is a bit hard to figure out: the first opinion seems to announce the opinion for the court, but then a footnote at the state of Justice Hearn's opinion states that "[b]ecause a majority of the Court has joined the separate concurring opinion of Justice Kittredge, his concurrence is now the controlling opinion in this case." I will quote the first paragraph from both opinions in the case, because they both are noteworthy, starting here with the opinion of Justice Hearn:

Jennifer Rayanne Dykes appeals the circuit court's order that she be subject to satellite monitoring for the rest of her natural life pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010). She lodges five constitutional challenges to this statute: it violates her substantive due process rights, her right to procedural due process, the Ex Post Facto clause, the Equal Protection Clause, and her right to be free from unreasonable searches and seizures. We hold the mandatory imposition of lifetime satellite monitoring violates Dykes' substantive due process rights and reverse and remand for further proceedings.

The very lengthy opinion by Justice Hearn, which apparently garnered only two (of the five) votes on the court, is thereafter followed by a shorter opinion by Justice Kittredge which starts this way:

I concur in result. I commend my learned colleague for her scholarly research, and I agree with the majority's general proposition that persons have a fundamental right "to be let alone."  But I respectfully disagree that Appellant, as a convicted child sex offender, possesses a right that is fundamental in the constitutional sense.  I do not view Appellant's purported right as fundamental.  I would find Appellant possesses a liberty interest entitled to constitutional protection, for all persons most assuredly have a liberty interest to be free from unreasonable governmental interference.  I would find that the challenged mandatory lifetime, non-reviewable satellite monitoring provision in section 23-3-540(C) is arbitrary and fails the minimal rational relationship test.

Long story short, it appears that all members of the South Carolina Supreme Court have concluded that the mandatory lifetime satellite monitoring now required by stature in South Carolina for sex offender Jennifer Rayanne Dykes is unconstitutional.  (I mention the full name of the defendant in this case because I cannot help but wonder, yet again, if the defendant's gender may have played at least an unconscious role in this notable outcome.  I do not think it is implausible to at least suspect this case might well have come out another way if the the defendant was named Johnny Rex Dykes.)

I have not kept count of how many states are like South Carolina in requiring lifetime GPS monitoring of many sex offenders, but I am pretty sure this ruling could (and should?) have ripple effects in at least a few other jurisdictions.  I am also sure that both constitutional scholars and those interested in the intersection of modern technology and criminal justice doctrines ought to check out the Dykes opinions.

May 9, 2012 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (18) | TrackBack

ACS event in DC tomorrow on presidential clemency and drug sentencing

If I was within ready driving distance of DC, I would make extra sure to find time to attend this notable ACS event scheduled for tomorrow morning (Thursday, May 10), which is titled "Reimagining the Constitutional Pardon Power: Does the President Have a Role in Making Drug Sentences Fairer?". The program has an awesome line-up of important speakers from both the academy and practice, including former Maryland Governor Robert Ehrlich, and former White House Counsel Gregory Craig.  Here is how the ACS website sets up the event:

On Thursday, May 10, 2012, at 10:00 a.m., the American Constitution Society for Law and Policy and the Open Society Foundations will host “Reimagining the Constitutional Pardon Power: Does the President Have a Role in Making Drug Sentences Fairer?” In Article II of the U.S. Constitution, the President’s pardon power resides with little fuss or fanfare, likely a result of its infrequent use. Article II, Section 2 provides that the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Despite this explicit authority, and the thousands of clemency petitions received by the Department of Justice each Administration – close to 6,000 such petitions have been received by the Obama Administration thus far – the pardon power is a tool rarely used in our criminal justice system. As the Administration wraps up its first term in office having granted 23 clemency petitions, we consider whether the pardon power should be used as a tool for balancing unfair sentencing laws in the criminal justice system.

The President took a step in this direction when he commuted the sentence of federal prisoner Eugenia Jennings, who was serving a 22-year sentence for a nonviolent, crack cocaine offense. Should clemency in this context become customary? Is there a viable pardon process that can be used? If pardon power is exercised regularly, how do we ensure fair and nondiscriminatory procedures? Are governors setting an example at the state level for how pardon powers should be used? These questions and others will be considered by the program’s panel of experts.

May 9, 2012 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Could I be (and should I want to be) federal prisoner Keith Judd's DNC delegate from West Virginia?

120508_keith_russel_judd_apThe question in the title of this post is meant — sort of, maybe — as a joke in light of the notable primary voting news out of West Virginia reported in this AP article, headlined "Against Obama, even a jailbird gets some votes." Here are the basics:

Just how unpopular is President Barack Obama in some parts of the country?  Enough that a man in prison in Texas got 4 out of 10 votes in West Virginia's Democratic presidential primary.

The inmate, Keith Judd, is serving time at the Federal Correctional Institution in Texarkana, Texas, for making threats at the University of New Mexico in 1999.  Obama received 59 percent of the vote to Judd's 41 percent.

For some West Virginia Democrats, simply running against Obama is enough to get Judd votes. "I voted against Obama," said Ronnie Brown, a 43-year-old electrician from Cross Lanes who called himself a conservative Democrat.  "I don't like him. He didn't carry the state before and I'm not going to let him carry it again."  When asked which presidential candidate he voted for, Brown said, "That guy out of Texas."

Judd got on the state ballot by paying a $2,500 fee and filing a form known as a notarized certification of announcement, said Jake Glance, a spokesman for the Secretary of State's office.

Attracting at least 15 percent of the vote would normally qualify a candidate for a delegate to the Democratic National Convention.  But state Democratic Party Executive Director Derek Scarbro said no one has filed to be a delegate for Judd. The state party also believes that Judd has failed to file paperwork required of presidential candidates, but officials continue to research the matter, Scarbro said.

It would be silly (and surely inaccurate) to claim that democratic primary voters in West Virginia voted for Keith Judd over Barack Obama because they were hopeful that a federal felon would push Democrats to make sentencing and prison reform a higher priority within the party.  But it would not be silly (nor inaccurate) to claim that all the people of West Virginia who voted in the primary for Judd ought to have their votes represented at the Democratic National Convention by a delegate (like me) who is not going to to just fall in line with all the Obama supporters and who will go to the DNC with some of Judd's interests and concerns in mind. 

Of course, I neither live or work in West Virginia, but the same is true for Keith Judd.  (This Politico piece about Judd explains that he "currently resides in a low-security prison in Texas — Federal Correctional Institution Texarkana — where he’s serving a 210-month sentence for extortion connected to making threats at the University of New Mexico in 1999.  His projected release date is June. 24, 2013.")   For that reason, and so many others, I really think I could be the perfect person to head down to Charlotte in late summer and represent the tens of thousands of West Virginia democrats who indicated last night that they are eager for some new voices to be heard at the DNC.

May 9, 2012 in Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (3) | TrackBack

Former federal prosecutor urges "Mandatory minimums for kingpins only"

This recent National Law Journal commentary by Jim Walden, a former federal prosecutor in EDNY, voices support for US District Judge John Gleeson's recent recommendation in US v. Dossie, No. 11-CR-237 (EDNY Mar. 30, 2012) (discussed here), that federal prosecutors show much more restraint in their use of federal drug statutes that carry mandatory minimum sentencing terms.  Here are excerpts:

I support the war on drugs. Indeed, I can fairly be called a hawk. I spent most of my nearly nine-year career as a federal prosecutor attacking (largely white and Asian) drug-trafficking organizations and putting their members behind bars for long stretches. For every wide-eyed, liberal, young lawyer I meet who naïvely criticizes the wisdom and resources this "war" has entailed, I issue the same challenge: Read the daily papers and keep track of drug-related murders, assaults, robberies, break-ins and general violence for six months — and then explain to me why drug enforcement should not be one of our top enforcement priorities.

Cracking down on the street-level organizations, and stopping the collateral damage they inflict, is a laudable goal, an essential one.  Doing so at the expense of fairness and equity is not, and street-level traffickers should not face the same consequences Congress intended for kingpins.

No one would describe Judge John Gleeson of the Eastern District of New York as "soft" on drug crime, and some might describe him as fairly "hawkish" himself. His prestigious career as a federal prosecutor, spanning almost two decades, bears this out.... In a recent case, U.S. v. Dossie, Gleeson called on U.S. Attorney General Eric Holder Jr. to reform DOJ's inconsistent and irrational use of mandatory-minimum sentences in drug cases, reserving them for drug kingpins, as Congress intended.  In clear and terse prose, Gleeson described a system that works to "strip criminal defendants of the due-process rights we consider fundamental to our justice system."

The specific case concerned — of course — a young, black, street-level dealer, who turned to drug distribution to support his habit. This did not stop DOJ from seeking to enforce a harsh mandatory-minimum sentence.  Gleeson's conclusion is clear: "This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences."  He respectfully urged the attorney general to reform DOJ's policy, reserving the use of mandatory-minimum penalties for the managers and leaders of drug enterprises whom Congress intended to target.

Eric Holder should listen to John Gleeson.

May 9, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

"Continued Racial Disparities in the Capital of Capital Punishment? The Rosenthal Era"

The title of this post is the title of this notable new paper on SSRN from Professor Scott Phillips. Here is the abstract:

Given the substantial amount of research that has been conducted throughout the United States regarding the relationship between race and capital punishment, one might assume that much of the attention has been focused on Harris County, Texas.  After all, Harris County -- home to Houston and surrounding areas -- is the capital of capital punishment. Indeed, if Harris County were a state it would rank second in executions after Texas.  Yet only one study has examined whether race influences the death penalty in Houston. Specifically, Phillips (2008) reports that death was more likely to be imposed against black defendants, and more likely to be imposed on behalf of white victims, during the period from 1992 to 1999 -- the final years of Johnny Homes tenure as District Attorney.  After Holmes retired, Charles Rosenthal served as District Attorney from January 1, 2001 to February 15, 2008.

Did racial disparities continue during the Rosenthal administration?  The current research suggests that the impact of defendant race disappeared, but the impact of victim race continued: death sentences were imposed on behalf of white victims at 2.5 times the rate one would expect if the system were blind to race, and death sentences were imposed on behalf of white female victims at 5 times the rate one would expect if the system were blind to race and gender.  Such disparities are particularly troubling because Rosenthal was forced out of office in a scandal that included racist emails.  Given the disparities, coupled with racist emails from the elected official who decides whether to seek the death penalty, the paper contemplates a key question: Should the state of Texas be allowed to execute inmates who were sentenced to death in Harris County during the Rosenthal administration?

May 9, 2012 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, May 08, 2012

Noting President Obama's (still) stingy clemency record

The folks at MSNBC has this new piece, headlined "President Obama 'stingy' on pardons, says clemency expert," which includes data that are familiar to regular readers. Here are excerpts:

President Barack Obama is on track to be one of the least forgiving of presidents in U.S. history — as measured by his use of presidential pardon powers, according to a political science professor who blogs about clemency exercised by presidents and governors.

"It is fair to say two things," said P.S. Ruckman Jr., who teaches at Rock Valley College in Rockville, Ill. "One is (Obama) is definitely being exceptionally stingy. There’s no doubt about that. There’s also no doubt that this is in a way unexpected."

As president, Obama has pardoned 23 people, including one commuted sentence, in his first 40 months in office. Barring a dramatic flurry of clemency from the White House in the coming eight months, Obama will be among the bottom two or three presidents for granting pardons in his first term, Ruckman said....

While campaigning for office, Obama was critical of the mandatory minimum penalties for drugs, especially those that specified much heavier sentences for those using crack cocaine than to the ones associated with more expensive powder cocaine. Mandatory minimums, which emerged in the 1980s, are partially responsible for swelling federal prison populations — to 218,261 on the week of May 3, compared to 24,363 in 1980, according to government documents.

In April 2010, the president signed into law the Fair Sentencing Act, which aimed to even out the mandatory minimums, which critics say are discriminatory to African Americans. But Obama did not — as some expected or hoped — go on to throw open the doors for large numbers of people incarcerated under the old mandatory sentences....

Obama could step it up in the last quarter. Historically, presidents do tend to grant more pardons in the fourth quarter of each year, especially the fourth quarter of the final year in the term, Ruckman said.  Among recent presidents, George W. Bush had granted 37 pardons and commutations at about this point in his first term. By the end of the year, he had added another 32....

Obama may also be reserving acts of clemency for his second term, if he gets one. Presidents Bill Clinton and George W. Bush both granted many more pardons in their second terms than they did in their first....  But none of these recent presidents comes close to President Franklin Delano Roosevelt in the use of pardon power. He granted about 600 pardons and commutations by the end of his first term, and about 2,800 over the course of his historic 12 years in office (1933-1945) before the two-term limit went into effect.

But even among modern presidents, Obama's current pace keeps him firmly among the most conservative American presidents to use these powers of forgiveness.  The average age of individuals pardoned by Obama is about 61, according to Ruckman and the average time between the original sentence and executive clemency granted by this president is 24.3 years.

May 8, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (3) | TrackBack

Call for papers for ABA/AALS joint conference this Fall in DC

I have been really intrigued and impressed by special criminal justice programs that have been put together by the ABA each fall over the last few years. To its credit, the ABA has made a special effort in these events to connect criminal justice practitioners and academics (as evidenced by the speakers brought together at last year's event).  Consequently, I am pleased to be able to promoted this "Call for Papers — Criminal Justice" in conjunction with this year's planned event:

On Oct. 25-26, 2012, the ABA and the AALS will present a joint conference on criminal justice at the Washington Court Hotel in Washington, D.C.  The first event of the conference, on the afternoon of Thursday, Oct. 25, is a workshop for scholarly papers relating to criminal justice.  All papers on criminal law, criminal procedure, or criminal justice topics are welcome. 

Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop.  Workshop presenters must also attend the criminal justice panels on Friday, Oct. 26. This is an excellent opportunity for academics at any stage of their careers, or those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces.  Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee.

To apply to workshop a paper, please email an abstract of your paper of no more than 500 words to both Michael Mannheimer at and Laurent Sacharoff at by Aug. 15, 2012.  Space is limited and presenters will be chosen by members of the organizing committee.

May 8, 2012 in Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

Reviewing the uncertain state of capital justice in the state of North Carolina

North Carolina has been an especially interesting any dynamic death penalty state of late, and this new lengthy local article provides a kind of "state of the capital state" review of many of the reasons why.  The piece is headlined "Complex challenges put NC death penalty on life support," and here are excerpts:

North Carolina, which has 156 prisoners on death row, has not executed an inmate since Aug. 18, 2006, when Samuel R. Flippen was put to death by lethal injection for the beating death of his two-year-old step daughter.  Since then, a complex and evolving set of legal challenges have imposed a de facto moratorium on the death penalty in North Carolina.

The controversial Racial Justice Act, a 2009 law that allows death row prisoners to use statistical evidence of discrimination to appeal their sentence, has played a part in this stalemate.  But so have other prisoner appeals that question whether the state's execution method is cruel and unusual or their crimes were investigated fairly.

Even those who say the death penalty is needed have doubts when it might ultimately be enforced here. "The easy answer is nobody really knows," said Peg Dorer, executive director of the N.C. Conference of District Attorneys. "If it ever does resume, I'd say it will be 20 years."...

Of the 156 North Carolina inmates awaiting execution, 106 were sentenced before 2000. Even before the current morass of legal cases and appeals, prosecutors were seeking and winning death sentences less often.

There are several reasons for the decline in death penalty prosecutions, including a 2001 change to state law.  In the 1990s, district attorneys were required to pursue the death penalty in all first degree-murder cases with aggravating circumstances.  But in 2001, the General Assembly gave prosecutors the discretion whether or not to seek the death penalty for such cases. "Once that happened, there was a dramatic drop off in the number of capital trials," said Wake County District Attorney Colon Willoughby, Jr.  District attorneys became more selective about when they would ask for death sentences....

The specter of putting an innocent person to death looms over those who would seek the sentence. Anti-death penalty groups point to the 140 people nationwide who, after having been sentenced to death, have been exonerated of those same crimes. Among those 140 was former North Carolina death row inmate Alan Gell, who was convicted of a 1995 murder but later found not guilty....

"I think there will be a case of someone who is now on (North Carolina's) death row who it will turn out to be innocent," said Tye Hunter, executive director of the Center for Death Penalty Litigation. "I expect that case to come before the summer is over."  Each such case, he said, chips away at the willingness of those involved in capital trials -- prosecutors and juries especially -- to impose the death penalty. So, too, has the time and cost involved in death penalty litigation....

[A legal challenge to NC's execution methods] heard in state courts has just begun to make its way through the appeals process.  It takes aim at whether the state's lethal injection method could lead to cruel and unusual punishment. "We have a three-drug execution protocol. If the execution team messes up and makes a mistake on the first drug, the second two are going to cause torture," said David Weiss, a lawyer who argued this case on behalf of four death row inmates....

Judge Donald Stephens ruled on March 9 that the procedure was constitutional.... That case has now been appealed. It it likely to go straight to North Carolina's Supreme Court without stopping at the Court of Appeals.... [I]n addition to the state case, several North Carolina death row inmates also have appealed their sentences to the federal courts. "Those federal cases have been on hold since 2006," Weiss said....

But for many current death row inmates, there appears to be a more promising route of appeal.  Passed in 2009, the Racial Justice Act allows death row inmates to challenge their sentences based on statistical evidence that racial discrimination could have affected their trial, such as when jurors were chosen.  If such a claim is successful, the inmate's sentence is commuted from death to life in prison.

Marcus Robinson, who was convicted in1994 of first-degree murder in Cumberland County, was the first defendant to have his RJA claim heard. In April, Superior Court Judge Gregory Weeks found that Robinson's lawyers had shown that race was a factor in the selection of his jury.

With Robinson's success, there are only 156 inmates left on death row. Of those, 154 have brought Racial Justice Act claims, even though in many were of the same race as their victims. Rep. Paul "Skip" Stam, R-Wake, an opponent of the Racial Justice Act, says the outcome of the case is counter-intuitive. "Why would (Robinson) get life in prison if his jury was tainted," he asked. "If you really thought there was a problem with the jury, why would it affect the sentence and not the verdict?"

Stam helped lead an effort last fall and winter to repeal the Racial Justice Act. Gov. Bev Perdue, a Democrat, vetoed that measure and lawmakers fell one vote short of the number needed to override her veto.  Even if lawmakers do repeal the act, there is some question among lawyers whether or not the claims already filed would proceed....

As Racial Justice Act claims play themselves out, it's possible for other issues to arise. Hunter, with the Center for Death Penalty Litigation, said his staff was still looking at problems with evidence analysis in the state crime lab.  The recent case of Greg Taylor, who spent 6,149 days in prison for a murder he didn't commit, was freed after being able to show the SBI crime lab used scientifically unsound blood analysis techniques. Hunter said that questions remain about other work the crime lab did in the case of other defendants.

May 8, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Why I Want a Medical Marijuana Dispensary Near My Children's School"

The title of this post is the headline of this potent commentary appearing at the Huffington Post, which is authored by Tamar Todd, a Staff Attorney at the Drug Policy Alliance.  Here are excerpts:

Last week, one of California's oldest and most respected medical marijuana dispensaries, Berkeley Patients Group, closed its doors. It shut down because its landlord, like dozens across the state, received a letter from United States Attorney Melinda Haag threatening to seize the property for renting to a medical marijuana dispensary located within 1,000 feet of a school.  My three children attend elementary school and preschool in West Berkeley, just blocks from Berkeley Patients Group.  The notion that the closure of Berkeley Patients Group is going to somehow serve to protect my children is patently absurd.

Berkeley Patients Group served thousands of medical marijuana patients in the Berkeley area for 12 years.  It was an industry leader and a model of compassion and legal integrity. It was in strict compliance with state and local law, and has long worked with the City of Berkeley and the local community to provide a safe and responsible service to patients in need.  As a small business, it employed 75 people and was one of the top sales tax generators in the city.

Ms. Haag has claimed that one of her concerns about dispensaries that are in close proximity to schools and parks and playgrounds is the possibility they could be the target of violence or armed robbery.  Banks and pharmacies are also targets of armed robberies and there are a number of them located in West Berkeley.  Like Berkeley Patients Group, they have security.  There is no evidence to suggest, and I have never felt, that it is dangerous to send my children to a school that happened to be near a bank, or a pharmacy....

Ms. Haag has chosen to use her presumably limited resources to deprive the thousands of patients who frequent Berkeley Patients Group a legal, regulated, secure place to purchase desperately needed medicine.  Of course, the closure of Berkeley Patients Group does not mean that these thousands of people will stop buying and using medical marijuana.  They are sick, in pain, and are allowed to purchase and consume marijuana under settled California law (a law that was approved by voters overwhelmingly).  Ms. Haag says that she is not going after medical marijuana patients.  But she must understand that patients will now simply have to find marijuana elsewhere, from the streets, and near schools and parks.  Ms. Haag has not made these areas safer; she has simply increased the demand for an illegal and dangerous drug market.

Ms. Haag also claims that her crackdown on dispensaries is necessary because of problematic marijuana use by high school students.  The reality is that between 1996 (when California passed its medical marijuana law) and 2008 there was an overall decrease in teens' marijuana use.  An analysis commissioned by the California Department of Alcohol and Drug Programs found "no evidence" to support the claim that legalization of medical marijuana in California increased marijuana use during this period....

Most offensive is the notion that legal access to medical marijuana sends the wrong message to kids.  I find the existence of legal medical marijuana very easy to explain to my children.  This is what I tell them: Research and science matter.  The opinions of medical professionals matter.  We should have compassion for those who are very sick, and even for those who are just a little sick; for those suffering the effects of chemotherapy or for returning veterans suffering from PTSD; that we should help meet people's needs and ease pain as best we can (even if it goes against the conventional wisdom or drug war ideology).  I tell my children that it is better for people to buy marijuana from a safe, well-regulated source, than on the street.

I tell my children that the lives of children in Mexico matter too, where United States drug policy has led to the narcotics-related murders of nearly 50,000 people over the last five years, including thousands of children.  That is the harm to children caused by marijuana prohibition, and a drug market that Ms. Haag's actions directly fuel.  The "threat" posed by Berkeley Patients Group, and other dispensaries like it, pales in comparison.

May 8, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, May 07, 2012

En banc First Circuit says RI must turn over murderer to the feds for capital prosecution

As reported in this local article, the full First Circuit today "ruled that [Rhode Island] Governor Chafee must surrender Jason Wayne Pleau to federal custody to be tried for the murder of a gas station manager David Main in September 2010."  Here is more about the notable en banc ruling (which can be found at this link):

The majority of the court rejected Chafee's arguments that the state had the right to refuse to turn Pleau over under an agreement that governs the transfer of inmates between states and the federal government.

If Chafee were to prevail, "Pleau could be permanently immune from prosecution ...," the judges wrote, continuing, "Instead of a place of confinement, the state prison would become a refuge against federal charges."

Chafee had refused to surrender Pleau based on what he called Rhode Island's longstanding opposition to the death penalty. He could face the death penalty for his crimes under federal law.

I suspect an appeal to the Supreme Court may follow, but I also suspect that the Justices may be disinclined to get into this notable fight.

Related prior posts: 

May 7, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (24) | TrackBack

Split Eighth Circuit upholds supervised release condition prohibiting "photographic depictions of child nudity"

Though potential of even great interest to First Amendment gurus than sentencing fans, a split panel of the Eighth Circuit provides a fascinating read today in US v. Kelly, No. 11-1421 (8th Cir. May 7, 2012) (available here). These excerpts from the opinion for the Court sets up what is at issue and the basic holding: 

After a jury convicted A.J. Kelly of being a felon in possession of a firearm, the district court sentenced Kelly to 115 months' imprisonment and 36 months' supervised release.   As part of Kelly's supervised release, the district court imposed several special conditions. Kelly challenged one of these conditions, which concerned possession of materials containing nudity or depicting or alluding to sexual activity. United States v. Kelly, 625 F.3d 516, 517 (8th Cir. 2010).  Finding merit in Kelly's challenge, a panel from this circuit remanded for re-sentencing, id. at 517, and the district court amended the special condition. Kelly now appeals the amended special condition, and we affirm....

On remand, the district court re-sentenced Kelly and amended special condition fifteen. The amended condition provided, "The Defendant shall neither possess nor have under his control any material, legal or illegal, that contains child pornography, or photographic depictions of child nudity or of children engaged in any sexual activity."  To support this condition, the district court made [a number of] individualized findings ... [and] referenced a prior offense where Kelly was convicted of first-degree sexual assault of a child."

Though the majority opinion upholding this condition is notable, it is the concurring opinion authored by Judge Beam and especially the dissenting opinion authored which make the opinion a must-read.  I cannot readily summarize all the terms of the debate, but I can quote the final portion of Judge Bye's dissent to spotlight why it seems this case has garnered some strong judicial feelings:

The majority's decision to affirm the district court not only erodes our applicable criminal and constitutional precedents, but it further exposes our court to the just criticism of a public which already is skeptical of the judicial system. Criminal defendants, as well as the general public, expect that "[t]he punishment should fit the crime." DuBose v. State of Minn., 893 F.2d 169, 172 (8th Cir. 1990) (Arnold, J., concurring in part and dissenting in part).  What message do we communicate about our own judgment when we announce a federal firearm offender can be sent back to prison because he possessed a photograph of his newborn son, or because Kelly's probation officer just happened to conduct a home visit on the same day a relative mailed him a birth announcement of a niece or nephew?

I, for one, expect more.  I expect probation officers in the federal system to consider carefully the special conditions of supervised release they recommend and ensure such conditions are rationally connected and narrowly tailored to a defendant's specific correctional needs, without creating absurd and illogical pitfalls and traps for defendants on supervised release.  I expect the same of district courts when they consider whether to adopt those recommendations.  I expect the same of the lawyers employed by the Department of Justice when defending such conditions in our courts.  I also expect our appellate courts to apply the law rationally and even-handedly, and with the exercise of common sense, when determining whether such conditions comport with constitutional limits.

The majority's decision to affirm the district court reflects a failure of our justice system on all of these levels.  Because I cannot sit idly by and remain silent in the wake of such failures, I must respectfully dissent.

May 7, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Stressing AEDPA deference, split Ninth Circuit upholds 3-strikes sentence for failing to register

Late Friday, the Ninth Circuit issued a notable habeas opinion in Crosby v. Schwartz, No. 10-17726 (9th Cir. May 4, 2012) (available here), which rejects a defendant's Eighth Amendment attack on his three-strikes prison sentence of 26-years-to-life based on his failure to register as a sex offender.  Here is an excerpt from the majority opinion:

Taken together, these three cases [involving similar Eighth Amendment claims] emphasize a consistent principle found in the sex offender registration context — whether the crime is a de minimis crime for which a life sentence is disproportionate is related to how closely the violation is tied to helping achieve the purposes of the sex offender registration statute. See Gonzalez, 551 F.3d at 884-85; Carmony, 127 Cal. App. 4th at 1078-79; Meeks, 123 Cal. App. 4th at 708-10. Thus, the state court was not objectively unreasonable when it concluded that Crosby’s failure to register after he moved was not a mere technical offense. Crosby was no longer living at his last registered address at the time of his arrest, and his failure to register impeded the police’s ability to find him for surveillance.  The state court’s decision is even more reasonable because, unlike the defendant in Carmony, there was evidence that Crosby was actively attempting to evade his obligation to register through the theft and falsifying of stolen identification cards.

Additionally, the California Court of Appeal found that Crosby’s prior convictions were serious and violent crimes.  It noted that during the incident resulting in the rape and forcible copulation convictions, Crosby engaged in multiple acts of violence and threatened the life of the victim.  It was further noted that during the prior robbery conviction, Crosby and an accomplice robbed a restaurant at gunpoint.  The use of violence in Crosby’s prior convictions distinguishes his case from those in which the inference of disproportionality was found to be met by the court....

Crosby’s challenge arises under AEDPA, and we must give the appropriate deference to California Court of Appeal’s decision.  In light of the various cases that have dealt precisely with sex offender registration convictions under the gross disproportionality principle, it was not an unreasonable application of clearly established federal law for the California Court of Appeal to affirm Crosby’s sentence under the Eighth Amendment.

An intriguing partial dissent by Judge Noonan expresses deep concern about arguments from California's lawyers that he sees as advancing the "remarkable contention ... that there is no limit to the punishment that the state may prescribe for any recidivist." He goes on to lament the implications of this argument with a notable classic reference:

In California’s sweeping gloss, proportionality in sentencing a recidivist has been eliminated.  The repeat felon, however technical his felony, is to be “incapacitated.”  With a severity worthy of Sparta, the state of California will bring to book those who thrice fall afoul of any felony provision in its legislation.

I do not believe that the humane restraint of the Eighth Amendment has been so removed from its role in measuring the proportion of the penalty to the offense.

May 7, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

"Realignment of Incarcerative Punishment: Sentencing Reform and the Conditions of Confinement"

The title of this post is the title of this timely new piece by Ken Strutin now available via SSRN.  Here is the abstract:

Part I of this article begins with a review of the state of incarceration as viewed through the lens of prison populations.  Then in Part II, the Supreme Court’s watershed decision in Brown v. Plata is explored, along with an analysis of its justifications for upholding a mass release order to remedy the inadequate medical and mental health facilities in an overcrowded state prison system.  Part III describes California’s novel choice of realignment legislation to comply with this order as a legislative approach that does not result in mass release but rather a mass redirection of incoming offenders away from state prisons and into the local corrections system. The potential for criminal sentencing reform inspired by the Court’s decision and the state’s realignment policy are further explored in Part IV, which examines past and present efforts to fine-tune incarcerative sentencing outcomes mindful of the conditions of confinement.  Finally, additional suggestions for uncovering and taking into account the conditions of confinement as an aid to reform are considered at different points along the adjudication spectrum.

May 7, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, May 06, 2012

Making a full-throated pitch for SCOTUS to again address reasonableness review

Regular readers may know that I am generally underwhelmed with how some circuits have approached reasonableness review, and I have long been troubled with the disinclination of some circuit to review rigorously within-Guideline sentences. Driven in part by those concerns, I have authored an amicus brief support in cert in the US v. Rubashkin case in which I lament the state of reasonableness review and urge SCOTUS involvement. The full amicus (which I filed aided by the fine folks at the Washington Legal Foundation) can be downloaded below, and here are excerpts from the state of the argument:

Problematically, in the half-decade since this Court’s rulings in Rita, Gall, and Kimbrough v. United States, 552 U.S. 85 (2007), the circuit courts have developed inconsistent and sometimes constitutionally suspect approaches to reasonableness review.  Some circuits now regularly reverse sentences as procedurally unreasonable; others almost never do. Some circuits now regularly engage with the statutory factors of § 3553(a) when reviewing for substantive reasonableness; others almost never do.  Accordingly, reasonableness review is not helping to “iron out sentencing differences” nationwide, but rather is exacerbating these differences.  Tellingly, in recent official testimony, the U.S. Department of Justice has lamented the circuits’ disparate approaches to reasonableness review, and the U.S. Sentencing Commission has urged Congress to amend the SRA to resolve circuit splits over the application of reasonableness review.  And many federal judges and commentators have asserted that appellate review of sentences — and all of modern federal sentencing under advisory Guidelines — would benefit significantly from this Court’s further guidance on the contours of reasonableness review.

Reasonableness review has been distinctly dysfunctional in those circuits that have adopted a so-called “presumption of reasonableness” for reviewing within-Guideline sentences.  Curiously, there has yet to be a single appellate ruling that expounds upon — or, for that matter, even discusses — when and how this “presumption” can be rebutted or the legal consequences of any (phantom) rebuttal.  Rather than function as the true “presumption” this Court outlined in Rita, the “presumption of reasonableness” has been used to convert the Guidelines into a sentencing safe-harbor, making all within-Guideline sentences effectively immune from substantive reasonableness review.  (Indeed, despite the appeal of thousands of within-Guideline sentences since Rita, not one single within-Guideline sentence has been found substantively unreasonable in the “presumption” circuits.)  That some circuits treat within-Guideline sentences as per se reasonable not only conflicts with this Court’s clear holding in Rita and Congress’s instructions in § 3553(a), but also raises serious constitutional concerns in light of this Court’s Sixth Amendment jurisprudence in Booker and its progeny....

[D]ue to the Eighth Circuit’s routine of always affirming within-Guideline sentences, the district court approached the sentencing of Mr. Rubashkin as if only the Guidelines mattered; in turn, the Eighth Circuit affirmed an extreme prison sentence for a nonviolent first offender using the rubber-stamp approach to reasonableness review it has adopted only for within-Guideline sentences.  This case thus highlights how some (but not all) district courts are still disregarding the statutory instructions of § 3553(a) that Booker made central to federal sentencing, and how some (but not all) circuit courts are disregarding this Court’s instructions for reasonableness review set forth in Rita, Gall, an Kimbrough.  Absent this Court’s intervention, the rulings below will stand as a high-profile reminder that district and circuit courts can feel free to treat Booker and its progeny as merely a lengthy “tale told by [the Justices], full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act V, Scene 5.

Download WLF-Rubashkin v United States

May 6, 2012 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Note examines "vastly different" circuit views on internet bans for supervised release

Via Concurring Opinions, I discovered this new student note titled "You Don’t Have Mail: The Permissibility of InternetUse Bans in Child Pornography Cases and the Need for Uniformity Across the Circuits."  Here is the abstract:

The federal courts of appeal have formed vastly different conclusions with respect to the reasonableness of Internet-use bans as a term of supervised release in virtual child pornography cases.  All courts ground their decisions in 18 U.S.C. § 3583(d), the federal statute governing supervised release conditions.  Nonetheless, when presented with seemingly analogous facts, some courts uphold Internet-use bans, whereas others strike them down.  Courts upholding such bans conclude that they constitute effective deterrents and ensure public safety.  Courts overturning the bans, on the other hand, assert that they unreasonably deprive offenders of their liberty interests.

Because decisions regarding the permissibility of Internet-use bans are, under the current statutory regime, incoherent at best and arbitrary at worst, Congress should amend § 3583(d) to provide judges with meaningful, cyberspecific guidance.  Accordingly, this Note proposes that Congress adopt the UNIFORM Act, which sets forth child pornography–specific guidelines for determining the terms for supervised release.  Inspired by the United States Sentencing Guidelines and extracted from the caselaw regarding the permissibility of Internet-use bans, the UNIFORM Act seeks to limit judges’ sentencing discretion in child pornography cases.  At bottom, this Note posits a commonsense compromise, informed by existing statutes and caselaw, which would achieve consistency in an area of the law currently plagued by judicial ambiguity.

May 6, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack