Saturday, March 28, 2015

Should states try harder to condemn and execute women to overcome death penalty's sexism?

The question in the title of this post is prompted by this notable new commentary about the Jodi Arias case headlined "Why the death penalty in America is sexist." Here are excerpts:

It took only one juror to spare Jodi Arias the death penalty for the brutal murder of her ex-boyfriend Travis Alexander in 2008. Considering the United States has executed only 13 women in the last 40 years, a death sentence would have been highly unusual.

Women committed less than 10% of all murders in America between 2000 and 2010, a Wall Street Journal analysis of crime data found. Women defendants, however, only make up 2% of death row, according to a recent report by the NAACP.

Even fewer women actually get executed, Death Penalty Information Center executive director Richard Dieter told Business Insider. "There's just less enforcement of the death penalty at almost every stage for females," he said.

Two major factors contribute to the low number of women who get capital punishment: the nature of the crime and how juries view women in general. The death penalty is often used for killers who also commit other felonies like robbery or rape, law professor Victor Streib has previously told the LA Times. Many of the murders women commit, on the other hand, involve people they're related to.

While women commit about 10% of murders, they were responsible for 35% of murders of intimate partners between 1980 and 2008. Most juries consider these crimes of passion arising from disputes — one-time offenses, Dieter said. Because of the high rate of domestic violence against women, though, juries don't give men the same benefit of the doubt.

On the other hand, most states consider killing a child an aggravating factor, or a reason for prosecutors to seek the death penalty. Hiring someone to do the work could also land a woman on death row. "If a woman hires someone, there's a coldness, a calculation. It's different than something that arises out of an argument," Dieter said. Teresa Lewis, for example, plotted to kill her husband and stepson for the insurance money. "Instead of pulling a trigger on a gun, she pulled a couple of young men in to pull the trigger for her," prosecutor David Grimes told a judge at the time, The Washington Post reported. She was the first woman Virginia sentenced to die in more than 100 years.

But the second factor — the jury's perception of the "fragile" female psyche — can overpower aggravating factors. "It's just easier to convince a jury that women suffer emotional distress or other emotional problems more than men," Streib told the LA Times....

"These 12 people [the jury] are asked to see if this person has any redeeming qualities. And they often see their own mother or wife or grandmother, not someone who will continue to be a threat to society," Dieter said. "Jurors just see women differently than men."

Of course, most women aren't going to argue for gender parity in the death penalty, Dahlia Lithwick has written in Slate. Only 59% of women favor the death penalty compared to 67% of men, according to a 2013 Gallup poll. "For equality's sake, you think that women would want the death penalty pursued more often," Dieter said. "But of course, they don't."

March 28, 2015 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, March 27, 2015

Prodded by state court ruling, California announces it will not enforce sex offender residency restrictions

The potential import and impact of state court litigation over collateral consequences is on full display now in California as a result of the news reported in this Los Angeles Times article:

California officials announced Thursday that the state would stop enforcing a key provision of a voter-approved law that prohibits all registered sex offenders from living near schools. The California Department of Corrections and Rehabilitation said it would no longer impose the blanket restrictions outlined in Jessica's Law that forbids all sex offenders from living within 2,000 feet of a school or park, regardless of whether their crimes involved children.

High-risk sex offenders and those whose crimes involved children under 14 will still be prohibited from living within a half-mile of a school, the CDCR emphasized. Otherwise, officials will assess each parolee based on factors relating to their individual cases, the agency said. The shift comes nine years after California voters approved the controversial law, which has made it difficult for some sex offenders to find places to live.

The California Supreme Court on March 2 unanimously ruled that Jessica's Law violated the constitutional rights of parolees living in San Diego County who had argued that the limitations made it impossible for them to obtain housing. As a result, advocates said, some parolees were living in places like riverbeds and alleys.

"While the court's ruling is specific to San Diego County, its rationale is not," CDCR spokesman Luis Patino said Thursday. "After reviewing the court's analysis, the state attorney general's office advised CDCR that applying the blanket mandatory residency restrictions of Jessica's Law would be found to be unconstitutional in every county."

The CDCR sent a memo to state parole officials on Wednesday outlining the policy change. The directive said residency restrictions could be established if there was a “nexus to their commitment offense, criminal history and/or future criminality." The memo said officials would soon provide further direction on how to modify conditions for parolees currently already living in the community....

A CDCR report found that the number of homeless sex offenders statewide increased by about 24 times in the three years after Jessica's Law took effect. Parole officers told the court that homeless parolees were more difficult to supervise and posed a greater risk to public safety than those with homes....  The court ultimately determined that the residency restrictions did not advance the goal of protecting children and infringed on parolees' constitutional rights to be free of unreasonable, arbitrary and oppressive government action.

This news reinforces my view that California's Supreme Court ruling in In re Taylor, S206143 (Cal. March 2, 2015) (available here) was especially significant for the future of sex offender residency restrictions.  I am not surprised that California state officials concluded after reading Taylor that it had to modify how it approached Jessica's Law.  The next big question is whether and how courts in other states will respond if and when Taylor is used by advocates to attack other residency restrictions similar to Jessica's Law. 

A few prior recent related posts:

March 27, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Has modern "death penalty politics radically, shockingly changed"?

The question in the title of this post is prompted by this new Salon piece which carries this full headline: "'We’re seeing it among Evangelicals': How death penalty politics radically, shockingly changed." The piece reports on an interview with National Coalition to Abolish the Death Penalty executive director Diann Rust-Tierney, and here is how the Q&A is introduced:

The recent release of Debra Milke, an Arizona woman who spent 23 years on death row for a crime she did not commit, is first and foremost a tragic story of injustice. But it’s something else, too: another arresting example of how the reality of the criminal justice system in the U.S., which has come under increasing scrutiny in recent years, falls well short of its supposed intentions. As Supreme Court Justice Anthony Kennedy, who was appointed by law-and-order drug warrior Ronald Reagan, told Congress earlier this week, the system is, “[i]n many respects … broken.”

Politicians on both sides of the aisle are more willing to discuss making serious changes to American justice than they have been in more than a decade, but one of the most stark and disturbing manifestations of the system’s flaws still often goes unmentioned. We’re thinking, of course, about the death penalty. But if one considers the great attention paid by the media and the public to recent botched executions in Oklahoma and Arizona — as well as Utah’s decision to bring back firing squads — there’s reason to think that, too, may soon change.

Recently, Salon spoke over the phone with National Coalition to Abolish the Death Penalty executive director Diann Rust-Tierney about her group’s work and the changing politics of capital punishment.

March 27, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, March 26, 2015

Sex, drugs and . . . the real reason the DEA is so eager to preserve the drug war?

This new ABC News report on the details emerging from a DOJ audit of the DEA provides examples of the latest variation on the sort of public corruption that has long been endemic to most prohibition regimes.  The piece is headlined "DEA 'Sex Parties' Funded by Drug Cartels, IG Report Says," and here are excerpts: 

Senior Drug Enforcement Administration agents working overseas allegedly participated in “sex parties” with prostitutes funded by drug cartels, according to a newly-released Department of Justice Inspector General report on the handling of sexual misconduct allegations by law enforcement agencies.

The conduct occurred over a period of years, according to the report.  In addition to soliciting prostitutes, the foreign officers interviewed for the report allege three DEA supervisory special agents were “provided money, expensive gifts, and weapons from drug cartel members."

Some DEA agents who participated in the parties denied knowing about cartel involvement, but the IG report says “information in the case files suggested they should have known the prostitutes in attendance were paid with cartel funds.”

The sex parties occurred in government leased living quarters where “agents’ laptops, BlackBerry devices and other government-issued equipment were present,” posing a security risk and “potentially exposing them to extortion, blackmail, or coercion.” In another instance, two DEA special agents allegedly solicited prostitutes for a farewell party for a senior DEA official.

That official, an acting assistant regional director, allegedly had “sexual relations with prostitutes” and there were “allegations operational funds were used to pay for the party and the prostitutes,” according to the report. The report also alleges that one prostitute was assaulted by someone associated with DEA supervisors following a payment dispute. The report was critical of DEA’s treatment of allegations of sexual misconduct, often dealing with incidents as local management issues and not reporting information up the chain of command.

I sincerely hope that this ugly report of ugly DEA activities and corruption concerns only a few bad apples, and I am confident it is not representative of the behavior of the vast majority of DEA officials and agents. Nevertheless, stories like this one reinforce my fear that at least some drug warriors are not too concerned about casualties in the war on drugs because they themselves often end up as beneficiaries of all the warfare.

March 26, 2015 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Highlights from AG Holder remarks at Bipartisan Summit on Criminal Justice Reform

Thanks largely to the GOP Senators in charge of Senate procedure, we still do not yet know whether Loretta Lynch will be confirmed as the next Attorney General and thus we still have Eric Holder serving in this important role a full six months after he announced his resignation.  Today, in that role, AG Holder gave this address to the "Bipartisan Summit on Criminal Justice Reform." Here are excerpts:

[T]his country faces serious challenges—an excessive prison population that is draining our resources and devastating our communities; systemic institutional biases that disproportionately affect people of color; and an overreliance on incarceration at the expense of alternatives proven to prevent recidivism and strengthen our society. These are momentous and complex issues calling for urgent and concrete solutions and it is abundantly clear that we cannot allow the status quo to persist.

But it is equally evident that we have an unprecedented opportunity – even at this time of deep division and stubborn gridlock – to bring about a fundamental shift in our criminal justice system, and to act together to drive historic change. That opportunity is presented not only by the wide range of distinguished individuals who have come to this conference to speak out against injustice and speak up for progress, but also by the rare consensus emerging across the country. Recently, we have seen conservative stakeholders like Koch Industries and Americans for Tax Reform join with progressive voices like the Center for American Progress to form a new coalition dedicated to this cause....

In the last year, federal prosecutors have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two, representing the lowest rate ever recorded by the U.S. Sentencing Commission. Last year we also saw the first overall reduction in the federal prison population in 32 years. Most impressive of all, we achieved this drop in incarceration while also cutting the overall crime rate, marking the first simultaneous national reduction in both crime and incarceration rates in more than four decades.

Of course, we also recognize that challenges to re-entry, and the likelihood of recidivism, can be exacerbated by an array of collateral consequences that make it more difficult for formerly incarcerated individuals to get a job, to further their education, to find housing and to participate fully in this country’s democratic institutions. For example, across this country today, an estimated 5.8 million Americans – more than the individual populations of 31 U.S. states – are prohibited from voting because of current or previous felony convictions. Nearly 150 years after Reconstruction, when felony disenfranchisement laws were first widely implemented throughout the South to intentionally reduce the electoral strength of former slaves, 40 percent of these individuals are African-American – meaning that nearly one in 13 African-American adults is currently ineligible to cast a ballot. In three states – Florida, Kentucky and Virginia – that ratio is one in five.

These statistics describe a nation at odds with the promise of its founding, and in tension with its most vital ideals. They demand that we examine our institutions and reorient our practices to create the more perfect Union that our earliest citizens imagined and the more just society that all Americans deserve....

In 2011, while only 30 percent of Americans were black or Hispanic, the U.S. prison population was 60 percent black and Hispanic, a disparity that is simply too stark. But justice reinvestment policies can help. The Council of State Governments Justice Center recently examined data from three states – Georgia, Connecticut, and North Carolina – that have employed a Justice Reinvestment approach. And I am pleased to announce that today our Bureau of Justice Assistance is releasing a report showing that these common-sense reforms produced a marked reduction in incarceration rates – particularly among men and women of color.

In Georgia, since sweeping criminal justice reforms were enacted three years ago, prison admissions have fallen by 8 percent and admissions among African Americans have fallen by 11 percent. In Connecticut, the total number of people in state prisons has declined by 17 percent since 2008, while the number of incarcerated African Americans and Hispanics has dropped by 21 percent and 23 percent, respectively. In North Carolina, expanded access to substance abuse treatment and new supervision practices, among other crucial reforms, have led to a 21 percent drop in total prison admissions between 2011 and 2014, while African-American and Hispanic admissions dropped by 26 percent and 37 percent, respectively. And in each of these cases, policies that reduced racial disparities had no adverse effect on public safety. In fact, all three states experienced a reduction in their overall crime rates....

We must reject the notion that old practices are unchangeable, that the policies that have governed our institutions for decades cannot be altered and that the way things have always been done is the way they must always be done. When the entire U.S. population has increased by a third since 1980, but the federal prison population has grown by almost 800 percent, it is time – long past time – to look critically at the way we employ incarceration. When the United States is home to just five percent of the world’s population but incarcerates almost a quarter of its prisoners, it is time – long past time – to reexamine our approach to criminal justice. And when estimates show that a staggering 1 in 28 American children has a parent behind bars and that the ratio for African-American children is 1 in 9, it is time – long past time – to take decisive action in order to end a vicious cycle of poverty, criminality and incarceration that traps too many individuals, degrades too many families and devastates too many communities.

That means more state legislatures must end felon disenfranchisement – and so many other barriers to reentry – for individuals who have served their sentences and rejoined their communities, and invest in alternatives to incarceration like drug courts – something I’d like to see in the next five years in every federal district in America. It means Congress must act to restrict and refine those crimes to which mandatory minimums apply and extend the Fair Sentencing Act so that no one is serving a sentence based on a disparity in punishment between crack cocaine and powder cocaine offenses that Congress, the President and the Attorney General have all declared unjust. And it means gatherings like this one must continue to bring together leaders and advocates, academics and public servants, from all backgrounds and circumstances, to renew our commitment to this vital cause.

The report referenced in this speech is available at this link and a summary is on this webpage.

March 26, 2015 in Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama"

The title of this post is the title of this notable new and timely paper available via SSRN authored by Jennifer Breen and John Mills. Here is the abstract:

Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system.  This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences.  In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing.

This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases.  At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant.  Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”

After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process.  These states are outliers and defy both the national consensus on juvenile adjudication and the Court’s mandate in Miller.  This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing. 

March 26, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Is it constitutional to "offer" juve offenders the alternative sentence of writing a bible essay?

The question in the title of this post is prompted by this local article about a novel alternative sentence being utilized by a judge in Mississippi.  Here are the details:

Dozens of tickets are written every month in South Mississippi for minors in possession of alcohol. It is an offense that could not only cost the person charged hundreds of dollars, it could also cause them to lose their license for up to 90 days, and even worse; it can follow them the rest of their lives. "If you enter a plea of guilty, it's on your record," Harrison County Justice Court Judge Albert Fountain said.

Fountain knows everyone makes mistakes, and instead of letting one mistake follow a young person for the rest of their life, the judge has come up with an alternative way to sentence children charged with minor in possession of alcohol. "A 1,000 word essay on The Book of Revelations and also the effects from drinking alcohol," Fountain said. "I don't force them to do that. It's their choice. That's just my recommendation. They can write it on anything they want to."

He also takes their license for 10 days and places them on a 90 day non-reporting probation with conditions of good behavior. "It just felt like I had to do something different," Fountain said. "There is more to it than just sentencing someone, and I felt I needed to make a difference."

While he knows it can be considered controversial, Fountain feels it is right. "Separation of church and state is a big topic, and I understand some people have their beliefs, but I think what's wrong with the country today is that we've taken Christ and God out of everything," Fountain said.

The judge has been sentencing children this way for the past eight to 10 years. He said about one in every 20 children choose to write an essay on something other than The Book of Revelations. "Some of the things I have gotten from them is that the fear, really reading the essays, what they ought to face in the future if they don't do the right things," Fountain said. "It's pleasing to me to see that."

March 26, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 25, 2015

Are compounding pharmacies likely to cut off drug dealing to states for executions?

The question in the title of this post is prompted by this notable Wall Street Journal article headlined "Compound Pharmacists Trade Group Discourages Supplying Execution Meds." Here are excerpts:

As more states turn to compounding pharmacies to supply medicines for executions, the leading trade group for compound pharmacists is now discouraging its members from preparing or dispensing drugs for this purpose.

The move reflects growing concern among some compound pharmacists that some states – in response to ongoing controversy over the supply of drugs for lethal injections – may decide to alter regulations in ways that would cause pharmacists to face legal problems, according to the International Academy of Compounding Pharmacists. “We have concerns about what may occur,” says David Miller, the IACP chief executive. The trade group represents approximately 3,700 pharmacists who compound medicines, a process that involves customizing ingredients for a specific use.

Separately, the American Pharmacists Association will also consider adopting a similar position at a meeting that begins later this week, according to an official of the trade group, which represents about 62,000 pharmacists nationwide. The vast majority of APA members work for traditional pharmacies that dispense medicines manufactured by drug makers.

Until now, the IACP had not taken any position on supplying drugs for executions, but adopted this new stance after a growing number of drug makers began restricting the use of their medicines for executions. At least nine drug makers have formally taken this step, according to Reprieve, an advocacy group in the U.K. that has been pressuring companies to withhold their medicines for executions.

As a result, more states have gradually turned to compound pharmacies to supply drugs for lethal injections. To date, nine states have either used or indicated they intend to use compounded medicines for lethal injections, according to the Death Penalty Information Center....

Currently, pharmacists are permitted by law to dispense medications for executions if a licensed doctor writes a legitimate prescription, says Carmen Catizone, the executive director of the National Association of Boards of Pharmacy, which represents the state boards, the government agencies that regulate pharmacy practice. At the moment, he says there is no indication that any state legislature is considering a change to its regulations that might pose legal problems for pharmacists.

However, he explains that new policy statements may attract attention from state boards, especially given ongoing controversy over executions and the availability of medicines. “For any change in regulations or rule, the state boards would have to take action.” says Catizone, “But a change in policy can be significant because it may prompt our members to take a closer look at an issue.”

For his part, Miller says the IACP is concerned that state boards may decide to consider such action and, as a result, its members could eventually face legal action. “We definitely think it’s a possibility,” he says. At the same time, the trade group also worries pharmacists who supply drugs may face harassment if their identities become known. The IACP points to a recent episode in Tennessee where the name of a compound pharmacist was inadvertently disclosed. The IACP notes that nearly a dozen states are considering legislation to provide confidentiality.

March 25, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 24, 2015

"The Executioners' Dilemmas"

The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:

Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details.

This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area.

Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.

March 24, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Justices Kennedy and Breyer urge Congress to reform "broken" federal criminal justice system

BreyerKennedyHearing-638x362This new ThinkProgress piece, headlined "Supreme Court Justices Implore Congress To Reform The Criminal Justice System — ‘It’s Not Humane’," effectively reports on the notable comments made about criminal justice reform by two Justices who were testifying before Congress on budget issues yesterday. Here are some of the details:

The prisons are one of the most misunderstood institutions of government. Solitary confinement drives individuals insane. And mandatory minimum sentences are a bad idea. These were the assertions of U.S. Supreme Court Justices Anthony Kennedy and Stephen Breyer in testimony before a House Appropriations subcommittee Monday afternoon.

Asked by Rep. Steve Womack (R-AR) about United States “capacity to deal with people with our current prison and jail overcrowding,” each justice gave an impassioned response in turn, calling on Congress to make things better. “In many respects, I think it’s broken,” Kennedy said of the corrections system. He lamented lawyer ignorance on this phase of the justice system:

I think, Mr. Chairman, that the corrections system is one of the most overlooked, misunderstood institutions we have in our entire government. In law school, I never heard about corrections. Lawyers are fascinated with the guilt/innocence adjudication process. Once the adjudication process is over, we have no interest in corrections. doctors know more about the corrections system and psychiatrists than we do. Nobody looks at it. California, my home state, had 187,000 people in jail at a cost of over $30,000 a prisoner. compare the amount they gave to school children, it was about $3,500 a year. Now, this is 24-hour care and so this is apples and oranges in a way. And this idea of total incarceration just isn’t working. and it’s not humane.

Kennedy, traditionally considered the swing vote among the current set of justices, recalled a recent case before the U.S. Supreme Court in which the defendant had been in solitary confinement for 25 years, and “lost his mind.”

“Solitary confinement literally drives men mad,” he said. He pointed out that European countries group difficult prisoners in cells of three or four where they have human contact, which “seems to work much better.” He added that “we haven’t given nearly the study, nearly enough thought, nearly enough investigative resources to looking at our correction system.”

Kennedy’s comments come just weeks after a federal review of U.S. solitary confinement policy also found that the United States holds more inmates in solitary confinement than any other developed nation. Confinement typically involves isolation in an often windowless cell with a steel door for 23 hours a day, with almost no human contact. The treatment has been found to have a psychological impact in as many as a few days, though, as Justice Kennedy pointed out, many are held for decades. In the wake of the new report, Sen. Dick Durbin (D-IL) called upon the Federal Bureau of Prisons to alter its practices.

In his response, Breyer honed in on Womack’s use of the word “priorities” to suggest that prioritizing long prison sentences was not the best use of resources. “Do you want to have mandatory minimums? I’ve said publicly many times that i think that’s a terrible idea,” Breyer said. “And I’ve given reasons, which I’ll spare you.”

“Is it worth your time on earth, or mine, to try to work out ways of prioritizing? I think it is,” Breyer said. “I think it is a big problem for the country. and so I can’t do anything more in the next minute or 30 seconds other than say I like the word prioritize. I hope you follow it up. And I hope do you examine the variety of ways that there of trying to prioritize and then work out one that’s pretty good.”

As far back as 1998, Breyer has called for the abolition of mandatory minimum sentences, which mandate minimum prison terms by law according to the crime, amount of drugs, or other factors, and give judges no discretion to lower those sentences. He has said they “set back the cause of justice” because they don’t allow for exceptions depending on the circumstances of a given case. Particularly for drug crimes, they have sent low-level drug offenders to prison for sentences that start at 5 or 10 years and quickly ratchet up from there.

This Wall Street Journal article, headlined "Two Supreme Court Justices Say Criminal-Justice System Isn’t Working: Justice Breyer says mandatory minimum sentences are 'a terrible idea'," provides some more notable quotes from the Justices.

March 24, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, March 23, 2015

The extra state habeas question (and its answer?) in Montgomery, the new SCOTUS Miller retroactivity case

Notably, the Supreme Court's cert grant in in another Miller retroactivity case from Louisiana (basics here) included some extra homework for the parties:

14-280 MONTGOMERY, HENRY V. LOUISIANA

The petition for a writ of certiorari is granted.  In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. __ (2012)?"

This added question in Montgomery echoes an issue that the Justices had sought to consider in the prior Toca case, and I think it reflects the thought of some Justices that state courts on state habeas review may not be constitutionally required to apply the modern Teague jurisprudence that federal courts now use in federal habeas review of final state convictions.  If state courts are not required to follow at least the Teague standard, arguably there is not a federal question presented by whether and how a state court applies Teague in a state habeas case.

Notably, in a case from 2008, Danforth v. Minnesota, 552 U.S. 264, 266 (2008), the Supreme Court held that states were permitted to give greater retroactive effect to new federal constitutional procedural rules that did not satisfy a Teague exception.  Thus is it already clear that state courts can give state prisoners in state habeas cases more retroactive benefits than Teague requires.  The added Montgomery question essentially asks whether a federal issue is presented if state courts decide to give state prisoners in state habeas cases less retroactive benefits than Teague requires.  

In some sense from the prisoner's perspective, this second question is kind of an academic exercise: even if the Supreme Court were to decide that it lacks jurisdiction to review whether and how a state court applies Teague in a state habeas case, it is clear that lower federal courts (and the US Supreme Court) have jurisdiction and will apply Teague if and when the state prisoner brings a federal habeas case.  But, then again, this is not an entirely academic exercise because there could be cases in which the state prisoner is not able to bring a federal habeas case (perhaps because of statutory or other problems with bringing such a case).

If this discussion already makes your head hurt and leads you to think you need to take a law school Federal Courts class again, join the club.  Fortunately for all of us, a very insightful Assistant U.S. Attorney, Steven G. Sanders, published last month a great New Jersey Law Journal article about all this titled "Can US Supreme Court Require States to Apply New Fed Rules Retroactively on State Collateral Attack?".  Thanks to Steven and the NJLJ, I can provide this article in full linked below with this disclaimer: “Reprinted with permission from the February 9, 2015 issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”

Download NJLJ State retroactivity article

March 23, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"WBUR Poll: Most In Boston Think Tsarnaev Should Get Life In Prison Over Death Penalty"

0323_dems-copy-620x363The title of this post is the headline of this intriguing new press report on an intriguing new poll about an on-going federal capital case.  Here are the basics: 

As the trial of Dzhokhar Tsarnaev moves ahead, a new WBUR poll (topline, crosstabs) finds most Boston residents believe the admitted Boston Marathon bomber should receive life in prison instead of the death penalty if convicted.

In a survey of 229 registered Boston voters, 62 percent said Tsarnaev should be sentenced to life in prison without the possibility of parole, while 27 percent said he should receive the death penalty. That preference held true for the broader Boston area, defined as communities inside and along Route 128 — but the margin is slimmer. Of 504 registered Boston area voters surveyed by telephone March 16-18, 49 percent think Tsarnaev should get life in prison, while 38 percent feel he should be sentenced to death....

Across different demographics, the preference for punishment varied a bit more. Men were more in favor of the death penalty in this case than life in prison, while women more strongly favored life in prison over the death penalty. Across all age groups, more people felt Tsarnaev should be sentenced to life in prison rather than the death penalty — but the widest margin was among young people ages 18 to 29, where 55 percent chose life in prison and 32 percent chose the death penalty.

Among minorities, there was also a wide margin — 64 percent believe Tsarnaev should be sentenced to life in prison, while 25 percent think he should get the death penalty. Among whites, 46 percent chose life in prison and 41 percent chose the death penalty.

Kozcela said the findings across demographics are also in line with partisan views on the death penalty. “The groups that tend to lean more Democrat also tend to be more opposed to the death penalty,” he said.

Ultimately, Tsarnaev’s fate will be decided by a jury. But the demographics of that jury is an issue defense attorneys raised in February, in their second attempt to get the case dismissed. Tsarnaev’s lawyer’s argued that the jury — which is all white and made up of eight men and 10 women — wasn’t diverse enough. (Twelve of those jurors will determine the final verdict.) Defense attorneys took issue with the way potential jurors were reordered when the final jury pool was summoned to fill out questionnaires. The defense argued the renumbering pushed African-Americans, young people and Boston residents — groups our poll shows favor life in prison over the death penalty — down the list of potential jurors, decreasing their chances of being seated on the jury.

Judge George O’Toole Jr. denied the defense’s motion in early March. The defense also tried unsuccessfully four times to get the trial moved out of Boston, arguing they could not get a fair trial here. However, as our poll shows, most Boston residents prefer to give Tsarnaev life in prison — a position the defense hopes the jury will take....

So far in the trial, the prosecution has been laying out its case against Tsarnaev with graphic videos and photos, emotional victim testimony and evidence gathered from Watertown and the Tsarnaevs’ residences. Once the prosecution wraps up its case, the defense will present its case. The defense already admitted Tsarnaev carried out the bombing, but they are trying to save his life by convincing the jury he was influenced by his older brother.

March 23, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Three Justices lament SCOTUS failure to do death-penalty error correction in Texas case

Though the big Supreme Court sentencing news today is the cert grant in another Miller retroactivity case from Louisiana (basics here), also notable for sentencing fans is this dissent from the denial of certiorari in a Texas capital case authored by Justice Breyer (joined by Justices Ginsburg and Justice Sotomayor). Here are snippets from the start and end of the opinion:

On April 28, 1984, petitioner Lester Leroy Bower was convicted in a Texas court of murdering four men. Each of the four men had been shot multiple times. Their bodies were left in an airplane hangar, and an ultralight aircraft was missing.

The State sought the death penalty. Bower introduced evidence that was, in his view, mitigating. He noted that he was 36 years old, married, employed full-time, and a father of two. He had no prior criminal record. Through the testimony of Bower’s family members and friends, the jury also heard about Bower’s religious devotion, his commitment to his family, his community service, his concern for others, his even temperament, and his lack of any previous violent (or criminal) behavior.

At the time of Bower’s sentencing, Texas law permitted the jury to consider this mitigating evidence only insofar as it was relevant to three “special issues”...

[The] Texas Court of Criminal Appeals believed that the use of the special issues proceeding in Bower’s sentencing proceeding did not constitutionally entitle him to resentencing.

Bower now asks us to grant certiorari and to reverse the Texas Court of Criminal Appeals. In my view, we should do so. Penry’s holding rested on the fact that Texas’ former special issues did not tell the jury “what ‘to do if it decided that [the defendant] . . . should not be executed’” because of his mitigating evidence. Abdul-Kabir v. Quarterman, 550 U.S. 233, 256 (2007) (quoting Penry, supra, at 324). Bower’s sentencing procedure suffered from this defect just as Penry’s did. The distinction that the Texas court drew between Penry’s and Bower’s evidence is irrelevant. Indeed, we have expressly made “clear that Penry . . . applies in cases involving evidence that is neither double edged nor purely aggravating, because in some cases a defendant’s evidence may have mitigating effect beyond its ability to negate the special issues.” 550 U.S., at 255, n. 16. The trial court and the Fifth Circuit both recognized that Bower’s Penry claim was improperly rejected on that basis.

The Constitution accordingly entitles Bower to a new sentencing proceeding.  I recognize that we do not often intervene only to correct a case-specific legal error.  But the error here is glaring, and its consequence may well be death.  After all, because Bower already filed an application for federal habeas relief raising his Penry claim, the law may bar him from filing another application raising this same issue.  See 28 U.S.C. §2254(b)(1). In these circumstances, I believe we should act and act now.  I would grant the petition and summarily reverse the judgment below.  I dissent from the Court’s decision not to do so.

March 23, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

"A Commentary on Statistical Assessment of Violence Recidivism Risk"

The title of this post is the title of this timely paper by Peter Imrey and A. Philip Dawid now available via SSRN. The piece, as evidenced simply by the abstract, seems quite technical. But it seems that the piece is making an especially important technical point. Here is the abstract:

Increasing integration and availability of data on large groups of persons has been accompanied by proliferation of statistical and other algorithmic prediction tools in banking, insurance, marketing, medicine, and other fields (see e.g., Steyerberg (2009a;b)).  Controversy may ensue when such tools are introduced to fields traditionally reliant on individual clinical evaluations.  Such controversy has arisen about "actuarial" assessments of violence recidivism risk, i.e., the probability that someone found to have committed a violent act will commit another during a specified period.

Recently Hart et al. (2007a) and subsequent papers from these authors in several reputable journals have claimed to demonstrate that statistical assessments of such risks are inherently too imprecise to be useful, using arguments that would seem to apply to statistical risk prediction quite broadly.  This commentary examines these arguments from a technical statistical perspective, and finds them seriously mistaken in many particulars. They should play no role in reasoned discussions of violence recidivism risk assessment.

March 23, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0) | TrackBack

Supreme Court takes up a replacement juve LWOP retroactivity case from Louisiana

As reported in this AP piece, the US Supreme Court this morning found a replacement for the prior resolved case (Toca) dealing with the retroactivity of its 2012 Miller decision.  Here are the basics:

The Supreme Court is adding a new case to decide whether its 3-year-old ruling throwing out mandatory life in prison without parole for juveniles should apply to older cases. The court was scheduled to hear arguments in a case from Louisiana in late March, but the state released inmate George Toca after 30 years in prison.

The justices on Monday said they would consider a new Louisiana case involving a man who has been held since 1963 for killing a sheriff's deputy in Baton Rouge.  Henry Montgomery was a 17-year-old 10th grader who was playing hooky from school when he shot Deputy Charles Hurt at a park near the city's airport. The officer and his partner were looking to round up truants.

The case will be argued in the fall.... The case is Montgomery v. Louisiana, 14-280.

Some SCOTUS-related posts on the prior Toca case and Miller retroactivity:

March 23, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, March 22, 2015

Might a President Ted Cruz champion "common sense" mandatory minimum sentencing reform?

The question in the title of this post is prompted by this political news from Houston: "Ted Cruz to announce presidential bid Monday."  Here are highlights about Senator Cruz's plans:

Senior advisers say Cruz will run as an unabashed conservative eager to mobilize like-minded voters who cannot stomach the choice of the "mushy middle" that he has ridiculed on the stump over the past two months in Iowa, New Hampshire and South Carolina. "Ted is exactly where most Republican voters are," said Mike Needham, who heads the conservative advocacy group Heritage Action for America. "Most people go to Washington and get co-opted. And Ted clearly is somebody that hasn't been."

For various reasons, I am pleased that Senator Cruz is the first GOP candidate to officially throw his hat into the ring and that he will be running as a "unabashed conservative." As explained in this prior post, this unabashed conservative has stated that he believes a commitment to "fairness" and "justice" and "common sense" calls for passage of the Smarter Sentencing Act and other federal reforms which would help avoid "a world of Le Miserables, where a young man finds his entire future taken away by excessive mandatory minimums.

A few recent and older posts on the modern "conservative politics" of federal sentencing reform:

March 22, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Pope Francis categorically condemns death penalty as "inadmissible" in today's world

As reported in this piece from Vatican Radio, which describes itself the "voice of the Pope and the Church in dialogue with the World," Pope Francis spoke about capital punishment during a meeting with members of an international anti-death penalty group. Here are details:

Capital punishment is cruel, inhuman and an offense to the dignity of human life. In today's world, the death penalty is "inadmissible, however serious the crime" that has been committed. That was Pope Francis’ unequivocal message to members of the International Commission against the death penalty who met with him on Friday morning in the Vatican.

In a lengthy letter written in Spanish and addressed to the president of the International Commission against the death penalty, Pope Francis thanks those who work tirelessly for a universal moratorium, with the goal of abolishing the use of capital punishment in countries right across the globe.

Pope Francis makes clear that justice can never be done by killing another human being and he stresses there can be no humane way of carrying out a death sentence. For Christians, he says, all life is sacred because every one of us is created by God, who does not want to punish one murder with another, but rather wishes to see the murderer repent. Even murderers, he went on, do not lose their human dignity and God himself is the guarantor.

Capital punishment, Pope Francis says, is the opposite of divine mercy, which should be the model for our man-made legal systems. Death sentences, he insists, imply cruel and degrading treatment, as well as the torturous anguish of a lengthy waiting period before the execution, which often leads to sickness or insanity.

The Pope ... makes quite clear that the use of capital punishment signifies “a failure” on the part of any State. However serious the crime, he says, an execution “does not bring justice to the victims, but rather encourages revenge” and denies any hope of repentence or reparation for the crime that has been committed.

March 22, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (6) | TrackBack

Saturday, March 21, 2015

Prez Obama promising to exercise "pardon power and clemency power more aggressively"

This new Huffington Post article reports on an interview with President Barack Obama in which his clemency efforts past and present were discussed. Here are highlights:

President Barack Obama plans to grant clemency to federal offenders "more aggressively" during the remainder of his presidency, he said in a sit-down interview with The Huffington Post on Friday.

Obama has faced criticism for rarely using his power to grant pardons and commutations. In December, he commuted the sentences of eight federal drug offenders, including four who had been sentenced to life. That brought his total number of commutations to 18.

Obama said he had granted clemency so infrequently because of problems in the Justice Department's Office of the Pardon Attorney. The former head of that office, who was appointed during the George W. Bush administration, resigned in April amid criticism from criminal justice advocates. "I noticed that what I was getting was mostly small-time crimes from very long ago," Obama said. "It'd be a 65-year-old who wanted a pardon to get his gun rights back. Most of them were legitimate, but they didn't address the broader issues that we face, particularly around nonviolent drug offenses. So we've revamped now the DOJ office. We're now getting much more representative applicants."

Many of those new applications came from what's known as the Clemency Project 2014, announced when the Office of the Pardon Attorney head resigned. That project, which operates independently of the government, is intended to help DOJ sort through a huge number of applicants to figure out who meets specific criteria laid out by the administration.  But the process has been slow, and some criminal justice advocates are growing frustrated. Since the project was announced, more than 35,000 inmates -- roughly 16 percent of the total federal prison population -- have submitted applications....

Obama said Friday that the public could see the results of the project soon. "I think what you'll see is not only me exercising that pardon power and clemency power more aggressively for people who meet the criteria -- nonviolent crimes, have served already a long period of time, have shown that they're rehabilitated -- but also we're working with Democrats and Republicans around criminal justice reform issues," Obama said.

The president said it was "encouraging" to see criminal justice reform and support for the elimination of some mandatory minimum sentences as a "rare area where we're actually seeing significant bipartisan interest," with some libertarians and conservatives concerned about costs joining with Democrats. "If we can get some action done at the federal level, that will make a difference in terms of how, I think, more and more states recognize it doesn't make sense for us to treat nonviolent drug offenses the way we do," Obama said.

As I have said many times before, the Obama Administration has generally be much better at talking the talk than at walking the walk on these sorts of sentencing matters. Nevertheless, I view these comments as additional reason to believe there will be many more clemency grants by President Obama in the coming year or two than in the previous five or six.

March 21, 2015 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Effective discussion of nitrogen gas as execution method alternative

Images (1)This new Atlantic article, headlined "Can Executions Be More Humane?: A law professor suggests an untested procedure as an alternative to lethal injection," provides an interesting account of the person and story behind a novel execution method proposal.  Here are excerpts:

Michael Copeland has a unique resume: former Assistant Attorney General of the tiny Pacific island nation of Palau, professor of criminal justice at East Central University in Ada, Oklahoma — and now, the proponent of a new execution method he claims would be more humane than lethal injection.

Copeland is one of the brains behind House Bill 1879 proposed by Oklahoma State Representative Mike Christian.  The bill, passed by the Oklahoma House last week, would make “nitrogen hypoxia” a secondary method to lethal injection.  Oklahoma State Senator Anthony Sykes will be introducing it to the senate shortly.

Copeland explained the execution method last September to the Oklahoma House Judiciary Committee at Christian’s invitation.  Copeland says that Christian had been suggesting the firing squad, but Copeland thought there might be a better way.  Along with two other professors from East Central University, Christine C. Pappas and Thomas M. Parr, he is drafting a white paper about the benefits of nitrogen-induced hypoxia over lethal injection....

Hypoxia occurs when a person lacks an adequate supply of oxygen.  “Normally, the air we breathe is 79 percent nitrogen and 21 percent oxygen,” Copeland explains. Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Copeland points out that “nitrogen is an inert gas, and therefore doesn’t actually cause the death.  It is the lack of oxygen that causes death.”

According to Copeland, death from nitrogen hypoxia is painless. “In industrial accidents, it often happens because the victim does not know they are in a hypoxic environment,” he said.  “That suffocating feeling of anxiety and discomfort is not associated with hypoxic deaths.”  He says nitrogen-induced hypoxia is well-researched, although the ideal delivery system for an execution has not yet been established.  Two ideas include a medical-grade oxygen tent around the head or a facemask similar to those used by firefighters.

The condemned person might not even know when the “the switch to pure nitrogen occurs, instead he would simply lose consciousness about fifteen seconds after the switch was made,” he added.  “Approximately thirty seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”...

Copeland says that conditions for lethal-injection executions will only get worse.  States are scrambling to find the drugs and the health professionals to use them, and both are required for lethal injection to take place.  “You have anti-death penalty zealots around the globe that protest, that bring attention to the manufacturers of these drugs,” Oklahoma Attorney General Scott Pruitt told a local chamber of commerce last summer. Pruitt said that as long as activists pressure manufacturers, there will be supply issues....

From its first use in the execution of Gee Jon in Nevada in 1924 to its link to Nazi gas chambers, lethal gas as method of execution has a problematic history.  American lethal-gas executions typically used hydrogen cyanide as the mechanism of death.  Inmates were strapped to chairs in gas chambers and the ensuing chemical reaction would cause visible signs of pain and discomfort: skin discoloration, drooling, and writhing.

But nitrogen hypoxia would likely not produce the gruesome deaths that resulted from cyanide gas executions. Copeland says that “you don’t have to worry about someone reacting differently.” The condemned person would feel slightly intoxicated before losing consciousness and ultimately dying.

Other death-penalty experts are more skeptical.  “It’s only been partially vetted, superficially researched, and has never been tried,” said Richard Dieter, executive director of the Death Penalty Information Center.  “Using it would be an experiment on human subjects.” State death rows would be strapping someone down without any idea what would happen next, he feared.  “We’d need testimony from the best experts on this,” Dieter says. “Right now, this is sailing through a legislature and not a peer-review process. I’m no doctor, but let’s hear from them.  I don’t completely dismiss the idea that this could become approved or that it’s as good as they say because lethal injection is in a bind.”

If the bill becomes law and Oklahoma successfully executes someone using this method, it could spread from to state very quickly, Dieter says.  Older methods like firing squads are a little too brutal for the American public, but something new could be accepted. If so, he says, “it could lead to an awkward spurt of executions.”  Copeland says he is not a death penalty absolutist. “I think the state has a unique obligation for justice — it’s the state’s obligation,” he explains.  “But I don’t think the death penalty is a deterrent compared to life without parole.”  If we must have the death penalty, he argues, it should be humane.

Copeland thinks that it is death penalty abolitionists who have made executions inhumane by restricting access to drugs.  It will only get worse.  Some corrections officials at the Louisiana Department of Public Safety and Corrections agree.  On February 18, they submitted a report to the state House of Representatives proposing the use of nitrogen-induced hypoxia and cited Copeland’s forthcoming paper.

Copeland says that it’s a logical and humane next step. “Nitrogen is ubiquitous. The process is humane, it doesn’t require expertise, and it’s cheap,” he explained. “I think of it as a harm-reduction thing — like you’d rather people not use heroin, but if they do, you want them to use clean needles.”

A few recent and older related posts:

March 21, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, March 20, 2015

Should SCOTUS Justices (and lots of other federal and state judges) regularly visit prisons?

The question of the title of this post is prompted by this interesting local article from Michigan, headlined "Justice goes to prison to weigh Mich. sentencing system."  Here are excerpts from this lengthy story:

On an early March tour of Michigan's prison intake center, new Supreme Court Justice Richard Bernstein learned that corrections officials want more guidance from judges about their expectations for the lawbreakers sent here.

New prisoners and rearrested parole absconders are processed at the three-building complex before being assigned to correctional facilities around the state. Inmates arrive with sentencing orders and other paperwork but nothing to indicate why a judge prescribed a certain prison term or what the goal of it is, Michigan Corrections Director Dan Heyns said.

"It would be helpful for judges to tell us the intent of their sentences," Heyns told Bernstein, the nation's first blind state Supreme Court justice. "If it's strictly to provide public safety, we know how to do that. But if the intent is to get at the root cause of their criminality, tell us that."

Bernstein's unusual visit — prison officials couldn't recall a previous visit from a sitting Supreme Court justice — came as lawmakers attempt to revive failed 2014 legislation calling for reforms of 1998 sentencing guidelines and parole policies. The changes were recommended last May by the Council of State Governments Justice Center, which noted 1 in 5 state dollars is spent on corrections....

Bernstein's visit lasted four hours. He was keen to get a feel for what prison is like and learn how he and the state's highest court might improve coordination between judges who dispense justice and incarceration officials who administer it. Corrections chief Heyns provided examples of the way judges' decisions and state sentencing policies impact costs. For the crime of burglary, for example, the recidivism rate — chance of a repeat offense — is no lower after a five-year sentence than a three-year sentence, Heyns said. "There's no return on our investment for the other two years," he added.

The 41-year-old justice was elected last year to an eight-year term after working at his family's well-known Farmington Hills law firm, which specializes in personal injury litigation, not criminal law.  He handled a number of disability rights cases the firm litigated. "They said I have no experience with the criminal justice system," he said referring to critics of his November campaign for the Supreme Court. "That's a legitimate criticism."

Bernstein said the legal briefs for criminal cases that come before the Supreme Court are "academic" in nature and don't convey the harsh realities of prison life and rehabilitation. At the Charles Egeler Reception and Guidance Center, Bernstein encountered stark facilities where 9,000 men are processed annually. They live for two weeks to a month in barred cells stacked in tiers with yellow-railed gangways....

"I wanted to know what it feels like to come here, I want to know the consequences of our decisions," Bernstein said in the midst of it.  "You learn about how every facet of your life is controlled.  A free person does not think about that."...

At the end, the justice pressed for feedback about how to make the system work better. Half of the job of Supreme Court justices, he said, is to administer Michigan's court system through rules governing their proceedings.  Heyns suggested perhaps something as simple as a statement outlining the expectations in each judge's sentencing order would be a great help to prison officials. Bernstein said he wants to work at it but said any change "won't happen overnight."

Nearly two-thirds of the inmates now feeding into the system through Egeler are first-timers and half of them will be released within two years, according to Heyns.  "We don't have a whole lot of time to do a lot of correction," Heyns told Bernstein. "It calls into question, what are we really accomplishing with these people? It's a huge cost."

I think it is fantastic that this new Michigan Supreme Court Justice took the time to check out one part of his state's prison system. I think all judges with a significant part of their dockets comprised of criminal justice cases ought to consider doing the same. (I would guess that only a very small percentage of federal or state appellate judges have spent any real time inside a prison facility.)

March 20, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

"Victim's wife: Keep me out of death penalty fight"

The title of this post is the headline of this notable new article out of Philadelphia which highlights how victims often can and will get victimized again by the political debates over the death penalty.  Here is how the piece starts:

Since Gov. Wolf declared his moratorium on the death penalty last month, proponents of capital punishment have rallied around one case to push their cause - the scuttled execution of Terrance Williams, a Philadelphia man sentenced to die in 1986 for the beating death of a Germantown church volunteer.

But on Thursday, the widow of Williams' victim had a message for critics of the governor's action: Leave me out of it. In a publicly circulated letter, Mamie Norwood, whose husband, Amos, was killed by Williams in 1984, accused State Rep. Mike Vereb (R., Montgomery) and Philadelphia District Attorney Seth Williams of using her husband's slaying for political gain.

"You have never spoken to me and do not speak for me," Norwood wrote, adding that she had forgiven Terrance Williams long ago and did not want to see him put to death. She added: "Please don't use me . . . to get your name in the news. You should be truly ashamed of yourselves."

Norwood's letter was distributed by a group of Terrance Williams' supporters who run the website www.terrywilliamsclemency.com.

Norwood's letter is available at this link.

March 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, March 18, 2015

Does the new Coalition for Public Safety really have "political oopmh" needed to "fix justice in America"?

Coalition_for_public_safetyThe question in the title of this post is prompted by this new Politico magazine commentary authored by Laura Arnold and John Arnold. The Arnolds are the co-founders of the new Coalition for Public Safety, and their commentary is titled "Fixing Justice in America: Here’s why our new left-right coalition has the political oomph to do it." Here are excerpts:

Not every policy debate has to be a fight, even in Washington. Some problems have solutions that Democrats, Republicans and everyone in between can wholeheartedly support. One such example is criminal justice reform. There’s an emerging bipartisan consensus, both in Washington and in the states, that we must reform a system where there is too little justice, too much cost and too many needlessly ruined lives. But getting from general agreement to action requires a concerted effort to change minds and change policy. That’s why we recently helped launch the Coalition for Public Safety, an unprecedented national bipartisan coalition of funders and advocacy partners that will work for smart, fair and just criminal justice reform.

The coalition will work at the local, state and federal level to fix the flawed policies that have conspired to create this problem. The coalition plans a multimillion-dollar campaign in connection with emerging proposals to reduce prison populations, overhaul sentencing, reduce recidivism and address critical structural flaws in our system.

We’re odd bedfellows, but that’s what can make the Coalition such a powerful force. The Coalition will be funded by us, Koch Industries, the Ford Foundation and the John D. and Catherine T. MacArthur Foundation. It will also include partners ranging from the ACLU and the Center for American Progress on the left to FreedomWorks and Americans for Tax Reform on the right. If a group this diverse, with disagreements in so many other areas, can coalesce around criminal justice reform, then there is no reason our political leaders can’t do the same.

Criminal justice reform is a passion of ours and a priority of our Foundation. We work to attack the root causes of pressing social problems, and America’s dysfunctional criminal justice system is at the root of a number of issues. It contributes to poverty, broken families and broken budgets. And like many dysfunctional systems, our criminal justice system has been sustained by a mix of inertia, structural inefficiencies and vested interests that are resistant to change. But the creation of this Coalition is yet another promising sign that the tide is turning in favor of reformers....

Americans should be just as alarmed about the mundane, day-to-day realities of how criminal justice is administered. America imprisons a higher percentage of our citizens than any nation in the world and the numbers are not even close, as our incarceration rate is an indefensible ten times or more that of many other developed countries. And of the over two million people incarcerated in the United States, over 60 percent are imprisoned for nonviolent offenses such as drug possession.

Every citizen is paying a heavy price to support this bloated and ineffective correctional system, which costs taxpayers $80 billion per year. The costs are particularly acute for state governments (86 percent of all prisoners are in state facilities), where spending on incarceration is growing faster than spending on almost everything else including education and transportation.

Some might conclude that the price of mass incarceration is worth paying if it significantly reduces crime by keeping criminals off the street. But it does not. Although the rate of violent crimes in our country has been cut roughly in half since 1990, a number of studies have determined that America’s recent jailing binge had little to do with it. Simply put, we’re pouring tens of billions of dollars into a criminal justice system that doesn’t work at the expense of the crucial public services that our communities need.

The Coalition has two key virtues that no single organization has on its own. The first is critical mass, as it will be well-funded and well-resourced with experienced partners who have fought and won contentious political battles at every level of government. In the months ahead, the Coalition will educate and advocate for federal, state, and local reforms that can reduce our jail and prison populations and associated costs; end the systemic problem of over-criminalization; ensure swift and fair outcomes for both the accused and the victims; and reduce recidivism by breaking down barriers faced by those returning home after detention or incarceration.

The second virtue of the Coalition is the support it can provide political leaders who want to tackle these issues. It’s much harder for criminal justice reform opponents to dismiss a politician as a tool of the left or the right when leading voices on the left and right are in agreement that the politician is doing the right thing. The time is ripe for action. Many states and localities have recently passed ambitious reforms. There are several bipartisan criminal justice bills pending in the House and Senate. And in his State of the Union address earlier this year, President Obama called for bipartisan criminal justice reform in Congress.

It’s time to stop wasting money and ruining lives. It’s time for both parties to come together to build a criminal justice system that is smart, fair and just.

March 18, 2015 in Who Sentences? | Permalink | Comments (1) | TrackBack

Might Utah's gov veto the effort to provide for a firing squad execution back-up plan?

The question in the title of this post is prompted by this AP piece headlined "Death Penalty Opponents Urge Veto of Utah Firing Squad Bill." Here are the basics:

Death penalty opponents are urging Utah Gov. Gary Herbert to veto a bill allowing execution by firing squad if the state cannot obtain lethal injection drugs. Ralph Dellapiana of Utahns for Alternatives to the Death Penalty delivered a petition and a letter to Herbert's office Tuesday. Dellapiana calls firing squads archaic and barbaric.

Herbert, a Republican, has declined to say if he will sign the proposal but says it could offer Utah a backup if it cannot get execution drugs. Utah lawmakers passed the bill last week as states struggle to obtain lethal injection drugs amid a nationwide shortage.

Republican Rep. Paul Ray of Clearfield sponsored the proposal and says a team of trained marksmen is faster and more humane than the drawn-out deaths that occur when lethal injections are botched.

March 18, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 17, 2015

Sparring over sentencing reform lingo involving the media and Senator Grassley

LogoVia this recent Washington Post piece, I see that Senator Charles Grassley last week delivered this notable floor speech assailing the Smarter Sentencing Act.  Notably, the Post piece, headlined "The Orwellian deception of Chuck Grassley’s 'leniency industrial complex'," attacks some language in Senator Grassley's speech, a speech which itself attacks some language used by advocates of sentencing reform. Here are excerpts from the Post piece:

In a strongly-worded floor speech on Tuesday, Senate Judiciary Chairman Chuck Grassley (R-Ia.) blasted the Smarter Sentencing Act, which is currently before his committee. Grassley accused the bill's bipartisan supporters, including fellow Republicans Ted Cruz, Mike Lee and Rand Paul, of being part of a so-called "leniency industrial complex," a rather colorful turn of phrase.  In the past, he's defined this as "some people in Congress, the public, academia, and the media, who think that sentences that are being imposed on serious criminal offenders are too stringent."  Notice, though, the complete lack of "industry" in Grassley's "industrial complex."

The Smarter Sentencing Act is a fairly modest bill that does not in any way repeal mandatory minimum sentences.  But it does reduce some of them, and it gives federal judges more discretion in how to apply them, particularly ones that apply to nonviolent drug offenders.

That small step toward reform is evidently a bridge too far for Grassley.  He opened his speech with a litany of the dangers and harmful effects of the narcotics trade -- that heroin use is on the rise, that some terrorist groups profit from the drug trade, etc. These facts are hardly in dispute.

The problem is that Grassley believes, contrary to a mountain of evidence, that mandatory minimum sentences are effective tools for combating these problems.... Perhaps the most damning case against mandatory minimum drug sentences is that since they were instituted in the 80s and 90s, the use of illicit drugs has risen and their price has fallen dramatically....

Grassley accuses supporters of the bill of being "Orwellian" in their rhetoric.  In his essay Politics and the English Language, Orwell wrote that "political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness."  There may be no finer example of this than Grassley's use of the term "leniency industrial complex," which would seem to imply the existence of a powerful corporate network that would profit, somehow, from keeping people out of jail....

The only thing Orwellian about the debate over the Smarter Sentencing Act is Grassley's continued insistence that it would cost money, promote crime and benefit an unnamed "industrial complex" -- when in fact it would do the exact opposite.

I share the view that it is silly to speak of a "leniency industrial complex," and there are lots of other linguistic flourishes in Senator Grassley's floor speech that could be extensively picked apart for rhetorical excess and inaccuracy.  But, but the same measure, I understand Senator Grassley's expressed concern with terms like "low-level" and "non-violent" (echoing points previously made here by Bill Otis) because use of these terms in sentencing reform debates are "question-begging" and do involve "sheer cloudy vagueness."  Though I may myself be sometimes guilty of using or repeating these terms, I think a term like "less serious" is a better term that "low-level" (though still vague).  And what can and should qualify as violent or non-violent crime has been such a problem in federal law that the US Sentencing Commission has given up trying to fix this matter and the US Supreme Court might soon blow up a statute for its vagueness in this arena.

Semantic debates aside, the Senator Grassley speech appears most significant for its apparent indication that the mandatory minimum drug sentencing reforms in the Smarter Sentencing Act will not be going anywhere while he is in charge of the Senate Judiciary Committee.  I hope this does not mean all federal sentencing reform is dead, but it does suggest any significant reforms are going to be a long, hard slog.  On a more positive note for would-be reformers, Senator Grassley's latest floor speech indicates that he recognizes "[p]roblems do exist in the criminal justice system," including that "for too many times in America, equality under the law is not a reality [because] the poor do not receive the same justice in many instances."  Perhaps if sentencing reformers can start to emphasize economic inequalities regarding who gets slammed with the toughest sentences, maybe this key Senator will be more open to hearing ideas for reform 

March 17, 2015 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, March 16, 2015

Massachusetts Chief Justice taking on prosecutors concerning drug mandatory minimums

This lengthy local article, headlined "Chief justice: Prosecutors “hold the cards” on sentencing," spotlights a war of words in the Bay State over the impact and import of mandatory minimums for drug offenses. Here are excerpts:

The chief justice of the state’s highest court lashed into the mandatory minimum sentencing of drug offenders on Monday, saying the current set-up needs to be abolished because it is “unfair” to minorities, fails to address the drug epidemic and is a “poor investment” of public funds.

In a sharp rejoinder, Boston’s top prosecutor said Monday that Supreme Judicial Court Chief Justice Ralph Gants was advocating for a “return to a failed policy” from 30 years ago. When judges had “unfettered” discretion, they exercised it “poorly,” Suffolk District Attorney Dan Conley said.

Conley, who holds an elected position, said he has not seen judges appear at community meetings in response to crime in Dorchester, Mattapan and Roxbury.  “Have you ever seen a judge out there listening to the community? No,” Conley said.  “Maybe they don’t see that as their position, but they’re operating in a vacuum. They don’t understand how drug traffickers and drug dealers and gang members are turning some neighborhoods in our city into very, very violent communities.”...

In a speech to attendees of a criminal justice conference at UMass Boston, Gants, who has emerged as a vocal critic of mandatory minimum sentencing in drug cases, acknowledged prosecutors have concerns about eliminating the mandatory minimums policy. “Now, let’s be honest: When some district attorneys say they fear judicial leniency, they really are saying that they do not want to relinquish to judges the power to impose sentences that minimum mandatory sentences give to prosecutors,” Gants said.  “They would prefer that prosecutors decide what sentence a drug dealer receives.”

Gants, who worked as a federal prosecutor for eight years, said prosecutors are seeking to maintain “leverage” to induce a plea by dropping the mandatory minimum charge. “I understand why they would like to preserve their power to sentence,” he said.  “What card player would agree to surrender the cards that yield a superior hand? For as long as prosecutors, rather than judges, hold the cards that determine sentences, we will not have individualized, evidenced-based sentences and we will not be applying any of the three principles of just and effective sentencing.”

According to Gants, the three principles are considering the circumstances of the crime and the role of the defendant; ensuring that “the sentence should be no greater than necessary to accomplish the first principle”; and crafting a sentence that enables the defendant to “get past the past” and reduce recidivism.

Gants said the judiciary will implement the three principles through a “best practices” committee created by each trial court department with criminal jurisdiction. The committees will have a first draft prepared by Thanksgiving, and Gants is aiming for implementation of the “best practices” by next spring for cases where mandatory minimums don’t apply....

Gants’ remarks were the keynote address at a summit put together by the Massachusetts Criminal Justice Reform Coalition. During one of the panels that followed Gants’ talk, Conley responded to the chief justice, calling himself “the skunk at the garden party” and the “only alternate voice” in the room.

“I hope at the next summit that we have some more alternate voices and more vigorous debate on the efficacy of minimum mandatory sentences and how they’ve impacted our communities,” Conley said.

Conley said the state’s 11 district attorneys exercise their discretion “judiciously and wisely.” “There needs to be consistency across courtrooms, across counties, across regions, and I would argue that the 11 district attorneys, who are responsive to the public, are in the best position to exercise that discretion,” he said.

Out of a population of about 6.75 million residents, Massachusetts has about 1,000 individuals serving mandatory minimum drug sentences, according to Conley. Massachusetts “ought to be held up, frankly, as a beacon of how other states ought to do it,” Conley said. Conley added: “We shouldn’t leave to chance the idea that 400 judges with 400 different views on how defendants who commit drug offenses ought to be sentenced, and give them full and unfettered discretion. It is a recipe for disaster, I believe.”

During Conley’s response, Gants sat a few feet away from the stage with a smile. When Conley walked off the stage, Gants stood up, smiled again and they shook hands. Gants said he has also spoken to prosecutors about his views. “I deal in a court [in] which there are often dissents, so I’m comfortable with disagreement. It’s respectful disagreement, and we’ll keep talking,” he said.

March 16, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5) | TrackBack

Another round of notable new posts from the Collateral Consequences Resource Center

It has been a few weeks since I highlighted all the great work still being done regularly over at the Collateral Consequences Resource Center. So here are a bunch of new posts from CCRC from recent weeks:

March 16, 2015 in Collateral consequences, Who Sentences? | Permalink | Comments (0) | TrackBack

"The free-market case for opposing the death penalty"

The title of this post is the headline of this new piece from The Week magazine.  Here are excerpts:

There are lots of ways to execute a prisoner. But in the U.S., at least, the 32 states that still execute prisoners have decided on lethal injection. On its face, lethal injection seems like a clinical, modern, hopefully low-pain, and usually low-key way to kill somebody. Except when it isn't, as we saw in last year's crop of botched executions.

The prolonged, evidently painful deaths of Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Dennis McGuire in Ohio were tied to experimental drug cocktails necessitated by a shortage of traditional death drugs. This shortage is due largely to a ban by European countries on exporting certain drugs to U.S. states that practice capital punishment. The free market is making a case against capital punishment. So far, the states that actively execute prisoners have been willfully plugging their ears....

With just a single dose of pentobarbital left and 317 inmates on death row, Texas is stocking up on midazolam. It's not clear if Texas can't get pentobarbital because the compounding pharmacies are refusing to sell it to them, or because they can't get the raw ingredients — the Professional Compounding Centers of America told The Texas Tribune that it stopped providing pentobarbital ingredients to its customers in January 2014.

Most compounding pharmacies aren't regulated by the Food and Drug Administration, and their products are uneven. Which compounding pharmacies are Texas, Oklahoma, Ohio, Georgia, Missouri, and other states buying drugs from? They're not saying. Why not? "Disclosing the identity of the pharmacy would result in the harassment of the business and would raise serious safety concerns for the business and its employees," Texas Department of Criminal Justice spokesman Jason Clark explained to The Texas Tribune last month....

Providing lethal injection drugs to state prisons is so toxic that no European country will do it and no American company is willing to do it openly. Gunmakers and abortion clinics advertise their services, but pharmacies and drugmakers won't publicly associate with a form of punishment approved of by 63 percent of Americans. That's the market talking, and it's saying it wants no part of this.

March 16, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13) | TrackBack

"How Prison Stints Replaced Study Hall: America’s problem with criminalizing kids."

The title of this post is the headline of this lengthy new Politico magazine article.  Here are excerpts from the start of the piece:

Police officers in Meridian, Mississippi, were spending so much time hauling handcuffed students from school to the local juvenile jail that they began describing themselves as “just a taxi service.” It wasn’t because schools in this east Mississippi town were overrun by budding criminals or juvenile superpredators — not by a long shot.  Most of the children were arrested and jailed simply for violating school rules, often for trivial offenses....

For many kids, a stint in “juvie” was just the beginning of a never-ending nightmare. Arrests could lead to probation. Subsequent suspensions were then considered probation violations, leading back to jail. And suspensions were a distinct possibility in a district where the NAACP found a suspension rate that was more than 10 times the national average.

In 2012, the U.S. Department of Justice filed suit to stop the “taxi service” in Meridian’s public schools, where 86 percent of the students are black.  The DOJ suit, still unresolved, said children were being incarcerated so “arbitrarily and severely as to shock the conscience.” We should all be shocked.

The reality, though, is that Meridian’s taxi service is just one example of what amounts to a civil rights crisis in America: a “school-to-prison pipeline” that sucks vulnerable children out of the classroom at an alarming rate and funnels them into the harsh world of police, courts and prison cells.

For many children, adolescent misbehavior that once warranted a trip to the principal’s office — and perhaps a stint in study hall — now results in jail time and a greater possibility of lifelong involvement with the criminal justice system.  It should surprise no one that the students pushed into this pipeline are disproportionately children of color, mostly impoverished, and those with learning disabilities.

The story of Meridian is more than an example of school discipline run amok.  It’s a key to understanding how the United States has attained the dubious distinction of imprisoning more people — and a larger share of its population — than any other country.  It’s one reason why the United States today has a quarter of the world’s prisoners—roughly 2.2 million people — while representing just 5 percent of its total population. And it helps explain an unprecedented incarceration rate that is far and away the highest on the planet, some five to 10 times higher than other Western democracies....

The origins of the school-to-prison pipeline can be traced to the 1990s when reports of juvenile crime began to stoke fears of “superpredators” — described in the 1996 book Body Count as “radically impulsive, brutally remorseless youngsters” with little regard for human life.  The superpredator concept, based on what some critics have derided as junk science, is now known to be a complete myth.  Former Princeton professor and Bush administration official John DiIulio, the Body Count co-author who coined the term, admitted to The New York Times in 2001 that his theory of sharply rising juvenile violence had been wrong.

But the damage had been done.  As these fears took root and mass school shootings like the one at Columbine made headlines, not only did states enact law laws to increase punishment for juvenile offenders, schools began to adopt “zero-tolerance” discipline policies that imposed automatic, pre-determined punishments for rule breakers.

At the same time, states across America were adopting harsh criminal laws, including long mandatory prison sentences for certain crimes and “three strikes” laws that led to life sentences for repeat offenders.  The term “zero tolerance” was, in fact, adopted from policing practices and criminal laws that focused on locking up minor offenders as a way to stem more serious crime.

Somewhere along the way, as local police departments began supplying on-duty “school resource officers” to patrol hallways, educators began to confuse typical adolescent misbehavior with criminality.  Schools became, more or less, a part of the criminal justice system. With police officers stalking the halls and playgrounds, teachers and principals found it easy to outsource discipline. Almost overnight, a schoolyard scuffle could now land a kid in a jail cell.

The results have been disastrous.

March 16, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Interesting review of Ohio Gov John Kasich's clemency record

In part because seemingly so few modern executives make regular use of their clemency powers, and in part because Ohio Gov John Kasich has granted clemency in a number of high-profile capital cases, I had come to think my own governor's clemency record was pretty good.   But this new Columbus Dispatch story, headlined "Kasich rarely uses clemency to pardon, commute sentences," details that Kasich's clemency record compares poorly to prior Ohio governors:

In his first four years in office, Gov. John Kasich used his executive clemency power more sparingly than any other Ohio governor in the past three decades.

He granted 66 of 1,521 requests, about 4.4 percent of 1,521 non-death-penalty cases he received and acted upon from 2011 to 2014, according to information obtained by The Dispatch under a public-records request. That makes him the most conservative with clemency of any Ohio governor going back to the 1980s, when the state began tracking gubernatorial clemency.

Last year, Kasich, a Republican who began his second term in January, approved 17 of 433 clemency requests he reviewed, about 4 percent. All of the cases approved were pardons, some going back to crimes committed more than 25 years ago. A pardon wipes out a past criminal record.

Kasich commuted the death sentences of five killers during his first term, but allowed 12 to be executed. He recently used his executive authority to push back the entire execution schedule for a year, to January 2016, to allow time for the Department of Rehabilitation and Correction to obtain sufficient quantities of new execution drugs as permitted by a change in state law....

In the past 30 years, Ohio governors have used clemency in different ways, sometimes reflecting personal ideological persuasions. Former Gov. Ted Strickland, a Democrat, approved 20 percent of 1,615 clemency requests he handled between 2007 and 2011. Most involved low-level, nonviolent offenses, but he did commute five death-penalty sentences to life without parole.

No Ohio governor in modern history has commuted a death sentence and set a prisoner free. Republican governors George V. Voinovich (1991-98) and Bob Taft (1999-2007) each approved less than 10 percent of the clemency requests they received. Gov. James A. Rhodes, a Republican, approved 17.5 percent of clemencies in 1982, his last year in office.

Democrat Richard F. Celeste, governor from 1983 to 1991, used his clemency power most liberally, commuting the death sentences of eight killers on Death Row in his next to last day in office. He also granted clemency to 25 female prisoners, reasoning they were victims of “battered-woman syndrome” and deserved mercy.

Celeste’s actions caused an uproar, and the clemency process was legally challenged. The General Assembly changed the law to require governors to have a recommendation from the Ohio Parole Board before making any clemency decision. The governor doesn’t have to agree with the parole board, but merely have a board recommendation in hand. In fact, Kasich differed with the board in 23 cases last year, each time rejecting clemency for inmates who had been favorably recommended.

March 16, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

New York Times editorial assails death decided "by a single vote" in Alabama and Florida

This new New York Times editorial, headlined "Death Sentences, With or Without a Jury," uses the recent Supreme Court cert grant in Hurst to assail a capital punishment system it views as "warped by injustice and absurdity." Here are excerpts:

In Florida and Alabama, death row inmates are challenging perverse state laws on the jury’s role in capital trials. The Supreme Court, which has been intervening more often in death penalty cases, last week agreed to review the Florida law.

In death penalty trials, juries that reach a guilty verdict are usually required in the trial’s subsequent penalty phase to make factual findings, such as whether the crime was especially heinous, that will determine whether the defendant is sentenced to death.

But Florida lets the judge make these findings, and does not require that the jury be unanimous in voting for a death sentence. After Timothy Lee Hurst was found guilty of a 1998 murder of a co­worker in Pensacola, his jury split 7 to 5 in favor of executing him, with no record of whether the majority even agreed on the reason. (Mr. Hurst claims he is intellectually disabled and thus ineligible to be executed.) In other words, Mr. Hurst was effectively condemned by a single vote by an unidentified juror.

Alabama also allows death to be decided by a single vote: that of the judge, who may override a jury verdict of life in prison and replace it with a death sentence, relegating the jury’s status to that of an advisory body. The Supreme Court declined to hear a challenge to the Alabama law in 2013, prompting a sharp dissent from Justice Sonia Sotomayor. She concluded that the state’s judges, who are elected — and who have unilaterally imposed death sentences 101 times after the jury voted for life — “appear to have succumbed to electoral pressures.”

The Alabama law, Justice Sotomayor wrote, undermines “the sanctity of the jury’s role in our system of criminal justice,” and very likely violates the court’s own rulings requiring juries, not judges, to find any fact that would increase a defendant’s sentence. Two new challenges to that law are before the court — one involving a death sentence imposed by a judge after a jury voted 12 to 0 for life — but it hasn’t decided whether to take them up.

This disregard for the jury’s role is all the more offensive given the Supreme Court’s reliance on jury verdicts as a key measure of America’s “evolving standards of decency,” the test it uses to decide whether a punishment is so cruel and unusual that it violates the Constitution. How can those “evolving standards” be accurately measured if the “verdicts” for death are so deeply divided or are in fact imposed by a judge who is rejecting the jury’s call to spare a life?

The Florida and Alabama jury laws are only more proof of the moral disgrace of capital punishment in this country. In Georgia, officials hide their lethal-­injection drug protocol behind state-­secret laws. Missouri has executed an inmate before the Supreme Court ruled on his final appeal. Texas has been trying for years to kill a man suffering from paranoid schizophrenia.

Prior related posts:

March 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, March 15, 2015

Senator Paul continues to emphasize criminal justice reform with minority audience

I_stand_with_rand_225quot_buttonThis new New York Times article, headlined "Rand Paul Focuses on Criminal Justice in Talk to Black Students," details the continued efforts by one prominent Senator to preach the need for criminal justice reform to groups historically distrustful of messages delivered by the GOP. Here are the details:

Senator Rand Paul laid out his vision on Friday for a legal system that makes it easier for people with criminal records to get jobs and to vote, telling students at a historically black college here that he believes there are still “two Americas” as the Rev. Dr. Martin Luther King Jr. said almost a half century ago.

Mindful of his audience and, no doubt, his appearance two years ago at Howard University when the mostly black audience was often skeptical of what he had to say, Mr. Paul, a Republican and a likely candidate for president, chose his words more carefully this time during his visit to Bowie State University....

Mr. Paul tried to avoid appearing presumptuous and at one point corrected himself when answering a question about the progress that black Americans have made. “I think sometimes we think we haven’t gone very far when I think we’ve come a long way,” he said, pausing to tweak his wording. “And I say ‘we’ collectively; obviously it’s not me.”...

There were a few awkward moments at the Howard event, like when he told the students that people had told him he was “either brave or crazy” to be there.

But on Friday he kept his remarks focused on correcting inequities in the criminal justice system and expanding economic opportunity. He repeatedly condemned the harsh drug sentencing laws that put so many minority defendants behind bars. “If you smoked some pot or grew some marijuana plants in college, you ought to get a chance,” he said.

Mr. Paul also made a case for expunging criminal records of people who have been convicted of nonviolent felonies so they can find employment more easily, a stance that puts him at odds with many in his party. “As Republicans we’re big on saying, ‘Well, we don’t want people permanently on welfare; we want them to transition from welfare to a job,’” he said. “People say, ‘Well, how am I supposed to get a job? I was a convicted felon.’”...

Mr. Paul, of Kentucky, has made an effort to reach out to African­American constituencies in the past few years, drawing crowds that have traditionally voted for Democratic candidates but are curious about his libertarian brand of conservatism. He spoke at the Urban League’s summer conference in Cincinnati last summer and visited Ferguson, Mo., when protests broke out after a police officer shot an unarmed black man. He has also met with black pastors in Southern cities like Memphis and Louisville, Ky.

Some recent and older related posts:

March 15, 2015 in Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, March 14, 2015

Reviewing DOJ's opposition to any fraud guideline amendments

This Reuters article, headlined "Justice Department objects to white-collar sentencing reforms," details that the US Department of Justice is not too keen on proposed reformed to the federal sentencing guidelines for fraud offenses. Here are the excerpts:

The U.S. Justice Department has come out broadly against a series of proposals from a federal panel that would cut prison time for white-collar criminals. The department's views, revealed on Thursday at a hearing of the U.S. Sentencing Commission, marked a potential setback for the proposals, which defense lawyers had already criticized for being too moderate.

In a letter released at the meeting, the department objected to a proposal to adjust victim losses for inflation for the first time since 1987. Losses directly influence recommended prison term lengths, and the move would reduce fraud sentences by 26 percent on average. "It seems a somewhat odd thing to do," Benjamin Wagner, the U.S. Attorney for the Eastern District of California, said at the hearing.

The Justice Department also objected to a proposal to shift the emphasis in calculating sentences for stock fraud cases to financial gains instead of investor losses, a change that could reduce the amount of prison time some executives would face. The department's position came amid continuing debate over whether changes to the guidelines are necessary to address what even some judges have said are overly harsh recommended punishments for fraud offenders.

Fraud offenses constitute the third largest type of federal crime in America, behind only immigration and drugs cases. Over the last decade, average prison sentences for fraud have lengthened three-fold, the commission said. But after the U.S. Supreme Court declared the guidelines advisory in 2005, judges increasingly gave shorter terms than what the commission recommended. In 2012, the average fraud sentence was 22 months, compared to the 29-month minimum recommended, the commission said.

Critics say the data shows many judges view the guidelines as overly-driven by victim losses, at times resulting in potential life sentences in cases like stock frauds with high-dollar amounts.

The commission's proposals, released in January, were viewed as too moderate by groups like the American Bar Association, which had pushed for broader revision de-emphasizing the influence losses have not just in cases involving the stock market but also for other frauds, such as in mortgages and healthcare. Still, the commission said its proposal to adjust the loss calculations for inflation would itself reduce sentence lengths.

The Justice Department said any reduction would be contrary to "overwhelming societal consensus." Several commissioners, though, appeared skeptical of the department's position.

Prior related posts:

March 14, 2015 in Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Oklahoma House passes safety valve to give judges more sentencing discretion

In the course of this lengthy discussion in the comments at Crime & Consequences, Bill Otis labelled the the federal bill known as the Justice Safety Valve Act as "radically pro-criminal" because it would give federal judges some limited authority to sentence defendants below statutory mandatory minimums.  Though I disputed this label, I suspect Bill might be inclined to call most members of the Oklahoma House "radically pro-criminal" based on this recent news, headlined "Oklahoma House passes bills to give judges more discretion in sentencing."  Here are the details:

The Oklahoma House on Wednesday approved a key piece of justice reform legislation intended to help reduce the state’s growing population of prison inmates.

Rep. Pam Peterson’s House Bill 1518 would give judges the authority to hand down shorter sentences for some crimes that now require mandatory minimum prison time. The judge would be allowed to do this if the longer sentence would be unjust or if the offender does not present a risk to public safety. There are more than 100 crimes in Oklahoma that carry requirements for incarceration for specified minimum durations.

Called the Justice Safety Valve Act, the Tulsa Republican’s measure was passed 76-16 and was sent to the Senate. It is modeled after similar legislation that has been approved in 17 other states. The bill would not allow judges to consider lesser sentences for violent or sexual offenses....

Rep. Scott Biggs, R-Chickasha, argued against the measure, saying it would minimize the role of district attorneys in the sentencing process and isn’t tough enough on repeat offenders.

“I’ve said I’m for reform, just not when it comes to violent offenders. Here we have repeat offenders,” he said. “This is a bad bill.”

Peterson said it’s time to reform the state’s justice system, noting Oklahoma’s prisons are overflowing due to the highest incarceration rate in the nation for women and one of the highest for men. The state’s prison population has doubled since 1990, but the crime rate has not declined as fast as that of other states, she said. “The definition of insanity is to do the same thing over and over again and expect a different result,” she said.

Gov. Mary Fallin has urged the Legislature to embrace justice reform efforts this session, including finding ways to offer more prison diversion programs that would provide treatment rather than incarceration for nonviolent offenders with drug and mental health problems.

March 14, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, March 13, 2015

"Jones, Lackey, and Teague"

The title of this post is the title of this notable new article by J. Richard Broughton now available via SSRN. Here is the abstract:

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane.

By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making the case for applying the bar, this paper adds to, and challenges, the existing literature on capital punishment, Lackey claims, and Teague doctrine. This paper dissects the Jones ruling on the application of Teague, examining the Supreme Court’s “new rule” case law and concluding that Lackey claims, when viewed at the appropriate level of generality, propose a new rule. It then addresses the more complicated aspect of applying Teague in this context, recognizing that the first Teague exception poses the most likely basis for avoiding the Teague bar on a Lackey claim. At a minimum, Lackey claims (like Miller v. Alabama claims, now the subject of substantial Eighth Amendment litigation on collateral review) sit at the intersection of procedural and substantive rules. Nonetheless, this paper makes the case for viewing the claim as procedural and therefore Teague-barred. Ultimately, then, this paper emphasizes a point that could substantially influence existing litigation: litigators and federal judges should take the Teague bar more seriously when considering Lackey claims on federal habeas review, particularly when viewed in light of modern habeas rules and doctrine that limit relief and protect the interests of the states. But the paper also emphasizes an important point about death penalty policy and politics: if the state is to have a death penalty at all, it should be prepared, and willing, to ensure that death sentences are actually carried out.

March 13, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Utah establishes criminal registry for white-collar offenders

Via this New York Times piece, I see that Utah has extended the idea of a criminal registry to fraudsters. Though I have reservations about criminal registries for a variety of reasons, I think this particular kind of registry might make a lot of sense as a recidivism/crime prevention measure.  Here is how this fascinating story gets started:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society. Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons.  The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”

While some Utah lawmakers fear that the registry is overkill, the idea does tap into a vein of populist outrage over financial misdeeds. As much as sex offender registries spread state by state, so too could a white-collar crime registry find favor across the nation, say its supporters.

The legislation’s sponsor in the Utah Senate, Curtis S. Bramble, a Republican, plans to promote the idea through his role as president-elect of the National Conference of State Legislatures, an influential group, saying that “the registry could become a best practices for other states.”

March 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, March 12, 2015

Is there a real chance Loretta Lynch will not be confirmed as next US Attorney General?

The question in the title of this post is prompted by this new Politico article headlined "Loretta Lynch nomination a cliffhanger." The piece starts this way:

Just days before her nomination as attorney general goes to the Senate floor, Loretta Lynch is stubbornly stuck right around 50 votes — suggesting a confirmation fight the Obama administration once seemed certain to win with relative ease will go down to the wire.

Barring an 11th-hour surprise, Lynch is likely to be confirmed. But with four GOP senators currently backing her along with unanimous support from Senate Democrats, Lynch would secure the bare minimum required to be installed as the nation’s top cop – as long as senators hauled in Vice President Joe Biden to break a tie. Story Continued Below

Several Republican senators who could have been potential “yes” votes are signaling ahead of the confirmation vote that that they will instead vote against her. The overwhelming bloc of opposition from Republicans stems from President Barack Obama’s executive actions on immigration, and Lynch’s confirmation is also plagued with remnants of congressional Republicans’ toxic relations with current attorney general Eric Holder.

March 12, 2015 in Who Sentences? | Permalink | Comments (4) | TrackBack

"Will Patrick Kennedy and SAM come out in support of the CARERS Act?" and other highlights from MLP&R

The question title of this post is the question I ask in this lengthy new post from Marijuana Law, Policy & Reform.  I have a lot of respect for the leading group opposing significant marijuana reform, Smart Approaches to Marijuana (which Patrick Kennedy helped start) because SAM proclaims repeatedly a commitment to charting a "middle road between incarceration and legalization [to provide a] commonsense, third-way approach to marijuana policy is based on reputable science and sound principles of public health and safety" (emphasis added).  In addition, the SAM group advocates for "rapid expansion of research into the components of the marijuana plant for delivery via non-smoked forms" and a special FDA reform that "allows seriously ill patients to obtain non-smoked components of marijuana."  My post at MLP&R explains why I think the stated commitments of Patrick Kennedy and SAM should result in them supporting expressly and vocally the a bipartisan federal medical marijuana reform bill introduced this week by Senators Rand Paul, Cory Booker and Kirsten Gillibrand known as the CARERS Act.

As detailed below, in addition to providing lot of CARERS coverage, there are lots of other recent posts of note at MLP&R that sentencing fans may want to check out:

March 12, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

US Sentencing Commission hearing on proposed fraud and other guideline amendments

Download (2)Today, as detailed at this webpage with the official agenda, the US Sentencing Commission is holding a public hearing to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines. This event is being streamed live (for the first time, I think), and can be watched at this link.

This webpage with the official agenda also provides links to the submitted written testimony of the scheduled witnesses. Most of the interesting conceptual and technical debate about guideline amendments this cycle are focused on the fraud guidelines, which have been subject to an array of criticisms due especially to their severity in cases including significant "loss" calculations. But, as the Department of Justice's written testimony (available here) makes the case that there is nothing really broken in the fraud guideline that needs to be fixed:

Lessening penalties for economic crime would be contrary to the overwhelming societal consensus that exists around these offenses. All three branches of government have expressed a belief that the sentences for fraud offenses are either appropriate or too low....

The Department also feels that penalties for economic crimes should remain unchanged and not be decreased. The proportionality established between loss and offense level is based upon numerous policy considerations, including how economic crimes should be punished and deterred. In the Department's experience and judgment, the harm from economic crimes is generally not being overstated.

In notable contrast, the written testimony of Professor Frank O. Bowman, III (available here) has a very different take on the realities of the fraud guidelines:

[F]or the last decade or so, the loudest complaint about §2B1.1 has been that it prescribes sentences which, at least for some defendants, are far too high. In particular, many observers have argued that for some high-loss defendants the guidelines now are divorced both from the objectives of Section 3553(a) and, frankly, from common sense....

Accordingly, one would have expected the proposed 2015 amendments to §2B1.1 to concentrate on the class of high-loss offenders the Commission seems to agree are over-punished by the guidelines. Curiously, however, the proposed amendments – though in several cases laudable for other reasons – would have virtually no material impact on the guidelines ranges for very high loss offenders, while producing modest guidelines reductions for significant numbers of low-to-moderate-loss offenders.

<P>I agree with the Commission’s basic conclusion that for many, perhaps most, economic offenders the Guidelines do not suggest manifestly unreasonable sentences.  But I also agree with Judge Saris’s implicit conclusion that for many high-loss offenders the fraud guideline is “fundamentally broken.”  The Commission doubtless believes that the modest proposals put forward in this cycle will at least ameliorate the high-loss offender problem. Unfortunately, the guidelines for high-loss offenders are so “fundamentally broken” that these modest measures will have no meaningful effect.

March 12, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, March 11, 2015

"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"

The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:

The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”

The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense.  These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.

These guidelines are premised on the following foundational principles: 

  • children are constitutionally and developmentally different from adults;

  • children, by reason of their physical and mental immaturity, need special safeguards and care;

  • children must not be defined by a single act; 

  • juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation; 

  • juvenile life defense requires a qualified team trained in adolescent development; 

  • juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner; 

  • juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;

  • juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;

  • juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;

  • juvenile life defense counsel must litigate for a presumption against life sentences for children; and

  • juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.

March 11, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Mizzou lawyers spotlight problems poised by rapid pace of executions

As reported in this Kansas City Star article, headlined "Attorneys struggle to keep up with Missouri’s execution pace," the Show Me State's recent pattern of showing condemned inmates to the execution chamber on a regular basis has prompted a notable expression of concern from lawyers. Here are the details:

[F]or the small group of lawyers who take on the burdens of defending inmates on the cusp of execution in Missouri, the sheer volume of cases is overwhelming their ability to do that work.

That’s the message four law professors and lawyers delivered to the Missouri Supreme Court this week as they called for execution procedure changes that would give lawyers more time for each client. “These amendments are necessary because the capital defense bar is in crisis because of its recent workload,” the group wrote.

Since November 2013, Missouri has executed 13 men. A handful of lawyers who specialize in capital litigation have represented most of them. They also represent most of Missouri’s other defendants with a pending execution date or who soon are expected to see one set.

The state’s fast execution pace — Missouri tied Texas for most in the country last year with 10 — has left those lawyers struggling to meet their legal obligations to multiple clients at the same time, according to the letter by members of an American Bar Association death penalty assessment team that recently studied Missouri’s execution system. “The legal proceedings in death penalty cases are notoriously lengthy and complex,” they wrote. “Establishing a detailed understanding of those proceedings is a time consuming task and a basic prerequisite to competent performance.”

In addition, the cases take an intense emotional toll on attorneys who get to know the clients intimately before watching them die, the letter said. “No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience,” the letter stated. One attorney has represented five of the last nine men executed and has two other clients with an “imminent risk of execution,” the letter noted....

The four members of the assessment team who sent the letter to the Supreme Court — University of Missouri law professor Paul Litton, St. Louis University law professor Stephen Thaman, retired Missouri Court of Appeals Judge Hal Lowenstein and Douglas Copeland, a partner in a St. Louis law firm — recommended three amendments to the state’s rules.

The first would limit any one lawyer from representing a client who has an execution date set within six months of any of the lawyer’s other clients. Second, they also ask that a minimum notice of six months be given before an execution can be carried out. The third proposal would allow lawyers to prioritize caseloads to concentrate on cases with pending execution dates while being granted more time to deal with other clients’ cases.

“These are common-sense solutions to a serious problem affecting virtually every scheduled execution,” according to the letter.

The problems have mounted only recently in Missouri, where the lawyers pointed out that only two executions took place in the seven years from 2006 through 2012. But this has been a long-term issue in other death penalty states. “For decades it has been widely recognized … that unreasonable workloads among capital litigators can severely challenge the effectiveness of their representation,” said national death penalty expert Deborah Denno, a professor at the Fordham University School of Law.

Though it will be up to the Missouri Supreme Court to adopt or reject the rule changes, the court has shown some flexibility in the past. Last July, it changed the rules to limit executions to no more than one per month.

And last August, the court withdrew an execution warrant it had issued the previous month after the inmates’ attorneys said they wouldn’t have enough time to do everything required in the case while balancing work they had in other pending cases. They were given additional months before that man’s execution was carried out in November....

Jennifer Herndon, a St. Louis-area lawyer who has represented several death row inmates, said the proposals are all good ideas that are badly needed. “People don’t understand the pressure, particularly in the last 30 to 45 days before an execution,” she said. “If you don’t work on it 24 hours a day, you’re thinking about it 24 hours a day.” Facing that same kind of pressure month after month makes it virtually impossible to operate at 100 percent “no matter how hard you try,” she said.

The helpful folks at The Marshall Project have uploaded a copy of the letter reference in this article at this link.

March 11, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 10, 2015

Fascinating press conference introducing federal medical marijuana reform bill, the CARERS Act

I am watching the press conference (streamed here) with presentations by Senators Rand Paul, Cory Booker and Kirsten Gillibrand introducing their new federal medical marijuana reform bill, the CARERS Act.  Fascinating stuff.

Senator Booker started by noting veterans' interest in using medical marijuana, Senator Paul spoke of the need for more research and banking problems for state-legal marijuana business, and Senator Gillibrand was the closer by stressing the need for families to have access to high-CBC medicines for children suffering from seizure disorders.

Adding to the power of the press conference is a set of testimonials from a mom eager to have CBC treatments for her daughter (who had a small seizure during the press conference!), and an older woman with MS eager to have access to marijuana to help her sleep.  Senator Paul followed up by introducing a father of one of his staffers with MS, who testified from a wheelchair.   Senator Booker then introduced a 35-year-old veteran who complained about been deemed a criminal for his medical marijuana use by a country he fought for over six years.   Notably, after all the white users/patients advocated for reform, Senator Booker introduced an African-American business owner talking about the problems with having to run a medical marijuana business without access to banking services.

This Drug Policy Alliance press release summarizes what is in the CARERS Act: 

The Compassionate Access, Research Expansion and Respect States - CARERS - Act is the first-ever bill in the U.S. Senate to legalize marijuana for medical use and the most comprehensive medical marijuana bill ever introduced in Congress. The CARERS Act will do the following:

  • Allow states to legalize marijuana for medical use without federal interference

  • Permit interstate commerce in cannabidiol (CBD) oils

  • Reschedule marijuana to schedule II

  • Allow banks to provide checking accounts and other financial services to marijuana dispensaries

  • Allow Veterans Administration physicians to recommend medical marijuana to veterans

  • Eliminate barriers to medical marijuana research.

March 10, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, March 09, 2015

What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?

As noted in this post, this morning the US Supreme Court today finally decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.  But, as this new SCOTUSblog post about the cert grant spotlights, it actually is not entirely clear just what the Supreme Court has decided to decide:

The Florida death penalty case now up for review involves Timothy Lee Hurst of Pensacola, who faces a death sentence for the 1998 murder of a woman who was an assistant manager at a Popeye’s fast-food restaurant where Hurst also worked.

Hurst’s public-defender lawyers asked the Court to rule on two broad questions: one about the jury’s role when an accused individual claims a mental disability, and one about the jury’s role in the death-sentencing process, including an issue of whether its verdict must be unanimous. (His jury split seven to five in recommending death.) The second question was based on a claim that Florida courts fail to follow a 2002 Supreme Court decision on death sentencing, Ring v. Arizona.

In agreeing to rule on the case, the Court rewrote the question it will consider in an apparent attempt to simplify it: whether Florida’s approach to death sentencing violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.”

Because the Ring decision is all about the Sixth Amendment, and the role of the jury in deciding whether a murder was committed in an “aggravated” form, it is not clear just what the Court had in mind in linking an Eighth Amendment issue to the Ring precedent. It could be, although this was not plain from the order, that the Court is looking at Hurst’s case on Eighth Amendment grounds on his claim of mental disability, on the lack of jury unanimity, and on the general fairness of a death sentence for this particular individual. Presumably, that will become clearer as the briefs are filed in the case in coming months.

Helpfully, this extended post at Crime & Consequences reviews some of the legal background and possible implication of the Hurst case, which includes these observations:

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure.  Therefore, there is no limitation on the Court's authority to create new law in this case.  The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States.  Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States.  However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.

Because of the maelstrom of potential legal issues raised by this particular Florida case, I am not sure what to expect from the Justices. I am sure any and everyone who does not like how Florida does its capital sentencing (including the nearly 400 murderers currently on Florida's death row) may be inclined to present varied constitutional arguments to SCOTUS to urge a reversal of the death sentence in this intriguing new case.

March 9, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Bipartisan federal medical marijuana bill to be introduced Tuesday

As reported in this new Washington Post entry, headlined "In a first, senators plan to introduce federal medical marijuana bill," a trio of notable Senators have interesting plans for mid-day Tuesday:

In what advocates describe as an historic first, a trio of senators plan to unveil a federal medical marijuana bill Tuesday. The bill, to be introduced by Senators Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Kirsten Gillibrand (D-N.Y.), would end the federal ban on medical marijuana.

The Compassionate Access, Research Expansion and Respect States (CARERS) Act would “allow patients, doctors and businesses in states that have already passed medical marijuana laws to participate in those programs without fear of federal prosecution,” according to a joint statement from the senators’ offices. The bill will also “make overdue reforms to ensure patients – including veterans receiving care from VA facilities in states with medical marijuana programs – access the care they need.” The proposal will be unveiled at a 12:30 p.m. press conference on Tuesday, which will be streamed live here. Patients, their families and advocates will join the senators at the press conference.

The announcement was met with praise by advocates. “This is a significant step forward when it comes to reforming marijuana laws at the federal level,” Dan Riffle, director of federal policies for the Marijuana Policy Project, said in a statement. “It’s long past time to end the federal ban,” said Michael Collins, policy manager for the Drug Policy Alliance, said in a statement. Both describe the introduction of the bill as a first for the Senate....

In December, Congress for the first time in roughly a decade of trying approved an amendment that bars the Justice Department from using its funds to prevent states from implementing their medical marijuana laws — a significant victory for proponents of the practice.

Potential Republican presidential candidates Rand, Sen. Ted Cruz (R-Texas) and former Florida Gov. Jeb Bush (R) have all said they support states’ rights to legalize pot, though they themselves disagree with the policy.

Cross-posted at Marijuana Law, Policy and Reform

March 9, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"

Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:

What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street?  To my knowledge, this question has never been polled by any respected organization.

I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:

A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas.  The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....

The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:

• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.

• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....

“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin.  “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”

March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring

One big question that arose way back in 2000 when the Supreme Court issued its landmark Apprendi decision was whether capital sentencing schemes that incorporated judicial death penalty determinations were still constitutional.  In 2002, in Ring, the Supreme Court somewhat clarified matter when it found Arizona's capital sentencing scheme problematic in light of Apprendi.  Now, finally and remarkably, the Supreme Court has decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.

This new SCOTUS order list has just one new cert grant, and here it is:

HURST, TIMOTHY L. V. FLORIDA: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).

Notably, according to the Death Penalty Information Center's data, Florida has carried out 39 executions since the Supreme Court handed down its ruling in Ring in 2002, and I suspect a good number of those Florida condemned (and now dead) murderers asserted that their death sentencing violated the Sixth Amendment and/or the Eighth Amendment in light of Ring.  If there is some kind of afterlife for executed murderers, I expect there will now be some interesting SCOTUS talk in the Florida section of that netherworld.

March 9, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

"Hey, Grandpa: End Mandatory Minimums!"

The title of this post is the headline of this Daily Beast piece highlighting the generational divide which now impacts the fate and future of some proposed federal sentencing reforms. Here are excerpts:

[A] wave of young conservative leaders has been pushing for a variety of reforms to address problems that, in many cases, disproportionately affect the African-American community. The bad news it that these conservatives have a formidable adversary: Their elders.

When word leaked last month the Smarter Sentencing Act would be reintroduced, Iowa Sen. Chuck Grassley, 81, wasted little time in going nuclear. “It is a fact that the so-called Smarter Sentencing Act would cut in half the mandatory minimum sentences that Congress put in place for distributing drugs to benefit terrorists or terrorist organizations,” he said. ... Terrorists?!?

The bipartisan Smarter Sentencing Act included Republicans Mike Lee, Ted Cruz, Rand Paul, and Jeff Flake as co-sponsors — hardly the sort to want to help fund terrorists. But this isn’t a new line for Grassley, who is chairman of the Judiciary Committee, and it isn’t clear whether the terrorist line is a sincere (albeit wrongheaded and crank-ish) concern, or merely a way to kill reform....

According to Vikrant Reddy, a senior policy analyst for the conservative Right on Crime, the generational divide — not the partisan divide — is the issue. “It is true that Senator Grassley has expressed skepticism about the Cruz-Lee proposals, but it is also true that Dianne Feinstein voted against last year’s Recidivism Reduction and Public Safety Act," Reddy said. “Senators Grassley and Feinstein have very little in common, but they do share a generation: They are both exactly 81 years old.”

Meanwhile, the loudest voices for criminal justice reform in Congress are members of Generation X: Mike Lee is 43, Ted Cruz is 44, and Cory Booker is 45. But Reddy doesn’t want to bash his elders just for the sport of it. There is, he insists, a perfectly good explanation for the generational divide: Grassley and Feinstein came of age in an era of high crime....

But the violent crime rate has consistently dropped in recent decades, and many reformers believe the pendulum has swung too far. “We may be at the point where high levels of incarceration are themselves ‘criminogenic,’ meaning that they actually cause more crime than they prevent, because extremely lengthy prison stays produce high recidivism rates,” says Reddy.

It would be a mistake to return to the bad old days of being soft on crime, but it would also be foolish to fail to adapt to changing times.  Rather than resting on our laurels, we should continue to tweak and fix problems.  Bipartisan agreement is rare in Washington, and it would be a shame to scuttle one of the few areas where conservative reformers have a real opportunity to do well by doing good.

... And they might have gotten away with it, too, if it weren’t for those meddling codgers.

March 9, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Profile of one (of thousands) of the juve LWOP stories full of post-Miller uncertainty

Thanks to How Appealing, I saw this interesting article from North Carolina about the history of an offender long serving an LWOP sentence for a juvenile murder who still awaits resolution of whether he can benefit from the Supreme Court's work three years ago in Miller v. Alabama.  The piece is headlined "Convicted of murder at 16, Anthony Willis is hoping a Supreme Court decision will overturn his sentence," and merits a full read for those following post-Miller developments closely. Here is an excerpt from the lengthy piece:

[I]f nothing else, prison gives a man time to reflect. Willis slowly came to realize — even though he was expected to die behind bars — that he needed his life to matter. The best way to do that, he decided, was to lean on God and to educate himself. After earning his GED, Willis began taking anger- and stress-management classes and attending prison fellowship seminars.

He earned back-to-back-to-back associate degrees from Western Piedmont Community College and a bachelor's degree from California Coast University. His mother attended his graduation ceremony for his first associate degree.  "That's my baby," Brenda Willis yelled as Willis walked down the aisle.  She was so proud of her son.

That's a big part of Willis' motivation today.  He wants his mother to know that his actions as a teenager were never her fault....  Now 35, his appearance and demeanor are nothing like one might expect from a man who has spent slightly more than half his life in prison. Most of the other prisoners call him Smiley, a nickname that has transferred with him from prison to prison.

Thin, polite, boyish and articulate, Willis seems to have been transformed by prison into a man who has gained respect by learning to stop following the herd.  Willis said he has found comfort in the Lord and teaches those virtues to other prisoners.  He said he regularly leads prison fellowship seminars and takes pride in his role as a mentor and recreational leader.  Willis said he often counsels new prisoners almost as soon as they get off the bus.  Most mistake his optimism for someone who is about to get released — anyone but a lifer....

Willis acknowledges that serving a life sentence isn't easy. "It's hard to hold onto hope in here," he said. "It's like holding onto a ledge by your fingertips." But he endures the best he can, buoyed by his faith, his new-found purpose in life and a U.S. Supreme Court ruling called Miller vs. Alabama.

On June 25, 2012, the Supreme Court ruled that mandatory life in prison without parole for people who committed murder as juveniles constitutes cruel and unusual punishment. The ruling effectively struck down laws in 28 states, including North Carolina....

The court did not bar mandatory life sentences without parole in all juvenile homicide cases. It said lower courts could impose such a sentence only after examining mitigating factors, including family environment, the circumstances of the offense and the possibility of rehabilitation.  But the court didn't make its order retroactive, so it does not apply to Willis and 87 other murderers convicted as juveniles and now serving life sentences in North Carolina.

In December, the Supreme Court agreed to consider whether the Miller ruling should be made retroactive in a Louisiana murder. But the case was resolved at the state level, leaving no issue for the federal court to hear. So making Miller retroactive remains in limbo, at least in North Carolina.

Less than two weeks after the Miller ruling, North Carolina's General Assembly responded by approving a law that requires a parole review after a juvenile murderer has spent a minimum of 25 years in prison.  But again, the law applies only to sentences handed down after the Miller ruling.  Courts in at least nine states — including South Carolina — have ruled that the ruling will be applied retroactively. Five other states have ruled that the decision is not retroactive.  North Carolina's appellate courts continue to consider the issue.

March 9, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 08, 2015

Can a sheriff prohibit sex offenders from a church that is sometimes a school?

The question in the title of this post is prompted by this story coming from North Carolina, headlined "Graham sheriff bans sex offenders from church." Here are the details:

A sheriff in one of North Carolina's smallest counties told sex offenders they can't attend church services, citing a state law meant to keep them from day care centers and schools. Sheriff Danny Millsaps, in Graham County, told the registered offenders about his decision on Feb. 17, according to a letter obtained by the Asheville Citizen-Times on Friday....

"This is an effort to protect the citizens and children of the community of Graham (County)," he wrote. "I cannot let one sex offender go to church and not let all registered sex offenders go to church." He invited them to attend church service at the county jail.

Millsaps, in an interview on Friday, said he may have made a mistake when he wrote that offenders "are not permitted to attend church services." He said he understands the Constitution gives everyone the right to religious freedom. But, he said, he's standing by his take on the law blocking offenders from places where children are present.

"I understand I can't keep them from going to church," he said. "That may have been misunderstood. I'll be the first one to say I might have made mistakes in the wording of that letter." He said he has no immediate plans to arrest a sex offender should one of the 20 in his county attend church on Sunday.

Graham County Manager Greg Cable said the county attorney is looking into the matter and any legal mistakes would be corrected. The American Civil Liberties Union in Raleigh, at the newspaper's request, is reviewing the letter the sheriff sent. The newspaper also sent a copy to the state Department of Justice for an opinion on the law....

Other North Carolina counties have dealt with the same issue. Deputies in Chatham County in 2009 arrested a sex offender for attending church, citing the same law. A state Superior Court judge eventually ruled the law, as applied to churches, was unconstitutional.

In Buncombe County, sex offenders are permitted in church as long as pastors know and are in agreement, Sheriff Van Duncan says. That's similar to the county's policy for allowing sex offenders at school events such as ball games. They are allowed as long as school administrators have warning and the offenders are monitored to some extent, the sheriff said. The law allows schools to do this, a factor the judge noted back in 2009 in the Chatham County case.

Duncan said if a sex offender threatens a child at a church or school event, the law can be enforced and used to ban the offender. He said church leaders in Buncombe County, generally, want to minister to sex offenders.

The law applies to churches that run schools Monday-Friday the same as it would apply to county or city schools during the week. Sex offenders are generally banned from school property.

March 8, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Religion, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Stirring (sentencing) civil rights sentiments in Selma speech

The events in Selma, Alabama a half century ago has led to a modern weekend of discussion and reflection on the achievements and work still to be done in the never-ending struggle for civil rights for all.  President Obama, whom even his toughest critics will admit can give a good speech, spoke to these matters in a speech at an historic location in Selma.  The full text of the speech is worth a read, and these sentiments from the text of President Obama's remarks which have obvious sentencing significance:

This is work for all Americans, and not just some.  Not just whites.  Not just blacks.  If we want to honor the courage of those who marched that day, then all of us are called to possess their moral imagination.  All of us will need to feel, as they did, the fierce urgency of now.  All of us need to recognize, as they did, that change depends on our actions, our attitudes, the things we teach our children.  And if we make such effort, no matter how hard it may seem, laws can be passed, and consciences can be stirred, and consensus can be built.

With such effort, we can make sure our criminal justice system serves all and not just some.  Together, we can raise the level of mutual trust that policing is built on — the idea that police officers are members of the communities they risk their lives to protect, and citizens in Ferguson and New York and Cleveland just want the same thing young people here marched for — the protection of the law.  Together, we can address unfair sentencing, and overcrowded prisons, and the stunted circumstances that rob too many boys of the chance to become men, and rob the nation of too many men who could be good dads, and workers, and neighbors.

Some related posts (from both SL&P and MLP&R):

March 8, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, March 07, 2015

California voters through Prop 47 help fix prison crowding problems plaguing state for decades

Images (5)Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s.  Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues.  But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.

I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way.  The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:

California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.

The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday.  Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.

But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47.  “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview.  “The thing we are grappling with is the tremendous rise in property crime.”

Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....

Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....

In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014.  Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.

Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said.  “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”

Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less.  Prior to the measure, the threshold for misdemeanor property crimes was $450.  Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.

Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”

Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure.  Most of that money is slated for mental health and substance abuse programs.

I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.

Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).

Some prior related posts on California's Prop 47 and its early impact:

March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack