Thursday, October 17, 2013

Federal courts and defenders get a few extra shekels in budget deal

As reported here via The BLT, there was a little good news for the federal courts and defenders in the final budget deal hammered out yesterday:

The budget deal Congress approved late Wednesday to reopen the government and raise the debt ceiling provides $51 million in additional funding to the judiciary and to federal defenders.

Federal courts officials and members of the Senate Judiciary Committee greeted the increase as good news, although it is small when compared to $350 million in budget cuts earlier this year as part of sequestration.

In the bill, $1.012 billion would go to defender services, marking a $26 million annual increase over Fiscal Year 2013 for attorneys who represent indigent defendants, said Charles Hall, a spokesman for the Administrative Office of the U.S. Courts.

The extra funding would primarily go to pay the backlog of attorney fees under the Criminal Justice Act, which funds court-appointed private counsel. Payments were suspended in mid-September, when funding ran out two weeks before the end of the fiscal year.

The bill also includes $4.8 billion for judiciary salaries and expenses. That amounts to a $25 million annual increase over FY2013, court officials said. The legislation gives judiciary officials the ability to float those funds among accounts to respond to the most urgent budget needs as they arise, Hall said.

Overall, the judiciary budget would rise from about $6.65 billion to about $6.7 billion. The Senate first approved the bill by an 81-18 vote. The House then approved the bill by a 285-144 vote, sending it to the White House.

A spokesman for Senator Christopher Coons (D-Del.), chairman of the Senate Subcommittee on Bankruptcy and the Courts, said the funding levels should be sufficient to end the furloughs of federal defenders.

A few prior related posts:

October 17, 2013 in Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, October 16, 2013

Notable shots at federal prosecutorial efforts in special concurrence to Eleventh Circuit sentencing reversal

I was intrigued to come across what stuck me as an unusual and sharp "special concurrence" from the pen of US District Judge Dudley Bowen Jr., who was sitting by designation and provided an additional panel vote to reverse a sentence in US v. Rodriguez, No. 11-15911 (Oct. 16, 2013) (available here). Here is the substantive reason for the reversal as explained by the main panel opinion:

Mr. Rodriguez argues that the District Court clearly erred when it found that his offense involved more than 50 victims. Although he acknowledges that the government presented 42 affidavits of victims who suffered a loss and a summary chart indicating that there were 238 victims total, he points out that the government provided no witnesses or underlying data to authenticate the government’s summary chart.  For this reason, Mr. Rodriguez argues that the District Court’s finding is not supported by reliable and specific evidence.  We agree.

A circuit decision finding insufficient the evidence relied upon by a district judge at sentencing is itself notable.  But the substance and style of Judge Bowen's four-page concurrence really caught my attention.   These excerpts highlight why:

I concur in the opinion in full. I write specially to comment on the Government’s treatment of the sentencing proceedings.

This is another case wherein the Government has failed to come forward with evidence at a critical time.  Unfortunately, important objections made by a defendant at a sentencing hearing are often dealt with as an afterthought.  The Government’s cavalier disregard for the need of further evidence, specific references to a trial transcript, or another basis upon which the district court may make sustainable findings is all too typical.  In this case, after a laboriously conducted two-week trial, resulting in a conviction we readily affirm, the Government’s willingness to allow the matter to conclude resting upon extrapolation, conjecture, and innuendo left the district court stranded with a well-prepared Presentence Investigation Report, some commentary, and little else....

It is true that a sentencing proceeding is more flexible and less formalized than a trial to a jury.... I fear that the latitude allowed in sentencing proceedings often lulls the Government’s lawyers into a species of spectator.  However, the lower standard of proof, the district court’s wide discretion, and the degree of informality in no way lessen the importance or the due process implications of the event....

In fairness to the district court, findings made at a sentencing hearing are often entered months after a trial, following other trials, adversary proceedings, contested matters, and numerous matters in litigation.  The United States Probation officers correctly concentrate on the preparation of a Presentence Investigation Report, which may include evidentiary matters, opinions, conclusions, and recommendations based on subjective criteria.  When facts in the Presentence Investigation Report are disputed, however, the district court needs more.  No one is better positioned than trial counsel for the Government to anticipate and satisfy the need for articulation, protection, and supplementation of the record with the testimony of witnesses, necessary exhibits, or other evidence.  Too often, energetic, successful prosecutors approach what is arguably the most important part of the case with a surprising level of inexactitude.  Responsible advocacy demands more.

October 16, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

"Three myths about conservatives and criminal justice" ... which are really stories about (slowly) changing modern realities

The title of this post is drawn from the headline of this recent FoxNews opinion piece by Vikrant Reddy, a senior policy adviser for Right On Crime. Here are excerpts, after which I explain my addition to the headline:

Over the summer, Americans were embroiled in fierce debates about NSA surveillance, Syria, and — of course — ObamaCare.  Attorney General Eric Holder’s August 12th address on criminal justice reform, however, hardly made a blip on the national radar.

Observers who were surprised by this fundamentally misunderstand conservative views on criminal justice. Indeed, Holder himself quite possibly misunderstands conservative views on the subject. Three bits of conventional wisdom on this topic are completely wrong.

1. The conservative position on criminal justice is simply “lock ‘em up and throw away the key.”

Prominent conservatives like Jeb Bush, Newt Gingrich, and Ed Meese are committed to reducing the incarceration of many nonviolent offenders while also enhancing public safety through effective community corrections and law enforcement.  After Holder’s August policy address, Grover Norquist and Richard Viguerie essentially asked, “What took you so long?”

Increasingly, conservatives argue that prisons are necessary to incapacitate violent and career criminals but sometimes grow excessively large and costly like other government programs.... Conservatives appreciate the role that prison expansion has played in reducing crime, but they also recognize that incarceration has diminishing returns....

Citing recidivism rates of around 66% in some states, Newt Gingrich and Mark Earley observed: “If two-thirds of public school students dropped out, or two-thirds of all bridges built collapsed within three years, would citizens tolerate it?”

2. “Red states” are resistant to criminal justice reform.

In just the last three years, conservative legislatures and governors in Pennsylvania, South Carolina, and South Dakota enacted major reforms to avert future prison growth that redirect some nonviolent offenders to drug courts, electronic monitoring, and strong probation with swift and certain sanctions to promote compliance.

In 2012 and 2013, Georgia’s conservative legislature and Republican governor, Nathan Deal, passed perhaps the nation’s most sweeping adult and juvenile correctional reform bills. In 2011, an important prison reform bill was signed by John Kasich, the Republican governor of Ohio.

Texas, in particular, is a national reform model. A 2007 legislative estimate projected that over 17,000 new prison beds, at a cost of $2 billion, would be needed in Texas by 2012. State legislators instead expanded community-based options like probation, accountability courts, and proven treatment programs—for a fraction of the cost of prison expansion....

3. Conservative prison reforms are just a response to deficits and will be reversed once budgets are flush again.

Prison reform makes fiscal sense, especially in the wake of a recession that severely tightened state budgets, but this is not the only motivation behind conservative reform efforts. Texas, for example, began its reforms when it enjoyed a budget surplus.

Conservatives are principally concerned with public safety.  Troubling recidivism statistics suggest that some low-level, nonviolent offenders who are incarcerated actually emerge from prison more dangerous than when they entered.  Conservatives want to ensure that non-violent offenders amenable to rehabilitation can resume their lives as law-abiding citizens, productive employees, and responsible parents.

They are particularly concerned about the effect of sentencing policies on families, the bedrock institution of society. Overwhelming social science evidence — and common sense — indicates that children of incarcerated parents are more likely to perform poorly in school, engage in juvenile crime, and be incarcerated themselves.

Addressing this problem means using prison less for some nonviolent offenders and using community supervision more — but tough supervision that requires offenders to provide restitution to their victims, get drug treatment, keep stable jobs, and support their families.

I very much like this op-ed, but it strikes me as neither accurate nor fair to call the quoted claims "myths" as much as prior realities that are slowly changing.  Indeed, the main reason so many "red states" have been leading some of the modern reform movement lately is because of the extreme and dire budget consequences now evidence in the wake of prior "lock 'em up and throw away the key" laws and practices long embraced by conservatives in these red states.

Perhaps the clearest proof that conservatives have been (and still tend to be) fans of the lock'em up approach to criminal justice comes from the latest statistics on state-by-state incarceration rates. This DOJ Bureau of Justice Statistics press release about the latest official data on incarceration rates highlights the following telling data:

In 2012, states with the highest imprisonment rates included Louisiana (893 per 100,000 state residents), Mississippi (717 per 100,000 state residents), Alabama (650 per 100,000 state residents), Oklahoma (648 per 100,000 state residents), and Texas (601 p er 100,000 state residents).  Maine had the lowest imprisonment rate among states (145 per 100,000 state residents), followed by Minnesota (184 per 100,000 state residents), and Rhode Island (190 per 100,000 state residents).

Though there are lots of factors other than politics and policies that impact crime and incarceration realities in various states, these data demonstrate it is hardly mythical to believe that conservate policy-makers and opinion leaders have historically (and still today) favor lock'em up approaches to criminal justice.

Some recent and older related posts:

October 16, 2013 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Two notable SCOTUS criminal procedure cases up for argument today

The government shutdown is not preventing the Supreme Court from doing its usual work, and today that work includes hearing oral argument in two criminal cases: Kansas v. Cheever, a state death penalty case concerning Fifth Amendment issues and Kaley v. United States, a federal case concerning whether and when an indicted defendant's assets can be frozen.  As usual, SCOTUSblog has terrific argument previews, and here are links and excerpts:

"Court to consider Fifth Amendment and expert testimony in capital case":

The Fifth Amendment to the Constitution provides that no one in a criminal case can “be compelled… to be a witness against himself.”   In the case of death penalty defendant Scott Cheever, that means that the state obviously cannot require him to testify in his capital murder trial. But what if Cheever’s defense includes the argument that the murder could not have been premeditated because he was intoxicated at the time of the murder? Can the state rebut that defense by introducing testimony from the psychiatrist who conducted a court-ordered examination of Cheever?  That is the question before the Court in Kansas v. Cheever.

"Court to consider scope of challenges to asset freezes":

Kaley v. United States... before the Court arises from the (seemingly increasingly) common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer.  The question is whether the defendant can challenge the grand jury’s determination that there is probable cause to indict him, when the indictment is the basis for the freeze.  At first blush, that question sounds fairly dry.  But criminal forfeitures are a key part of the federal government’s efforts to prosecute crime -- including because, by limiting a defendant’s ability to fight the charges against him, the pretrial restraining orders enhance the government’s ability to get either a guilty plea or a guilty verdict.   As such, a pro-defendant ruling in the case could shift the balance of power in many criminal proceedings back away from the federal government.  Underscoring the significance of the case is the fact that Michael Dreeben, the Deputy Solicitor General with primary responsibility for criminal cases at the Court, will argue on behalf of the United States.

For reasons suggested in these previews, I suspect the Cheever case will generally get more public attention even though the Kaley case is plainly far more consequential and important for the modern administration of criminal justice systems.

UPDATE:  thanks to SCOTUSblog, I see now that the transcript from oral argument in Kaley v. United States is now here at this link and the oral argument transcript in Kansas v. Cheever is now here at this link.

October 16, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Intriguing controversy over victim involvement in Whitey Bulger sentencing

This new National Law Journal piece, headlined "Judge Asked to Trim Victim Statements in Bulger Sentencing," reports on a notable legal debate in the run up to a high-profile federal sentencing scheduled for next month.  Here are the details:

Lawyers for accused mobster James “Whitey” Bulger and the Boston U.S. Attorney’s Office are facing off about whether victims of crimes for which he was acquitted should be allowed to speak out during his sentencing hearing next month.

The dispute highlights the wide discretion that federal judges hold in weighing evidence a jury rejected when passing sentence. In August, a jury found Bulger guilty of 11 of 19 murders that were predicate acts in the racketeering charges. Bulger also was found guilty of numerous additional racketeering and conspiracy offenses including extortion, narcotics, money laundering and firearms charges.

On Friday, prosecutors asked District of Massachusetts Judge Denise Casper to deny Bulger’s motion to exclude certain victim-impact statements from his November 13 sentencing hearing — specifically, those by family members of victims of crimes for which Bulger wasn’t convicted.

“Given the tumultuous history of this case and the backdrop of the inherent frailties of the Government’s witnesses, the Court should exercise its discretion by not considering acquitted conduct because to do otherwise is an insult to the jury process,” they wrote. “The jury has acquitted James Bulger of numerous murders he was accused of, and for which the government’s own cooperating witnesses are responsible. The sanctity of a jury's verdict should not suffer second guessing or be disrupted,” said Hank Brennan, of counsel to Boston’s Carney & Bassil, one of Bulger’s lawyers.

It’s relevant that Bulger was part of the criminal enterprise that killed all 19 victims, said Assistant U.S. Attorney Brian Kelly, chief of the public corruption unit in Boston.... “The fact that they found him guilty of [only] 11 murders doesn't mean that the other victims of the criminal group shouldn't have a say at sentencing,” Kelly said....

There’s very little case law on point and what there is grants courts wide discretion over what to consider at sentencing, said Jeff Steinback, a Chicago criminal defense lawyer who served on the U.S. Sentencing Commission’s practitioner advisory group between 2010 and 2012. “It’s always tricky, and there’s always a balancing act inherent in the process,” Steinback said.

This dispute seems very unlikely to have any substantive impact: given Bugler's age and the seriousness of his crimes of conviction, it is a near certainty that he will be getting a formal or functional life sentence.  But, especially for those eager to have a chance to speak out against Bulger in court, this matter is surely of symbolic and emotional importance for the victims.  For these reasons, I would be surprised if the district court precluded any victims from testifying at sentencing.

October 16, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, October 15, 2013

SCOTUS takes up another federal criminal gun case while dodging bigger Second Amendment contentions

The Supreme Court this morning granted review on a technical federal gun crime issue, but denied review on a Second Amendment case looking to figure out the reach of SCOTUS rulings in Heller and McDonaldHere is the SCOTUSblog summary of these developments:

The Court also granted review ... on the legality under federal law of the owner of a gun selling it to someone else, if the new owner can have a gun legally.  That case is Abramski v. United States (12-1493).  However, the Court followed its recent pattern of refusing to hear constitutional challenges to gun control laws under the Second Amendment, turning aside a Maryland case seeking to expand the personal right to have a gun beyond the home (Woollard v. Gallagher, 13-42).

Notably, Abramski is the second technical statutory federal gun crime case that the Supreme Court has decided to resolve this Term.  Two weeks ago, the Court granted cert in US v. Castleman, which concerns whether a "Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a 'misdemeanor crime of domestic violence' under 18 U.S.C. § 922(g)(9)."

Based on a too-quick review of the cert briefing in these cases, I doubt that either Abramski or Castleman will result in a major ruling concerning federal criminal law or sentencing.  But, especially given the relative dearth of significant sentencing cases on the SCOTUS docket so far, I will keep these cases on my persona watch-list.  I think either or both cases could develop into Second Amendment sleepers if some of the briefing or some of the Justices contend that there is more at stake in these cases than just a technical federal statutory crime issue.

October 15, 2013 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, October 14, 2013

Intriguing research and debate surrounding talk of increasing mandatory minimum sentence for illegal gun possession in Chicago

This new Chicago Sun-Times article, headlined "U. of C. study bolsters call for stiffer firearms sentences: police supt.," reports on some notable new crime research concerning a proposal to increase the mandatory minimum sentence for certain gun possession crimes.   Here are excerpts:

Mayor Rahm Emanuel’s argument for stiffer firearms sentences is bolstered by a new study showing gun possession offenders placed on probation are more likely to get re-arrested for murder than other felons, his police superintendent says.

The University of Chicago Crime Lab studied whether those convicted of aggravated unlawful use of a weapon — a gun possession charge — have higher arrest rates for murders and non-fatal shootings than other felons. Using Chicago Police arrest data, the study found that aggravated UUW offenders were four times more likely to be re-arrested on murder charges and nearly nine times more likely to be locked up for nonlethal shootings than other felons.

The U of C study focused on all felons — and a subset of aggravated UUW offenders — who have been sentenced to probation between 2008 and 2011 in Cook County. The study tracked any re-arrests within two years of their probation date.

“This data makes clear that we have to treat illegal gun possession as the violent crime that it is,” police Supt. Garry McCarthy said on Friday.

A bill backed by the Emanuel administration and Cook County State’s Attorney Anita Alvarez would raise the mandatory minimum sentence for aggravated UUW from one to three years and would require offenders to serve 85 percent of their sentences — a “truth in sentencing” provision.

“No matter how you look at it, this bill will save lives,” McCarthy said. “Every illegal gun on our street is a potential murder and the bill pending in Springfield is narrowly tailored to stop violent criminals.”...

Todd Vandermyde, a lobbyist for the National Rifle Association in Illinois, said he remains opposed to the legislation because he’s concerned first-time offenders could get trapped in the same net as felons.

Meanwhile, the Illinois Department of Corrections last week warned of the steep cost of getting tougher on gun-possession offenders. The department said it would cost about $1 billion to house an additional 3,860 prisoners over 10 years.  Those costs would include the $21,000 annual cost of housing each prisoner plus the cost of building new prisons or retrofitting existing ones to accommodate them....

Vandermyde said he doesn’t have a problem with boosting the penalties for felons caught with guns.  But he’s worried about first-time offenders getting three-year prison terms....

Aggravated unlawful use of a weapon involves a person who possesses a gun on his person or vehicle, isn’t on his property, and one of the following circumstances exists: the gun is loaded and immediately accessible; the gun is uncased and unloaded, but the ammunition is immediately accessible; or the person doesn’t have a state Firearm Owner’s Identification Card.

The seven-page University of Chicago Crime Lab report referenced in this press article is available at this link (which a kind and helpful reader sent my way).  

In addition, John Maki, Executive Director of the John Howard Association of Illinois, has authored a lengthy response here to the UC Crime Lab report titled "Mandatory Minimums Will Not Solve Chicago’s Epidemic of Gun Violence: A Response to the University of Chicago Crime Lab’s Support of HB2265." Here is how this interesting reponse starts and ends:

As Illinois’ only non-partisan prison watchdog, the John Howard Association (JHA) believes that the state needs to do everything in its power to use evidence-driven laws, policies, and practices to address Chicago’s epidemic of gun violence. This must include the appropriate use of the state’s prison system, particularly for the serious offense of illegal gun possession. However, as we debate how we should use prison, we should do so with a clear understanding that the deeper we send a person into the justice system, the more we trade the possibility of the long-term benefit of rehabilitation for the short-term effect of incapacitation....

JHA opposes HB2265 because we agree with the consensus of experts and practitioners who have found that the wise use of judicial discretion is more effective at preventing crime than mandatory minimum sentences. At the same time, it is clear that Mayor Emanuel’s administration and its supporters will continue to lobby for HB2265. JHA would therefore like to recommend two amendments.  First, as supporters have argued that the costs of HB2265 will be minimal and that mandatory minimums could even save taxpayer money by deterring crime, JHA proposes that the City of Chicago should pay for the costs of increased incarceration that stem from the bill, which would otherwise fall entirely on the state. Second, if supporters believe that the law will work, they should demand a three-year sunset be placed upon the bill.  This would allow analysts to isolate and evaluate its impact. In three years, if the evidence shows that HB2265 works in the way that the Crime Lab argues it will, no one will oppose re-authorizing it, including JHA.

October 14, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Could (and should) all federal district court judges consider going on strike for a few days?

The question in the title of this post was the question which came to mind after seeing these recent press reports about how bad matters are getting in the federal trial courts as a consequence of the double-whammy of sequester and the government shut-down:

Having every federal district court judge refuse to show up for work seems much more likely to happen in a Fed Courts exam question than in reality. Interesting legal questions and issues aside, wouldn't it send an especially strong message to Congress and the President if a whole lot of federal judges started coming down with the blue flu?

October 14, 2013 in Who Sentences? | Permalink | Comments (8) | TrackBack

Florida legislature told to "End confusion on juvenile sentencing"

The title of this post is drawn from the headline of this effective recent editorial from the Tampa Bay Times, which makes these points about the post-Miller mess in Florida:

By reinstating the original sentence of life in prison without parole for Nicholas Lindsey on Friday, a Pinellas-Pasco Circuit Court judge entered muddy legal waters.  Lindsey and other juveniles convicted of murder continue to be sentenced under a state statute that is now unconstitutional as applied to them.  There is no clear road map for judges, because the Florida Legislature has failed to bring state law into conformance with a U.S. Supreme Court ruling.  Lindsey's reconsidered sentence for shooting and killing a St. Petersburg police officer will likely be challenged, wasting resources and prolonging the pain for the victim's family.  Had the Legislature acted responsibly, the courts would not be operating in the dark and creating law as they go.

State courts are puzzling through what to do with juveniles who were convicted of first-degree murder and sentenced under state law that provides for a death sentence or life in prison without the possibility of parole.  Minors cannot be sentenced to death because of a 2005 U.S. Supreme Court ruling.  Last year, the court ruled that a life sentence without parole cannot be mandatory for juvenile offenders — people who committed their crime before reaching 18 years old.  The court said that in light of a young person's lack of maturity and capacity to change as he grows up, courts must be permitted to take these circumstances into account in sentencing.  Florida law gives judges no discretion to impose a lesser sentence....

Other circuit court judges have ruled inconsistently.  A judge in Hillsborough County recently resentenced Amer Ejak, now 20 years old, to life without parole for clubbing and strangling a man in 2009 — the same sentence Ejak originally received.  But compare that to a teen murderer in Pasco County who was sentenced last month to life in prison with the possibility of parole after 25 years, even though state law makes no provision for it.  An August ruling by the 5th District Court of Appeal in Daytona Beach said that the only legal sentence for juveniles guilty of capital murder is life with the possibility of parole after 25 years, but that decision is only controlling precedent for part of the state.

The Florida Legislature surely knew that by not rewriting state law to reflect the U.S. Supreme Court ruling and giving judges the opportunity to impose lesser sentences it would cause confusion and result in disparate treatment of juvenile offenders across the state. Lawmakers shifted their responsibility to the courts.  The Florida Supreme Court will have to bring clarity to the law.  In the meantime, trial courts faced with resentencing some of Florida's more than 200 inmates who were convicted and sentenced on murder charges should follow the U.S. Supreme Court's ruling as best they can.

October 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, October 13, 2013

Parole precogs: computerized risk assessments impacting state parole decision-making

PrecogsPredicting who is likely to commit a crime in the future is no easy task, as fans of "Minority Report" know well.   But states that retain discretionary parole release mechanisms to some extent require its officials to do just that.  And, as this lengthy Wall Street Journal article explains, state officials are (in my view, wisely) relying more and more on computerized risk assessment instruments when making parole decisions.  The WSJ piece is headlined "State Parole Boards Use Software to Decide Which Inmates to Release: Programs look at prisoners' biographies for patterns that predict future crime," and here are excerpts:

Driven to cut ballooning corrections costs, more states are requiring parole boards to make better decisions about which convicts to keep in prison and which to release. Increasingly, parole officials are adopting data- and evidence-based methods, many involving software programs, to calculate an inmate's odds of recidivism.

The policy changes are leading to a quiet and surprising shift across the U.S. in how parole decisions are made. Officials accustomed to relying heavily on experience and intuition when making parole rulings now find they also must take computerized inmate assessments and personality tests into account.

In the traditional system, factors like the severity of a crime or whether an offender shows remorse weigh heavily in parole rulings, criminologists say. By contrast, automated assessments based on inmate interviews and biographical data such as age at first arrest are designed to recognize patterns that may predict future crime and make release decisions more objective, advocates of the new tools say.

In the past several years, at least 15 states including Louisiana, Kentucky, Hawaii and Ohio have implemented policies requiring corrections systems to adopt modern risk-assessment methods, according to the Pew Charitable Trusts' Public Safety Performance Project. California is using computerized inmate assessments to make decisions about levels of supervision for individual parolees. This year, West Virginia began requiring that all felons receive risk assessments; judges receive the reports before sentencing with the option to incorporate the scores into their decisions.

Such methods can contradict the instincts of corrections officials, by classifying violent offenders as a lower recidivism risk than someone convicted of a nonviolent robbery or drug offense. Criminologists say people convicted of crimes like murder often are older when considered for release, making them less likely to reoffend. Inmates convicted of nonviolent crimes like property theft, meanwhile, tend to be younger, more impulsive and adventurous—all predictors of repeat criminality....

Wider acceptance of computerized risk assessments, along with other measures to reduce state corrections budgets, has coincided with the first declines in the national incarceration rate in more than a decade.

The number of inmates in state and federal facilities fell nearly 1% in 2011 to 1.6 million, after edging down 0.1% in the prior year. The 2011 decline came entirely from state prisons, which shed 21,600 inmates, offsetting an increase of 6,600 federal prisoners. Preliminary 2012 data shows an even larger fall in state inmates of 29,000.

Experts say one reason for the decline is that fewer parolees are returning to prison. About 12% of parolees were re-incarcerated at some point in 2011 compared with 15% in 2006, representing the fifth straight year of decline, according to Justice Department data.

Texas, by reputation a tough-on-crime state, has been consistently using risk assessment longer than many states and is boosting the number of prisoners it paroles each year. With its current system, in use since 2001, it released 37% of parole applicants in 2012 versus 28% in 2005 — some 10,000 more prisoners released in 2012.

Officials in Michigan credit computerized assessments, introduced in 2006 and adopted statewide in 2008, with helping reduce the state's prison population by more than 15% from its peak in 2007 and with lowering the three-year recidivism rate by 10 percentage points since 2005.

Still, experts say it is difficult to measure the direct impact of risk prediction because states have also taken other steps to rein in corrections costs, such as reducing penalties for drug offenses and transferring inmates to local jails.

Michigan's assessments withstood a legal challenge in 2011, when prosecutors sought to reverse the parole of Michelle Elias, who had served 25 years for murdering her lover's husband. A lower court, siding with the prosecutor, ruled the parole board hadn't placed enough weight on the "egregious nature of the crime," court documents say. The Michigan Court of Appeals overturned the decision and upheld Ms. Elias's release.

Yet earlier this month, the same appeals court ruled the Michigan parole board had abused its discretion by releasing a man convicted of molesting his daughter. He hadn't received sex-offender therapy while in prison, but three assessments, including one using [the computer program] Compas, had deemed him a low risk of reoffending. The appeals court, in an unpublished decision that echoed a lower court, said that Compas could be manipulated if presented "with inadequate data or individuals who lie."

The Compas software designer, Northpointe Inc., says the assessments are meant to improve, not replace, human intelligence. Tim Brennan, chief scientist at Northpointe, a unit of Volaris Group, said the Compas system has features that help detect lying, but data-entry mistakes or inmate deceptiveness can affect accuracy, he said. The company says that officials should override the system's decisions at rates of 8% to 15%.

P1-BN518_PAROLE_G_20131011180304Many assessment systems lean heavily on research by criminologists including Edward Latessa, professor at the Center for Criminal Justice Research at the University of Cincinnati. Parole boards, typically staffed with political appointees, have lacked the information, training and time to make sound decisions about who should be released, Dr. Latessa said. The process, he said, is one factor contributing to the population surge in the nation's prisons, including a fivefold increase in the number of prisoners nationwide from 1978 to 2009, according to the Department of Justice.

"The problem with a judge or a parole board is they can't pull together all the information they need to make good decisions," said Dr. Latessa, who developed an open-source software assessment system called ORAS used in Ohio and other states. Ohio adopted ORAS last year as the result of legislation aimed at addressing overcrowded prisons and containing corrections spending. Dr. Latessa does paid consulting work with state corrections agencies but isn't paid for use of the system. "They look at one or two things," he said. "Good assessment tools look at 50 things."

Some assessments analyze as many as 100 factors, including whether the offender is married, the age of first arrest and whether he believes his conviction is unfair. In Texas, a rudimentary risk-assessment measures just 10 factors. Data gathered in interviews with inmates is transmitted to the offices of Texas parole board members, who vote remotely, often by computer.

Parole officials say assessment scores are just one factor they consider. Some experts say relying on statistics can result in racial bias, even though questionnaires don't explicitly ask about race. Data such as how many times a person has been incarcerated can act as an unfair proxy for race, said Bernard Harcourt, a University of Chicago professor of law and political science. "There's a real connection between race and prior criminal history, and a real link between prior criminal history and prediction," Mr. Harcourt said. "The two combine in a toxic and combustive way."

Christopher Baird, former head of the National Council on Crime and Delinquency, said statistical tools are best used to help set supervision guidelines for parolees rather than determine prison sentences or decide who should be released. "It's very important to realize what their limitations are," said Mr. Baird, who developed one of the earliest risk-assessment tools, for the state of Wisconsin in the late 1970s. "That's lost when you start introducing the word 'prediction' and start applying that to individual cases."

October 13, 2013 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"Prison Accountability and Performance Measures"

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

A few decades of comparative studies of public vs. private performance have failed to give a strong edge to either sector in terms of quality.  That supposed market incentives haven’t delivered spectacular results is unsurprising, since by and large market incentives haven’t been allowed to work: outcomes are rarely measured and are even more rarely made the basis of compensation, and prison providers are rarely given substantial flexibility to experiment with alternative models.

This Article argues that performance measures should be implemented more widely in evaluating prisons.  Implementing performance measures would advance our knowledge of which sector does a better job, facilitate a regime of competitive neutrality between the public and private sectors, promote greater clarity about the goals of prisons, and, perhaps most importantly, allow the use of performance-based contracts.

Performance measures and performance-based contracts have their critiques, for instance: (1) the theoretical impossibility of knowing the proper prices, (2) the ways they would change the composition of the industry, for instance by reducing public-interestedness or discouraging risk-averse providers, and (3) potentially undesirable strategic behavior that would result, for instance manipulation in the choice of goals, distortion of effort away from hard-to-measure dimensions or away from hard-to-serve inmates, or outright falsification of the numbers.  I argue that these concerns are serious but aren’t so serious as to preclude substantial further experimentation.

October 13, 2013 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Lethal uncertainty: Mizzou Gov postpones execution due to novel drug concerns

As reported in this AP piece, headlined "Missouri gov. halts 1st US execution by propofol," the Show Me State has decided to delay its efforts to show whether a new drug might be used successful to executed condemned murderers. Here are the details:

Missouri Gov. Jay Nixon on Friday halted what was to have been the first U.S. execution to use the popular anesthetic propofol, following threats from the European Union to limit the drug's export if it were used for that purpose.

Nixon also ordered the Missouri Department of Corrections to come up with a different way to perform lethal injections without propofol, the leading anesthetic used in America's hospitals and clinics. Nearly 90 percent of the nation's propofol is imported from Europe.

"As governor, my interest is in making sure justice is served and public health is protected," Nixon said in a statement. "That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed."

Nixon, a Democrat and staunch supporter of the death penalty, did not specifically mention the EU threat in his brief statement. Nixon was Missouri's longtime attorney general before he was first elected governor in 2008. During his 16 years as attorney general, 59 men were executed.

The leading propofol maker, Germany-based Fresenius Kabi, and anesthesiologists had warned of a possible propofol shortage that could impact millions of Americans if any executions took place.

In a statement, Fresenius Kabi applauded Nixon's move. "This is a decision that will be welcomed by the medical community and patients nationwide who were deeply concerned about the potential of a drug shortage," said John Ducker, CEO of Fresenius Kabi USA. The company said propofol is administered about 50 million times annually in the U.S....

Drug makers in recent years have stopped selling potentially lethal pharmaceuticals to prisons and corrections departments because they don't want them used in executions. That has left the nearly three dozen death penalty states, including Missouri, scrambling for alternatives. Missouri altered its execution protocol in April 2012 to use propofol. The drug gained some level of infamy in 2009 when pop star Michael Jackson died of a propofol overdose.

Nixon's decision also leaves uncertain the execution scheduled for next month for another convicted killer, Joseph Franklin. Soon after Nixon's announcement, Missouri Attorney General Chris Koster filed a motion with the Missouri Supreme Court to vacate the Oct. 23 execution date for Nicklasson and to set a new date "soon after" Franklin's execution date of Nov. 20. A spokeswoman for Koster declined comment.

In addition to concerns raised about how the EU would respond to the execution, Missouri's decision to use propofol prompted a lawsuit filed on behalf of nearly two dozen death row inmates claiming use of the unproven execution drug could result in pain and suffering for the condemned man.

Koster, a Democrat, and Republican Missouri state Sen. Kurt Schaefer have suggested that if the state can't execute by lethal injection it consider going back to the gas chamber, something that hasn't been used since the 1960s. Missouri no longer has a gas chamber but Schaefer recently wrote to Nixon, urging him to consider funding construction of a new one in his next fiscal year budget.

The corrections department on Wednesday agreed to return a shipment of propofol to Louisiana-based distributor Morris & Dickson Co. The company distributes propofol made in Europe by Fresenius Kabi and told the corrections department in November that its shipment was a mistake. Corrections spokesman David Owen said Wednesday that Missouri had a remaining supply of propofol, all of it domestically made. But Fresenius Kabi spokesman Matt Kuhn said even the use of domestically produced propofol in an execution could prompt the EU to impose export controls.

Meanwhile, Mercer Medical, a Kent, Wash.-based third-party vendor, said Friday in a news release it has asked for the 400 milliliters of propofol it sold to the corrections department in June be returned at the request of the manufacturer, Hospira. The website for Hospira says it is headquartered in Lake Forest, Ill....

Nicklasson's attorney, Jennifer Herndon, said she was pleased with the delay, but expects the state to move quickly to revise its execution protocol. "They're pretty anxious to execute people so I would think that the state would put something forward sooner rather than later," Herndon said.

October 13, 2013 in Baze lethal injection case, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (10) | TrackBack

Saturday, October 12, 2013

Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)

I have been busy and distracted by a variety of work (and non-work) activities ever since attending the remarkable Sixth Circuit en banc Blewett oral argument concerning crack sentencing modifications, and I have not wanted to write up my thoughts on the argument until I had a big block of time to devote to the task.   Ergo, I expect I will be posting commentary on the oral argument in this space sometime toward the end of this weekend.

In the meantime, thanks to the tech-friendly Sixth Circuit website, everyone can listen to an audio recording of Wednesday afternoon's hour-long argument via this link. I encourage everyone interested in these issues to take time to listen to the recording.  (And, if one is eager to make the listening experience even more exciting, I would recommend using the audio as a drinking game during which a listener must take a big drink every time someone says "Professor Berman."  The brief I helped file on behalf of the NACDL, which is discussed and linked via this prior post, was subject to discussion during the argument even though there was, disappointingly, very little focused consideration of the Eighth Amendment jurisprudence I stressed in that brief.)

October 12, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, October 11, 2013

Record-long political corruption sentence for former mayor of Detroit

As reported in this New York Times article, headlined "Kwame M. Kilpatrick, Former Detroit Mayor, Sentenced to 28 Years in Corruption Case," a remarkable case of political corruption culminated yesterday in a remarkable federal sentence.  Here are excerpts from the press account of the sentencing:

Kwame M. Kilpatrick, the former mayor of Detroit, stood before a federal judge on Thursday and apologized for putting the people of his city through a corruption scandal so vast that prosecutors say it helped accelerate Detroit’s march toward bankruptcy. “They’re hurting,” Mr. Kilpatrick said. “A great deal of that hurt I accept full responsibility for.”

They were solemn words from the formerly boisterous figure, a bear of a man at 6 feet 4 inches who many believed would lead Detroit out of its long economic downturn. But on Thursday he stood slouched, wearing a tan prison uniform instead of the flashy suits he once favored.  Court officers replaced the entourage of bodyguards that used to follow him around. The diamond that once studded his ear, an emblem of his reputation as the “hip-hop mayor,” was gone.

Then, declaring an end to the bribery and thieving that marked the Kilpatrick administration, Judge Nancy G. Edmunds of United States District Court imposed the sentence prosecutors had sought: 28 years in prison.

Mr. Kilpatrick, 43, was convicted in March of two dozen counts that included charges of racketeering and extortion, adding his name to a list of at least 18 city officials who have been convicted of corruption during his tenure. His punishment ranks among the harshest major state and local public corruption cases. Lawyers for Mr. Kilpatrick said that they intend to file an appeal of the convictions and sentence.

The hearing came at a sobering moment for the city he once led, which is now remaking itself in bankruptcy court as residents wrestle over whom to blame for the fiscal mess. For Detroiters, Mr. Kilpatrick’s meteoric fall — from potential savior of a struggling city to prison-bound symbol of financial mismanagement — may be the closest they will get to holding past leaders accountable for decades of disappointment and poor fiscal decisions....

In 2008, Mr. Kilpatrick resigned after he lied under oath during a police whistle-blower lawsuit and approved an $8.4 million settlement to try to cover it up. After pleading guilty to charges of obstruction of justice, Mr. Kilpatrick served four months in jail and was ordered to pay $1 million to the city. He was soon behind bars again for hiding assets from the court and telling a judge that he could afford to pay only $6 a month in restitution.

The former mayor and Bobby W. Ferguson, a city contractor and a friend, were indicted in 2010 on sweeping federal corruption charges. All told, prosecutors contend that Mr. Ferguson received $73 million worth of city contracts as a result of an extortion scheme that involved Mr. Kilpatrick, netting $9.6 million in illegal profit. Mr. Ferguson was convicted of nine counts and will be sentenced on Friday. “The amount of crime, it was astonishing and it had a huge impact on this city,” Mark Chutkow, one of the prosecutors, said as he left the courthouse on Thursday.

Mr. Kilpatrick’s lawyer, Harold Z. Gurewitz, who pushed for a sentence of no more than 15 years, argued in court that Mr. Kilpatrick was being unfairly targeted as a scapegoat for Detroit’s insolvency, with people trying to “send him out with the sins of the city over the last 50 years.” The sentence, he said in an interview later, was tougher than necessary and stiffer than some people get for violent crimes.

Among some of the highest penalties for recent public corruption convictions, James C. Dimora, former commissioner of Cuyahoga County in Ohio, was sentenced last year to 28 years in prison for racketeering and bribery. A year before, Rod R. Blagojevich, former governor of Illinois, was sentenced to 14 years in prison for convictions that included trying to sell the Senate seat President Obama left open when he went to the White House.

In her ruling on Thursday, Judge Edmunds said her decision was another strong warning to elected officials. “That way of business is over,” she said. “We’re done. We’re moving forward.”

October 11, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, October 10, 2013

US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas

Regular readers have of late become familiar with the remarkable series of opinions being issued by US District Judge John Gleeson in which he forcefully expresses his deep concerns with how federal prosecutors can and will use mandatory minimum sentencing provisions to distort the operation of the federal criminal justice system. Judge Gleeson's latest opinion in this series was handed down yesterday in US v. Kupa, No. 11-CR-345 (E.D.N.Y. Oct. 9, 2013) (available for download below), and its full 60 pages are must-read material for federal sentencing fans. The opinion can not be easily summarized, but its conclusion provide a flavor of what comes before:

I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him.  The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over.  Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose.  It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee him: hold the government to its burden of proving him guilty beyond a reasonable doubt.  And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.

Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose -- to no avail.” [footnote citing Gonzalez-Ramirez, 561 F.3d at 31 (Merritt, J., concurring).] I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty.  But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy.  Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations.  If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.

Download US v Kupa statement of reasons final

Some prior posts noting Judge Gleeson's recent sentencing opinions:

October 10, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (32) | TrackBack

Wednesday, October 09, 2013

"Anormative Conceptions of Punishment and Humanitarian Ideals"

The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:

For the past quarter century, scholars have identified and attempted to explain large differences and changes over time in countries’ penal policies as expressed in their imprisonment rates.  Explanations differ, and imprisonment rates change, sometimes radically, but one thing has remained the same.  The countries atop the rankings have consistently included the United States, South Africa, Russia, the Baltics, Ukraine, and Belarus.

What distinguishes them, and more recently England and Wales, which has led the Western European league tables for two decades, is that they are countries in which punishment discourses, policies, and practices take little account of the interests of offenders.  "There but for the grace of God…" empathy is largely absent.  Mainstream retributive and consequentialist theories of punishment appear to have little influence. Policies and practices, and the implicit punishment theory might best be described as anormative.

October 9, 2013 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (4) | TrackBack

District Judge Graham gets in a final word on child porn sentencing despite Sixth Circuit reversals

I am about to head off line for the bulk of the day in order to head down to the Queen City in order to watch the full en banc Sixth Circuit consider crack sentencing modification rules in Blewett. (I hope late tonight to report on what I see in the argument, perhaps with a prediction as to the outcome.)

For my last word before I go to watch the Sixth Circuit in action, I am pleased to post a recent opinion by US District Judge James Graham that provides its own kind of last word about the Sixth Circuit's recent sentencing work in a child pornography downloading case that the Sixth Circuit took out of Judge Graham's hands.  The opinion in US v. Childs (which can be downloaded below) is relatively brief, and it starts and winds down this way:

This is a disturbing case. Defendant is charged with one count of possession of child pornography. I am called upon to decide whether to accept a plea agreement which requires me to impose a sentence which is roughly only one sixth of the lowest sentence recommended by the United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”). This is disturbing not because I disagree with the sentence, but because I am convinced that under the law of the Sixth Circuit announced in United States v. Bistline, 665 F.3d 758, 761-64 (6th Cir. 2012)(“Bistline I”), I would not have been free to select such a sentence without the government’s agreement....
The Sixth Circuit's decision in Bistline I blurs the distinction between mandatory and advisory by requiring more deference to congressionally created guidelines than that accorded to Sentencing Commission-created guidelines.  Just what implications this might have under Apprendi was not discussed by the Sixth Circuit.

There have been some very important developments since the Sixth Circuit's decision in Bistline I. In its Report to Congress: Federal Child Pornography Offenses (Dec. 2012), www.ussc.gov/Legislative_ and_ Public_ Affairs/ Congressional_ Testimony_ and_ Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/ (visited October 1, 2013), the Sentencing Commission publicly declared that the existing guidelines for child pornography offenses were flawed and in need of repair.  In a letter to Judge Patti B. Saris, Chair of the Commission, dated March 5, 2013, Anne Gannon, National Coordinator for Child Exploitation Prevention and Interdiction, responded to the Commission’s report on behalf of the Department of Justice.  See Letter from Anne Gannon, Nat’l Coordinator for Child Exploitation Prevention and Interdiction, Office of the Deputy Attorney General, U.S. Dep’t of Justice, to Honorable Patti B. Saris, Chair, U.S. Sentencing Comm’n (Mar. 5, 2013), available at http://sentencing.typepad.com/files/doj-letter-to-ussc-on-cpreport. pdf (visited Sept. 30, 2013). The Department expressed its agreement with many of the Commission’s conclusions, noting that the report “reflects a significant amount of detailed research and thoughtful analysis" and thanking the Commission for "undertaking the important task of laying the foundation for reforming sentencing practices involving non-production child pornography offenses." Id. at 1.

Nevertheless, on June 27, 2013, four months after the Commission’s report, the Sixth Circuit filed its opinion in United States v. Bistline, 720 F.3d 631 (6th Cir. 2013)(“Bistline II”) reaffirming it's holding in Bistline I, with no mention whatsoever of the Commission’s findings or the extent of the Department of Justice's concurrence.  As a judge who has regularly sat on the Sixth Circuit Court of Appeals by designation for more than two decades, I find this inexplicable.  Many of the Commission’s criticisms of the child pornography guidelines, including criticisms which the Justice Department concurred in, are identical to the ones I expressed in my sentencing colloquy in Mr. Bistline’s case.  The Sentencing Commission’s criticism of the crack cocaine guidelines was cited as a reason for diminished deference for those guidelines in Kimbrough, and that part of the Kimbrough decision was cited by the Sixth Circuit in Bistline I to explain why the Supreme Court decided that the crack cocaine guidelines were entitled to less deference. See Bistline I, 665 F.3d at 763. In light of the fact that, in the interim, the Commission had spoken on the child pornography guidelines, why would the court not revisit the applicability of Kimbrough when it decided Bistline II? It seems clear to me that under Kimbrough, the child pornography guidelines should be accorded less, not more, deference than others.

It is a tragic irony that sentencing judges in the Sixth Circuit are required to give enhanced deference to guidelines which the independent Commission, relied upon so heavily by the Supreme Court in upholding the Guidelines, has now declared flawed and in need of reform. It is even more tragic that offenders in this circuit will have to rely on prosecutorial discretion, not judicial discretion, in order to receive a just and fair sentence in these cases.

Download Childs Sentencing Opinion and Order

October 9, 2013 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Legal-Marijuana Trend Spreads as More States Weigh Votes"

The title of this post is the headline of this new Bloomberg news piece. Here are excerpts:

Voter support for legal marijuana in Washington and Colorado is spurring similar campaigns in California and three other states that together may bring pot within lawful reach of almost 1-in-5 Americans. 

Advocates are seeking the signatures of registered voters in California, Arizona, Oregon and Alaska, with a combined population of 49 million, to put the question on ballots in 2014.  Colorado and Washington last year legalized marijuana for 12.1 million people.

“Because of Colorado and Washington, it’s created a cannabis tidal wave across the country,” Mike Jolson, 45, a legalization activist in Santa Cruz, California, said by telephone.  “We want to capitalize on this wave.”

Washington and Colorado became the first U.S. states to legalize recreational marijuana through referendums last November, defying federal law that has prohibited pot since the 1930s.  In August, the U.S. Justice Department said it wouldn’t challenge the states, opening the door for others.

In Washington state, regulators are finalizing rules for growing, processing and selling marijuana ahead of a Dec. 1 deadline to begin issuing licenses.  In Colorado, which has finished setting its rules, voters will decide next month whether to tax retail sales at rates of as much as 25 percent. 

“Their success in Colorado was very inspiring, and I thought it would be a good time for us to try here,” said Dennis Bohlke, a computer programmer from Phoenix who said he modeled the Arizona initiative after the Colorado measure....

In addition to recreational use, there are efforts to expand the 20 states that allow medical marijuana.... Ballot proposals to legalize medical marijuana use are being circulated in six states: Arkansas, Florida, Idaho, Nebraska, Utah and Wyoming, according to Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, a Washington-based group that advocates legalization....

Some marijuana proponents are holding off until the 2016 presidential election, when voter turnout is typically higher. Chris Lindsey, an attorney from Missoula, Montana, and a legislative analyst at the Marijuana Policy Project, said he’s working toward adding a recreational-marijuana proposal to his state’s ballot in 2016. “Elections that involve presidential races tend to bring out a younger set of voters and we think we’ll probably benefit from having younger voters,” Lindsey said by phone.

October 9, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Split Tennessee Supreme Court extensively debates capital proportionality review

This local article from Tennessee, headlined "State Supreme Court Upholds Death Sentence, Maintains Sentencing Review Standards For Death Penalty Cases," provides an effective summary of an extensive opinion handed down yesterday concerning capital proportionality review. Here are excerpts:

The Tennessee Supreme Court, in a 3-2 decision, has upheld a death sentence for a Memphis-area man who was convicted of first-degree felony murder after he killed an elderly man while stealing his car.While the entire Court agreed that Corinio Pruitt was guilty, the dissenting justices would have modified the sentence to life without parole.

In reviewing a death penalty case, the Court is required by Tennessee law to conduct what is called a “proportionality review” to ensure that the sentence of death is appropriate in comparison to similar cases. Before conducting a proportionality review with the specific facts in the Pruitt case, the Court first considered whether the methods for such review should be modified. In fact, after the case was argued before the Tennessee Supreme Court in 2012, the Court determined that the issue of proportionality review required additional briefing and argument. After receiving supplementary information from the parties, the Court held oral arguments a second time earlier this year.

The primary issue is the pool of cases used to conduct the comparison in a death penalty case. In conducting its proportionality review, the Court looks at the pool of cases and considers the facts of the crimes, the characteristics of the defendants, and the circumstances of the crimes, with a goal of determining whether a death sentence is excessive or disproportionate.

In 1997, the Court determined that it would compare all death penalty sentences to other cases in which the death penalty was sought. Prior to that, the Court considered all cases in which a defendant had been convicted of first-degree murder, but was not necessarily considered for a death sentence.

The Court on Tuesday rejected the proposal by the defense that it should broaden the pool of cases to include all first-degree murder cases, including those in which the death penalty was never sought. Instead, the Court upheld its previous decisions since 1997 that have conducted a proportionality review by looking only at cases in which the state sought the death penalty and in which a penalty phase was held, regardless of the sentence actually imposed by the jury.

The Court ruled it was inappropriate to review the prosecutors’ initial decisions regarding whether to seek the death penalty at the onset of the case, reaffirming its 1997 Opinion which “noted that including these first degree murder cases in the pool would equate to an implicit review of prosecutorial discretion, that is generally not subject to judicial review.”...

In their separate opinion, Justice William C. Koch, Jr. and Justice Sharon G. Lee, after noting that all murders are serious crimes, stated that comparing all first-degree murder cases would be more consistent with the Tennessee law that requires proportionality review and with the rule that capital punishment is not appropriate for all murders but is reserved for only the most heinous murders and the most dangerous murderers.

The two dissenting justices also pointed to a 2007 American Bar Association study of Tennessee’s death penalty, which stated that the limited pool of cases the Court adopted in 1997 undercut the purpose of proportionality review. After considering Mr. Pruitt’s background and the nature of his crime in light of similar first-degree murder cases in Tennessee, the two justices determined that Mr. Pruitt should be sentenced to life imprisonment without the possibility of parole.

The 50+ page majority opinion in Tennessee v. Pruitt is available at this link, and the partial dissent which checks in at 18 pages is available here.

October 9, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, October 08, 2013

"A messy follow-up to Lafler and Frye: Can 'fun' facts produce 'good' law?"

The title of this post is the title of this great case preview by Rory Little over at SCOTUSblog concerning today's notable Supreme Court oral argument on a topic that ought to interest sentencing fans. Here is how it begins:

When the Supreme Court, two Terms ago, extended Strickland’s “ineffective assistance of counsel” doctrine to plea negotiations (Lafler v. Cooper and Missouri v. Frye), Justice Alito objected in dissent to “its opaque discussion of remedy” and begged the Court to “come to the rescue” by providing better guidance.  Then Michigan’s Solicitor General sought certiorari to review the Sixth Circuit’s grant of habeas relief to a prisoner who claimed that bad lawyering led her to withdraw from a sweet plea deal.  Justice Alito, the only Justice not using the “cert. pool” to evaluate petitions, likely did not object -- and Vonlee Titlow’s pro se cert. opposition failed to highlight the messy and unsettled facts that Michigan’s petition glossed over.  But Tuesday’s oral argument in Burt v. Titlow may highlight problems with sometimes-too-speedy “cert. pool” grants. The Justices are likely to feel frustrated in extracting useful guidance from parties that can’t agree on even the most basic facts.

UPDATE:  With thanks again to SCOTUSblog, I see that the transcript from the oral argument in Burt v. Titlow is now available here.   I will do an additional update if anything special jumps off the page from the transcript.

October 8, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack