Wednesday, June 26, 2013

"Texas carries out 500th execution with Kimberly McCarthy"

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

Texas marked a solemn moment in criminal justice Wednesday evening, executing its 500th inmate since it resumed carrying out capital punishment in 1982.  Kimberly McCarthy, who was put to death for the murder of her 71-year-old neighbor, was also the first woman executed in the U.S. in nearly three years.

McCarthy, 52, was executed for the 1997 robbery, beating and fatal stabbing of retired college psychology professor Dorothy Booth.  Booth had agreed to give McCarthy a cup of sugar before she was attacked with a butcher knife and candelabra at her home in Lancaster, about 15 miles south of Dallas.  Authorities say McCarthy cut off Booth's finger to remove her wedding ring.  It was among three slayings linked to McCarthy, a former nursing home therapist who became addicted to crack cocaine.

She was pronounced dead at 6:37 p.m. CDT, 20 minutes after Texas prison officials began administering a single lethal dose of pentobarbital.

Texas has carried out nearly 40 percent of the more than 1,300 executions in the U.S. since the Supreme Court allowed capital punishment to resume in 1976. The state's standing stems from its size as the nation's second-most populous state as well as its tradition of tough justice for killers.

June 26, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (20) | TrackBack

By wishing for end to legal proceedings, are Ariel Castro's victims urging a plea deal and no death penalty trial?

The question in the title of this post is my reaction to this new story, headlined "'Sordid details': Ariel Castro's alleged kidnapping victims want case to be over," coming today from the high-profile Cleveland kidnapping case. Here are the basics: 

The three young women allegedly held captive for a decade in a Cleveland home where they were raped and tortured want to get the case to court as quickly as possible, their attorneys said on Wednesday, adding that they want “this whole thing behind them.”

Amanda Berry, Gina DeJesus and Michelle Knight escaped Castro’s home on May 6 after Berry broke through a front door and screamed to neighbors for help. “The longer this process lasts, the more painful it is for them. And the more sordid details of this horror that get disclosed in this process, the more painful it is for them,” attorney Kathy Joseph, who is representing Knight, said in a statement....

“Again, they have faith in the process, but the simple, honest truth is they would like it to be over,” said James Wooley, attorney for Berry and DeJesus. “They want this whole thing behind them. Any date by which this may end is like light at the end of a tunnel.”

Ariel Castro has pleaded not guilty to 329 charges including kidnapping and rape.  On Wednesday, Judge Michael Russo in Cuyahoga County ordered Castro to undergo a competency evaluation regarding his ability to understand the trial proceedings and work with his attorney. Castro spoke twice during the 10-minute pre-trial hearing on Wednesday, both times affirming that he understood the judge.

As everyone who follows capital cases should know well, the most certain way to ensure that the prosecution of Ariel Castro does not get resolved quickly would be for the District Attorney to serious pursue a death sentence and to refuse to engineer a plea deal including a lesser sentence.  I have to believe the victims and their attorneys understand this, and thus I also believe that these new statements on behalf of the victims are, in essence, a request to key prosecutors to get to work on a quick plea deal to bring a form of closure to the legal proceedings ASAP.

Recent related posts:

June 26, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, June 25, 2013

"Medicaid for prisoners: States missing out on millions"

The title of this post is the headline of this notable and lengthy USA Today article, which gets started this way:

Only a dozen states have taken advantage of a long-standing option to stick the federal government with at least half the cost of hospitalizations and nursing home stays of state prison inmates.  The other states have left tens of millions of federal dollars on the table, either because they didn't know about a federal rule dating to 1997 or they were unable to write the laws and administrative processes to take advantage of it.

States and localities have a constitutional obligation to provide adequate health care to prisoners, and they must pay for it out of their own budgets.  However, a 1997 ruling says that care provided to inmates beyond the walls of the prison qualifies for Medicaid reimbursement if the prisoner is Medicaid eligible.  The federal government then pays 50 percent to 84 percent of Medicaid costs.

Ever since that ruling, it has made fiscal sense to get inmates who needed outside medical attention enrolled in Medicaid, said Aaron Edwards, a legislative analyst in California who helped get the state's program started, "but in 2014 it really becomes a no-brainer."

That's when the major elements of the Affordable Care Act take effect, and most prison inmates will be eligible for Medicaid if they need health services outside of prison.  The number of inmates in state prisons as of 2011 was nearly 1.6 million, according to the U.S. Justice Department.  An additional 745,000 were in local jails, a population that would also qualify for Medicaid benefits if they required outside medical care.

Right now, in most states, only prisoners who are pregnant, disabled or aged are eligible for Medicaid coverage when they need outside medical attention.  But most states and localities don't bother to seek Medicaid reimbursement for that limited class of prisoners, an omission that deprives them of millions of dollars in potential federal reimbursement. It's not the inmates themselves but rather the states and localities that are the beneficiaries of the federal Medicaid reimbursement.

So far, only Arkansas, California, Colorado, Delaware, Louisiana, Michigan, Mississippi, Nebraska, North Carolina, Oklahoma, Pennsylvania, Washington and some scattered local governments are tapping Medicaid to pay for inpatient medical and nursing home care.  A few more states are looking into it, including Georgia, Massachusetts, Minnesota, New Mexico, New York and Virginia.

June 25, 2013 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"Equal justice: An appeals court wisely rules on drug sentencing"

The title of this post is the headline of this notable new editorial appearing in today's Pittsburgh Post-Gazette discussing and praising last month's Sixth Circuit ruling in Blewett (basics here).   Here are excerpts:

In the nation's long, costly and practically futile war on drugs, severe sentencing disparities between crack and powder cocaine stand out as an egregious and misguided policy that was stoked by near-hysteria.

Convinced that crack cocaine was 100 times more dangerous than powder cocaine, lawmakers in 1986 enacted a notorious 100-to-1 sentencing scheme that levied the same prison sentence for possessing 5 grams of crack as it did for 500 grams of powder.

A 2010 law, the Fair Sentencing Act, restored some sanity to federal sentencing laws by narrowing considerably the disparities in sentencing between crack and powder. Unfortunately, the law did not spell out whether the new standards applied retroactively to people who were sentenced before it was enacted.

This month, however, a federal appeals court in Cincinnati ruled correctly that those sentenced for crack cocaine violations before the 2010 law was enacted can be resentenced under the new law. The cleanest and best solution would be for Congress to amend the Fair Sentencing Act to make it fully retroactive.

Until then, the ruling by the appeals court opens the door for thousands of inmates to ask federal judges to shorten their prison sentences. It expands a U.S. Supreme Court ruling last year that applied the Fair Sentencing Act to people who committed crack cocaine crimes shortly before more lenient penalties took effect in 2010.

It's time to undo fully these unjust and irrational sentences, which treated powder cocaine users -- who were typically white and often affluent -- far more leniently than the mostly black and poor users of crack cocaine.

Related posts on Blewett:

June 25, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21) | TrackBack

Monday, June 24, 2013

Big SCOTUS majority blesses congressional power to go after sex offenders through SORNA

Though Supreme Court anticipation now is mostly about matters tangential to the interest of truly hard-core sentencing fans, there was one last case dealing with federal regulation of sex offenders that SCOTUS handed down this morning.  Here is the early report via SCOTUSblog:

U.S. v. Kebodoeux. The Fifth Circuit is reversed and remanded.  Registration requirement under SORNA as applied to Kebodeaux falls within the scope of Congress's authority under the Necessary and Proper Clause.

Justice Breyer has the opinion for hte Court. Vote is 7-2.  Chief Justice files a concurring opinion (in the judgment only) joined by Alito; Justice Scalia dissents, for himself; Justice Thomas dissents in an opinion joined in part by Justice Scalia.

SORNA is the Sex Offender and Registration Notification Act....  Here is the opinion in Kebodeaux, the SORNA case.

June 24, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Sunday, June 23, 2013

"Juries and the Criminal Constitution"

The title of this post is the title of this new paper by Meghan Ryan now on SSRN.  Here is the abstract:

Judges are regularly deciding criminal constitutional issues based on changing societal values.  For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment.  Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are.  Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters.  But judges’ internal assessments of societal standards are likely not representative of society’s morals and values — because judges, themselves, are ordinarily not representative of the communities that they serve.

Juries, on the other hand, are constitutionally required to be drawn from a representative cross-section of the community.  Further, because juries are composed of several different individuals, they may draw on a broader range of knowledge and expertise in making their decisions.  The historically trusted body to protect defendants from an overbearing government, juries, rather than judges, should be the ones empowered to determine these criminal constitutional moral matters.

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

Notable condemned and notable execution milestone in Texas this week

ALeqM5isr0UjoSbtDZB5JK5wuDkRMIj62wAs reported in this international news piece from AFP, headlined "Texas prepares to execute 500th prisoner," a scheduled execution in Texas this coming week is drawing more than the usual attention for a number of reasons. Here is some context:

The US state of Texas is preparing to execute its 500th convict since the death penalty was restored in 1976, a record in a country where capital punishment is in decline elsewhere.

On Wednesday, in the absence of a last minute pardon, 52-year-old Kimberly McCarthy will receive a lethal injection in Huntsville Penitentiary for the 1997 murder of 71-year-old retired college professor Dorothy Booth. "What we do is we carry out court orders," said Jason Clark, spokesman for the Texas Department of Criminal Justice. "It's our obligation to carry this execution out."

Activists opposed to the death penalty are due to gather at the red brick state prison, known as the "Walls Unit," to mark the milestone with a protest against a punishment they regard as a holdover from another age.

In 1976, the US Supreme Court lifted a moratorium on the use of the death penalty and since that date 1,336 have been executed across the country, more than a third of them in Texas alone. "It is obviously still the leader of executions in the nation, but it is limited to a handful of counties," said Steve Hall of the StandDown Texas Project, which has campaigns for a new moratorium....

Richard Dieter of the Death Penalty Information Center, an academic watchdog, agreed. "Despite this major milestone, we expect the total number of executions to be less than last year and a new drop in death sentences," he said.

According to DPIC's figures, there are 3,125 convicts on death row in the United States and, if Wednesday's execution goes ahead, McCarthy will be the 17th prisoner put to death in the first six months of 2013.... American juries are also imposing capital punishment in fewer cases, with only 78 death sentences last year, down by around three-quarters since the 1990s -- although violent crime is also down.

And, while 32 of the 50 US states still have the death penalty on the books, many have imposed a de facto moratorium, with few or none of the executions carried out and convicts languishing on death row....

"By measurements like the number of executions, death sentences and states, the death penalty is in decline," admitted Robert Blecker, a professor at New York Law School. "But, in terms of the popular support, that is fairly constant. It is not in decline," he said, noting that the proportion of voters backing execution always increases in the wake of "egregious" crimes.

Opinion polls consistently show that between 60 and 65 percent of Americans back the death penalty, indicating that support goes beyond the roughly 50-50 left-right divide in US electoral politics.

This local piece from the Austin Chronicle discusses the specifics of the notable defendant now poised to be number 500 in Texas.  Here is how it begins:

With the execution of Kimberly McCarthy slated for June 26, Texas is on the eve of a historic first: The first state to have executed 500 individuals since reinstatement of the death penalty — an event that also extends Gov. Rick Perry's record as the U.S. governor presiding over the most executions ever carried out.  McCarthy is slated not only to be tagged with the infamous fate of 500, but will also become only the fifth woman — and the third black woman — executed in Texas since 1854.

McCarthy, who was previously married to New Black Panther Party founder Aaron Michaels, was sentenced to die for the 1997 robbery-murder of her 71-year-old neighbor, retired professor Dorothy Booth.  Accord­ing to the state, McCarthy's crack cocaine addiction led her to employ a ruse — she needed to borrow sugar, she told Booth — in order to get into Booth's house.  Booth was repeatedly stabbed, and her finger, with ring on it, was cut off. Booth's car and credit cards were also stolen; McCarthy told police she pawned the items to get money for drugs.

June 23, 2013 in Data on sentencing, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, June 21, 2013

Enron CEO Jeff Skilling resentenced officially to 14 years after plea deal

As reported in this new Houston Chronicle article, headlined "Enron’s Skilling gets more than 10 years cut off sentence," today marked the official resentencing of perhaps the highest-profile white-collar defendant this side of Bernie Madoff. Here are the details:

Former Enron CEO Jeff Skilling had more than 10 years cut off his 24-year prison sentence today after a federal judge signed off on an agreement between the disgraced Houston executive and federal prosecutors.  Skilling, 59, could be released as early as 2017.

Skilling, in turn, agreed to drop his ongoing appeals and surrender any claim on the $40 million that had been seized by the government after his indictment for wire fraud, insider trading, conspiracy and related charges stemming from the 2001 collapse of one of Houston's leading companies.

The agreement between prosecutors and Skilling's attorney was announced last month. That his sentence was going to be reduced was known for some time, as appeals courts ruled that one of the theories of the prosecution was not valid, and that one of the factors used to enhance the length of his sentence was improper.  But it was unclear precisely what the sentence would have been as Skilling continued to fight to clear his name of criminal wrongdoing.

By settling with the government, the Enron matter — from a criminal perspective — is all but closed.... Implicit in the formal wording of the agreement was the government's desire to be done with Enron, a corporate scandal that eventually was dwarfed by the financial misbehavior and reckless decisions that helped bring about the economic collapse of 2008....

The sentencing agreement gave federal judge Sim Lake the discretion of a sentence range of 168 to 210 months imprisonment.  Skilling has already served about 78 months, or 6 1/2 years. Skilling currently is housed at a minimum security facility in Littleton, Colo.

June 21, 2013 in White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"

New approachThe title of this post is the headline of this lengthy new Wall Street Journal article appearing on the paper's front page.  Here are excerpts (with two lines emphasized for subsequent commentary):

Weeks after his election as Georgia governor in 2010, Nathan Deal was pulled aside by a conservative state lawmaker with urgent business to discuss.  Rep. Jay Neal, a small-town pastor, said he had the seeds of a plan to cut Georgia's swelling prison population, which was costing taxpayers over $1 billion a year. The governor-elect didn't let Mr. Neal get far.

Georgia Gov. Nathan Deal has led the drive to reduce prison populations in his state. "The minute I mentioned what I wanted to do, he jumped in with what he wanted to do," Mr. Neal recalled. "And it turns out we were talking about the same thing."

That pairing of a pastor with a former prosecutor, both Republicans, helped pave the way for dramatic revamping of Georgia's criminal code.  New rules enacted over the past two legislative sessions are steering nonviolent offenders away from prison, emphasizing rehabilitation over jail time, and lessening the penalties for many drug and property crimes.

Georgia is the latest example of a Republican-led state drive to replace tough-on-crime dictums of the 1990s with a more forgiving and nuanced set of laws. Leading the charge in states such as Texas, Ohio, Kentucky, South Carolina and South Dakota are GOP lawmakers — and in most cases Republican governors — who once favored stiff prison terms aimed at driving down crime.

Motivations for the push are many.  Budget pressures and burgeoning prison costs have spurred new thinking.  Some advocates point to data showing that harsh prison sentences often engender more crime.  Among the key backers are conservative Christians talking of redemption and libertarians who have come to see the prison system as the embodiment of a heavy-handed state.  And crime rates are falling nationally, a trend that has continued in most of the states putting fewer people in jail.

The movement also dovetails with the quest of some Republicans to soften the party's edges and to plunge into new policy areas that affect the poor and the disadvantaged. The initiatives have drawn praise from groups that aren't often allied with the GOP, including the National Association for the Advancement of Colored People and the American Civil Liberties Union.  The result is some unlikely bedfellows, with the conservative American Legislative Exchange Council working alongside the ACLU.

"Criminal justice is the area where conservative thinking has most changed with the times," said Eli Lehrer, a former GOP Senate staffer and conservative activist in Washington, who has written extensively on the push for new sentencing rules.  He describes the push as "the most important social reform effort on the right since the rise of the pro-life movement in the 1970s."

Just over half of the states have embarked on criminal-justice overhauls of varying scope over the past five years, with 19 of those efforts led by Republican governors or GOP legislatures and nine by Democratic governors or legislatures.  Some of the most aggressive moves have come in states, many in the South, with incarceration rates well above the national average....

The downturn has been particularly welcome in states that had projected a continued surge in prison numbers.  Ohio, which was bracing for an inmate population of over 57,000 by the end of the decade, has seen its number fall by nearly 1% a year since 2009.

Changes to sentencing laws haven't sailed everywhere.  In Indiana, an aggressive push in 2011 by then Republican Gov. Mitch Daniels got watered down — and eventually abandoned — after it ran into opposition from prosecutors. GOP Gov. Rick Scott in Florida cited public safety last year when he vetoed a bill to cut the sentences for nonviolent drug offenders.

The conservative quest to rethink criminal sentencing and rewrite state penal codes got its start in Texas, when GOP lawmakers in 2007 balked at the need to build three new prisons to house an anticipated 17,000 more prisoners by 2012. They decided instead to revamp the state's probation system and boost funding for addiction treatment and rehabilitation by $241 million.

The state prison population has declined by nearly 6,000 inmates since 2008 after decades of rapid growth and during a time when the state's own population has continued to swell. In 2011, Texas shut a prison for the first time in state history.

Behind the Texas efforts stood a conservative local think tank, the Texas Public Policy Foundation, and one of its top donors, a wealthy oil man from Odessa named Tim Dunn. Mr. Dunn paid to establish a center within the foundation in 2005 to focus on overhauling the state's criminal code. An evangelical Christian with a strong libertarian bent, Mr. Dunn said he watched for years as Texas' crime rate continued to climb even while its prison population swelled. "I had come to see our justice system as imperial, as intent on maintaining the authority of the king. It was no longer communal or restorative," he said.

Under the directorship of Texas lawyer Marc Levin, the policy foundation became the hub of a national movement as requests for legislative help poured in from other states. The center adopted a formal platform in early 2010 and took its campaign national under the name Right on Crime.  It soon had the backing of a long list of conservative supporters, among them former Florida Gov. Jeb Bush, former Reagan Attorney General Ed Meese, former drug czar Bob Bennett and David Keene, until recently president of the National Rifle Association.

The group and its Republican followers are sensitive to charges that they are going soft on crime, "that we want to hug a thug," as Mr. Dunn puts it.  But they insist they are moving to correct a system that tilted too far toward punishment, without any gauge for success or failure. State prison populations swelled 700% between 1970 and 2009, from 174,000 inmates to 1.4 million.

Legislatures across the country have rewritten their criminal-justice codes. A few Democratic governors have jumped in, including Arkansas's Mike Beebe and Hawaii's Neil Ambercrombie. New York and Connecticut made changes even before Texas did.  But "on balance, it has been conservatives who have been out front," said Adam Gelb, who directs a national criminal-justice initiative at the Pew Charitable Trusts, which has worked on initiatives across the country.

In many states, former law-and-order prosecutors and judges have led the effort. In others, pastors-turned-lawmakers have jumped in. Many describe eureka moments that altered their views....

For Ohio Republican state Sen. Bill Seitz, a turning point came in the late 2000s, when he watched the voters in his county, which includes Cincinnati, twice vote down levies to build a new jail. "It became all the clearer to me how we pass tough sentencing laws with a blind eye to the fiscal impacts," he said.

In Georgia, Gov. Deal and Rep. Neal arrived at their partnership via similar and very personal paths . Mr. Deal says his evolution came about largely on the streets of his hometown of Gainesville, an hour's drive north of Atlanta.  For nearly a decade, his son Jason has presided over a drug court designed to rehabilitate addicts charged with felonies and to keep them out of prison.  The future governor often went to graduation ceremonies where recovering addicts would tell their stories. "They all have their own stories, but a common thread runs through all of them," Gov. Deal said. "They had lied. They had stolen. They had alienated their spouses, their parents, their siblings. But they were given a second chance, and they had been rehabilitated."...

Supporters of the changes in Georgia and other states note that elected officials such as Gov. Deal have done little to publicize their efforts, much less campaign on them.  Ben Jealous, president of the NAACP, sees that as a missed opportunity. "This is an area where Republicans can really connect with black voters," he said.

Gov. Deal acknowledges there are risks in championing prison changes. "You always worry about being accused of being soft on crime," he said.  But through a spokesman he said he now "very much wants to be seen as the face of prison reform in this state."

I concur with the sentiment emphasized above that the prison/sentencing reform movements on the right are a very important and consequential social issue shift for the GOP, and one that could have a profound long-term impact on the fate and fortunes of both political parties in the decades to come.  However, as suggested by the second highlighted point, unless and until GOP politicians believe they can secure votes and not just save money and lives through reform, this reform movement will not likely become as transformative as it might otherwise could be.

Some recent and older related posts:

June 21, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (23) | TrackBack

Federal judges issue new prisoner release order to force California to comply with prior orders

As reported in this Los Angeles Times article, headlined "Federal judges order California to free 9,600 inmates," the ever on-going federal litigation concerning overcrowded California prisons took another notable turn yesterday. Here are the details:

A trio of federal judges ordered Gov. Jerry Brown to immediately begin freeing state inmates and waived state laws to allow early releases, threatening the governor with contempt if he does not comply.

Citing California's "defiance," "intransigence" and "deliberate failure" to provide inmates with adequate care in its overcrowded lockups, the judges on Thursday said Brown must shed 9,600 inmates — about 8% of the prison population — by the end of the year.

Unless he finds another way to ease crowding, the governor must expand the credits that inmates can earn for good behavior or participation in rehabilitation programs, the judges said. "We are willing to defer to their choice for how to comply with our order, not whether to comply with it," the judges wrote. "Defendants have consistently sought to frustrate every attempt by this court to achieve a resolution to the overcrowding problem."

If Sacramento does not meet the inmate cap on time, the judges said, it will have to release prisoners from a list of "low risk" offenders the court has told the administration to prepare.

Brown had already taken steps to appeal the court-imposed cap to the U.S. Supreme Court, and he vowed to fight the latest ruling as well. "The state will seek an immediate stay of this unprecedented order to release almost 10,000 inmates by the end of this year," he said in a statement.

He had immediate backing from the California Police Chiefs Assn. The court order shows "a complete disregard for the safety of communities across California," said the group's president, Covina Police Chief Kim Raney. "Pressing for 9,000 more inmates on the streets," Raney said, shows "an activist court more concerned with prisoners than the safety of the communities."

But a spokesman for the Los Angeles County Sheriff's Department said it did not expect to have to contend with a flood of ex-convicts to watch over. "It is never a positive step when prisoners have to be released," said spokesman Steve Whitmore, "but the Sheriff's Department is prepared for this eventuality."

Brown has until July 13 to file his full appeal with the high court, the same body that two years ago upheld findings that California prison conditions violated the constitutional prohibition against cruel and unusual punishment.

Lawyers for inmates, meanwhile, said Brown has few options but to let some prisoners go. "At this point, the governor is an inch away from contempt," said Don Specter, lead attorney for the Prison Law Office, which in 2001 filed one of two lawsuits on which the judges based their order. "He must make every effort to comply immediately." ... [T]he three-judge panel that oversees prison crowding, U.S. District Judges Lawrence Karlton and Thelton Henderson and U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt.... [in their] order accuses the state of "a series of contumacious actions" and challenges Brown's sincerity about obeying their orders. They noted that the governor lifted an emergency proclamation that allowed inmates to be transferred to prisons in other states, for example. Requests from prison lawyers that the administration be held in contempt "have considerable merit," the judges wrote.

The governor's reluctance to set prisoners free early has the backing of legislative leaders, including Senate President Pro Tem Darrell Steinberg (D-Sacramento). He joked openly on Wednesday about intending to kill any population-reduction plans the courts might order the governor to submit to the Legislature. Republicans in the Legislature have pushed a plan to resume prison expansion in California....

California voters may be more willing than Brown to release inmates to reduce crowding. In a recent USC Dornsife/Los Angeles Times poll, they were wary of sacrificing public safety, but at the same time supported steps to reduce crowding. Sixty-three percent said they favored releasing low-level, nonviolent offenders from prison early.

The full 51-page order in Coleman v. Brown coming from the special three judge panel can be accessed at this link.

June 21, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, June 20, 2013

Oregon Supreme Court rejects effort by death row inmate to reject execution reprieve from Governor

As reported in this new local article, headlined "Supreme Court upholds reprieve by Gov. Kitzhaber of death row inmate Gary Haugen," the top court in Oregon issues a lengthy opinion in a case that ought to be of interest to those who follow the death penalty and those who care about modern clemency procedure and powers. Here are the ruling's basics via the press report:

The Oregon Supreme Court announced today it has upheld Gov. John Kitzhaber’s temporary reprieve of Gary Haugen’s execution. Chief Justice Thomas Balmer, writing for the court, concluded that the reprieve was “valid and effective,” and turned aside Haugen’s argument that he had a legal right to reject the reprieve.

“I am pleased that the Oregon Supreme Court affirmed my constitutional authority to issue a reprieve,” Kitzhaber said in a statement.  “I renew my call for a reevaluation of our current system that embraces capital punishment, which has devolved into an unworkable system that fails to meet the basic standards of justice.  I am still convinced that we can find a better solution that holds offenders accountable and keeps society safe, supports the victims of crime and their families and reflects Oregon values.”

The reprieve will last during Kitzhaber’s current tenure as governor. That will end on Jan. 12, 2015, or if Kitzhaber seeks and wins another term in 2014, until Jan. 14, 2019.

Haugen, 51, is a twice-convicted murderer who was the first who sought to die since Kitzhaber allowed two other executions to proceed during his first term in 1996 and 1997. All three waived appeals.

The high court overturned a ruling in Marion County Circuit Court, where a visiting judge upheld Haugen’s side in the first round last summer.

The full 40-page unanimous ruling in Haugen v. Kitzhaber is available at this link.

Prior related posts:

June 20, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS wraps its sentencing docket with another defense win (and Alito dissent) in Descamps

In this post exactly 10 days ago, I noted that the Supreme Court would soon hand down opinions its three long-pending sentencing cases Alleyne, Peugh and Descamps. In that post I further stated "based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I ... guess/predict that the defendant prevails in all three of these cases."

Today the Supreme Court handed down Descamps, the last pending opinion of this trio of sentencing cases, and sure enough the defendant has prevailed yet again before the Justices. Here is the early report via SCOTUSblog:

Descamps. Per Kagan. The modified categorical approach does not apply to statutes that contain a single indivisible set of elements.

This is about enhanced sentences for repeat offenders. It is 8-1. The dissenter was Justice Alito.

In Plain English, it is now harder for the government to use the facts of a prior conviction to enhance a federal criminal sentence. Here is the opinion in Descamps. The decision of the court of appeals against the defendant is reversed.

Based on a very quick review of all the opinions here, I think it is possible that Descamps will prove to be the most consequential of all the Supreme Court's criminal sentencing work this Term.

June 20, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16) | TrackBack

Wednesday, June 19, 2013

Florida Governor signs bill seeking to speed up executions

As reported in this recent local article, headlined "Gov. Rick Scott signs bill to speed up executions in Florida," the Sunshine State has a new law seeking to improve the administration of capital punishment. Here are the basics:

Gov. Rick Scott signed a bill into law Friday aimed at accelerating the pace of the death penalty process in Florida that could make the governor the most active executioner in modern state history.

The measure, dubbed “the Timely Justice Act” by its proponents, requires governors to sign death warrants 30 days after the Florida Supreme Court certifies that an inmate has exhausted his legal appeals and his clemency review. Once a death warrant is signed, the new law requires the state to execute the defendant within six months.

In a lengthy letter accompanying his signature, Scott aggressively countered allegations by opponents that the law will “fast track” death penalty cases and emphasized that it “discourages stalling tactics” of defense attorneys and ensures that the convicted “do not languish on death row for decades.”

The bill, which passed the House 84-34 and was approved by the Senate 28-10, allows the governor to control the execution schedule slightly because it requires him to sign a death warrant after the required clemency review is completed and only the governor may order the clemency investigation. Scott’s office told lawmakers that because at least 13 of the 404 inmates on Death Row have exhausted their appeals, his office has already started the clock on the clemency review....

Supporters said 154 inmates have been on Florida’s Death Row 20 years and 10 have been there for more than 35 years. The average time for appeals runs 13 years, which is below the national average of 14.8 years.

Death penalty opponents flooded the governor’s office with letters and petitions, urging him to veto the bill and ask the Legislature to instead change what they consider a deeply flawed death penalty process in Florida....

The law imposes strict time limits for when records must be submitted from courts, prosecutors and defense attorneys in an attempt to streamline the appeals process. It also requires reports to the Legislature on how many cases have been pending, reestablishes a Death Row appeals office for North Florida and bans attorneys from handling capital appeals if they have been twice cited for constitutionally incompetent handling of cases.

The signing letter referenced in this article by Gov Rick Scott is available at this link.  And, building mostly on this legal development in Florida, Stateline has this lengthy new report headlined "Some States Speed Up Death Penalty," which starts this way:

Supporters and opponents of capital punishment agree: The current death penalty is expensive, inefficient, and arbitrary. Some state legislatures have reacted to those faults by abolishing the death penalty, while others are trying to speed it up.

Since 2007, six states have abolished capital punishment — most recently Maryland, which did so this year. But other states, troubled by some of the same problems, have moved in the opposite direction.

June 19, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, June 18, 2013

Seeking comments on what to say in comments to the US Sentencing Commission about its priorities

A wise colleague wisely suggested to me that this year might be an especially wise time to convert all my ideas and concerns about the work of the US Sentencing Commission into formal comments for formal submission to the USSC as a formal response to this formal statement of the USSC's proposed priority policy issues for the amendment cycle ending May 1, 2014.

The USSC's six-page Federal Register statement of tentative priorities lists just about every topic that has consumed the recent work of the Commission, ranging from mandatory minimums to post-Booker sentencing patterns to the child porn guidelines to the drug guidelines to economic crimes and lots of stuff in between (including even some back-end sentencing stuff like the compassionate release guidelines).  Nevertheless, there are still plenty of topics not mentioned that I think should be high on the Commission's agenda, ranging from the impact of sequester on the operation of the federal criminal justice system to the enduring need for serious guideline simplification to the overwhelming problem of undue sentencing severity.

Here is the official statement of the official rules for submitting official public comments to the USSC:

The Commission hereby gives notice that it is seeking comment on [its] tentative priorities and on any other issues that interest ed persons believe the Commission should address during the amendment cycle ending May 1, 2014.  To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority.

Appropriately, the final line in the USSC's notice includes this fitting kicker: "Pursuant to 28 U.S.C. § 994( g), the Commission also invites public comment that addresses the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to a proposed priority."

So, to the extent practicable, I would love to hear from readers about what they think I should make sure to put into my formal comments to the USSC.  I have until July 15 to get this done, but I would very much like to have a document ready to send out not long after I enjoy the rocket's red blare this coming Independence Day.

June 18, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, June 17, 2013

"Lafler and Frye: Two Small Band-Aids for a Festering Wound"

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

This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press.  Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely.  Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.

Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial?  The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve[].”  Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”

The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve.  Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires.  This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials.  It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population.  By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it.

The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties.  If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman.  Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be.

Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.

June 17, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely.  But I have three quick reactions about the ruling and its potential impact I wanted to share right away.  I will give this trio of reactions these labels: big, not-so-big, could-be-huge.

The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system.  That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris.  And Harris is now a goner.

The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne.  For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court.  Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.

The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities.  If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term.  (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)

Prior related post on Alleyne ruling:

June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums

Big news from SCOTUS today for sentencing fans, with this (abridged) initial report coming from the fine folks live-blogging at SCOTUSblog:

Alleyene: Any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. 5-4 opinion per Justice Thomas.

Majority is Thomas, Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Roberts, joined by Scalia and Kennedy. Alito dissents separately.... Justice Sotomayor also filed a concurring opinion....

This is a major criminal law ruling on the right to a jury trial. The Court reverses an earlier contrary ruling....

Here is the opinion in Alleyne.

And here is the money quote from the majority opinion: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled." Alleyne, slip op at 15.

Based on a much-too-quick first read, this Alleyne ruling seems to be everything (and not much more) than what should have been expected and predicted when the Court granted cert to reconsider Harris.  With all new Justices filling in the roles and votes of their predecessors, Harris gets reversed now because (and only because) Justice Breyer is no longer willing to prop up the ruling.  And, as he continues to play Hamlet with Sixth Amendment doctrine, Justice Breyer also continues to dump on the whole Apprendi line of case.

As I predicted in this post last November (and especially with speculations precedents inother areas perhaps being in jeopardy), the most interesting and enduring significance of Alleyne is the sparring between Justices Sotomayor and Alito over stare decisis.  I suspect after the con law folks get over their disappointment that we did not get any huge SCOTUS rulings today, there will be some enduring buzz over what all the Justices had to say (and not say) about stare decisis in Alleyne.

June 17, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, June 16, 2013

Notable comments and recommendations emerging from Ohio Death Penalty Task Force

OhioAs I have mentioned before, I have generally been disinclined to blog about my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here).  But there was some notable developments at this past week's public meeting of the Task Force which I thought would be of broad interest to readers of this blog.  This report from the Cleveland Plain Dealer, headlined "Task force urges state panel be created to evaluate death penalty prosecutions," provides the highlights:

A state task force is recommending that Ohio create a panel under the state attorney general that would review potential death penalty cases before prosecutors could take them to trial.

Under current Ohio law, the power to decide when to pursue the death penalty rests in the hands of individual county prosecutors.  But the recommendation by the Joint Task Force to Review the Administration of Ohio's Death Penalty would give the new panel authority to disapprove death penalty charges.

The recommendation is an attempt to address disparities in death penalty prosecutions in Ohio, said Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation.  “The two biggest disparities my group has dealt with are race issues and geographic issues,” Young said.  In the case of race issues, they revolve around the race of the victim.  “I think it’s vitally important that we do something about disparity and the death penalty,” Young said. “The numbers are overwhelming.”

Once a prosecutor made a decision, the panel -- made up of staff from the attorney general’s office and former county prosecutors appointed by the governor -- would review that decision.  It would look at the circumstances of the case, giving particular consideration to the races of those charged and the victims, said Jo Ellen Cline, government relations counsel to the Ohio Supreme Court and the court’s liaison to the joint task force.  “It would be a significant change in how things operate now,” Cline said.

The task force’s recommendation has a long way to go before it could become reality. It likely will be late in the year before the task force finishes its work, and some recommendations, including this one, would require legislative action to change state law. Given that, not all of the details on how the panel would work, or if a prosecutor would have some recourse if opposed to the panel’s decision, are not nailed down. That specificity would likely come from the General Assembly, Cline said.

Chief Justice Maureen O’Connor, with the Ohio State Bar Association, established the joint task force in 2011. It is charged with determining if capital punishment in Ohio is administered fairly and judiciously and to examine if adjustments are needed....

Far and away the majority of Ohio’s capital cases come from urban areas, Young said. And while they should naturally see more, simply because of population, their numbers are also greater per capita. “We have more than 40 counties that have never brought a death penalty case,” Young said.

There are a myriad of possibilities for why that is the case. The goal of the recommendation is to find more of a common standard, Young said. “Right now you have 88 prosecutors, all well intentioned,” Young said. “Our thought process was that if it went through a central committee that would even out those 88 applications.” Young said there was was significant debate on the recommendation, which was approved by a vote of 8 to 6.

Much of the debate dealt with the impact it would have on what now is a matter of prosecutorial discretion. And Young said he would not be surprised if those opposed to the recommendation write a dissenting opinion for the final report. Cline agreed. “They’re concerned that the prosecutors were elected by the folks in their jurisdictions to make these decisions,” she said.

Other developments in this week's meeting also made news as revealed by this Columbus Dispatch article headlined "Former Justice Stratton says she’s now opposed to death penalty." It starts this way:

In nearly three terms on the Ohio Supreme Court, former Justice Evelyn Lundberg Stratton sided with the majority most of the time when convicted murderers were put to death. From 1996 through the end of last year, spanning the time Stratton was a justice on the court, Ohio executed 49 men by lethal injection.

But nearly six months after leaving the court, the Republican, now an attorney in private practice in Columbus, has changed her views. Stratton yesterday told members of an Ohio Supreme Court task force reviewing administration of the death penalty that she didn’t have a strong feeling about capital punishment while serving on the court.

“I have evolved to where I don’t think the death penalty is effective,” she said in an interview. “I don’t have a moral inhibition ... Overall, it’s just not the best way to deal with it on a number of different levels.”

Stratton said she has long opposed executions involving mentally ill defendants, but she now opposes capital punishment in general because she doesn’t see it as a deterrent and victims’ families don’t gain the finality they seek when the murderer is put to death.

June 16, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, June 14, 2013

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA."  In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.

I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett

RE: Case Nos. 12-5226/5582

USA v. Cornelius D. Blewett and Jarreous J. Blewitt

Dear Counsel:

In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”).  The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.

Download Blewett Letter

I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?

Related posts on Blewett:

June 14, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

"Records Show Nearly 500 Years In Prison Time For Medical Marijuana Offenses"

The title of this post is the heading of this notable new entry on The Weed Blog, which gets started this way:

In spite of growing public support for medical marijuana, concern about overreach by the U.S. Department of Justice and other federal agencies, and cutbacks in federal spending, the U.S. government’s war on medical marijuana is raging unabated according to a survey of court records by Cal NORML.

On Tuesday, Michigan medical marijuana grower Jerry Duval, a kidney and pancreas transplant patient with severe medical problems, began serving a ten-year sentence in the same prison as the Boston bomber. Duval joins a growing list of defendants in states that allow medical marijuana who have been charged by the Department of Justice for violating federal laws prohibiting medical marijuana.

According to a survey of US court records, news stories, and case reports compiled by Cal NORML (with help from Americans for Safe Access):

• Over 335 defendants have been charged with federal crimes related to medical marijuana in states with medical marijuana laws.

• 158 defendants have received prison sentences totaling over 480 years for medical marijuana offenses. Some 50 are currently in federal prison, while more are waiting to be sentenced or surrender.

• Over 90% of the criminal cases settled to date have resulted in convictions. 10% have been dismissed. A single defendant has been acquitted. Federal law typically prohibits defendants from invoking medical marijuana in their defense.

• 153 medical marijuana cases have been brought in the 4 ¼ years of the Obama administration, nearly as many as under the 8 years of the Bush administration (163).

• Not a single pardon or clemency petition has been granted to a medical marijuana defendant by President Obama or his predecessors.

• One seriously ill defendant, Richard Flor, has died while in federal prison, and two others, Peter McWilliams and Steve McWilliams (no relation) died while being denied access to medical marijuana on bail. Other seriously ill patients who have who have been sentenced to lengthy terms include Dale Schafer, a hemophiliac currently serving 5 years along with his wife Mollie Fry, a cancer patient (pictured above); Vernon Rylee, who served nearly 5 years in a wheelchair (pictured right), and Jerry Duval.

• At least 259 defendants have been charged in California; over 31 in Montana; 6 in Oregon; 15 in Nevada; 12 in Michigan; 2 in Colorado; and 10 in Washington.

A few other recent notable posts on the same blog include the following:

June 14, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges

With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here).  The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages). 

But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up.   As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."

June 14, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, June 13, 2013

"The Non-Redelegation Doctrine" with post-Booker sentencing in mind

Now available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans:

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission.  One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges.  District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so.  The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns.  Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences.  Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

June 13, 2013 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS holds in Davila judicial involvement in pleas subject to harmless error analysis

Via the fine folks at SCOTUSblog, here are the quick highlights from the one sentencing-related opinion handed down by the US Supreme Court this morning:

US v. Davila. Opinion by Ginsburg for the Court. The decision of the Eleventh Circuit is vacated and remanded. There is a concurrence by Justice Scalia that joins part of the opinion and in the judgment; Justice Thomas joins that opinion.

Under the Federal Rules, vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty.  This was a case in which the issue was whether there must be an automatic reversal if the judge played any role in the plea bargaining....

Here is the opinion in Davila.

In Davila, the Eleventh Circuit had ruled that automatic reversal was required, which conflicted with essentially everyone else's ruling.  Federal Rule of Criminal Procedure 11 prohibits judges from participating in plea agreements, but another subsection of the rule also provides that a “variance from the requirements” of Rule 11 is “harmless if it does not affect substantial rights,” so this one did not come as a huge surprise.

June 13, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death

As reported in this Reuters article, a "top Arizona prosecutor said on Wednesday that the state still plans to seek the death penalty for convicted murderer Jodi Arias for killing her ex-boyfriend, after a jury deadlocked last month on whether she should be executed." Here is more:
[T]he same eight-man, four-woman jury that convicted Arias of murder and quickly ruled her eligible for the death penalty subsequently failed to reach a consensus as to whether Arias should be executed, prompting a penalty phase mistrial.

The state of Arizona now has the option of retrying the sentencing phase of the trial, which would require a new jury be empanelled. If there is another deadlock, a judge would sentence Arias to natural life in prison, or life with the possibility of parole after 25 years.

Maricopa County Attorney Bill Montgomery told reporters prosecutors would ask a new sentencing jury to do what the previous one could not - put Arias to death. "At this point, we are still preparing to move forward to retry the penalty phase," Montgomery told a news conference.

After the jury failed to reach a unanimous verdict on May 23, Montgomery said that his office would assess its next steps, but was proceeding "with the intent to retry the penalty phase." A status hearing has been scheduled for June 20. A July 18 court date was set to select a new jury in the case.

Recent related posts:

June 13, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, June 12, 2013

Bipartisan House Overcriminalization Task Force schedules first hearing for June 14

I learned via this NACDL press release that Representative Jim Sensenbrenner Chairman Sensenbrenner has scheduled the first hearing of the Overcriminalization Task Force for this Friday, June 14, 2013, at 9:00 a.m. at 2237 Rayburn House Office Building." Here is more background and details via the release:

On May 7, 2013, The House Committee on the Judiciary voted unanimously to create the “Overcriminalization Task Force of 2013.”  At a press briefing that day, Judiciary Committee and Overcriminalization Task Force leaders expressed agreement on the need to address several important issues, including the erosion of the mens rea (or criminal intent) requirement in federal criminal law, the often unnecessary duplication of state law in the federal code, overincarceration, and the explosion of regulatory offenses that some estimate may now number as high as 300,000, among other issues.  Members also expressed the need to address mandatory minimum sentences.

According to Judiciary Committee Chairman Bob Goodlatte (R-VA), “The task force will be authorized for six months and will be led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner and Ranking Member Bobby Scott.” It will “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.”  The task force is made up of five Democrats and five Republicans, and will include Judiciary Committee Ranking Member John Conyers (D-MI) and Chairman Goodlatte as ex-officio members....

The topic of this first hearing is “Defining the Problem and Scope of Overcriminalization and Overfederalization.” [And here are the scheduled witnesses:]

Mr. Steven D. Benjamin, President, National Association of Criminal Defense Lawyers

Mr. John Malcolm, Rule of Law Programs Policy Director, The Heritage Foundation

Mr. William N. Shepherd, Chair, Criminal Justice Section, American Bar Association

The Honorable George Terwilliger, III, Partner, Morgan, Lewis & Bockius LLP

A webcast of the hearing as well as the written testimony of the witnesses will be made available [at this link].

June 12, 2013 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Not surprisingly, early buzz about a possible plea for Cleveland kidnapper Ariel Castro

As reported in this USA Today article, headlined "Lawyer for Cleveland kidnap suspect hopes to avoid trial," an initial court appearance for Ariel Castro is already leading to talk of a possible plea in this high-profile case. Here are the basics:

The man accused of kidnapping and holding three women for a decade pleaded not guilty Wednesday in Cleveland to hundreds of criminal counts, but his lawyer said after the hearing that some of the charges "cannot be disputed" and that he hoped to avoid a trial.

Charges against Ariel Castro, 52, include murder, rape, kidnapping and torture -- and he could face the death penalty. Defense lawyer Craig Weintraub entered the plea in an arraignment that took about one minute. A pretrial hearing was set for June 19....

"We are very sensitive to the emotional strain and impact that a trial would have on the women, their families and this community," Weintraub said after the hearing. "Mr. Castro currently faces hundreds of years in prison with the current charges and it is our hope that we can continue to work towards a resolution to avoid having an unnecessary trial about aggravated murder and the death penalty."

A Cuyahoga County grand jury's 329-count indictment charges Castro, a musician and former school bus driver, with one count of aggravated murder for allegedly terminating one of his captives' pregnancies, 139 counts of rape and 177 charges of kidnapping, seven counts of gross sexual imposition, three counts of felony assault and one count of possession of criminal tools dating from the time of the first woman's disappearance until February 2007.

County Prosecutor Timothy McGinty has said the investigation is still underway. Additional charges could follow in a superseding indictment. The indictment charges Castro as a "sexually violent predator" who committed the murder and rapes in the course of a kidnapping. Those charges are considered aggravating factors that call for stiffer penalties. The murder charge is tied to one victim's fourth pregnancy, the indictment said.

"A not guilty plea at this stage requires the prosecutor to continue to evaluate their case to determine whether medical and forensic evidence can actually support an aggravated murder conviction, for the death of a fetus, and whether the death penalty is warranted," Weintraub said after the hearing.

The County Prosecutor's Capital Review Committee will consider whether prosecutors should seek the death penalty if Castro is convicted. Castro, who was fired last year from his bus driver job, is being held in the Cuyahoga County jail on $8 million bail....

Police allege in the indictment that Castro chained Knight to a pole in the basement and raped her the day after he took her captive. He allegedly taped Berry's legs and mouth, sexually assaulted her after she tried to escape, chained her to a pole in the basement with a motorcycle helmet on her head, chained her to a radiator in the bedroom, and attempted to strangle her with a vacuum cleaner cord, the indictment says. He also allegedly chained and assaulted DeJesus.

Recent related posts:

June 12, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"

The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN.  With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract:

The United States presently incarcerates about 2.3 million people.  We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners.  Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

The federal government contributes significantly to this problem.  Every week it locks up a record number of people, presently about 216,000.  While some states have recently reduced their prison populations, the federal prison population continues to increase.  The principal reason for this is federal sentencing law. Since Congress enacted the Sentencing Reform Act (“SRA”) creating the Sentencing Commission and directing it to establish sentencing guidelines, the average federal sentence has more than doubled.  Federal prisons are now at 138% of capacity and consume an ever-increasing share of the federal criminal justice budget.

There are only two ways that we can reduce the prison population: by sending fewer people to prison and imprisoning people for shorter lengths of time.  Many observers believe that the sentences called for by the federal sentencing guidelines, which were mandatory until 2005 when the Supreme Court decided United States v. Booker and made them advisory, are too severe and could be significantly reduced without endangering public safety.  The Commission, however, has shown no interest in making guideline sentences less harsh. Rather, its principal concern is that since Booker judges are imposing too many below guideline sentences and thereby creating disparity.  Thus, it recently asked Congress to require sentencing judges to give additional weight to the guidelines and provide additional justification for sentences varying substantially from the guidelines, and to require appellate courts to presume the reasonableness of guideline sentences and to strictly scrutinize sentences based on policy disagreements with the guidelines.  These restrictions would, of course, increase the federal prison population.

My essay argues that it serves no useful purpose for the Commission to continue to make its top priority curtailing judicial discretion in the name of reducing disparity.  I contend not only that the system created by the SRA and the guidelines failed but that any system principally designed to reduce disparity will fail.  I argue that, instead of attempting to curtail judicial discretion, the Commission should focus on the problem of over-incarceration.  The Commission is statutorily authorized and institutionally well-positioned to address this problem and, by doing so, it could have a positive impact on the entire American criminal justice system.  I propose that the Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others.  I also contend that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them.

Some recent related posts:

June 12, 2013 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

Tuesday, June 11, 2013

Notable capital habeas echo from Firth Circuit after complaint about Judge Jones

As reported in this local piece, headlined "Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal; Execution still slated for tomorrow," there has now been at least one procedural consequence of the resent complaint filed against Fifth Circuit Judge Edith Jones concerning her comments at a law school about the operation of the death penalty.  Here are the basics:

The chief judge of the 5th U.S. Circuit Court of Appeals this afternoon ordered [via this panel ruling] a new three-judge panel of the court to be assigned to review the case of Texas death row inmate Elroy Chester who argues that comments made by Judge Edith Jones, detailed in a complaint filed last week with the court, indicate she cannot fairly rule in his case.

Whether Chester will be executed as planned, tomorrow night, June 12, is now in limbo. Chester was sentenced to die for the 1998 death of a well-liked Port Arthur fireman who he killed as part of a months-long crime wave. There is no doubt Chester is guilty of the crime, but there remains doubt about whether he is mentally retarded. If so he would be barred from execution under a 2002 U.S. Supreme Court ruling that the practice violates the constitutional ban on cruel and unusual punishment.

To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.

That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February....

In response to the complaint, filed June 4, Chester's attorney, Alaska-based Susan Orlansky filed a motion with the Fifth Circuit to stay Chester's execution and to have a new three-judge panel review his previous appeal to the court – or, in the alternative, to have his execution stayed until the investigation into the complaint about Jones' behavior could be resolved. "The Court should not permit Mr. Chester to be executed amid troubling questions about the actual or apparent partiality of the judge who cast the deciding vote [denying his appeal] and [who] authored the opinion in his case."

Tuesday afternoon, Chief Judge Stewart agreed that a new panel should be constituted, but declined to stay tomorrow's execution – leaving three newly-assigned judges a little more than 24 hours to decide whether Chester's previous appeal should be revisited.

In determining that a new panel should be appointed, Stewart noted not only that Jones was subject to a misconduct complaint that raises "questions about the impartiality of the judge as respects petitioners like [Chester] and his underlying claims," Stewart wrote also that his duty to review that complaint gives him a "substantial role" in considering whether it should go forward. The third member of the panel, Judge James Dennis, is also placed an an odd conflicting position because the complaint against Jones also raises an issue about her as it pertains to an ugly episode during a 2011 oral argument during which she slams her hand on a desk and tells Dennis to "shut up" as he is questioning a lawyer about the case at bar.... "Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions," Stewart wrote today, though he declined to issue a stay of tomorrow night's slated execution, which would make Chester the 499th inmate put to death in Texas since reinstatement of the death penalty.

In a separate opinion, Dennis concurred with Stewart's decision to move the case to three different judges, but opined that the court should also stay the execution "in order to give the new panel adequate time to consider whether to recall the mandate and take further action in this case," he wrote. "If this court ultimately concludes that Chester's motion to recall the mandate is without merit, no irreparable harm will have been done to the state and the execution can be rescheduled," he continued. "Unless a temporary stay of the execution is granted, however, the court may be unable to give the issues presented the deliberate and judicious attention they deserve before the execution takes place. Chester's execution, of course, will moot those issues and any constitutional injury to his rights will be irreparable."

Recent related posts:

UPDATE:  As reported in this local piece, Elroy Chester was executed by the state of Texas on Wednesday June 12.

June 11, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

Celebrity injustice?: NFL player Chad Johnson gets 30-days in county jail for lawyer butt pat

0610-chad-johnson-video-launch-1As reported in this CNN piece, "Butt pat lands former NFL star Chad Johnson in jail," a low-level sentencing proceeding involving a high-profile defendant in Florida state court has become interesting fodder for debating courtroom decorum and celebrity justice. Here are the intriguing details:

As an NFL player, Chad Johnson patted a lot of men on the butt when he liked their work, but on Monday, defendant Chad Johnson found out that one Florida courtroom was not the place to play that game.

After Johnson patted his lawyer on the rear, Judge Kathleen McHugh rejected Johnson's plea to a probation violation in the domestic violence case involving Johnson and his then-wife, Evelyn Lozada. Johnson was arrested in May for not meeting with his probation officer and was in court Monday to enter a plea.

After he was asked if he was pleased with his attorney, the former wide receiver once known as "Chad Ochocinco" gave his lawyer, Adam Swickle, a gentle pat on the rear.

McHugh was furious when people in the audience laughed. "There's nothing funny about what's going on here today," she told Johnson.

Johnson, 35, replied that he wasn't laughing. Then McHugh said, "I don't think anything's funny about it, Mr. Johnson. This isn't a joke."

Johnson said he didn't do it as a joke. Swickle agreed, saying: "I don't think it was done as any disrespect to the court. I don't think he meant to get a reaction from the court room, judge."

The judge told Johnson she wouldn't accept a plea deal that involved only community service and more anger management counseling. Instead, she sentenced him to 30 days in jail and tacked three months onto his one-year probation, which would have ended in September.

Johnson seemed resigned to his fate. "Love me through the good and the bad because I'm gone love you regardless... See you in 30... " he tweeted later.

As I write this post, I am hearing Skip Bayless and Stephen A. Smith on First Take yelling at each other about sentencing practices, race, gender, incarceration and courtroom activities.  Given that there is this video of what went down (with the key event just before the one-minute mark, and the judge's (over?)reaction just before the two-minute mark), I hope readers will provide their own takes on this notable example of celebrity sentencing.  

June 11, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Documenting problems with using electonic tracking for crime control in Colorado

The Denver Post recently published this lengthy article headlined "Electronic monitoring of Colorado parolees has pitfalls," which documents that the benefit GPS tracking may depend on who monitors the monitoring.  Here are exceprts:

One sex-offender parolee hooked his GPS tracking device to his dog's collar so he could consort with underage girls and collect firearms, drugs and ammunition, police say.

Another parolee disappeared from his motel the day he was tethered to an electronic monitor.  He now is charged with raping two women and attempting to rape another.  A third kept unplugging his monitoring device and ignored warnings that he stop moving without approval. Authorities now believe he killed a 59-year-old man at a motel.

Well before parolee Evan Ebel tore off his ankle bracelet in March and allegedly killed two people, including Colorado corrections chief Tom Clements, the state's electronic-monitoring system showed signs of trouble.  A Denver Post review of parolee cases and monitoring data from October to April found that serious alerts sometimes went unheeded until it was too late, even as the system generated thousands of false and minor notifications.

Colorado's most dangerous parolees are outfitted with high-tech equipment that is supposed to keep a close watch on their whereabouts.  Monitors are strapped to their ankles and receivers installed in their residences.  In the most serious sex-offender cases, parolee movements are tracked by a GPS system.

But problems arise.  Batteries run down.  Plugs get ripped from wall sockets.  The systems go dark.  The Post found several cases in which parole officers responded slowly as parolees went off the grid and allegedly committed new violent crimes....

Tim Hand, the state's director of parole, requested an audit by the National Institute of Corrections, a U.S. Department of Justice agency, following the Ebel case.  Hand has not talked publicly since being placed on administrative leave last month, but in an interview in April, he said electronic monitoring is a challenge.

"The public thinks we put an ankle bracelet on and everything is fine, but the electronic monitoring is just a tool," Hand said. "It's better, in my view, than not having that tool, but it doesn't mean that offender can't cut it off and run away. It doesn't mean we're going to be able to control that offender's every move."...

Under the state's new rules, when a tamper alert occurs, parolees will be required to stay at their residences until parole officials can visit with them.  Parole officers, who previously had the discretion to respond on their own time frame, will be required to visit a parolee's home within 24 hours after a tamper alert to decide whether an arrest warrant is needed.

Officials also plan later this month to submit a $600,000-a-year plan to legislative leaders for a new parole unit to track down absconders.  In the past, those roundups occurred on an ad-hoc basis using overtime payments to parole officers, with the assistance of local law enforcement.  There are currently more than 800 Colorado parole absconders....

The data showed that a team of 212 parole officers had to respond to nearly 90,000 alerts and notifications generated by the electronic monitoring devices in the six months reviewed.

Carl Sagara, a past deputy director of parole and community corrections in Colorado, said he suspects that such high volume quickly can become overwhelming to parole officers. "These guys come into the office in the morning, and they have got 30 guys on electronic monitors, and the computer has so much information on all these guys, and the parole officers just go, 'Holy smokes,' " Sagara said.

In addition, many electronic-monitoring programs throughout the nation aren't staffed appropriately, said George Drake, a consultant who has worked on improving the systems. "Many times when an agency is budgeted for electronic-monitoring equipment, it is only budgeted for the devices themselves," Drake said. "That is like buying a hammer and expecting a house to be built. It's simply a tool, and it requires a professional to use that tool and run the program."

He added that programs also can get out of control if officials don't develop stringent protocols for how to respond to alerts and don't manage how alerts are generated. "I see agencies with so many alerts that they can't deal with them," Drake said. "They end up just throwing their hands up and saying they can't keep up with them."

June 11, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, June 10, 2013

"A Conservative Case for Prison Reform"

The title of this post is the title of this op-ed appearing in today's New York Times and authored by Richard Viguerie, the chairman of ConservativeHQ.com. Here are excerpts:

Conservatives should recognize that the entire criminal justice system is another government spending program fraught with the issues that plague all government programs.  Criminal justice should be subject to the same level of skepticism and scrutiny that we apply to any other government program.

But it’s not just the excessive and unwise spending that offends conservative values. Prisons, for example, are harmful to prisoners and their families. Reform is therefore also an issue of compassion. The current system often turns out prisoners who are more harmful to society than when they went in, so prison and re-entry reform are issues of public safety as well.

These three principles — public safety, compassion and controlled government spending — lie at the core of conservative philosophy.  Politically speaking, conservatives will have more credibility than liberals in addressing prison reform.

The United States now has 5 percent of the world’s population, yet 25 percent of its prisoners.  Nearly one in every 33 American adults is in some form of correctional control. When Ronald Reagan was president, the total correctional control rate — everyone in prison or jail or on probation or parole — was less than half that: 1 in every 77 adults.

The prison system now costs states more than $50 billion a year, up from about $9 billion in 1985.  It’s the second-fastest growing area of state budgets, trailing only Medicaid. Conservatives should be leading the way by asking tough questions about the expansion in prison spending over the past three decades....

Too many offenders leave prisons unprepared to re-enter society. They don’t get and keep jobs. The solution lies not only inside prisons but also with more effective community supervision systems using new technologies, drug tests and counseling programs.  We should also require ex-convicts to either hold a job or perform community service.  This approach works to turn offenders from tax burdens into taxpayers who can pay restitution to their victims and are capable of contributing child support....

Right on Crime exemplifies the big-picture conservative approach to this issue.  It focuses on community-based programs rather than excessive mandatory minimum sentencing policies and prison expansion.  Using free-market and Christian principles, conservatives have an opportunity to put their beliefs into practice as an alternative to government-knows-best programs that are failing prisoners and the society into which they are released....

By confronting this issue head on, conservatives are showing that our principles lead to practical solutions that make government less costly and more effective. We need to do more of that.  Conservatives can show the way by impressing on more of our allies and political leaders that criminal justice reform is part of a conservative agenda.

Some recent and older related posts:

June 10, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

"High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States"

The title of this post is the title of this new paper by David Schwartz which I just noticed via SSRN.  Here is the abstract:

The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act ("CSA") has created a federalism crisis in which the duties of state officials to adhere to state or federal law is unclear.  Current federalism doctrine cannot even tell us whether or not a local police officer who encounters a person in state-authorized possession of marijuana must arrest the person and seize the marijuana.

The two most clearly applicable federalism doctrines -- the Tenth Amendment anti-commmandeering doctrine and the doctrine of federal preemption of state law under the Supremacy Clause -- offer only unsatisfactory answers.  Anti-commandeering doctrine is incapable of telling us whether a federally imposed duty to arrest and seize the marijuana possessor is impermissible commandeering, permissible "general applicability," or permissible preemption, let alone answer the more complex federalism questions posed by state marijuana legalization.  Alternatively, a strong preemption approach, while capable of producing consistent results in theory, would entail the virtual abandonment of the anti-commandeering doctrine and of judicial enforcement of federalism more generally, while at the same time violating important premises of the "political safeguards of federalism" theory.

The article argues that courts should pursue a middle path by applying a rigorous presumption against commandeering when considering the obligation of state officials to adhere to federal laws.  This approach is faithful to consensus principles of federalism that should command the agreement of judges and academics on both sides of the judicial versus political safeguards of federalism debate.  A presumption against commandeering, when applied to the CSA, requires that state officials be afforded broad latitude to enforce their states' legalization laws and have no compelled obligations to enforce federal law beyond a duty to refrain from active obstruction of federal officers.  The extent of Congress's power to command state official compliance with the CSA can be considered if and when such an amendment to the CSA is under serious congressional consideration" something that may never occur given the current political trend.

June 10, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

With two opinion days this week, any predictions on coming SCOTUS sentencing decisions?

The fine folks at SCOTUSblog report that we will be getting opinions in argued cases from SCOTUS both today and on Thursday, June 13.  With two opinion days this week, and a third of the nine longest pending cases involving sentencing issues, I am inclined to predict there will be at least some notable Supreme Court sentencing action this week.

So, dear reader, before we start getting some SCOTUSblog updates in the next hour, how about some predictions about which opinions we might get this week and what they might now say.  Specifically, I have my eyes firmly fixed for Alleyne (on the Sixth Amendment's application to mandatory minimums), and Descamps (another ACCA application case), and Peugh (concerning ex post facto limits post-Booker application of new guidelines).  

Based on nothing but rank speculation, I will guess/predict that we get Descamps today, Peugh on Thursday, and Alleyne next week.  And, based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I will also guess/predict that the defendant prevails in all three of these cases.

UPDATE We actually ended up getting Peugh on June 10 (discussed here and here), and it was a 5-4 victory for the federal defendant.  Based on the tone and votes and timing of Peugh, I am now starting to think Alleyne and Descamps will come down together, and perhaps not until next week.

June 10, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, June 09, 2013

"New Sesame Workshop film helps children of jailed parents"

ElmoThe title of this post is the headline of this notable new segment which ran this morning on the CBS Sunday Morning show.  Here are excerpts:

A new program is aiming to make kids in crisis streetwise -- "Sesame Street" wise, that is.  Seth Doane reports:

At 24, Francis Adjei is now the head of his household, a role he never imagined having to play. "One day, we're all together having dinner; following day, she's in jail. And we don't know what to do," he said.

Two years ago his mother, Jackie Pokuwaah, A Ghanaian immigrant, was convicted of grand larceny, and is serving a seven-and-a-half-year sentence at a state penitentiary.  Adjei had to drop out of school, and now spends his days managing his siblings' schedules, trying to keep them in school....

"When the police came and took your mom," Doane asked Francis, "did anyone ever explain what it meant to be incarcerated?"

"To the children? No," he replied. "We've never went down that direct path, just kind of been beating around the bush."...

But soon Adjei and his brothers and sisters will find a little help on a familiar street: Sesame Street.

Melissa Dino is in charge of a Sesame Workshop production aimed at helping families like Francis' cope.  She told Doane she was struck by the lack of resources for those with an incarcerated parent.  The new, 30-minute documentary mixes the fictional with real-life.  It will not air on the regular "Sesame Street" show, but will be distributed this week to therapists' offices, schools and prisons.

And there is certainly a built-in audience.  According to the Pew Charitable Trust, there are currently 2.3 million Americans behind bars, the largest prison population in the world, which means one in every 28 kids in the U.S. has a parent in prison.  That's up from one in 125 just 25 years ago.

Some of those 2.7 million minors -- including Francis' sister, Breanna Amankwah -- say they don't like people to know a parent is in prison. "When it comes up in a conversation, I just feel uncomfortable, like, really uncomfortable," she told Doane. "I don't feel like talking. I kind of feel a little stiff, and I don't really feel normal."...

Dino said children sometimes think it's their fault that a parent was incarcerated. "They have difficult, guilty feelings; they have all kinds of feelings. They're not sure how to express them," she said. "Incarcerated" features a Muppet character, Alex, who has experienced a father who is in jail. The colorful character is, in effect, color-blind.

"The beauty of a Muppet," said Dino, "is they can be any color. They can speak to so many different children.  Alex is orange and he's got blue hair, so he doesn't speak to any one particular ethnicity or race.  He speaks to all children."

Sesame Workshop, which let us peek behind the scenes at its nine-month-long process, has in recent years tackled issues from divorce to deployment to death.  And Sesame recognized that incarceration was an issue that affected kids, too.  More than 50 percent (54%) of people behind bars have a child under 18....  So Sesame Street, in its simple, familiar way, is trying to break it down, using imaginary characters to explore — and explain — what was once unimaginable, but now more and more common.

Though the image I have reprinted above is meant to add a little levity to this story, I want to compliment Sesame Workshop for taking on this important and serious issue.  The materials assembled by Sesame at the webpage "Little Children, Big Challenges: Incarceration", which provides an array of resources as a toolkit for kids and parents, seems to be developed and delivered with a keen sense of the keen problems that modern mass incarceration has helped create for today's families and children.

June 9, 2013 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

After Night Stalker's demise, new talk of new initiative to kick start machinery of death in California

This new local article, which carries the amusing headlined "Initiative supporters want to bring California death penalty back to life," discusses what seems to be a serious effort by some serious folks to use a ballot initiative to try to get the death penalty operational again in the state with the largest death row in this nation.  Here are the basics:

Frustrated by a recent appeals court ruling that invalidates the state's lethal injection procedures, supporters of the death penalty in California plan to launch a campaign to bring the suspended system back to life.

Death penalty supporters hope to circumvent legal challenges to executions through a new initiative that would put in place a single-drug injection procedure for inmates condemned to death, such as the infamous Night Stalker serial killer Richard Ramirez, who died Friday of natural causes.

Advocates of the single-injection protocol seek to avoid supply and legal issues related to the triple-drug protocol used prior to a 2006 moratorium on the death penalty. The ballot initiative would also reform the appellate process to ensure executions for Death Row inmates who have exhausted all appeals and where questions of guilt don't exist.

The proposed initiative would be carried by a coalition of law enforcement, district attorneys, and death penalty proponents who opposed Proposition 34 in the 2012 statewide election. That measure, defeated by 52 percent of voters, would have abolished the death penalty and replaced it with life in prison without parole.

"The initiative will be to streamline and fix the death penalty," said San Bernardino County District Attorney Michael Ramos, a vocal presence during the campaign opposing Proposition 34. "As the voters have indicated, they still believe in capital punishment, and as I asked the voters to oppose Proposition 34, I told them I would do anything I could to fix the issue of delayed justice," Ramos said. "That's what happens with these families. It's not justice if it's delayed, especially in these most gruesome murders."

Legal challenges to execution procedures, raised in both state and federal courts, led to a moratorium on executions in California that has been in place since 2006. More than 725 Death Row inmates await execution, while more than a dozen who have exhausted legal appeals are eligible for immediate execution. Ramirez, convicted in 1989, was among them before his death Friday from liver failure at the age of 53....

Michael Rushford, president of the pro-death penalty Criminal Justice Legal Foundation, said his group will be involved in the initiative campaign, as it had been against Proposition 34. The hope is to get the measure on the ballot for the next statewide election on June 3, 2014. "We want to implement the same process that the state of Virginia and other states have implemented for these cases to be resolved in six years," Rushford said. "California is unique in the United States. We have the longest, most-drawn-out process."

Anti-death penalty groups, such as the American Civil Liberties Union of California, argue the policy is much too costly for the taxpayers, and the risk remains of wrongfully executing an innocent person. The ACLU of California is still planning its next move after the defeat of the 2012 ballot measure.

"We are still deciding what our next step will be," said Ana Zamora, senior policy advocate for the American Civil Liberties Union of California. "We know the problem will not be fixed. It doesn't reduce violent crime, and Californians are extremely concerned about the real risk of executing an innocent person." Zamora said, despite the loss on Proposition 34, the close vote is cause for encouragement....

Zamora called Ramirez's death from natural causes on Friday, "a perfect example" of the "broken death penalty." "People on California's Death Row are more likely to die of old age or illness than they are likely to die from execution," she said. "The death penalty is absolutely a charade."

June 9, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

"Iowa judge calls sentencing guidelines for meth dealers 'flawed'"

The title of this post is the headline of this local article discussing a significant federal sentencing decision handed down late Friday.  Here are the basics:

Sioux City-based U.S. District Judge Mark Bennett on Friday became one of a handful of U.S. judges to declare public opposition to federal sentencing guidelines for methamphetamine dealers. He wrote that he considers them to be “fundamentally flawed,” not based on empirical data and too harsh for lower-level drug figures.

Bennett — declaring in a 44-page ruling that he has a “fundamental policy disagreement” with the methamphetamine portion of guidelines that federal judges are supposed to consider in sentencing criminals — cut the sentence of Sioux City drug dealer Willie Hayes to six years and three months from a possible 15 years, eight months....

Bennett, a longtime critic of mandatory minimum sentences, notes in his opinion that the methamphetamine guidelines lack the depth of other portions of the sentencing blueprint and appear to be more influenced by politics than by science. Methamphetamine dealers in recent years have faced much harsher sentences than dealers of marijuana, cocaine or heroin and run into mandatory minimum sentences for handling a much lower quantity of drug.

“The methamphetamine guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity,” Bennett wrote. “The system is too severe in the indiscriminate way it treats offenders … . Since the methamphetamine guidelines are fundamentally flawed, I find that they fail to promote the purposes of sentencing” outlined in federal law.

Des Moines defense attorney Angela Campbell called the ruling “a very big deal, and it’s also something that’s been coming for a while.”...

Bennett’s ruling borrows reasoning from two other federal judges who have made similar stands — Joseph Bataillon of Nebraska and John Gleeson of New York. “He’s not a lone voice in the wilderness,” said Iowa defense attorney F. Montgomery Brown. And Bennett’s ruling likely will have an affect on how federal drug cases are argued.

“It’s an argument that defense lawyers in both the Northern and Southern districts of Iowa need to make,” Brown said. “It’s malpractice not to.”

I concur with the sentiment that Judge Bennett's work in US v. Hayes (available here) is a "very big deal," and I believe that federal defense attorneys nationwide, not just in Iowa, ought to be raising arguments based on Hayes in every federal meth sentencing case.

June 9, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, June 08, 2013

"Man in case of 3 Ohio women held captive faces 329 charges including murder, rape, kidnapping"

The title of this post is the headline of this AP report on the indictments coming from a local grand jury on Friday which charge Ariel Castro with hundreds of crimes for spending a decade torturing three young women in his Cleveland home.  Here are the details:

A man accused of holding three women captive for about a decade in his Cleveland home — sometimes restraining them in chains — has been indicted by a grand jury on 329 charges, including aggravated murder, rape and kidnapping, prosecutors said.

Ariel Castro, 52, is accused of kidnapping Amanda Berry, Gina DeJesus and Michelle Knight and holding keeping them inside his the run-down home, along with a 6-year-old girl he fathered with Berry. A Cuyahoga County grand jury returned the indictment Friday against Castro, a former school bus driver fired last fall.

He faces two counts of aggravated murder related to one act, saying he purposely caused the unlawful termination of one of the women’s pregnancies. Castro also was indicted on 139 counts of rape, 177 counts of kidnapping, seven counts of gross sexual imposition, three counts of felonious assault and one count of possession of criminal tools.

Cuyahoga County prosecutor Tim McGinty said the indictment covers only the period from August 2002, when the first of the women disappeared, to February 2007.

The indictment refers to the women as Jane Doe 1, Jane Doe 2 and Jane Doe 3 and gives a glimpse into the circumstances of their captivity. The aggravated murder counts stem from the unlawful termination of Jane Doe 1’s pregnancy in late 2006 or early 2007, the indictment says.

It says Castro restrained the women, sometimes chaining them to a pole in a basement, to a bedroom heater or inside a van. It says one of the women tried to escape and he assaulted her with a vacuum cord around her neck.

Castro’s attorneys have said he would plead not guilty to any indictment. Castro, during a brief court appearance last month, tried to hide his face, tucking his chin inside his shirt collar, and did not speak. Castro is being held on $8 million bail. He has been taken off suicide prevention watch, jail officials said this week. He has told jail guards he won’t accept news media interview requests....

The women had gone missing separately between 2002 and 2004, when they were 14, 16 and 20 years old. They haven’t spoken publicly since their rescue....

Castro will be arraigned on the charges next week, and a trial judge will then be assigned.

The investigation continues, said McGinty, the prosecutor. When the indictment process is completed, the county prosecutor’s capital review committee will weigh whether the case is appropriate for seeking the death penalty. Days after the women were rescued from Castro’s home, McGinty had said at a news conference that capital punishment “must be reserved for those crimes that are truly the worst examples of human conduct.”...

Attorneys for the three women said Friday they were letting the judicial process unfold in the case. “We have a great legal system plus confidence and faith in the prosecutor’s office and its decisions,” they said in an emailed statement.

Recent related posts:

June 8, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

DOJ unveils new plans and programming for helping crime victims

V21Report_thumbnailAs reported in this press release, the US Department of Justice yesterday "unveiled a plan calling for sweeping changes to advance crime victims’ rights and services in the 21st century."  Here is more from the press release about this interesting and positive development:

Developed by the Office of Justice Programs (OJP) and Office for Victims of Crime (OVC), Vision 21: Transforming Victim Services Final Report [available via this webpage], is the first collective examination in 15 years of current U.S. practices, funding and outreach in the crime victims’ field.

“Today’s announcement marks the latest step forward in the Department’s ongoing work to protect and empower those who have been victimized,” said Attorney General Eric Holder. “Through Vision 21, we’ve gained an unprecedented understanding of the current state of victim services from coast to coast. And we've developed groundbreaking strategies for responding to urgent needs, combating violence and abuse, and providing critical support to crime victims.”

Vision 21 documents the need to better understand who is affected by crime, how they are affected, how they seek help, who reports victimization and the reasons why some victims do not.  The report calls for continuous, rather than episodic, strategic planning in the victim assistance field and for statutory, policy and programmatic flexibility to address enduring and emerging crime victim issues.  It also calls for the development of evidence-based knowledge founded on data collection and analysis of victimization and emerging victimization trends, services, behaviors and enforcement efforts.

The full 60-page "Final Report" (available here) discusses so many issues relating to crime victims, it is hard to effectively summarize its coverage.  Because I have long been concerned about crime victims having ready access to legal counsel to effectively protect and pursue their statutory rights under the federal Crime Victims Rights Act, I found this passage from the report concerning these matters to be especially worth highlighting:

Recognizing that enforcement of crime victims’ rights was inconsistent, CVRA’s bipartisan sponsors understood that rights enforcement would require access to legal services and professional legal representation at tribal, state, and federal levels.  CVRA authorized funding for the “support of organizations that provide legal counsel and support services for victims in criminal cases for the enforcement of crime victims’ rights.”

The 2004 legislation built on a demonstration project launched in 2002 by OVC, which developed and evaluated a network of legal clinics that might serve as models for the provision of pro bono legal representation of victims in criminal court.  Funding for the OVC demonstration project ended in 2009.  Most of the 12 legal clinics that were established in a handful of states under CVRA and the OVC demonstration project have since significantly decreased operations or closed.  The full promise of CVRA was not realized, although the many legal issues facing crime victims remain.  Moreover, a system of effective legal services that meets the needs of all crime victims must acknowledge and contend with a sobering reality: the majority of crime victims in the United States never contact law enforcement or step across the threshold of a courtroom.

June 8, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, June 07, 2013

Senate confirms new USSC Commissioners Barkow, Breyer and Pryor

Who says Congress cannot get anything sensible done these days?  As reported in this official press release, the "United States Senate yesterday unanimously confirmed the nominations of three new members of the United States Sentencing Commission: Rachel E. Barkow of New York, Judge Charles R. Breyer of California, and Judge William H. Pryor, Jr. of Alabama."   Hooray, and here is more from the release on the newbies and the Commissioners they now join:

Barkow is the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, where she focuses her teaching and research on criminal and administrative law....  Barkow began her legal career by clerking for Supreme Court Justice Antonin Scalia from 1997 to 1998, and before that for Judge Laurence H. Silberman ofthe United States Court of Appeals for the District of Columbia Circuit from 1996 to 1997.  She received her J.D. magna cum laude in 1996 from Harvard Law School and her B.A. with distinction in 1993 from Northwestern University.

Breyer has served as a United States District Judge in the Northern District of California since 1998.  Previously, he [had] brief stint as Chief Assistant District Attorney for San Francisco in 1979.  From 1973 to 1974, Breyer worked as an Assistant Special Prosecutor on the Watergate Special Prosecution Force.  He also served as an Assistant District Attorney in San Francisco from 1967 to 1973.  Breyer began his legal career as a law clerk to Judge Oliver J. Carter of the United States District Court for the Northern District of California.  He received his J.D. in 1966 from the University of California at Berkeley Boalt Hall School of Law and his B.A. cum laude in 1963 from Harvard College.

Pryor has served as a United States Circuit Judge for the Eleventh Circuit since 2004.  He has also taught federal jurisdiction at the University of Alabama School of Law and has served as an adjunct professor at the Cumberland School of Law at Samford University. Prior to his appointment to the bench, Pryor served as the Attorney General of the State of Alabama from 1997 to 2004 and as a Deputy Attorney General from 1995 to 1997....  From 1987 to 1988, Judge Pryor served as a law cl erk for Judge John Minor Wisdom of the United States Court of Appeals for the Fifth Circuit.  He received his J.D. magna cum laude in 1987 from Tulane University Law School, where he served as Editor-in-Chief of the Tulane Law Review, and his B.A. magna cum laude in 1984 from Northeast Louisiana University (now University of Louisiana at Monroe).

By statute, the Commission is composed of seven voting members and two non-voting ex-officio members.  No more than four commissioners may be members of the same political party, and at least three shall be federal judges.  The Commission’s four other voting members are Judge Patti Saris of the District of Massachusetts (chair); Chief Judge Ricardo H. Hinojosa of the Southern District of Texas; Dabney L. Friedrich of Maryland; and Judge Ketanji B. Jackson of the District of Columbia.

Some related posts:

June 7, 2013 in Who Sentences? | Permalink | Comments (6) | TrackBack

"A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"

Edith-Jones-Judge-Edith-H-Jones-Edith-Hollan-JonesThe title of this post is the title of this notable lengthy commentary authored by Tamara Tabo at Above the Law concerning the new complaint of judicial misconduct filed against Fifth Circuit Judge Edith Jones earlier this week. The piece merits a full read for anyone following this brouhaha, and here are some excerpts:

I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia [which served as the basis for the complain], and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.

But I don’t need to do that. I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges. While there’s not enough space here to evaluate each of the charges the complaint makes, let’s have a closer look at a few of them, starting with her alleged comments on race.

According to the complaint, Judge Jones asserted that “certain racial groups commit more of these crimes than others.” She said that “[s]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row and “sadly” it was a “statistical fact” that people “from these racial groups get involved in more violent crime.”

Note that she did not say that race causes criminality, only that we see a disproportionately high number of violent offenders of certain races. These are facts. Even without knowing her, you could easily conclude that Judge Jones thinks these are unpleasant facts. That would certainly explain her alleged repeated use of the word “sadly” in reference to these statistics about race and crime.

If Judge Jones had followed these facts with a different policy claim, would we consider factual statements to be proof of impartiality or impropriety? Or is it less that what she stated was false and more that it was simply not to some liberal audience members’ liking? One could cite these same facts, then proceed to argue for all manner of social reforms — ones that address the causes of the racial disparity in criminality. Doing so would be entirely compatible with what Judge Jones allegedly said during her speech.

What if Judge Jones had said that males were more likely to commit violent crimes than females? Would that be a problem? More violent offenders in our justice system are, in fact, male than female, after all. Would any reasonable person accuse Judge Jones — herself a non-male! — of undermining “public confidence in the judiciary” or being so gender-biased that she would be unfit to handle criminal cases? I hope not.

Correlation is not causation. Nothing in the complaint shows that Judge Jones suggested or thinks that race causes criminality.

The complaint further alleges that Judge Jones engaged in misconduct when she discussed capital defendants who raise claims of mental retardation. The complaint’s footnote 10 states, “This term is outdated — now generally replaced by “Intellectually Disabled” — and thus Judge Jones’s use of the term “mental retardation” is kept in quotations.”

I work with clients (in a clinical setting, not a legal one) who suffer from severe cognitive impairments. In that setting, I wouldn’t describe a client as “mentally retarded,” because we’re after more precise diagnoses and because, yes, that catch-all term has fallen out of favor. But do you know who does routinely use the term “mentally retarded” in a professional setting? The United States Supreme Court — as quoted in the complaint’s footnote 11, for example. Using that term suggests a willingness to use a legal term of art, not necessarily some outmoded insensitivity to people, say, with Down’s Syndrome.

It is not disrespectful of individuals with disabilities to be angered by false claims of mental retardation, as Judge Jones allegedly was. It does not malign their dignity to suggest that many are capable of choosing between good and evil. Just because one thinks that a particular legal claim is frequently abused does not mean that every instance of such a claim is abusive or legally frivolous. We’re accusing one of the most respected judges of the federal judiciary of misconduct over something that even the Onion satirizes.

The complaint alleges that Judge Jones “indicated that any Mexican National would rather be on death row in the United States than in a Mexican prison” and “stated that Mexico ‘wasn’t about to provide any of their own citizens with the kind of legal protections the person would get in the United States.” The complaint does not even bother to contest this joke, since it’s (a) a joke, and (b) uncontestable. Even the U.S. consulate helpfully reminds U.S. tourists to Mexico that they won’t benefit from little perks of the American justice system such as the presumption of innocence....

What is it we expect judges to talk about when we invite them to speak, if not some “view from the bench”? We expect them to draw on their actual experiences with actual cases. That is, frankly, why most judges are more interesting to listen to than most law professors.

We rightly expect that judges will not publicly comment on cases currently pending before them. To be clear: no affiant claimed that Judge Jones did so. Once again, even if we take their account of what she said as true, it just doesn’t add up to anything worthy of censure.

If there’s one woman on the planet who doesn’t need a pipsqueak like me defending her, that woman is likely Edith H. Jones. She likely will not dignify these charges with any response. I, however, am not so constrained by that sort of dignity. Obviously.

Recent related post:

June 7, 2013 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, June 06, 2013

"Prosecutor who got 'Hulk' email from federal judge leaves Justice Department"

The title of this post is this latest news emerging from the Des Moines Register concerning the questionable conduct of a new federal judge and federal prosecutors in Iowa.  Here are some of the ugly details: 

The federal prosecutor who received a controversial email from U.S. District Judge Stephanie Rose comparing herself to the Hulk and advising lawyers not to make her angry has left her job with the U.S. Department of Justice.

The departure of Shannon Olson, the former appellate chief for Iowa’s southern judicial district, follows the exit of another federal prosecutor who claims she was fired as the result of age discrimination and harassment by Rose.

A spokesman for the U.S. attorney’s office said Wednesday that Olson no longer works for the Department of Justice, but he declined to say why or when her employment had ended. Olson’s departure follows allegations in court documents that an email Rose sent to her in January might have been intended to warn of potential consequences if Olson testified in the civil lawsuit that accuses Rose of age discrimination and harassment. Olson could not be reached for comment by The Des Moines Register.

Rose has declined to answer the Register’s questions but has indicated she would do so after court cases about the matters are resolved. In court papers, Rose has characterized allegations about her conduct as “inaccurate, at best, and deliberately misleading, at worst.”

The controversial Hulk email was sent by Rose to Olson in January, four months after Rose’s lifetime appointment as a federal judge was confirmed. Two hours after she sentenced a drug dealer to eight years in prison, Rose sent Olson an email in which she likened herself to the comic-book character the Hulk, saying, “You won’t like me when I’m angry. There’s a lesson in there for all attorneys.”...

The email is one of at least three that Rose sent to prosecutors earlier this year. They were first disclosed in the Holm case when prosecutors notified defense attorneys that Rose had written to prosecutor Nicholas Klinefeldt, questioning some of his staff’s practices.

The majority of the issues raised in those emails were related to the wording of court pleadings. But Rose also expressed a concern that prosecutors weren’t presenting all of their evidence, some of which could be used to extend the prison terms of defendants.

After prosecutors mentioned those emails at a hearing, Rose entered the documents into Holm’s court record, but sealed them from public view. A few weeks later, she wrote to several Iowa defense attorneys whose prosecutions she had questioned. She wrote that it was her understanding that Klinefeldt’s office had shared her emails with other members of the bar, and that “inaccurate, or incomplete, information about the email exchange is floating through the bar. And in my experience, that is never a good thing.”

Rose attached copies of the email exchanges with Klinefeldt, but she did not include the email referring to the Hulk that she sent to Olson. Rose has described her emails to prosecutors as “entirely appropriate, generic contact” about errors and inconsistencies in their court filings....

The Code of Conduct for federal judges states that generally a judge should not initiate, permit, or consider communications with only one side in a case except for scheduling, administrative, or emergency purposes, and only if the communication doesn’t address substantive matters.

And, according to the U.S. Judicial Conference Committee on the Code of Conduct, a judge shouldn’t “provide guidance on the ins-and-outs of practice” before the judge’s court or “provide direct assistance in a given case.”

Rose has been a U.S. district judge for the Southern District of Iowa for nine months. She previously worked as a prosecutor and served as U.S. attorney for the Northern District of Iowa from 2009 through August 2012.

The Register has filed a formal Freedom of Information Act request with the U.S. Department of Justice. Among other things, the Register has asked for all emails between Rose and federal prosecutors in Iowa over an 18-week period.

Recent related post:

June 6, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Washington Lawyer cover story asks "Marijuana – Will It Ever Be Legal?"

A helpful reader today sent me a copy of the cover story from the June 2013 issue of the Washington Lawyer, which is the official publication of the D.C. Bar.  That cover story is headlined, in full, "Marijuana – Will It Ever Be Legal?; States lead the Charge as Opinions Shifts."   (I cannot yet find this story available freely on-line, but I will try to post a link once it is available.)

For regular readers of this blog or for those who closely follow marijuana reform discussions, there is not a whole lot in the article that is new.  But the article does a fine job summarizing all the significant legal and social developments in this arena over the last year, and it also includes some notable comments from prominent folks who are skeptical about the pace and direction of recent marijuana reforms.  These passages especially caught my attention, in part because I am always looking out for the strongest arguments being made against on-going reform efforts:

[Edward Jurith, a professor at American University Washington College of Law and senior counsel at the White House Office of National Drug Control Policy, has] concerns about the safety of marijuana use, saying the average potency of marijuana seized and tested by federal authorities between 1998 and 2008 has more than doubled.  "I think what's been lost in a lot of this debate is the health consequences of marijuana.  This is not a safe drug.  Looking at the science, I think there is general consensus that while it may be 'safer' than alcohol or tobacco, that kind of a moral relativity argument doesn't make any sense.  This is a drug that has some serious health ramifications, and I think that needs to be factored into this discussion more seriously than it has up to now," he says.

"If you look at the history of drug control, particularly with cocaine, there was a real belief that it was a safe drug to use.  Half a decade later we wake up with a massive cocaine problem in our country that we're finally getting out of.  I'm not arguing for harsh criminal sanctions, I don't think they have worked particularly well, but I think this requires a much more sophisticated and enlightened approach rather than just making the thing available and let's see what happens," Jurith adds.

While Washington intends to put some of the marijuana tax revenue aside for public health education and treatment, some addiction experts worry that there will not be enough money available to deal with what they think will be the inevitable increase in the number of people needing treatment.

"My opinion and the opinion of many addiction professionals is that it doesn't seem as if states are considering all of the ramifications, in terms of the cost of addiction and the threat to public health, ofthe increase in marijuana addiction," said Denise Perme, manager of the D.C. Bar Lawyer Assistance Program.

I find these comments especially interesting because it reveals that even a prominent and long-time warrior in the war on drugs like Edward Jurith is now willing to concede that "there is general consensus that [marijuana] may be 'safer' than alcohol or tobacco." 

June 6, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

George Will joins chorus calling for federal mandatory minimum sentencing reform

I am pleased to see this new op-ed by George Will in the Washington Post, which is headlined "Leahy and Paul plan on mandatory sentencing makes sense," urging federal sentencing reform with points that go beyond those I made in my co-authored Wall Street Journal commentary last month urging President Obama to get behind the Justice Safety Valve Act of 2013. Here are excerpts from Will's column:

Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year.  They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade, even though the Constitution explicitly authorizes Congress to criminalize only a few activities that are national in nature (e.g., counterfeiting, treason, crimes on the high seas).  The federal government, having failed at core functions, such as fairly administering a rational revenue system, acts like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm about various wrongs that excite attention.

Approximately 80,000 people are sentenced in federal courts each year.  There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration.  There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed.  This violates the mens rea requirement — people deserve criminal punishment only if they intentionally engage in conduct that is inherently wrong or that they know to be illegal.  No wonder that the federal prison population — currently approximately 219,000, about half serving drug sentences — has expanded 51 percent since 2000 and federal prisons are at 138 percent of their supposed capacity.

The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums.  This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge.  Paul says mandatory minimum sentences, in the context of the proliferation of federal crimes, undermine federalism, the separation of powers and “the bedrock principle that people should be treated as individuals.”...

The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day.  And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”...

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Some recent and older related posts:

June 6, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Some more thoughtful thoughts on DNA collection and Maryland v. King

UCP text imageAlan Michaels is not only my Dean at the OSU Moritz College of Law, he is also the co-author of Understanding Criminal Procedure (with our colleague Joshua Dressler). Consequently, when he sent an e-mail with some thoughts on the SCOTUS ruling in King concerning DNA collection from arrestees, I was quick to ask his permission to reprint these thoughts in this space.  With his permission, here they are:

1) It is surely true that more crimes will be solved by running the DNA of arrestees through a database of unsolved crimes. But the thing that probably troubles me most about the case (as a normative matter, not thinking about correct doctrinal answer), is that the content of the group “arrestees” is framed in a lot of ways by racial bias, so that the impact of this in the long run will very likely be disproportionate apprehension of guilty individuals of color for these unsolved crimes. I like apprehension of the guilty (a lot!), but the potential disproportionate part is very, very, troubling. Although King was limited to arrestees for “serious” crimes, the writing is on the wall; in other contexts “serious” can mean punishable by six months or more, pretextual arrests are not unheard of even without this DNA incentive, and the Court has made clear that custodial arrest is constitutional even for traffic offenses. Indeed, I was deeply moved by the irony of the decision coming down the same day as this report came out [noted in this prior post] showing that all else equal African-Americans are four times as likely as whites to be arrested for marijuana.

If we are going to use new “super methods” for crime solving, that at least make us hinky about privacy, I think we need to do so in a way that does not have a disproportionate impact on subordinated groups.  As Scalia points out in dissent (making a different point), we would also solve crimes by swabbing all airline passengers....

2) A different thought though, while still focusing on the real world impact: Justice Scalia is in dissent on this one, while Thomas (his originalist compatriot) and Akhil Amar and Neal Katyal [noted in this prior post] think he is wrong about what the framer’s would have said about DNA swabs.  As probably all of you know, I’m not a fan of originalism anyway. I can’t help but notice that this is, once again, a case where Justice Scalia surprisingly is on the side of the criminal defendant as a result of his view of what the framers would have done, but it just happens that the practical impact is most felt around a crime where men are being prosecuted for crimes against women and girls.

First Maryland v. Craig, (Justice Scalia loses war he won first battle of in Coy v. Iowa; child victims of sexual abuse are allowed to testify in separate room from criminal defendant); Second, Crawford (out of court statements where witness unavailable newly excluded as constitutional matter — big impact in domestic violence prosecutions, where victim’s statements previously admitted under hearsay exception when victim would not testify at trial), and now King (DNA that he would forbid being collected used most frequently to solve rapes and other sexual assaults).   As one colleague pointed out to me, there are an at least equal number of Justice Scalia pro-defendant cases that do not have this feature (against searches of cars incident to arrest, against warrantless thermal imaging of a home, his anti-Terry view, to name a few), but it may still be a notable feature of relying exclusively on centuries-old perspectives to resolve contemporary problems — something to be considered in weighing the merits of interpretive methods.

Recent related posts:

June 6, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, June 05, 2013

"Indeterminate Sentencing Returns: The Invention of Supervised Release"

The title of this post is the title of this new article by Fiona Doherty just published in the June 2013 issue of the New York University Law Review. Here is the abstract:

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release.  A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing.  Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender.  This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length.  I conclude that the widespread use of supervised release has created a muddled and unprincipled form of indeterminate sentencing: one that flouts the insights and vision of the nineteenth-century indeterminacy movement as well as the twentieth-century determinacy movement.  Having dislocated once-celebrated theories of sentencing, federal supervised release now controls the lives of more than 100,000 people without offering any alternative theoretical basis for doing so.  This Article draws on the lessons of a 200 year history to expose the current nature of supervised release and to envision a more coherent role for its future.

I have long viewed supervised release as an important, but badly under-examined and under-theorized, aspect of the modern federal sentencing system.  Thus I am pleased to see a prominent article taking on SR in a prominent way.

June 5, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2) | TrackBack

New federal judge in Iowa accused of acting as "prosecutor-in-chief" at sentencing

Stephanie_M_Rose_US_AttorneyThe Des Moines Register has this notable new article discussing some unseemly sentencing-related conduct by a new federal judge (and former federal prosecutor) in Iowa.  Here are the basics:

One of Iowa’s most prominent federal judges is accused of improperly playing the role of “prosecutor-in-chief” in criminal cases by ordering the U.S. Attorney’s Office to provide evidence that can result in longer prison sentences, court records show.

U.S. District Court Judge Stephanie Rose has complained to U.S. Attorney for the Southern District of Iowa Nicholas Klinefeldt that his prosecutors aren’t providing her with information that can be used to extend prison sentences, according to a Des Moines Register review of emails that are part of a court case and were recently unsealed.

Court transcripts show Rose, a former prosecutor who is now in her first year on the bench, has clashed with prosecutors over that issue in at least three criminal cases this year.

In a case involving convicted drug dealer Bryan Holm, Rose ordered prosecutors to provide evidence that could extend Holm’s prison sentence on a weapons charge. When they refused, citing a plea agreement they had signed, Rose called a police officer to the stand, questioned the officer herself and imposed a sentence that was two to three years longer than what prosecutors had contemplated.

Rose then sent prosecutors an email comparing herself to the comic book superhero the Hulk, saying there was “a lesson” there for attorneys: “You won’t like me when I’m angry.”

Holm’s attorney, Dean Stowers, says in court papers his client was “caught in the crossfire” between Rose and federal prosecutors who refused to do her bidding. Stowers, who is appealing Holm’s sentence, says the Hulk email “tends to support the view that there is a price to be paid” if prosecutors don’t take her advice.

“Any defendant, including Mr. Holm, would be particularly alarmed by such judicial advocacy in seeking to enhance his sentence,” Stowers wrote in court filings. “Most defendants have a hard enough time defending against the prosecuting attorney. … They at least should expect the judge will not be assuming the role of prosecutor-in-chief,” he wrote.

Rose, who at 40 is the nation’s youngest federal judge, declined to comment on the matter, as did Stowers and Klinefeldt. But in court papers, Rose has characterized Stowers’ allegations about her conduct as “inaccurate, at best, and deliberately misleading, at worst.” She has also described her emails to prosecutors as “entirely appropriate, generic contact.”

The Code of Conduct for federal judges states that generally a judge should not initiate, permit, or consider “ex parte communications” — that is, communications directed to only one party in a case — except for scheduling, administrative, or emergency purposes, and only if the communication doesn’t address substantive matters. And, according to the U.S. Judicial Conference Committee on the Code of Conduct, a judge shouldn’t “provide guidance on the ins-and-outs of practice” before the judge’s court or “provide direct assistance in a given case.”

Rose has served as a U.S. District Court judge for the Southern District of Iowa for nine months. She served as U.S. Attorney for the Northern District of Iowa from November 2009 through August 2012. In that role, she was occasionally accused of being too aggressive in the prosecution of some cases, including that of the former plant manager of Agriprocessors in Postville.

The emails from Rose to Klinefeldt, who has been Iowa’s top Southern District prosecutor since 2009, came to light last week.... The emails — signed by “Steph” and addressed to “Nick” — show that in January, Rose wrote to Klinefeldt and said she was “growing increasingly frustrated” with “a few global issues” regarding the way his office conducted business. In her emails, Rose asked Klinefeldt for a meeting. Klinefeldt responded, “Absolutely.”

Most of the issues cited by Rose deal with what she considered minor errors or inconsistencies in the way prosecutors worded various pleadings or briefs. But Rose also questioned the prosecutors’ reluctance to provide information that could be used to lengthen prison sentences. She wrote: “I’m troubled by your office’s occasional refusal to provide relevant discovery information to the United States Probation Office. I’m baffled by similar refusals to provide relevant sentencing information to me.”

Rose specifically cited the prosecutors’ refusal to provide information on the use of a firearm in a recent drug-trafficking case involving Devon Braet — information that could have been used to increase Braet’s sentence. She also cited a case involving John Paul Bowers, who was charged with being a felon in possession of a firearm. In that case, prosecutors didn’t offer any witnesses or evidence to support a longer sentence based on information that the gun in question was stolen.

At Bowers’ sentencing, Rose expressed frustration with prosecutors, saying, “I need more information from the government on why it’s not producing the witnesses that it’s not producing. ... Frankly, my inclination, if I don’t get any other information, is to vary upward to the maximum (sentence), and I don’t know that that’s fair to Mr. Bowers. ... I’m just completely baffled by the government’s position, frankly.”

June 5, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

"NC House vote moves Racial Justice Act closer to repeal"

The title of this post is the headline of this new local article concerning the latest efforts in North Carolina to undo a law that has placed a significant hurdle in the state's efforts to administer the death penalty.  Here are the basics:

The legislature took another step Tuesday toward wiping out a signature law that allows convicted killers to be spared the death penalty if they can show court decisions tainted by racial bias.

The 77-40 vote in the state House was largely along party lines, with one Democrat joining all Republicans to repeal the law called the Racial Justice Act. The preliminary vote — the House will likely take another vote Wednesday — came after more than an hour of debate....

The law’s supporters read names of men wrongly convicted of murder, while it’s detractors recited names of murder victims.  “Keep in your minds the victims of the heinous, heartless, cold-hearted killers,” said Rep. Nelson Dollar, a Cary Republican.

The 2009 law allowed people sentenced to death to use statistical evidence to show that race played a significant part in their trial or in the prosecutor’s decision to seek the death penalty.  Successful challengers have their death sentences commuted to life in prison.

Last year, the legislature weakened the law by narrowing the use of statistics.  The bill moving through the legislature this year would erase the law.  The bill would also prevent regulatory boards from penalizing doctors, nurses and other health care professionals from assisting in executions.  In 2007, the N.C. Medical Board said it would punish doctors that participated in executions.  State law requires that a doctor be present. The N.C. Supreme Court ruled in 2009 that the board had exceeded its authority....

Racial Justice Act supporters said it has exposed racial bias, and so far, has led to findings that prosecutors improperly prevented African-Americans from serving on juries.  “None of us should want to execute any person whose sentence is based on racial discrimination,” said Alma Adams, a Greensboro Democrat.

A Cumberland County judge found last year that jury selection in four death row inmates’ cases was tainted by conclusive evidence of racism. More than 150 death row inmates filed challenges under the 2009 version of the law. The bill debated Tuesday would invalidate more than 140 of the claims that have not been heard in court.

The law’s detractors said it was flawed from the beginning. One of the reasons they gave was that white defendants convicted of murdering white people by all white or nearly all white juries can claim racial bias. Decisions about the death penalty should be made on the facts of each case, critics said, not on a statistics. They contend that the real intent of the law was to put a moratorium on the death penalty.

“No one wants actual racial discrimination,” said House Speaker Pro Tem Paul Stam, an Apex Republican. “We don’t want race to be used as a pretext to stop the death penalty.”

A few older and more recent posts on NC Racial Justice Act:

June 5, 2013 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty

As reported in this Texas Tribune article, headlined "Complaint: Judge's Death Penalty Remarks Show Racial Bias," Fifth Circuit Judge edith Jones is the subject of a judicial misconduct complaint based on her comments earlier this year in a speech about race and the death penalty. Here are the basics:

According to a complaint filed Tuesday by civil rights groups, ethicists and a legal aid organization, 5th U.S. Circuit Court of Appeals Judge Edith Jones allegedly said during a February event at the University of Pennsylvania Law School that “racial groups like African-Americans and Hispanics are predisposed to crime,” and that they get involved in more violent and “heinous” crimes than people of other ethnicities....

At the February event, she also reportedly said that Mexican nationals would rather be in a Texas prison than in a prison in their home country. The complaint also takes issue with comments the judge reportedly made criticizing the U.S. Supreme Court’s prohibition on executing the mentally retarded.

“Judge Jones’ biased remarks demonstrated both an utter disregard for the fundamental judicial standard of impartiality and a lack of judicial temperament,” the complaint argues.

Among those who filed the complaint are the NAACP, the Texas Civil Rights Project and the Mexican Capital Legal Assistance Program, which is funded by and represents Mexico in cases where its foreign nationals face capital murder charges in the U.S. It was filed with the 5th Circuit Court’s chief judge, who would decide whether to refer the case to a judicial council made up of 5th Circuit and district court judges. Because Jones is a former chief judge of the 5th Circuit, the group asked that its complaint be transferred to another circuit court for review.

In affidavits filed with the court, people who attended the event where Jones spoke said she denied the existence of systemic racism in the application of the death penalty. They said she contended that more Hispanics and African-Americans are on death row because people “from these racial groups get involved in more violent crime.”

The complaint indicates that Jones also told the audience that exempting the mentally retarded from the death penalty was a disservice. In 2002, the U.S. Supreme Court — amid what Jones reportedly described as a “judicial law-making binge” — decided that the mentally retarded are not eligible for execution because their lack of intellectual ability renders them less culpable for the behavior.

“I am not able to capture the complete outrage she expressed over the crimes or the disgust she evinced over the defenses raised,” Marc Bookman, a capital defense lawyer from Pennsylvania who attended the discussion, wrote in an affidavit.

June 5, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (25) | TrackBack

Tuesday, June 04, 2013

Would legalizing marijuana be a huge step toward a less racialized criminal justice system?

Web-Jus-MJ-1-Header-V02The question in the title of this post is prompted by this notable New York Times article headlined "Blacks Are Singled Out for Marijuana Arrests, Federal Data Suggests." Here are excerpts:

Black Americans were nearly four times as likely as whites to be arrested on charges of marijuana possession in 2010, even though the two groups used the drug at similar rates, according to new federal data.  This disparity had grown steadily from a decade before, and in some states, including Iowa, Minnesota and Illinois, blacks were around eight times as likely to be arrested.

During the same period, public attitudes toward marijuana softened and a number of states decriminalized its use.  But about half of all drug arrests in 2011 were on marijuana-related charges, roughly the same portion as in 2010.

Advocates for the legalization of marijuana have criticized the Obama administration for having vocally opposed state legalization efforts and for taking a more aggressive approach than the Bush administration in closing medical marijuana dispensaries and prosecuting their owners in some states, especially Montana and California.

The new data, however, offers a more nuanced picture of marijuana enforcement on the state level.  Drawn from police records from all 50 states and the District of Columbia, the report is the most comprehensive review of marijuana arrests by race and by county and is part of a report being released this week by the American Civil Liberties Union....  “We found that in virtually every county in the country, police have wasted taxpayer money enforcing marijuana laws in a racially biased manner,” said Ezekiel Edwards, the director of the A.C.L.U.’s Criminal Law Reform Project and the lead author of the report.

During President Obama’s first three years in office, the arrest rate for marijuana possession was about 5 percent higher than the average rate under President George W. Bush.  And in 2011, marijuana use grew to about 7 percent, up from 6 percent in 2002 among Americans who said that they had used the drug in the past 30 days.  Also, a majority of Americans in a Pew Research Center poll conducted in March supported legalizing marijuana.

Though there has been a shift in state laws and in popular attitudes about the drug, black and white Americans have experienced the change very differently. “It’s pretty clear that law enforcement practices are not keeping pace with public opinion and state policies,” said Mona Lynch, a professor of criminology, law and society at the University of California, Santa Cruz....

The cost of drug enforcement has grown steadily over the past decade. In 2010, states spent an estimated $3.6 billion enforcing marijuana possession laws, a 30 percent increase from 10 years earlier.  The increase came as many states, faced with budget shortfalls, were saving money by using alternatives to incarceration for nonviolent offenders.  During the same period, arrests for most other types of crime steadily dropped.

Researchers said the growing racial disparities in marijuana arrests were especially striking because they were so consistent even across counties with large or small minority populations.  The A.C.L.U. report said that one possible reason that the racial disparity in arrests remained despite shifting state policies toward the drug is that police practices are slow to change.  Federal programs like the Edward Byrne Justice Assistance Grant Program continue to provide incentives for racial profiling, the report said, by including arrest numbers in its performance measures when distributing hundreds of millions of dollars to local law enforcement each year.

Phillip Atiba Goff, a psychology professor at the University of California, Los Angeles, said that police departments, partly driven by a desire to increase their drug arrest statistics, can concentrate on minority or poorer neighborhoods to meet numerical goals, focusing on low-level offenses that are easier, quicker and cheaper than investigating serious felony crimes. “Whenever federal funding agencies encourage law enforcement to meet numerical arrest goals instead of public safety goals, it will likely promote stereotype-based policing and we can expect these sorts of racial gaps,” Professor Goff said.

The ACLU report and materials on which this story is based can be found through this webpage, which provides links to reports, graphics, videos and other related coverage of this significant story.  The full 187-page ACLU report is titled "The War on Marijuana in Black and White," and can be accessed at this link.

In addition to believing this potent new ACLU data should provide civil rights groups with a strong reason to become even more vocal in support of marijuana legalization, I hope it will force opponents of marijuana legalization to recognize and reflect on who really bears the brunt of marijuana prohibition.  Though the rich and powerful like Michael Phelps and Justin Bieber might get a little negative press when seen smoking pot, it is people concentrated in poorer and minority neighborhoods who endure real burdens from the persistence of modern pot prohibition. 

Unless and until supporters of marijuana prohibition face up to this disturbing data and aggressive advocate ways to reduce this racial skew in enforcement patterns, I think they can and should be accused of being complicit in perpetuating racial dispaprities in the operation of modern American criminal justice systems.  That's right, President Barack Obama and Attorney General Eric Holder, I am talking about you two first and foremost.  Unless and until you express at least some support for state marijuana legalization efforts, I will continue to accuse the first black president and the first black attorney general of being complicit in perpetuating racialized American criminal justice system. 

June 4, 2013 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (43) | TrackBack

"Why the Court Was Right to Allow Cheek Swabs"

The title of this post is the headline of this notable commentary by Akhil Reed Amar and Neal Katyal in today's New York Times.   Here are excerpts:

The court decided, 5 to 4, that the Constitution permits the police to swab the cheeks of those arrested of serious crimes, and then do DNA tests on the saliva samples to see if the suspects are associated with other crimes.  Justice Scalia joined three liberal justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting.

DNA is already revolutionizing law enforcement. The ability for police to use cheek swabs of arrestees rests on a threadbare majority.  The closeness of the vote, and the unusual coalitions on either side, suggest that the matter is far from settled. Justice Samuel A. Alito Jr., who was part of the majority, rightly called the case, Maryland v. King, “perhaps the most important criminal procedure case that this Court has heard in decades.”

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right....

Justice Scalia properly notes that the Constitution’s framers loathed “general warrants,” but these colonial-era warrants had odious features that cheek swabs lack. These general warrants were issued by judges ex parte — that is, in secret, without the affected citizen present — and blocked the citizen from later taking his complaint to a civil jury and seeking damages against the oppressive official.  The Fourth Amendment’s words do indeed prohibit general warrants — warrants lacking “probable cause” — but this language regulating warrants simply does not apply where no warrants are involved....

Warrants were not always the framers’ solution; sometimes warrants themselves were the problem. And here, unlike the secret ex parte generalized warrant, the DNA in the Maryland case was collected pursuant to a law enacted by the Legislature.  In approving the law, Maryland’s lawmakers knew they would run the risk of being swept up in the DNA database themselves — and balanced that risk against the potential benefits.  That is nothing like a secret warrant that could be aimed at a single unpopular individual. To be sure, the framers disliked certain kinds of warrants, but when no warrant has been issued — as in the cheek swab situation — the framers simply required that the search or seizure must be reasonable....

Reasonable minds can differ on this.  And therein lies the real genius of the Fourth Amendment.  Contrary to Justice Scalia’s view, the framers did not answer the DNA question in 1791.  Rather, the framers posed the question for us, their posterity. The distinction between criminal evidence-gathering and all sorts of other government programs and purposes is not an all-purpose touchstone or talisman.  Rather, we must ponder how intrusive a given search policy is, how discriminatory it might be in application, how well justified and well administered it is, how democratically accountable it is, how it might bear upon human dignity, and so on.

The words of the Fourth Amendment mean exactly what they say. Warrantless searches are unconstitutional only if they are “unreasonable.” That rule, and no other, is the true “heart of the Fourth Amendment.”

Recent related post:

June 4, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack