Wednesday, May 02, 2012

Georgia joins ever-growing red states enacting sweeping sentencing reforms

As reported in this Atlanta Journal-Constitution article, headlined "Governor to sign sweeping justice reform bill," the "way Georgia punishes thousands of nonviolent offenders will forever change when Gov. Nathan Deal signs landmark legislation Wednesday."  Here is more:

Deal told The Atlanta Journal-Constitution he will also sign an executive order continuing the work of a special council that studied the state's prison system and recommended sweeping changes to control unimpeded growth in prison spending. The reforms in House Bill 1176, to be signed at a ceremony at the Capitol, are projected to save taxpayers $264 million over the next five years....

Years ago, Georgia was among the states leading the nation in tough-on-crime sentencing laws.  But Georgia now joins a host of other states -- including Texas, Mississippi, North Carolina and South Carolina -- that have enacted legislation to address soaring prison spending that was doing little to reform offenders.  The legislation enjoyed extraordinary bipartisan support, with the final version being approved unanimously by both the House and Senate.

The sentencing reform package, which takes effect July 1, is part of a broader criminal justice initiative pushed by Deal.  The Legislature also approved the governor's recommendation to quintuple funding to $10 million for "accountability courts" that require defendants to work, seek treatment and stay sober.

"As we reserve more of our expensive [prison] bed space for truly dangerous criminals [we] free up revenue to deal with those who are not necessarily dangerous but are in many ways in trouble because of various addictions," Deal said.  "Our system is feeding on itself with our recidivism rate being as high as it is.  We have the opportunity now to make a difference in the lives of future generations of Georgians."

Deal said he will ask the Special Council on Criminal Justice Reform for Georgians, comprised of lawmakers, lawyers, judges and other officials, to continue its work and focus on getting inmates ready to be contributing members of society before they leave prison....  The special council is also expected to be called on to address two initiatives the Legislature did not take up this year -- decriminalizing many of the state's traffic offenses and allowing "safety valves" for some mandatory minimum sentences.

Georgia criminalizes minor traffic offenses -- more than 2 million a year -- while most other states treat them as violations with a fine as the penalty, the council said in a November report.... The special council also suggested judges should be allowed to depart from minimum mandatory prison sentences, such as those for drug trafficking.  A number of states, including Connecticut, Florida and Maine, have "safety valves" for various drug and habitual violator offenses.

"In Georgia, it's an issue that's not going to go away," said State Bar of Georgia President Ken Shigley, a member of the special council. "To have a one-size-fits-all sentence for crimes that can be so different in terms of the offense and the offender doesn't always serve the best interests of justice."

Kelly McCutchen, president of the Georgia Public Policy Foundation, the think tank that strongly supported H.B. 1176, predicted the process will take years.  Safety valves, he said, could help inmates with their transitions back into society.  "As a private citizen, I would feel a whole lot better if maybe we cut a few months off their sentence, put them in a half-way house, provide them some supervision, some training and if they're not ready yet, pull them back into prison."

State Rep. Rich Golick, R-Smyrna, who sponsored the sentencing reform bill, said the law reflects a new "smart on crime" approach in Georgia.  "More non-violent offenders will be directed toward drug courts and rehabilitation where that is possible, and that will reserve more prison beds for violent offenders who need to be kept away," he said.  "Public safety is enhanced and taxpayer money is saved."

House Bill 1176, to be signed into law today, would:

  • Create new categories of punishment for drug possession crimes, with less severe penalties for those found with small amounts.
  • Increase the felony threshold for shoplifting from $300 to $500 and for most other theft crimes to $1,500.
  • Create three categories for burglaries, with more severe punishment for break-ins of dwellings by burglars who are armed and cause physical harm to a resident, with the least severe penalties for those who break into unoccupied structures or buildings.
  • Create degrees of forgery offenses, with graduated punishment for the type of offense and amount of money involved.

May 2, 2012 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

A (Swiftian?) proposal for reforming the prosecutorial function

James Doyle, a Boston attorney and a 2012 Visiting Fellow at the National Institute of Justice, has this interesting new commentary at The Crime Report under the headlined "Why (and How) We Need to Improve America’s Prosecution System." Here is how it gets started:

Here’s a modest proposal in the spirit of Jonathan Swift from someone who has spent a career at the criminal defense bar: let’s divide American prosecutors into two separate and independent offices.

One will be an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.

If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.

If we do this, we will improve prosecution performance and prosecution accountability. We will also improve the lives of individual prosecutors.

May 2, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27) | TrackBack

Tuesday, May 01, 2012

Indiana legislators (over?)reacting to pair of sex offenders earning early prison release

This new AP story, headlined "Early prison release for sex offenders irks lawmakers," provides a telling and notable how sex offenders can get into trouble and prompt a harsh legislative response for, in essence, just being good prisoners.  Here are the details:

Indiana lawmakers are planning changes to the state’s early release law in response to this week’s slated release of two convicted sex offenders who significantly shortened their prison terms by earning college degrees.

Republican Sen. Jim Merritt of Indianapolis said Tuesday the law’s shortcoming is illustrated by the case of Christopher Wheat, a former high school swim coach convicted of having a sexual relationship with a 14-year-old female swim student.

Wheat, 38, is scheduled for release Thursday from the New Castle Correctional Facility after serving less than two years of his eight-year sentence.  Merritt said Wheat “manipulated the system” to cut his sentence to about 20 months by earning two computer science degrees behind bars. “I think he gamed the system.  And we need to make sure nobody does that anymore,” Merritt said.  “We all believe education in prison should be for the rehabilitation of one’s character and preparing them for their life as an ex-offender.”...

Wheat was sentenced to eight years in September 2010 following his conviction on two counts of sexual misconduct with a minor and one count of child solicitation.  His victim was a then-14-year-old student he coached at Lawrence North High School in Indianapolis.

Doug Garrison, a spokesman for the Indiana Department of Correction, said Wheat was sentenced to 15 years in prison, with five years suspended and another two years in community corrections, leaving him with an eight-year sentence.  It was cut to four years for good behavior and another two years and three months were removed when he earned an associate degree and a bachelor’s degree. Garrison said Wheat must wear a GPS-monitored ankle bracelet following his release from prison.

Merritt said he’s working with Sen. Randy Head, R-Logansport, to draft legislation for the next General Assembly that would likely include making convicted sex offenders unable to shave time off their sentences by earning degrees in prison.  It might also seek to prevent inmates from using previously accumulated college credits toward their degrees, as Wheat had done....

Merritt said the slated release of another convicted sex offender -- also Thursday from the New Castle prison -- demonstrates that changes are needed to the state’s early release law. Daniel J. Moore, a 53-year-old former New Whiteland Baptist Church pastor, pleaded guilty in March 2010 to child solicitation and sexual misconduct with a minor for a sexual relationship with a 15-year-old girl who was a church member.  His 10-year sentence was cut to five for good behavior, and he earned associate and bachelor’s degrees in human services, further paring his sentence to about two and a half years.

State Sen. Pat Miller, R-Indianapolis, said she also will push for changes to the early release law “to fix this terrible situation.” “Sexual predators are a menace to our society. The pain they inflict upon their victims lasts a lifetime, and it makes no sense that these violent offenders are being released early from prison,” Miller said in a statement.

May 1, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

"Illinois panel of lawmakers: Don't close prisons, mental facilities"

The title of this post is the headline of this new AP article which highlights some of the challenges, even in lean budget times, of making dramatic cuts to the big government prison-industrial complex supported by taxpayer dollars.  Here are excerpts:

A panel of Illinois lawmakers recommended against closing two prisons and a developmental center Tuesday, a vivid illustration of how difficult it will be for officials to slash state spending this year.

Closing the facilities would save the state tens of millions of dollars at a time when the governor and legislative leaders want to cut billions. But the closures also would eliminate hundreds of jobs, deliver painful blows to downstate communities... Legislators were unwilling to endorse that trade-off.

The Commission on Government Forecasting and Accountability voted 7-3 against closing the Tamms "supermax" prison and a women's prison in Dwight, as Gov. Pat Quinn has proposed.... The commission also gave a thumbs-down to closing two Department of Corrections halfway houses and a juvenile prison.

The votes were only advisory. The Democratic governor is still free to close the institutions if he wants.

Rep. Patricia Bellock, a top budget negotiator for House Republicans, rejected all the proposed closures. The amount of money involved may be small, she said, but the impact would be huge. "I don't feel it's minor when you're dealing with people's lives," said Bellock, co-chair of the commission.

Some Democrats on the commission supported closing the major facilities. Republicans generally opposed them.

The Tamms prison is a relatively new facility that houses the state's most dangerous and disruptive prisoners. Human rights advocates criticize it for holding prisoners in solitary confinement, keeping them in their cells 23 hours a day. Quinn says moving those inmates to other prisons and shutting Tamms would save about $26 million a year.

Closing the Dwight prison and moving inmates to a penitentiary in Lincoln would save about $37 million. Shutting the halfway houses and youth camps that the commission rejected Tuesday would cut spending by roughly $27 billion.

May 1, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Comments on Breivik commentary saying "Sometimes the death penalty is warranted"

I am intrigued to see this interesting new commentary in the Washington Post authored by the always interesting Charles Lane under the headline "Sometimes the death penalty is warranted."  Here are excerpts:

If anyone personifies evil, it is Anders Breivik. The 33-year-old Norwegian violently disrupted his country’s usual peace on July 22, 2011, by gunning down 69 mostly young people at a summer camp.  A bomb he planted in Oslo killed eight others.  He did it all to defend Norway against multiculturalism, he later raved.

Yet, on one point, Breivik is not talking crazy.  At his trial, which began April 16, he pronounced the maximum penalty for his actions — 21 years in prison, or longer if the government meets certain conditions — “pathetic.”   He “would have respected” the death penalty, Breivik said.  Of course, he won’t get it; Norway abolished capital punishment long ago.

Norway has suffered deeply because of Breivik, and I don’t mean to add insult to injury. But this situation illustrates what’s wrong with banning the death penalty in all cases.  If executing an innocent man is the worst-case scenario for proponents of the death penalty, then threatening Breivik with prison is the reductio ad absurdum of death-penalty abolitionism.

Anti-death-penalty sentiment is hardly limited to Europe.  Last week Connecticut Gov. Dan Malloy signed a bill abolishing capital punishment, which means that no future Anders Breivik need fear execution in that state.  Sixteen other states have no death penalty; California voters will get a chance to join them in a November referendum.

In the United States, abolitionist arguments are gaining traction, especially claims about the high cost of lengthy death-penalty litigation and the risk of executing people by mistake. Malloy also cited a “moral component” to his decision.  Such practical and moral concerns are at their most understandable in run-of-the-mill convenience-store murder cases, where the risk of error seems relatively high compared with the benefits of punishing murder with death.

But Breivik’s was no ordinary crime.  It presents the special case of a cold-blooded massacre of children by a political terrorist whose guilt is unquestionable and who remains utterly unrepentant; indeed, he told the court that he would kill again if given the opportunity.

What is morally worse: putting the author of this bloodbath to death or letting him live, with the accompanying risk — however small — that he might broadcast his message to receptive audiences from jail, or escape, or one day litigate his way to freedom?...

The stubborn fact is that death-penalty abolitionism runs counter to one of humanity’s oldest and most persistent moral intuitions: that there should be condign retribution for the most monstrous transgressions.

Even in Norway, Breivik’s rampage caused some second thoughts. Immediately after his crimes last summer, a man named Thomas Indrebo observed online that “the death penalty is the only just sentence in this case!!!!!!” Indrebo was later assigned as a lay judge in Breivik’s trial and had to be dismissed because of his comment. That was the right call, legally.  But I wonder if the Breivik case will cause more people in Europe to ask whether there really is no place in civilization for capital punishment.

Both abroad and at home, we need less polarized debate, less moralizing — and more honest legislative efforts to reconcile valid concerns about the death penalty with the public’s clear and consistent belief that it should remain available for the “worst of the worst” offenders.

For a host of reasons, I praise Lane for connecting Breivik's crimes and Norweigian punishment to America's constant capital conundrums.  But there is a lack of important nuance in this commentary,  especially when Lane asserts that political terrorists need not fear execution in Connecticut. 

As recent developments in Rhode Island have shown (basics here and here), federal prosecutors are often eager to pursue federalcapital charges for murders committed in states without the death penalty.  I would be advise any "future Anders Breivik" that the federal criminal justice system can and likely will use its authority to seek the death penalty for any political mass murderer.  I could point any "future Anders Breivik" to the past and present federal capital prosecutions of recent US political terrorist in the form of Jared Loughner and Ted Kaczynski and Timothy McVeigh and Terry Nichols and Eric Rudolf.

I stress this point in part because I think a truly "less polarized debate" about the death penalty would make its way toward my long-stated view (see posts here and here from 5+ years ago) that that states should rarely bother to pursue capital cases and instead should regularly request that federal authorities assume primary responsibility for pursuing the death penalty in the most horrific murder cases.  Moreover, as highlighted by the reality of the federal capital case outcomes of recent US versions of Breivik, a "less polarized debate" about the death penalty's true value and import would give much more attention to its role in helping ensure the obviously guilty murderers accept a plea deal to take the death penalty off the table.  (That's how political terrorists Kaczynski and Rudolf escaped any possible execution, and I would wager that Loughner's cases ultimately cashes out this way, too.)

Regular readers know that I am a death penalty agnostic, largely because my own consequentialist moral philosophy makes my opinion on any form of punishment highly contingent on the circumstances of the crime and the administration of the punishment.  Particularly at this very contingent moment in American crime and punishment practices, I view any extreme absolutist positions, either for or against the death penalty, as appealing mostly to those who care more about feeling righteous than being wise.

Recent and older related posts:

May 1, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Two notable new pieces on pot policy debates coming to mainstream politics

Two publications known for political and social commentary have these two new pieces on the modern politics of pot policy:

Both of these pieces merit a full read, and here is a notable excerpt from the latter one:

The "marijuana vote" is something that is virtually impossible to demographically study. It cuts across all the standard groupings of age, sex, occupation, living situation, ethnicity, race, religion, and economic status. It can't be studied, because its members are perpetually underground: What they do is illegal, after all, and who is going to admit to a random pollster on the telephone: "Sure, I smoke pot... I smoke a bunch of pot!" The marijuana vote does not advertise itself on bumper stickers ("I smoke pot, and I VOTE!") or with any organized political movement.  When people can lose their jobs (or worse) by admitting they're part of a demographic, then compiling stats on the group becomes impossible.  They are invisible, and their aim (under our current laws) is to stay that way.

In public life, admitting to smoking marijuana used to be an automatic disqualification for a candidate for just about any office.  Now, it is not.  Politicians are given a free pass on the issue; "When I was young and irresponsible... in college... I smoked some pot" does not disqualify anyone anymore from any office.  What I keep waiting for some intrepid reporter to ask one of these public figures is: "Do you think you would be where you are today if you had gotten busted for your marijuana use back then?" It's all about not getting caught, in other words.  If you smoked pot in a frat house and never got busted, that is one thing.  If you did get nabbed, well, sorry, but nobody's going to vote for you. How twisted is the logic behind that?  Politicians who skated by when they were young now approve a crackdown on the very same things they used to do (but escaped punishment for).  The stench of hypocrisy is impossible to avoid.

May 1, 2012 in Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (12) | TrackBack

Yale Law Journal sponsoring prisoner writing contest

YaleA helpful reader altered me to the interesting news that the Yale Law Journal is now, as detailed on this webpage, welcoming submissions for its first Prison Law Writing Contest.  Here are some of the details:

If you are or recently have been in jail or prison, we invite you to write a short essay about your experiences with the law.  The three top submissions will win cash prizes, and we hope to publish the best work....

The Contest offers people in prison the chance to share their stories with people who shape the law and to explain how the law affects their lives.  Where permitted by state law, the authors of the winning essays will receive prizes: $250 for first place, $100 for second place, and $50 for third place.

Here are just some of the interesting topics concerning which the Yale Law Journal seeks submissions:

Here are the basic rules: "You may submit an essay if you have been an inmate in a prison or jail at any point from January 1, 2010 through September 30, 2012. We welcome essays of about 1000-5000 words, or roughly 4-20 pages."

Kudos to the students at Yale for running this interesting writing contest. I hope they will consider reporting on the number of submissions they receive and consider making many of them widely available for public consumption (at least on-line).

May 1, 2012 in Prisons and prisoners, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, April 30, 2012

Remarkable new trial order in remarkable federal prosecution over house cleaner

A helpful reader altered me to a remarkable 50-page order issued last week by Judge Douglas Woodlock in US v. Henderson, No. 09-10028 (D. Mass. Apr. 25, 2012) (available here). The underlying case seems drawn from a Kafka novel, though Judge Woodlock references other authors (ranging from Emerson to Macaulay to Shakespeare to Thucydides) in the course of ordering a new trial. The full opinion merits a full read, and here is how it gets started:

In this criminal case the heedless, hapless, and negligent hypocrisy of the defendant confronts the stern, solemn, and implacable sanctimony of the government over a matter of household employment: the periodic engagement of a cleaning lady.

Now before me is the question whether a jury verdict supporting a felony conviction should stand in a case where an unmarried professional woman -- with supervisory responsibility for the government in enforcing immigration laws -- employed a person she came to learn was an illegal alien to clean her home from time to time and, when asked, advised the cleaning lady generally about immigration law practices and consequences.  The question is framed by the defendant’s renewed motion for a judgment of acquittal and, in the alternative, by her motion for a new trial.

The cleaning lady’s employment was not itself illegal under regulations promulgated by the Attorney General of the United States.  And the empathetic advice that the defendant gave her cleaning lady about immigration law practices -- induced from the defendant as part of the script contrived for an elaborate undercover investigation involving surreptitious electronic recordings into her relationship with the cleaning lady -- did not advise the cleaning lady to engage in fraud or commit some other crime.

Yet Customs and Border Protection administrative rules prohibit CBP personnel like the defendant from employing an illegal alien, sanctioning such conduct on a spectrum from a fourteen day suspension to removal.  And, more menacingly, a federal criminal statute carrying a five year maximum incarcerative sentence makes it a felony to “encourage or induce” an illegal alien “to reside” in this country.

The defendant's employment of an illegal alien as an intermittent cleaning lady in her home coupled with the immigration advice she gave her was considered sufficient by an earlier administration of the United States Attorney’s Office to mount this felony prosecution. The Office determined to exercise its considerable discretion, despite the fact that the parallel misdemeanor provision treats even more significant conduct as de minimis and consequently not meriting criminal sanction, to initiate this unusual prosecution under a felony statute designed to address conduct so serious that it provides a predicate for application of the blunderbuss Racketeering Influenced and Corrupt Organizations (“RICO”) statute...

I view the pursuit of this case to have been overkill through the improvident invocation of federal criminal felony process when alternative administrative sanctions more closely tailored to the significance of the misconduct are available and adequate.  And I am puzzled by the dogged consistency which causes this prosecution to continue.  However, my responsibilities at this point are limited to determining whether the federal criminal law can permit such a prosecution and, if so, how a fair trial of such a prosecution may be managed.

After careful and extended review of the serious felony criminal statute the government invokes, I must conclude -- under principles of statutory construction applicable to criminal provisions -- that the government has the power to pursue such a prosecution.  However, I also must conclude -- in light of case law developing in the federal appellate courts while I have had this matter under advisement -- that my instructions to the jury as to the elements of the crime were inadequate, and that a new trial is warranted in which appropriate jury instructions fashioned in response to recent developments in the case law will be delivered.

I suppose we all should be pleased to learn that federal criminal offending is so rare in Massachusetts that the federal prosecutors have ample time to go after folks for mistakes they make in hiring someone to clean their townhouse every few weeks.  But given my sense that federal tax dollars could and should be put to more pressing matters, I cannot take much pleasure in learning just what some folks in Boston decided should be made a federal felony case.

April 30, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"High court should hear Rubashkin to consider overzealous DOJ and judge who was essentially on prosecution team"

The title of this post is drawn from the subheading of this new commentary in the National Law Journal by Alan Dershowitz and Ronald Rotunda, which carries a main headline of "Prosecutorial and judicial misconduct."  Regular readers are likely familiar with the Rubashkin case because I have blogged a lot about its sentencing elements.  (As reported here, with the help of the Washington Legal Foundation (WLF), last year I filed an amicus brief on sentencing issues when this case was before the Eighth Circuit; as I will discuss in some future posts, I have lately been working up an amicus brief urge SCOTUS to take up the case to resolve splits over reasonableness review in the circuits.) 

Here are excerpts from the Dershowitz and Rotunda commentary:

Lawyers for Sholom Rubashkin — Paul Clement and Nathan Lewin — filed last month a petition for writ of certiorari with the U.S. Supreme Court. Rubashkin is seeking relief from the Supreme Court because the U.S. Court of Appeals for the Eighth Circuit refused to consider evidence that Rubashkin first discovered after the trial that made the trial fundamentally unfair.

Indeed, during the past few years, a series of federal judges have criticized the U.S. Department of Justice for prosecutorial misconduct. Judge Emmet Sullivan of D.C. district court, who ordered a criminal investigation into the actions of prosecutors in the trial of former Alaska Senator Ted Stevens, suggested that the case reflected deeper problems at the Justice Department. Chief Judge Mark Wolf of the District of Massachusetts found that he regularly presided over cases where federal prosecutors withheld important evidence, about every other year for the past two decades.

It's happened again, but this time the judge herself is part of the problem rather than part of the solution.  When Agriprocessors, an Iowa kosher processing plant, learned that the Immigration and Customs Enforcement Agency (ICE) was concerned about its hiring practices and planned a raid, it hired a law firm to contact ICE and offered to cooperate with the authorities in terminating undocumented workers. ICE did not reply. Instead, on May 12, 2008, it launched a highly publicized raid, with about 600 agents in riot gear, accompanied by a Blackhawk helicopter. Agents arrested 389 workers. Five months later, the government arrested the plant's manager, Sholom Rubashkin, on charges of harboring illegal immigrants, but ICE's case had problems. For example, it turned out that an undercover ICE agent had twice tried to secure employment at this plant, but he was turned away because he did not have the proper papers. It would not do to have such a dramatic raid and nothing to show for it. The Justice Department filed seven superseding indictments charging bank fraud. The indictments included a creative theory — that Rubashkin falsely certified to the bank that Agriprocessors was complying with all the laws even though it was employing undocumented aliens. The federal jury did convict on the bank fraud charges, and the federal government dropped all immigration charges....

Federal prosecutors recommended life imprisonment. After widespread criticism of such a harsh sentence by many people (including six former U.S. attorneys general), the government asked for a 25-year sentence. Judge Linda Reade, the trial judge, imposed 27 years instead.

But Reade did more than impose a disproportionate sentence. After Rubashkin's conviction and sentence, defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid. E-mails and affidavits showed that, long before the raid occurred, Reade met with ICE agents to discuss "charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related" to the investigation and operation. At one meeting, which law-enforcement personnel attended at the judge's request, the judge stated that she was "willing to support the operation in any way possible, to include staffing and scheduling." She was essentially part of the prosecution team....

The judge and the prosecutors should have notified Rubashkin's lawyers that she had participated in planning the raid so that they could move to recuse her. Failure to do so was prosecutorial and judicial misconduct.

Related posts on the Rubashkin case:

April 30, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Florida cases support(?) DOJ's expressed concerns about white-collar sentencing disparities

In a speech last month (reported here), AAG Lanny Breuer continued the Justice Department's tendency to lament what it sees as growing post-Booker sentencing disparities, especially in white-collar sentencing. Specifically, in this speech, Breuer complained that "with increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently."  Assuming DOJ is keeping a file with examples of this disparity, this new sentencing story from Florida, headlined "Marian Morgan sentenced to 35 years in prison," provides seemingly strong support for these concerns.   Here is how the local story gets started:

Convicted in September for running a multimillion-dollar Ponzi scheme from her Sarasota mansion, Marian Morgan on Friday was sentenced to 35 years in federal prison.

That's more than twice as long as the sentences for two other notorious Sarasota-based fraud perpetrators — Arthur Nadel and Beau Diamond — even though Morgan's scheme involved fewer victims and less money overall....

Defense attorney Todd Foster argued that Morgan, 57, would be unlikely to turn to crime again if released after 15 to 20 years.  The judge countered that recidivism would not be an issue because of the length of the sentence.

A federal pre-sentencing report recommended Morgan's prison time be based on the size of the fraud; the number of victims; and the sophistication of the crime, among other criteria.  Morgan and her husband, John, stole roughly $28 million from 87 victims, prosecutors said during trial.

Of course, what looks on the surface to be an ugly example of so-called sentencing disparity might upon closer examination really turn out to be more of an ugly example of the so-called trial penalty.  Consider these additional details:

Morgan and her husband were indicted last summer on 22 felony counts that included wire and mail fraud, money laundering and conspiracy. Their Ponzi scheme came to light shortly after two others that were also hatched in Sarasota — Nadel's Scoop Management and Beau Diamond's Diamond Ventures scams.

Diamond was convicted at trial of stealing more money than the Morgans and from more investors.  He is currently serving a 15-year sentence in federal prison in Miami. Nadel robbed more than 400 investors of $162 million, prosecutors determined. Instead of going to trial, Nadel plead guilty to 15 felony fraud counts and was sentenced to 14 years in prison in October 2010.  He died earlier this month in North Carolina at age 79.

In contrast to his wife, John Morgan received a 10-year sentence after pleading guilty to a pair of felony counts. He also agreed to co-operate with prosecutors — which included providing information against his wife....

Marian Morgan, who as managing director of Morgan European Holdings had the most interaction with investors, was defiant to the end. She turned down a plea deal last fall that would have limited her sentence to 18 years, choosing instead to go to trial....

[Morgan's] victims were lured by the promise of monthly double digit returns, with payoffs as short as three months in some cases.  Instead, investors received only frequent emails from Marian Morgan, which promised payments were to arrive soon.  She also offered detailed explanations concerning delays, and later in the scheme threatened that investors would never see their principal again if they contacted authorities....

Morgan plans to appeal her sentence through Tampa defense attorney Barry Cohen. Long and other victims have alleged the money to pay both Cohen and Foster may have come from investors in the Ponzi scheme.  Morgan will likely be imprisoned well into her eighties, even with time already served in Pinellas and time off for good behavior.

Based on this article, it would seem that the "going rate" at sentencing for a significant Ponzi scheme in south Florida is somewhere around 15-years in federal prison.  With this number in mind, the 10-year prison term given to the cooperating Mr. Morgan seems roughly in line with local norms with a five-year discount for cooperation.  And the plea offer capping Ms. Morgan's sentencing exposure at 18 years coming from the feds also seems reasonable under the circumstances.

And yet Ms. Morgan gets with a 35-year prison term (and I suspect that the recommended guidelines range may have been even higher).  If DOJ is truly concerned about unwarranted sentencing disparity in financial fraud cases — rather than, as I fear, really just concerned about the post-Booker potential for unwarranted sentencing leniency or about some defendants who have the temerity to exercise their trial rights not having to pay an extra heavy sentencing price — then federal prosecutors ought to consider supporting Ms. Morgan's sentencing appeal to the Eleventh Circuit.  But I would bet a whole lot of money that on appeal federal prosecutors will defend this extremely long white-collar sentence as reasonable even though it surely does appear out of line with the sentences given to similar defendants convicted of similar crimes.

April 30, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Do capital repeal and three-strikes reform initiatives help or hurt each other in California?

As noted in this prior post, it became official last week that Californians will get a chance to vote this fall on a ballot initiative to repeal the state's death penalty.  In addition, as reported in this effective press story from late last week headlined "Three Strikes Law initiative likely to qualify for Nov. ballot," it also now appears that voters at the same time will have a chance to reform the state's (in)famously harsh three-strikes sentencing law. Here are the basics on that front:

An initiative written by Stanford University professors to scale back California's tough Three Strikes Law has garnered more than 830,000 signatures of support, virtually ensuring the measure will make the November ballot and triggering the state's latest struggle over how harshly criminals should be treated.

California is the only one of the 26 states with three strikes laws to allow prosecutors to charge any felony as a third strike -- and then to lock up the offenders for 25 years to life. The proposed initiative would reserve that penalty for the baddest of the bad, including murderers, rapists and child molesters.

Supporters turned in more than 830,000 signatures to state election officials Thursday -- 504,760 more than needed. They also announced the endorsement of Los Angeles County District Attorney Steve Cooley -- a Republican -- marking a crucial step toward a bipartisan coalition.

"The Three Strikes Reform Act is right for California," Cooley said. "It will ensure the punishment fits the crime. Dangerous recidivist criminals will remain behind bars for life, and our overflowing prisons will not be clogged with inmates who pose no risk to public safety."

Under the existing Three Strikes sentencing scheme, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom have been sentenced to life in prison.

Cooley's support is particularly notable because he has taken a conservative position on two other criminal-justice controversies in California. He opposes a November ballot measure that would scrap the death penalty and has sharply criticized the Legislature's massive "realignment" program, which started in October to relieve prison overcrowding, for effectively reducing the amount of time low-level offenders spend behind bars.

But Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders, said prosecutors like Cooley should have more discretion over how to charge anyone with two strikes on their record who commits another felony, no matter how minor. "It's easy if you live in Palo Alto, where Stanford is and where it's safe, to be for this," Reynolds said. "The only question voters need to answer is which of these offenders with at least two serious or violent convictions on their record would you like to have living next door to you? And if you wouldn't want them next door to you, why would you put them next to any California family?"...

The new measure would allow only certain hard-core criminals to be put away for life for any felony offense, including shoplifting, while restricting the third strike to a serious or violent felony for everyone else.  It also does not include changing the rules for second-strikers, which currently call for sentences to be doubled in many cases, even if the second offense is not serious or violent.  Although an effort to alter the law in 2004 required third-strikers whose last offense was nonviolent and nonserious to be resentenced, the new initiative would allow only third-strikers to ask the courts to resentence them.

District attorneys in the Bay Area are expected to support the initiative, though several were noncommittal about it Thursday.  A spokeswoman for Alameda County District Attorney Nancy O'Malley said she doesn't take a position on pending initiatives. Steve Wagstaffe, San Mateo's top prosecutor, said he would "not be bothered if it won" because it already is extremely rare for his office to seek life sentences for people who commit nonviolent or nonserious offenses, with the exception of sex crimes.

Santa Clara County District Attorney Jeff Rosen said he'll make a final decision after a meeting in June of the California District Attorneys Association.  "I believe the Three Strikes Law should be reformed," Rosen said through a spokesman.  "The Stanford initiative contains some good ideas."...

Advocates predict the savings will prove persuasive, particularly with critical swing voters, though they also plan to frame the campaign in terms of public safety and fairness.  A previous measure in 2004 failed by about 3 percentage points after a last-minute media blitz by then-Oakland Mayor Jerry Brown, then-Gov. Arnold Schwarzenegger and former Gov. Pete Wilson. Brown has declined to comment on the current effort.

Opposition to the new measure is expected to come largely from the Central Valley and parts of Southern California.  The previous measure, Proposition 66, sought to limit felonies that trigger a third strike to violent or serious crimes in every case.

This latest effort to reform California's three-strikes law via inititative is fascinating and worth watching closely in its own right.   But the fact that this reform effort will appear on the ballot (and likely get less attention both nationwide and within California) at the same time as an inititative to repeal yhe state's death penalty adds an extra important (and distorting?) element to the public discourse. 

I can readily imagine some (many? most?) criminal justice reform advocates urging a "yes" vote on both the death penalty repeal and the three-strike reform initiatives. For example, this recent editorial from the San Francisco Examiner, headlined "Time to end the death penalty, reform three-strikes law," wastes little time getting on record support for both initiatives. 

But, as the report above highlights, there is reason to expect some (many? most?) California prosecutors will be fine with the three-strikes reform initiative but will oppose repeal of the death penalty.  In addition, I would not be surprised if some hard-core death penalty abolitionists will express no more than luke-warm support for three-strikes reform if (when?) any polling data suggest that voters may be likely to vote for only one and not both of these sentencing reform proposals.

For a whole bunch of reasons, I do not think these distinct California reform initiative should necessarily stand or fall together.  And yet, I will not be surprised if they do, and I also cannot figure out if this reality makes me extra excited or extra concerned about crime and punishment debates in California over the next sixth months. 

April 30, 2012 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS grants cert to consider Padilla's retroactivity

Hard-core criminal procedure fans have to be giddy this morning based on the news in this Supreme Court order list: the Justices have granted cert in Chaidez v. US concerning whether the decision in Padilla applies retroactively to persons whose convictions became final before its announcement.  This is not a huge surprise, in part because the SG's office had urged SCOTUS to grant cert on this issue.

SCOTUSblog has this helpful case page on the Chaidez case.  I suspect and expect this case will end up generating lots of intriguing amicus briefing on both sides, in large part because Chaidez has the potential to be the most significant Teague retroactivity ruling in many years.

April 30, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Maryland's distinctive (and mysterious) approach to sentencing review

A recent high-profile and sad drunk-driving case has brought new attention to a low-profile and distinctive aspect of Maryland's sentencing system.  This recent local article, headlined "'Endless' sentencing hearings in Maryland take toll on victims, families," discusses the cases and surrounding proceedings that have generated significant attention in the Old Line State:

In January, Carolyn Hoover sat in a packed Montgomery County courtroom to watch a judge sentence the young man who drunkenly crashed his car into a telephone pole and trees, killing her son and two others.

Less than four months later, her family was back in court for another sentencing hearing, and a three-judge panel cut 21-year-old Kevin Coffay's prison term from 20 years to eight.

"I felt sick inside," said Hoover, whose 20-year-old son, John, was killed. All involved in the crash attended Magruder High School or were recent graduates. "Every time we have to go to another hearing, it sets us back months."

The case has raised questions about an unusual and little-known Maryland law that lets defendants ask for a new sentence from a three-judge panel, even if there was nothing illegal about their original punishment. The result can be an agonizing process for victims and their families, who are often taken by surprise and must endure numerous court dates yet never feel like a case has reached its end....

It's difficult to tell how often panels review sentences and reduce them. David Soule, executive director of the Maryland State Commission on Criminal Sentencing Policy, said the commission does not keep data on sentencing review panels. A Maryland courts spokeswoman and local state's attorney's offices also could not provide that data.

In addition to the panels, defendants can also ask their sentencing judge to reconsider a sentence. It's routine for defendants to request a new sentence through at least one of those avenues, said Seth Zucker, spokesman for the Montgomery County State's Attorney's Office.

Most requests for sentencing panels are denied without a hearing and the sentences remain unchanged, said Byron Warnken, a Maryland lawyer who specializes in post-conviction work. But when a hearing is granted, the sentence is reduced about three-quarters of the time, he estimated.

The three-judge panels are most likely to reduce lengthy sentences, Warnken said. "They can throw you a bone without letting you walk away from prison," he said....

Combined with parole and other appeals, prosecutors and victims advocates say, there's often no end in sight. "Our concern here is the virtually endless review process for even legal sentences," Zucker said.

Hoover said the process has made it nearly impossible to move forward after her son's death. "I would rather have had a lighter sentence to begin with and not go through what we had to go through," she said.

This companion article, headlined "Panels created to quell controversy," provides this brief backstory concerning Maryland's sentence review panels:

The sentencing review panels now under fire in Maryland due to a recent drunken-driving case in Montgomery County were created in hopes of quelling controversy over sentences.

A law creating the three-judge panels was enacted after a 1965 report on criminal sentences in the state found "alarmingly disparate" penalties, according to Maryland Court of Appeals opinions that address the act and its history.

I tend to be a strong proponent of strong mechanisms for appellate review of sentencing decisions by individual judges, and thus I am very drawn to the structure of Maryland's means for reviewing sentences. But such a review system ought to bring greater regularity and transparency to the sentencing process, and yet this article suggested Maryland's practice seems wrapped in irregularity and uncertainty.

April 30, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, April 29, 2012

"Debate rages over severity of child-porn sentences"

The AP has this lengthy new piece, sharing the headline of this post, on what is now a fairly old story: federal judges and others highlighting that the guideline sentences for child porn downloaders seem often unduly harsh.  I am not aware of any major new developments on this front, but these excerpts from the AP piece effectively review recent parts of this long-running debate over federal sentencing law and practices:

Their crimes are so loathsome that some hardened courtroom veterans recoil at viewing the evidence.  Yet child-pornography offenders are now the focus of an intense debate within the legal community as to whether the federal sentences they face have become, in many cases, too severe.

By the end of this year, after a review dating to 2009, the U.S. Sentencing Commission plans to release a report that's likely to propose changes to the sentencing guidelines that it oversees.  It's a daunting task, given the polarized viewpoints that the commission is weighing.  The issue "is highly charged, both emotionally and politically," said one of the six commissioners, U.S. District Judge Beryl Howell.

On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child.  In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high.  Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes.

On the other hand, some prosecutors and members of Congress, as well as advocates for sexual-abuse victims, oppose any push for more leniency.  At a public hearing in February, the Sentencing Commission received a victim's statement lamenting that child pornography offenders "are being entertained by my shame and pain."...

Once completed, the Sentencing Commission report will be submitted to Congress, which could shelve it or incorporate its recommendations into new legislation.  Already, the commission has conveyed some concerns.  In a 2010 report on mandatory minimum sentences, the commission said the penalties for certain child pornography offenses "may be excessively severe and as a result are being applied inconsistently."

However, similar misgivings voiced by the commission in previous years failed to deter Congress from repeatedly ratcheting up the penalties - including legislation in 2003 that more than doubled average sentences for child pornography crimes....

In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former federal prosecutor Linda Dale Hoffa criticized the approach by Congress.  "The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote.  "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders."...

As a backdrop to the sentencing debate, Internet-based child pornography has proliferated, and the crime is an increasingly high priority for federal law enforcement agents.  According to the Justice Department, federal prosecutors obtained at least 2,713 indictments for sexual exploitation of minors in 2011, up from 1,901 in 2006....

There's one point of agreement in the sentencing debate: All parties agree that penalties should remain severe -- or be toughened -- for those who produce and promote child pornography.  A key point of contention, by contrast, is the degree to which offenders charged with receipt and possession of child porn pose a risk of physically abusing children themselves, as opposed to looking at images of abuse....

Susan Howley, public policy director for the National Center for Victims of Crime, has been urging those involved in the debate to keep the victims in mind.  She says they face higher risk of developing mental health disorders, sexual dysfunction and substance abuse problems. "While sentencing does not appear to be the perfect tool to reduce the market for child abuse images, it is one of the few tools available," Howley told the public hearing in February. "Through sentencing we express to society, and to the individual victims and family members harmed, that we recognize the seriousness of this offense."

A few related older and more recent child porn prosecution and sentencing posts:

April 29, 2012 in Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Open thread for reflections the 20-year anniversary of the LA "acquittal" riots

NA-BQ529_LARIOT_G_20120427171803I can hardly believe it has already been two decades since the sad and stunning multi-day riots in Los Angeles, which followed the (surprising?) acquittal by an all-white state jury of four white LA police officers who were videotaped severely beating Rodney King following a traffic stop.  There were so many elements to the role of race and media and criminal justice surrounding the Rodeny King events, and sentencing fans also know that the subsequent federal prosecution of the officers involved in the videotaped beating led to Koon v. United States, the most important and consequential Supreme Court ruling about the operation of the federal sentencing guidelines in the period post-Mistretta and pre-Booker.

I suspect many readers of this blog remember many (different) aspects of all the Rodney King events, and I welcome reflections of all sorts on this 20th anniversary of the most violent and remarkable moment in what was ultimately a multi-year saga.  Ever the sentencing nerd, and because the SCOTUS ruling in Koon was the focal point of much of my pre-Booker scholarly writing about the federal sentencing system, I am tempted to opine at length about what the Supreme Court did right and did wrong in Koon.  But readers really interested in that part of the story can and should just check out my (still timely?) article on this topic, Balanced and Purposeful Departures: Fixing A Jurisprudence That Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).

Rather than focus on federal sentencing (and its enduring challenges), perhaps here it is worthwhile to recall Rodney King's famous quote when asked to comment about the riots and the seemingly positive subsequent tales of race relations in LA.   King famously asked back in 1992, “Can we all get along? . . . I mean, we're all stuck here for a while. Let's try to work it out.”  And this Wall Street Journal article, headlined "Twenty Years Later, L.A.'s Divisions Fade: Attitudes Toward Police and Race Relations Have Turned Positive Since Devastating Riots; Economy Is Big Concern Now," suggests we now have a decent answer to this query.

April 29, 2012 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, April 27, 2012

Local program to enable low-level offenders (messy) community service alternative to jail

Road killThe only thing I may more than a positive "win-win" sentencing story is a positive and amusing sentencing story on a Friday afternoon which readily fosters posting entertaining pictures and links and which might encourage some (punny) reader comments all weekend long.  Thus, I was giddy to come across this new local story out of Michigan, headlined "Sheriff: Sentencing criminals to roadkill cleanup will save Ingham County money." Here are the basics:

Ingham County Sheriff Gene Wriggelsworth said his agency's new program putting non-violent offenders to work as roadkill cleanup crews will save taxpayer dollars.

The Dead Animal Recovery Team, or DART, will allow judges to sentence non-violent offenders to cleanup duty as opposed to probation, jail time and other sentences. Wriggelsworth said the new program will save Ingham County $40 a day for each criminal sentenced to DART as opposed to jail time.

"That's the whole point," Wriggelsworth said. "The benefit will be cleaner streets clearly, but also the fact that we've got people that could have been sentenced to jail working for the community. It's a win-win."

The Ingham County Sheriff's Office has been developing DART for the past several months, Wriggelsworth said. His inspiration came from the Saginaw County Sheriff's Office where a similar program is employed. The Sheriff's Office purchased a trailer and equipment such as shovels for DART, at no cost to taxpayers. Wriggelsworth said everything was paid for through inmate booking fee funds.

A volunteer deputy will supervise DART offenders as they work, Wriggelsworth added. "Basically, the only cost to taxpayers is going to be the gas," he said.

DART will remove smaller animals from Ingham County's roadways, such as racoons and possums, according to Wriggelsworth. That service is currently nonexistent throughout the county as the Road Commission only removes larger animals. "The smaller animals are just smushed into oblivion," Wriggelsworth said. "I believe there is a need for (DART)."

Ingham District judges Thomas Boyd and Donald Allen both are supportive of DART and the sentencing alternatives it will provide them. Wriggelsworth emphasized that those sentenced to DART work will only be low-court offenders. "We're not going to put murderers or rapists out there," he said.

I hope readers are amused not only by this alternative sentencing story, but also by the picture uploaded with this post which comes from product line at Roadkill Toys. (Pictured here is Twitch, a flattened raccoon.  Checking out some alternative images that might have been posted with this story is not recommended during the lunch hour.)

I think it would be extra cool if Sheriff Gene Wriggelsworth — great name in this context, by the way — would make a habit of rewarding offenders who do especially good work as part of the DART team with one of the "squash-plush toys" sold by the creative folks at Roadkill Toys.  As the website explains, in addition to Twitch there is Grind (a rabbit), Splodge (a hedgehog), Pop (a weasel) and Smudge (a squirrel), and it is important for folks to "get your squash-plush toys before the maggots set in."

April 27, 2012 in Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences? | Permalink | Comments (7) | TrackBack

Notable discussion in Washington (state) over ending pot prohibition

This local press article, headlined "Initiative to regulate, tax marijuana stirs lively discussion at forum," provides a greater reminder that there is a robust debate over marijuana laws in Washington (state, that is).  Here are excerpts from an effective article which highlights why The Evergreen State joins Colorado as states to watch concerning pot policy in 2012:

If there's one thing that brings people together, it's this: Marijuana regulation is a mess. But the granular details about how to fix it divided a panel of law-enforcement and public-health experts convened Thursday night to debate Initiative 502, a landmark proposal to regulate and tax marijuana like liquor that is on the November ballot.

John McKay, who filed the initiative after witnessing the "complete failure" of marijuana prohibition as the U.S. Attorney in Seattle for six years, said legalization was a "simple solution."

"If it's a failure, does that mean we need to try something new?" asked McKay.  "There's millions of dollars in marijuana produced out there, but it's all going to cartels, it's going to gangs.  The change should be to bring legal business in, and grow it legally."

The state estimates that I-502, the first marijuana initiative on the ballot since voters authorized medical cannabis in 1998, would raise $560 million a year via state-licensed marijuana grow farms and retail stores. If passed, it would be the nation's most radical change in marijuana law in generations.

But Pat Slack, commander of the Snohomish County Regional Drug Task Force, scoffed at McKay's core argument, that heavily taxed marijuana would end the black market.  "You will open a black market where you can sell this product for cheaper than what the government is selling," he said.

The debate, at Mukilteo City Hall, is part of a series of forums kicking off the nationally watched campaign.  I-502 would decriminalize possession of 1 ounce of marijuana, and legalize and heavily tax sales from newly created, state-licensed marijuana stores, with the state Liquor Control Board setting regulations by December, 2013.  Colorado is the only other state with marijuana legalization on its November ballot.

I-502's supporters include another former U.S. Attorney, a retired FBI supervisor, several judges, public-health officials, a drug researcher, the King County Labor Council, the state Democratic Party, as well as Seattle's mayor, city attorney and entire City Council....

But law-enforcement groups and medical-marijuana patients have lined up against I-502, for very different reasons. Police, including Slack, say it is a gateway to greater marijuana acceptance, especially among youth.  Patients fear a new driving-while-stoned threshold in I-502 would effectively prevent them from legally driving.  A strong contingent of them watched the debate, peppering McKay and another supporter, University of Washington marijuana researcher Roger Roffman, with questions....

A Gallup Poll in October found nationwide support for legalizing marijuana was above 50 percent for the first time in the 42 years since Gallup started asking the question. In Washington, a poll in November on I-502's specific approach found 57 percent support.... If passed, the state Office of Financial Management estimates that at least 363,000 customers would buy at least 93.5 tons of marijuana, each year....

About 10,000 people are arrested for marijuana possession each year, although not all are prosecuted. When the debate panel struggled, in response to a question from the audience, to explain why marijuana was classified along with PCP and methamphetamine, McKay paused.  "It's interesting that we can't articulate why," he said. "I think most people know in their experience that it is ludicrous."

Some recent and older related posts: 

April 27, 2012 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

"Prosecutors and Bargaining in Weak Cases: A Comparative View"

The title of this post is the title of this interesting new piece available via SSRN authored by Professor Jenia Iontcheva Turner.   Here is the abstract:

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt.  When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise.  First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine how three major legal systems -- those of the United States, Germany, and Japan -- approach these potential problems.  To do so, I discuss how prosecutors in these systems would resolve a hypothetical criminal case involving weak evidence.  I have chosen to compare the United States, Germany, and Japan because of their distinct approaches to both plea bargaining and prosecutorial discretion.  In the United States, prosecutors have largely unfettered discretion in both charging and plea bargaining.  Germany allows a form of sentence bargaining that involves both the prosecutor and the judge, but sharply limits prosecutorial discretion with respect to charging and prohibits charge and fact bargaining.  Japan does not allow any explicit bargaining, but gives prosecutors broad discretion to refrain from filing charges.

After describing the relevant differences in the prosecutors’ role in these countries, I raise several questions about the proper approach for prosecutors in evidentially weak cases. While none of the systems I discuss has a perfect solution to the problem of factually weak cases, the comparison may encourage us to rethink three key features of American-style plea bargaining: our practice of aggressive charge bargaining, particularly in cases where the evidence is weak; the lack of limits on plea discounts; and the limited external and internal review of prosecutorial charge bargaining decisions.

April 27, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Thursday, April 26, 2012

Another Judge Breyer tapped to serve on US Sentencing Commission

Judge_Charles_R__Breyer_colA helpful reader altered me to this official announcement from the White House reporting on nominations made yesterday by President Obama, which includes a notable nominee to the US Sentencing Commission: "Charles R. Breyer, of California, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2015, vice Ruben Castillo, term expired."  This Wikipedia entry on Judge Breyer provides some background on some of the criminal law background of this nominee:

Born in San Francisco, California, Breyer received an A.B. from Harvard College in 1963 and a J.D. from the University of California, Berkeley, Boalt Hall School of Law in 1966.  He was a law clerk to Oliver Carter of the U.S. District Court for the Northern District of California from 1966 to 1967.  He was a Counsel, Legal Aid Society of San Francisco, California in 1967, and was then an assistant district attorney for the City & County of San Francisco, California from 1967 to 1973.

Breyer was an assistant special prosecutor on the Watergate Special Prosecution Force from 1973 to 1974, and then entered private practice in San Francisco, California from 1974 to 1979 to 1997, interrupted by a brief stint as chief assistant district attorney of the City and County of San Francisco, California in 1979.

On July 24, 1997, Breyer was nominated by President Bill Clinton to a seat on the United States District Court for the Northern District of California vacated by D. Lowell Jensen. He was confirmed by the United States Senate on November 8, 1997, and received his commission on November 12, 1997 [and he assumed senior status on December 31, 2011]....

Breyer is the brother of U.S. Supreme Court Justice Stephen Breyer.

Students of federal sentencing know that Justice Stephen Breyer has had a hand in nearly ever major reform and development over the last 30 years, including a stint on the original USSC which write the first version of the federal sentencing guidelines.  It will be interesting to see if and how Judge Charles Breyer places his own imprint on federal sentencing reforms if and when he is confirmed to this position.

The USSC has been forced to operate with an open seat for well over a year now, seemingly only because the Obama Adminstration for some reason could not get around to making a nomination for a seat that has been open since 2010.  Though I do not expect swift action, especially in this election year, I sure hope that Senate will move quickly on this nomination and finally return the USSC to full strength ASAP.

April 26, 2012 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

State judge oreders Kentucky to consider one-drug protocol for lethal injections

For no obvious reason, today seems like it is full of lethal injection news in the states.  This lengthy AP story explains the notable news from Kentucky, under the headline "Judge: Ky. must consider single drug executions."  Here are excerpts:

Kentucky must either switch to a single drug to perform executions within 90 days or prepare to go to trial on the claims of death row inmates challenging the state's three-drug method of carrying out capital punishment, a judge ruled Wednesday.

In a long-awaited order, Franklin Circuit Judge Phillip Shepherd wrote that the state's three-drug method may no longer be necessary now that other states have successfully used a single drug to execute condemned inmates and shown that "well-established alternatives" exist for Kentucky.

The ruling comes about 20 months after Shepherd halted all executions in Kentucky. He imposed the ban after inmates challenged the three-drug method. Their lawsuit asked whether the state's rules for carrying out a lethal injection prohibited the use of a single drug and if there were adequate safeguards against executing a mentally ill inmate.

If Kentucky sticks with a three-drug method, Shepherd wrote, the challenge by the inmates will be allowed to go to trial. If Kentucky adopts a new regulation allowing for a one-drug execution, similar to what is done in Arizona, Ohio and other states, any claims of cruel and unusual punishment by the inmates "will be rendered moot."...

Shelley Catherine Johnson, a spokeswoman for the Kentucky Attorney General's Office, said the order is being reviewed and the Department of Corrections will be consulted in "the near future."

Kenton County Commonwealth's Attorney Rob Sanders, a death penalty proponent, said the state should heed Shepherd's ruling and go further. "I think it would be faster, less expensive, and prudent for Kentucky to adopt new administrative regulations that provide flexibility in selection of the drug or drugs used to carry out executions," Sanders told The Associated Press. "In fact, the process of adopting new regulations should have been started 20 months ago."

Dan Goyette, a Louisville public defender who represents death row inmate Gregory Lee Wilson, said Shepherd "thoroughly considered and addressed the issues" and reached a "well-reasoned, fair and responsible" conclusion. "I hope the Department of Corrections proceeds in a like manner in determining its course of action, and takes into account the recent report of the ABA Assessment Team on the administration of the death penalty in Kentucky," Goyette told The Associated Press.

Public defender David Barron, who represents several death row inmates, said the recent use of a single drug by other states shows that a single-drug execution is workable and doesn't violate the constitution's prohibition against cruel and unusual punishment....

The ruling does not require Kentucky to switch to a single drug for executions. Instead, Shepherd cited the language in the state's lethal injection statute allowing the Department of Corrections to use "a substance or combination of substances" in executing an inmate. Shepherd contrasted the wording the law with administrative regulations that allow only for a three-drug mixture to be used in executions. "The disjunctive language of this statute makes clear that the use of a single drug was not only contemplated by the legislature, but also expressly permitted," Shepherd wrote.

At the time the U.S. Supreme Court upheld Kentucky's three-drug method in 2007, Shepherd wrote, a one-drug method was still untested. That's no longer the case. "The Supreme Court clearly held that the constitutionality of the three-drug protocol under the Eighth Amendment is an issue that can only be decided in the context of available alternatives," Shepherd wrote. "It did not hold that the three-drug protocol was constitutional in all circumstances regardless of the available alternatives."

April 26, 2012 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, April 25, 2012

Connecticut governor signs death penalty repeal into law

As reported in this local article, "Gov. Dannel P. Malloy this afternoon signed the legislature's capital punishment repeal bill, abolishing the death penalty in Connecticut for all but the 11 inmates currently on death row." Here is more:

The legislation passed the state Senate earlier this month on a 20-16 vote, and later the House by a 86 to 62 vote. In place of execution, egregious offenders convicted of "murder with special circumstance" will now face life imprisonment without parole under conditions similar to today's death row.

Malloy's office said he signed the bill in a low-key ceremony with several family members of murder victims. "Although it is an historic moment – Connecticut joins 16 other states and the rest of the industrialized world by taking this action – it is a moment for sober reflection, not celebration," the governor said in a statement.

A Quinnipiac University poll released this morning found that 62 percent of Connecticut voters in general support the death penalty. However, the surveyed voters were evenly divided on the preferred punishment for a murderer, with 46 percent wanting the death penalty and 46 percent life wanting life imprisonment without parole.

During the House and Senate debate on the bill, opponents raised concerns that the 11 convicts on death row could use the exception-granting language in the repeal bill to get their death sentences commuted. But proponents expressed confidence that the court would respect the legislature's intent to keep the death penalty for those 11.

In his statement today, Malloy said his view on the death penalty "evolved" over time. "As a young man, I was a death penalty supporter," the governor said. "Then I spent years as a prosecutor and pursued dangerous felons in court, including murderers. In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect."

Governor Malloy's full statement concerning his signing of this repeal bill is available at this link, and it ends with this sentence:  "As our state moves beyond this divisive debate, I hope we can all redouble our efforts and common work to improve the fairness and integrity of our criminal justice system, and to minimize its fallibility."

April 25, 2012 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19) | TrackBack

Fascinating comments from Justice Alito about "most academic" Supreme Court

Thanks to a link from How Appealing, I saw this press release from Columbia Law School titled "U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court." As the title hints, there is much of interest in what Justice Alito had to say at Columbia Law School’s conference on Burkean Constitutionalism.  And I found these passages from the press release especially noteworthy:

In his lunchtime speech, Alito wrested Burke’s legacy from the realm of theory. “He was not a theorist, and I am not a theorist,” Alito said, before distinguishing himself from other members of the current Supreme Court.  “I feel almost outnumbered,” he said, noting that the Court has four former professors.  “The Supreme Court these days is the most academic in the history of the country.  We’re at a tipping point where we might tip into the purely theoretical realm.”...

For Alito, the virtue of Burke is stability: If judges are bound to respect prior decisions, he said, they’re less likely to risk the unintended consequences of “ill-considered judicial innovations.”

Sticking to established rules, Alito said, is good policy for judges who make decisions under isolated conditions and with limited resources.  He noted that judicial decisions “are discrete exercises of individual judgment, so they are more prone to error or ideological manipulation."

I am inclinded to suspect that Justice Alito might be thinking particularly of Blakely and Booker when he talks about “ill-considered judicial innovations.”  I am also inclinded to wonder whether and how these comments provide a tea leaf of sorts concerning how Justice Alito is approaching all the blockbuster cases still pending on the SCOTUS docket this Term.

April 25, 2012 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, April 24, 2012

Musings on illegal immigration, federalism, and enforcement approaches

I have not yet given too much thought to the formal legal issues surrounding Wednesday's SCOTUS arguments concerning the legality of Arizona's controversial immigration law, SB 1070.  But I rather liked the themes of this CNN commentary on the topic by Tamar Jacoby, president of ImmigrationWorks USA, which is headlined "What if justices let states make immigration policy?".  Here are excerpts from the piece:

As recently as six years ago, it was conventional wisdom among lawyers, legislators and policy advocates that the states had no role in setting immigration policy.  Since then, there has been a federalist revolution of historic proportions.

One-third of the states now mandate that some employers enroll in the federal employment verification program, E-Verify.  Seven states require it of all but the smallest employers.  Five have enacted policing laws similar to Arizona's SB 1070 that allow local police to inquire about the immigration status of people they stop for other reasons who they suspect are in the country illegally.

No wonder the Supreme Court is weighing in, hearing arguments this week on the Justice Department's challenge to SB 1070.  Refereeing turf battles between Washington and the states is one of the court's first responsibilities.

But something is troubling.  The court is considering and will eventually rule on one very particular, polarizing state stratagem.  That doesn't come across as impartial refereeing. Whatever the outcome, it will feel like judges making policy -- either endorsing or outlawing police questions about immigration status.  If the justices are going to encourage federalism, I'd like to see them encourage it more evenhandedly, opening the way to a broader array of state initiatives, including those that go beyond enforcement....

The first waves [of state immigration laws] were all enforcement measures: voters and lawmakers trying anything to get control, first by regulating landlords, then limiting hiring, then using local police and even public school teachers to inquire about people's immigration status.  But recently, a handful of states have tried to go beyond enforcement.

Utah pioneered the new path.  Three-part legislation passed in spring 2011 combined an Arizona-like policing measure with a state-run guest worker program to bring in legal workers from Mexico, plus an initiative to grant work permits to unauthorized immigrants already living and working in Utah.  This year, lawmakers in five other states as different as Kansas, Oklahoma, New Mexico, Vermont and California floated similar worker authorization bills.  Legislators in many states express interest in guest worker programs. It's not just immigrant rights advocates who are driving the measures -- many are backed by surprising coalitions.

In some instances, business is engaged.  Even in the downturn, farmers, nonfarm seasonal employers and other industries that rely on physical labor need immigrants to do jobs for which there are few willing and able Americans.  In some states, the sponsors are pragmatic conservatives.  Republican state Sen. Curt Bramble of Utah is as eager as Arizona's enforcement-minded sheriffs to get control of illegal immigration.

But Bramble believes it will take a combination of enforcement and realism about the unauthorized population. "Most aren't going home," he says, "no matter what we do.  And the states are stuck with the costs.  We have to educate, medicate and incarcerate them. But we can't let them work.  It's the biggest unfunded mandate in history."...

The problem for Utah is that the Obama administration, determined to limit states' rights and keep the lid on state immigration enforcement, hasn't let the state implement any of its initiatives.  Unlike states pursuing enforcement alone, states seeking to combine enforcement with other measures can't simply take matters into their own hands.

A state-run guest worker program can't bring legal workers across the border without cooperation from federal authorities. And without permission from Washington, a state-run worker authorization initiative would leave employers and employees dangerously vulnerable to federal immigration enforcement.

The result is a dramatic asymmetry in the experiments in immigration policy being conducted in the laboratories of democracy. It's no accident that the Supreme Court, which many observers see as inclined to encourage state initiatives, is about to consider the merits of yet another enforcement measure....

As many state lawmakers are starting to grasp, the best antidote to illegal immigration is a legal immigration system that works.  Let them experiment -- as freely as possible.  Over time, their experimentation just may point the way for Congress.

April 24, 2012 in Offense Characteristics, Who Sentences? | Permalink | Comments (21) | TrackBack

Pot legalization efforts fail to qualify for 2012 ballot in California

As reported in this prior post, it became official yesterday that Californians will get a chance to vote this fall on a ballot initiative to repeal the state's death penalty.  But, as reported in this effective local story about other initiative news, headlined "Marijuana Legalization Efforts Fail in California, Thanks to Money and The Feds," these voters will not get another chance to consider marijuana legalization in the 2012 ballot booth.  Here is part of the backstory:

Few successful political movements count their finest hours a loss. Yet 2010 will remain the high water mark of the marijuana legalization movement for at least another two years -- or longer, if the federal situation worsens.

Buoyed by Oaksterdam University founder Richard Lee's cash and energy, Proposition 19 -- which would have legalized possession of up to an ounce of pot for adults 21 and over, and allowed cultivation of small gardens -- lost in November 2010. It garnered a historic 4.6 million votes, or 46.2 percent of ballots cast.  Following the loss, Lee declared on election night that legalization was inevitable, and that legalization would return in 2012 "stronger than ever" with a new ballot measure.

While Lee bowed out -- and the Prop. 19 redux committee instead focused on reforming medical marijuana -- the 2012 election cycle began with four competing legalization measures. But what was inevitable became official on Friday, when all committees missed the deadline to qualify their initiatives for the November ballot....

Of the failed efforts, one -- Regulate Marijuana Like Wine -- came closest, according to proponent Steve Kubby, a South Lake Tahoe-based activist.  That measure managed to collect about 200,000 signatures [of the 500,000 needed], Kubby said on Monday. Other efforts like Repeal Cannabis Prohibition, sponsored by a coterie of attorneys in Mendocino County and the Bay Area, waved the surrender flag much earlier.

So what killed the legalization movement? Money, mostly. In 2010, the federal government helped defeat Prop. 19: In the weeks before the election, Attorney General Eric Holder warned that if the measure passed, his Justice Department would "vigorously enforce" federal drug laws.  That had a cooling effect -- as did U.S. Attorney for Northern California Melinda Haag's shot sent across the bows of Oakland and other cities eager to cash in on legal weed.  Haag also said that Prop. 19's passage would mean lots of work for federal drug enforcement.

Nowadays in Bay Area marijuana circles, Haag is seen as somewhere between the bogeyman and evil incarnate for her office's participation in a statewide crackdown on the medical marijuana industry.  It's a near-certainty that the closures of hundreds of dispensaries across the state by the feds had some kind of effect -- which would have been moot in the face of money....

Meanwhile, Lee's influence has all been neutralized. Well before the federal government relieved him of his business, he abdicated his throne as the movement's de-facto leader. He'd spent his life savings -- about $1.5 million -- and an untold effort on Prop. 19.  It was someone else's turn, he later told reporters.  "The polling wasn't really positive," Lee said on a conference call with reporters last week.  "But what's really overwhelming right now is the federal issue."

Right.  Many marijuana supporters speculate that the crackdown will lessen once President Barack Obama is reelected in the fall.  And if he isn't?  Well, you may be able to wistfully tell your grandkids about the wonder that 2010 was.

Beyond providing another lesson in "follow the money," this story spotlights how unpredictable the movement to end pot prohibition is likely to be in the coming years.  After the (surprisingly?) close vote in 2010, I expected California to be the state to watch for growth in the legalization movement.  But, perhaps in part because of how close the vote was in 2010, a lot of forces impacted the script and now it appears that Colorado and Washington become the 2012 states to watch in the legalization effort. 

April 24, 2012 in Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5) | TrackBack

Notable new website on ""McCleskey v. Kemp: 25 Years Later"

I just tripped across this notable new website titled "McCleskey v. Kemp: 25 Years Later" which has lots of materials and advocacy related to the Supreme Court's most important ruling on race and capital punishment back in 1987.  Among lots of materials of note on the site is this link to the oral argument recording in McCleskey (and the recording is notable for how relatively "cold" the SCOTUS bench was back then). 

It is difficult to figure out exactly who is "running" this site, though the cite lists as "Site Partners" a long list of the most prominent public policy groups that have been working to abolish the death penalty.  In addition, the site seems to be maintained by someone who works for the Equal Justice Society.   Here are links to some of the recent new posts on the site:

April 24, 2012 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Unanimous SCOTUS ruling concerning procedures for habeas review in Wood

Habeas junkies (and probably only habeas junkies) will enjoy the Supreme Court's nuanced ruling today in Wood v. Milyard concerning how Court of Appeals may (and may not) handle state habeas actions.  The opinion for the Court, per Justice Ginsburg, gets started this way:

This case concerns the authority of a federal court to raise, on its own motion, a statute of limitations defense to a habeas corpus petition.  After state prisoner Patrick Wood filed a federal habeas corpus petition, the State twice informed the U.S. District Court that it “[would] not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition.” App. 70a; see id., at 87a.  Thereafter, the District Court rejected Wood’s claims on the merits.  On appeal, the Tenth Circuit directed the parties to briefthe question whether Wood’s federal petition was timely.  Post-briefing, the Court of Appeals affirmed the denial of Wood’s petition, but solely on the ground that it was untimely. 

Our precedent establishes that a court may consider astatute of limitations or other threshold bar the State failed to raise in answering a habeas petition.  Granberry v. Greer, 481 U.S. 129, 134 (1987) (exhaustion defense); Day v. McDonough, 547 U.S. 198, 202 (2006) (statute of limitations defense).  Does court discretion to take up timeliness hold when a State is aware of a limitations defense, and intelligently chooses not to rely on it in the court of first instance?  The answer Day instructs is “no”: A court is not at liberty, we have cautioned, to bypass,override, or excuse a State’s deliberate waiver of a limitations defense.  Id., at 202, 210, n. 11.  The Tenth Circuit, we accordingly hold, abused its discretion by resurrectingthe limitations issue instead of reviewing the District Court’s disposition on the merits of Wood’s claims.

Intriguingly, Justice Thomas (joined by Justice Scalia) concurs separately to contend that "the Day Court was wrong to hold that district courts may raise sua sponte forfeited statute of limitations defenses in habeas cases."  These Justices vote in favor of the habeas petitioner based on the view that the Court simply should "not extend Day’s reasoning to proceedings in the courts of appeals."

April 24, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, April 23, 2012

Any early predictions (or wagers) on likely outcome of California's DP-repeal ballot measure?

The question in the title of this post is prompted by this Reuters piece reporting on an official development in the initiative campaign to enable Californians to vote on repealing the state's death penalty.  Here are the basics:

California voters will decide in November whether to repeal the state's death penalty after activists collected the more than half a million signatures needed to put the measure on the ballot, the Secretary of State's office said on Monday.

The ballot initiative, which focuses on the high cost of the death penalty, would abolish capital punishment as the maximum sentence in murder convictions and replace it with life imprisonment.

The move was estimated to save the state money in the "high tens of millions of dollars annually," according to an estimate of the fiscal impact of the bill that is included in the text of the measure.

The 723 current inmates already on California's death row would have their sentences commuted. The state has carried out only 13 executions since the death penalty was reinstated in the United States in 1976....

The ballot measure was approved as a growing number of states question the use of the death penalty, and comes less than two weeks after Connecticut lawmakers voted to repeal the death penalty there.... Illinois, New Mexico and New Jersey all voted to abolish the death penalty in recent years, and New York's death penalty law was declared unconstitutional in 2004. Other state legislatures are considering bills to end the death penalty, and Oregon's governor has said he would halt all executions on his watch.

In addition to abolishing the death penalty, the California measure would also create a $100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases. It would also require convicted murderers to work in prison, and would apply their wages to any victim restitution fines or orders against them.

April 23, 2012 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (15) | TrackBack

Effective account of Ring's (limited) impact a decade later

The Lincoln Journal Star has this effective new article concerning the Supreme Court's Sixth Amendment ruling about capital sentencing procedures in Ring v. Arizona.  The piece is headlined "Death-penalty ruling still resonates 10 years later," and here are excerpts:

It has been nearly 10 years since the U.S. Supreme Court ruled in an Arizona case, prompting then-Gov. Mike Johanns to call Nebraska lawmakers into a special session to change how the state sentences people in capital cases.  But the verdict is still out on the overall effect of the case known as Ring v. Arizona.

"I think Ring has had a significant effect on the death penalty, but the impact has not been as broad as some predicted," said Richard Dieter, executive director of the Death Penalty Information Center.

The June 2002 ruling said that juries, not judges, must have the final say in who gets the death penalty.  In Nebraska, only judges had handed down death sentences since state lawmakers decided in the 1970s there was the potential of bias by juries.  The ruling also forced changes in death penalty laws in Arizona, Montana, Idaho and Colorado, because those states also left it to judges to determine if a killer should be executed.

And it wasn't long after that lawyers began questioning whether Ring would apply retroactively to death row inmates sentenced by judges.  Lower courts were divided.  The Nebraska Supreme Court was among those to rule that the U.S. Supreme Court ruling was not retroactive.  U.S. District Court Judge Joseph Bataillon of Omaha ruled that is was.... The high court eventually ruled in Schriro v. Summerlin that Ring would not be retroactive, overturning a ruling by the 9th U.S. Circuit Court of Appeals....

Said Dieter of the Death Penalty Information Center: "Many death row inmates received no relief." Overall, he said, juries are not automatically more lenient than judges.

"And at least in Arizona, it has taken some time for the defense bar to adapt to the kind of sentencing presentation that works best with juries," he said. "It is a special skill. In the long run, the requirement of a unanimous jury for a death sentence -- which is what most states employ -- gives the defendant better odds of avoiding the death penalty. Individual jurors may be reluctant to impose death, knowing how many mistakes have been made in convictions in recent years."...

In Nebraska, jurors decide only whether aggravating factors exist.  That could include things such as whether the killing was especially heinous or whether it was committed for money.  Aggravating factors are supposed to be weighed against mitigating factors, which could include a defendant's background.  A three-judge panel then decides if the death penalty is warranted if aggravating factors are found by the jury....

Meanwhile, Ring still is resonating in the courts.  Last year in Florida, for example, U.S. District Judge Jose Martinez declared Florida's death penalty violated Ring because jurors are not required to make findings beyond a reasonable doubt on the aggravating factors that can result in a sentence of death.  "Even though it has been 10 years, the legal issues surrounding Ring have not been settled," Dieter said.

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

Should NC prosecutors stall appeal of first Racial Justice Act ruling and focus on a "better" test case?

Though I have not yet been able to read fully the 168-page order in the first big case decided under the North Carolina Racial Justice Act (basics here), I have been able to think about whether North Carolina prosecutors to invest heavily in fighting this ruling via appeals.  Specifically, I wonder if, due to the optics of this first case and how it has garnered such attention, even a reversal on appeal could be a Pyhrric victory for those in North Carolina interested in preserving a functional capital justice system in the state.  Let me explain with a little background.

The first big ruling in the first test of the NC Racial Justice Act involved Marcus Robinson, a black defendant convicted in the shot-gun murder of a white teenager more than 20 years ago.  The state trial judge, Superior Court Judge Greg Weeks, concluded that "race was, in fact, a significant factor in the prosecution's use of peremptory strikes" and thus vacated Robinson's death sentence and imposed a sentence of life imprisonment without possibility of parole.  Among Judge Weeks' notable comments, he found that the defense team had "presented a wealth of evidence showing the persistent, persuasive and distorting role of race in jury selection in North Carolina." 

Whatever the intricacies of the legal debate over the NC Racial Justice Act, the optics and timing of this case made it a strong test case for the defense.  The defendant was black, the victim white, and the jury selection 20 years earlier produced a jury that convicted Robinson which had nine whites, two blacks and one American Indian.  In various ways, this case "looked" on the surface to be just the kind of case that the Racial Justice Act was enacted to examine most closely.  (Perhaps further aiding Robinson, though arguably not pertinent to the RJA legal issues, his co-defendant in the killing got a life sentence and there have been questions about which defendant was the shooter.)

Meanwhile, in a number of other 150+ pending cases awaiting an evidentiary hearing on NC Racial Justice Act claims, the defendant is white and his victim is white, the case was tried much more recently, and the sentencing jury was more racially mixed.  Those kind of cases do not look on the surface to be the kinds of cases that would prompt a legislature to pass a Racial Justice Act, and there is every reason to still be unsure if and when any white defendants will be able to use the RJA to block their death sentences.

I assume NC prosecutors might have a chance to convince a North Carolina appeals court to interpret the RJA narrowly and ultimately conclude that race was not a "significant factor" in the Robinson case.  But such a "victory" by prosecutors on appeal could (and likely would) play into a broader national anti-death-penalty narrative about southern capital punishment systems continuing to reflect racial biases and animus.  That reality alone might prompt the NC appellate courts to be especially wary to reverse this first pro-defendant RJA ruling.  Moreover, based solely on the trial court's findings and ruling, Robinson surely would be able to make a strong pitch for executive clemency (or might try to bring a new round of federal appeals) in a continued effort to stall or block his execution even if his first-round RJA victory were reversed on appeal.

Consequently, I wonder if strategic NC prosecutors (and their amicus supporters) might now, rather than heavily gear up for the appeal in the Robinson case, focus their time, energy and arguments on a "better" RJA test case in order to explore in a less "unattractive" setting whether litigation under the NC Racial Justice Act is always going to favor defendants in all settings or just in some.  I am not sure whether and how NC prosecutors might ensure a "better" test case concerning the RJA comes up for a decision next.  But, whatever might be involved, I cannot help but thus prosecutors would be wise at this moment to focus on another front in this RJA litigation battle.

Related post on first NC Racial Justice Act ruling:

April 23, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

"Federal Anticrime Programs Hold Their Own in Another Tough Budget Year"

The title of this post is the the title of this astute observation via Ted Gest writing at The Crime Report.  Here are some numbers via the start of Ted's posting:

Despite the austere budget climate in Washington, many Department of Justice criminal justice agencies seem to be holding their own as Senate and House committees that fund the department allocate their money for the federal fiscal year starting October 1.  The two largest Justice Department components, the FBI and Bureau of Prisons, both would get increases under funding approved by a Senate appropriations subcommittee.  The FBI would get $8.2 billion, $114 million above this year's level, for such items as national security and cyberterrorism investigations and violent crime reduction.  The prison bureau would get a $269 million increase to $6.8 billion, which would among other things "enable the activation of new prisons that are currently sitting empty due to lack of funds."

April 23, 2012 in Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, April 22, 2012

Rare capital clemency granted to Georgia defendant hours before execution

On the same day this past Friday that I had the honor and pleasure of participating in a fantastic clemency symposium at the St. Thomas School of Law in Minnesota, a death row defendant in Georgia had the surprise and good fortune to be granted clemency to avoid his scheduled execution.  This local story reports on this rare grant of capital clemency from The Peach State:

Three days after staying the execution of Daniel Greene, the five-member [Georgia Board of Pardons and Paroles] voted to commute his death sentence to life without parole, an unusual move that elicited mixed reactions from the tight-knit community....

Greene, 42, was convicted in 1992 of fatally stabbing 20-year-old Bernard Walker, a former schoolmate who walked in on a robbery at a convenience store in Reynolds, Ga. Greene, whose attorneys claim he was under the influence of drugs, stabbed four other people the same night in a rampage that spanned three Middle Georgia counties.

Bob Bacle, the former Reynolds police chief who had addressed the paroles board this week on behalf of the victims and planned to attend the execution, condemned the decision, saying that justice had been subverted. "What good was it to have a trial 21 years ago and then 21 years later five folks on the board of pardons can second-guess a jury?" Bacle said in an interview. "That's what we've got a system of justice for. What does this tell criminals out there coming along now?"...

The board did not immediately explain its decision. But interviews and court filings suggest the panel may have been moved by Greene's supporters, who said the stabbings were out of character. Greene had been a model inmate on death row, they said, receiving a reprimand only once -- for having too many stamps.

While the Taylor County community was scarred by the crimes, many had greeted the specter of execution with ambivalence, including some of Walker's family members. A petition with more than 500 signatures urging clemency was presented to the board, and a number of well-respected members of the community had spoken on Greene's behalf....

One of Greene's more outspoken supporters had been Patty James Bentley, the chairwoman of the Taylor County Commission who is campaigning for a seat in the state House of Representatives. She wrote an emotional letter to the board asking it to spare Greene. "I really just praise God," she said, "and I pray that Bernard's family will find some peace."...

Mark Shelnutt, a Columbus attorney who prosecuted Greene, told the paroles board that a key factor in seeking capital punishment against Greene had been that life without parole was not an option for Georgia juries at the time. "Obviously, life without parole is no slap on the hand," Shelnutt said. "He’s never going to get out of jail."

The board's decision marked just the fourth time it's granted clemency since 2002.

April 22, 2012 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, April 21, 2012

"Proportionality and Parole"

The title of this post is the title of this new article by Professor Richard Bierschbach, which is now available via SSRN.  Here is the abstract:

Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point.

Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

April 21, 2012 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Some notable stories on the modern politics of pot

Today I came across these various interesting stories from various sources discussing various political angle on modern marijuana laws and policies:

April 21, 2012 in Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, April 20, 2012

"Murder victim’s family sues to enforce California death penalty"

The title of this post is the headline of this press release from the Criminal Justice Legal Foundation, which is representing the murder victim in what looks like fascinating and potentially ground-breaking litigation. Here are excerpts from the release:

The brother of Terri Winchell, who was brutally murdered in 1981, has filed a lawsuit against the California Department of Corrections and Rehabilitation (CDCR) to end the delay in the execution of his sister’s murderer, Michael Morales.

Bradley Winchell is asking California’s Third District Court of Appeal to order the CDCR to exercise its authority under state law to adopt a one-drug lethal injection method currently used in the states of Ohio, Washington, and Arizona to end the six-year delay of Morales’s sentence.

The Criminal Justice Legal Foundation, which is representing Mr. Winchell, has filed a petition for a writ of mandate in the Sacramento appeals court arguing that the CDCR has been derelict in its duty to enforce the law. Former California Governors George Deukmejian and Pete Wilson have joined the petition as co-counsel for Mr. Winchell.

In its argument, CJLF notes that there are currently 14 murderers on California’s death row whose sentences have been fully reviewed and who are ready for execution, yet the execution of their sentences has been blocked by litigation over lethal injection. While other states have moved forward and resumed enforcement of their capital punishment laws, California remains mired in litigation.

“This delay and denial of justice is entirely unnecessary,” said the Foundation’s Legal Director Kent Scheidegger. “The California Department of Corrections and Rehabilitation has ample authority to resume executions promptly. The failure of that Department and its Secretary, the Respondents in this action, is an abuse of discretion, an obstruction of the law, and a violation of the constitutional rights of the victims’ families,” he added.

Morales was sentenced to death in 1983 for the rape and murder of 17-year-old Terri Winchell. Between 1983 and 2005, Morales’s conviction and sentence were reviewed and upheld multiple times in both state and federal courts, and the United States Supreme Court twice refused to disturb those holdings.

The scheduled February 2006 execution was stayed by a federal judge considering Morales’s claim that California’s three-drug lethal injection process was unconstitutional. In 2007 a Marin County Superior Court judge, in an unprecedented ruling, announced that Morales’s execution could not proceed until the lethal injection protocol was adopted in compliance with state’s Administrative Procedure Act.

The 30+ page petition in this action is available in full at this link.

April 20, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (28) | TrackBack

NC death row defendant prevails in first case decided under state's Racial Justice Act

As reported in this new AP story, which is headlined "Judge: Race played role in NC racial justice case," this morning has brought a high-profile ruling in a high-profile litigation over the application of the death penalty in North Carolina. Here are the basics:

A condemned killer's trial was so tainted by the racially colored decisions of prosecutors that he should be removed from death row and serve a life sentence, a judge ruled Friday in a precedent-setting North Carolina decision.

Superior Court Judge Greg Weeks' decision in the case of Marcus Robinson comes in the first test of a 2009 state law that allows death row prisoners and capital murder defendants to challenge their sentences or prosecutors' decisions with statistics and other evidence....

"The Racial Justice Act represents a landmark reform in capital sentencing in our state," Weeks said in Fayetteville on Friday. "There are those who disagree with this, but it is the law."

Robinson's case is the first of more than 150 pending cases to get an evidentiary hearing before a judge. Prosecutors said Friday they planned to challenge Weeks' decision, and District Attorney Billy West declined further comment while the case was being appealed.

Weeks ruled that race was a factor in prosecution decisions to reject potential black jurors before the murder trial of a black man who was convicted of killing a white teenager in 1991. The jury that convicted Robinson had nine whites, two blacks and one American Indian.

Robinson and co-defendant Roderick Williams Jr. murdered 17-year-old Erik Tornblom after the teen gave his killers a ride from a Fayetteville convenience store. Tornblom was forced to drive to a field where he was shot with a sawed-off shotgun. Robinson came close to death in January 2007, but a judge blocked his scheduled execution. Williams is serving a life sentence.

Central to Robinson's case before Weeks was a study by two law Michigan State University professors who reported that, of almost 160 people on North Carolina's death row, 31 had all-white juries, and 38 had only one person of color....

Robinson defense attorney James Ferguson of Charlotte told Weeks, who decided the case without a jury, that the study showed race was a significant factor in almost every one of North Carolina's prosecutorial districts as prosecutors decided to challenge and eliminate black jurors. "This case is important because it provides an opportunity for all of us to recognize that race far too often has been a significant factor in jury selection in capital cases," Ferguson said when the hearing opened in January....

The Republican-led Legislature tried to repeal the Racial Justice Act earlier this year but failed to override a veto by Gov. Beverly Perdue, a Democrat.

Related posts on NC Racial Justice Act:

UPDATE:  A helpful reader sent me a copy of the 168-page order in this (landmark?) case.  It can be downloaded below, and here is a key paragraph from the introduction:

After considering the evidence and testimony presented to the Court, and the arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law in support of its order finding that race was, in fact, a significant factor in the prosecution's use of peremptory strikes, and thereby granting the Defendant's Motion for Relief Pursuant to the Racial Justice Act, vacating the death sentence, and imposing a sentence of life imprisonment without possibility of parole.

Download Marcus Robinson RJA Order

April 20, 2012 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, April 19, 2012

Noting the notable role of Catholicism in recent state death penalty abolition efforts

Today's Washington Post ran this interesting story headlined "Catholic activists pushing politicians to turn tide against the death penalty." Here are excerpts:

Soon, probably next week, Connecticut Gov. Dan Malloy will sign into a law a bill that abolishes the death penalty in his state. When he does, Connecticut will be the fifth state to enact such legislation in as many years — and the third with a governor who was raised a Roman Catholic....

Powerful, vocal Roman Catholics have been much in the news of late, mostly for their hard-line positions on abortion and birth control, and their self-serving rhetoric on the subject of religious rights in the health-care debate.  But Catholic activists are playing another political role, too — under the radar — on an issue that hasn’t made the same sorts of headlines.

They are helping to turn the tide of public opinion in the United States against the death penalty.  (According to a Pew poll earlier this year, about a third of Americans now oppose capital punishment, up from 18 percent in the mid-1990s.)  And they are appealing to the consciences of Roman Catholic politicians to do it.

The sanctity of human life is central to Catholic theology, and for death penalty opponents, this sanctity extends as much to living men and women convicted of capital crimes as it does to embryos and fetuses....

Last November, a delegation of international death-penalty opponents was invited to a private audience with Pope Benedict XVI.  There, the pope praised and encouraged “the political and legislative initiatives being promoted in a growing number of countries to eliminate the death penalty.”...

In 2011, on Ash Wednesday, Gov. Pat Quinn signed legislation that abolished the death penalty in Illinois.  Quinn had attended Catholic schools as a child and went to Georgetown University but had long supported capital punishment.

After the bill passed in the Illinois legislature, he pondered his decision for months — for, as he puts it, “there are people of great conscience on both sides of this debate.” During that time, he received a visit from Sister Helen Prejean, the author of “Dead Man Walking,” and a call from the Catholic death-penalty opponent Martin Sheen. For guidance, he read Scripture, and on the morning he signed the bill, he read from the writings of the late Chicago Cardinal Joseph Bernardin....

Since then, he has become part of the country’s informal network of prominent Catholic death penalty opponents. He phoned Malloy to offer his congratulations on the passage of Connecticut’s bill and has told California Gov. Jerry Brown — who had at one time considered becoming a priest — that he supports anti-death-penalty efforts in his state.

Before the vote in Connecticut, the Society of St. Egidio, an international group of lay Catholics based in Rome, sent letters to key Catholic members of the state Senate, appealing to their consciences.  “I am sure that it will be possible,” the letter said, enticingly, “to create a special event at the Coliseum in Rome to tell the world that Connecticut has taken the lead to abolition. ... The world will be able to love your state even more than now.” Mario Marazziti, St. Egidio’s spokesman, said the letter helped to swing undecided votes in support of abolition.

Some older posts on religion and the death penalty:

April 19, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (3) | TrackBack

Are we approaching a tipping point in the modern-day sex offender panic?

The question in the title of this post is prompted by this new piece in Stateline, which is headlined "Are sex offense laws too broad?." Here are excerpts from the piece:

Over eight years in the Missouri House, Republican Representative Rodney Schad has gotten numerous phone calls, letters, and emails from registered sex offenders and their families about the damage the registry has caused in their lives — the harassment, persistent unemployment, and community ostracism. Three years ago, Schad decided to start researching the state's registration policy, and what he found surprised him.

"There's no way to tell who's dangerous and who isn't," says Schad. "[People] look up their address and see 10 offenders living or working near their house." In his view, the list is becoming bloated and less helpful to ordinary citizens than it should be.

To try and refine who actually shows up on the public registry, Schad crafted legislation to create a tier system so that only the most dangerous offenders are listed publicly. Currently, anyone convicted of any type of sex crime, from public urination to child molestation, is placed on the list. The bill also creates an appeals process, so that offenders can petition to be removed from the registry after 10 or 20 years, depending on their crime, and removes all juvenile sex offenders tried in juvenile court from the public registry....

Missouri is not the only state pushing back against the strictest registry requirements. Georgia, which had one of the toughest sex offender laws in the nation, scaled back its registration requirements in 2010 for people who had committed crimes such as false imprisonment or non-sexual kidnapping. This immediately removed 819 people from the registry, according to the Atlanta Journal- Constitution.

In Ohio, which was the first state to go along with the Adam Walsh Act in 2007, the state Supreme Court has struck down three controversial portions of SORNA compliance legislation in the last two years: the lifetime registration of some juveniles, the application of the more restrictive Adam Walsh Act penalties to offenders sentenced under previous, less strict laws, and community re-notification requirements for offenders previously sentenced.

Even though opposition to the harshest sex offender policies is brewing, the more common story is still more punishment, not less. The Louisiana House passed a billl this week to exclude sex offenders convicted of computer-related offenses from social networking sites. The Arkansas parole board is considering banning registered sex offenders from using the Internet, and New York has recently distributed sex offenders' email addresses to online gaming companies which are then disabling offenders' accounts.

April 19, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, April 18, 2012

"Taxpayers should demand cost-effective crime policies"

The title of this post is the headline of this commentary published yesterday at The Hill's Congress Blog. It was authored by Julie Stewart, the president and founder of Families Against Mandatory Minimums, and here are excerpts:

Last year, Americans for Tax Reform President Grover Norquist, the Cato Institute’s director of criminal justice, Tim Lynch, and former Republican congressman and Bush administration DEA chief, Asa Hutchinson, joined me for a briefing to discuss the dozens of ways Congress and the administration could cut millions from wasteful anti-crime programs without jeopardizing public safety.  Some cost-cutting reforms, like allowing elderly and ill patients (who pose no threat to society) to leave prison early and serve out their punishment in alternate ways, are obvious and overdue.

Others, like eliminating wasteful mandatory minimum sentencing laws, are being approved by cash-strapped states across the country.  Governors and state lawmakers do not love their children any less, but they realize that locking up nonviolent criminals for decades is not a cost-effective way to keep their communities safe.  New Jersey Gov. Chris Christie (R-NJ) recently announced an ambitious plan to require treatment in lieu of prison for all first-time drug offenders in the Garden State.  Christie’s pitch?  Since treatment is a fraction of the cost of prison, his new policy will save money and lives.

Contrast this common-sense approach with federal law, where a mother like Sabrina Giles is sentenced to 12 years in prison for allowing her abusive boyfriend to run his meth dealing business out of her New Mexico house.  Ms. Giles, who had never even been arrested before, was gainfully employed and providing for her young daughter, despite struggling with substance abuse.  What she needed was drug treatment, but what she got was more than a decade in federal prison.  Her daughter was forced to grow up without the mother she loved and is now a teenager.

This isn’t tough on crime -- it’s just stupid.

Fortunately, some in Washington, D.C. are ready for reform.  Two years ago, anti-tax hero Norquist and former American Conservative Union president David Keene testified before the House Crime Subcommittee in opposition to federal mandatory minimum sentences.  Said Norquist, “The benefits, if any, of mandatory minimum sentences do not justify…[the] burden to taxpayers.”  The subcommittee’s ranking member, Rep. Bobby Scott (D-VA) has long supported reform.  More recently, Senator Rand Paul (R-KY) announced his strong opposition to mandatory minimums.  Paul’s position makes sense given his Tea Party roots and that coalition’s aversion to excessive federal spending.

Most encouraging, the American public gets it.  When asked by Pew if they agree with the statement, “Some of the money that we are spending on locking up low-risk, nonviolent inmates should be shifted to strengthening community corrections programs like probation and parole,” a remarkable 85 percent of voters agreed.

It’s time to stop wasting money on anti-crime programs and policies that don’t keep us safe, but make our tax bills higher.

April 18, 2012 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, April 17, 2012

"The Unchecked Charging Power of the Prosecutor"

The title of this post is the headline of this notable and lengthy new commentary by Radley Balko over at The Huffington Post.  Here are excerpts:

When Florida special prosecutor Angela Corey charged George Zimmerman with second-degree murder this week in the February shooting of 17-year-old Trayvon Martin in Sanford, the charge won praise from Martin's supporters and more skeptical reactions from some legal commentators.

The power prosecutors have to charge people with crimes is often overlooked.  While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.

In the 22 states that require a grand jury indictment before charging, the grand jury standard is a preponderance of the evidence, although grand juries are sometimes notorious for rubber-stamping a prosecutor's wishes.  But without a grand jury, a prosecutor's charging power is entirely discretionary.

Once charged, a suspect often needs to hire expensive legal representation or, if he can't afford it (and there aren't many people who can pay for representation on a murder charge), request a public defender.  It likely means at least temporary incarceration, the posting of bond, and a stigma more damaging than an arrest, but less so than a conviction.

A judge may occasionally dismiss charges due to lack of evidence, but generally speaking, the decision to charge is the prosecutor's.  And while police officers can be sued for a wrongful arrest, prosecutors are protected by absolute immunity, meaning that as long as they're performing a prosecutor's duties, they can't be sued....

The American Bar Association's Standards for Criminal Justice advises that a prosecutor shouldn't prosecute a case in which he doubts the defendant's guilt, but if he believes there's enough evidence to establish probable cause, the ABA guidelines state that it's ethical to pursue a conviction.  There's also no requirement that a prosecutor pursue evidence that may cast doubt on the suspect's guilt.  That means it is ethical for a prosecutor, according to the ABA, to ask a jury to pronounce a defendant guilty with a degree of certainty that the prosecutor may not possess himself....

One possible middle-ground solution might be for prosecutors to bring initial charges based only on probable cause, but to encourage a more stringent standard to bring a case to trial.  That would allow for an indictment and incarceration, or posting of bond to keep a suspect around while police and prosecutors attempt to collect more evidence....

Ultimately, the prosecutor is a political position.  Because no prosecutor has the resources to charge and try every crime, discretion over when to bring charges and for which crimes is a matter of policy.... Unless the voting public demands a higher standard for bringing serious charges, there's no incentive for prosecutors to impose such a standard upon themselves.

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

Colorado the new "ground zero" for debates over pot prohibitions and policies

For the last few years at least, California has been the state to watch concerning state reforms of marijuana laws and the broader realities of modern pot prohibition and policies.  California has long had the most lax regulation of its medical marijuana industry, and in 2010 there was a state referendum to fully legalize pot that garnered well over 40% of the statewide vote.  As highlighted by this new Huffington Post piece, however, it appeals that Colorado is now the state to watch in this arena.  This piece is headlined "State's Proposal To Legalize Pot Gets Big Push," and here are excerpts:

On Monday, the Campaign to Regulate Marijuana Like Alcohol announced that the Colorado Democratic Party officially endorsed Amendment 64 at its state convention and assembly in Pueblo over the weekend.

In a press statement, Cindy Lowery-Graber, chair of the Denver County Democratic Party, said this about the Democratic support of pot legalization:

This is a mainstream issue. Polls show that more than 60 percent of Democrats and a solid majority of Independents believe marijuana should be treated like alcohol. A broad coalition is forming in support of Amendment 64 and I am proud to say that it now includes the Colorado Democratic Party.

The support should come as no surprise, earlier in March, after the Democratic Caucus, the Denver County Democratic Party released a document outlining the planks of its current platform which stated a support of not only "well-regulated, taxed, medical marijuana facilities" but also the decriminalization of marijuana, "allowing its sale, regulation and taxation similar to alcohol, subject to local control."

Amendment 64 seeks to legalize marijuana for recreational use for adults and will appear on Colorado ballots this November....

While the feds continue their crackdown on medical marijuana shops in Colorado, the Campaign to Regulate Marijuana Like Alcohol is on a bit of a roll.  Prior to Colo. Democrats announcing their endorsement, fifty-six percent of the delegates at the Denver County Republican Assembly voted in support of Amendment 64.

The support from both Republicans and Democrats appears to echo the findings of a December 2011 poll released by Public Policy Polling which showed that a large group of Coloradans believe that marijuana should not just be legal medically, but fully legalized. From the Public Policy report:

Coloradans are even more strongly in favor of legalizing marijuana, and they overwhelmingly believe it at least should be available for medical purposes. 49% think marijuana use should generally be legal, and 40% illegal.  But explicitly for medical use, that rises to a 68-25 spread.  Just five years ago, a referendum to legalize simple possession by people over 21 failed by 20 points.  On the medical question, Democratic support rises from 64% for general use to 78%; Republicans rise from 30% to 50%, and independents from 54% to 75%.

April 17, 2012 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, April 16, 2012

"Liberal Academic, Tea Party Leader Rethinking Crime Policy"

The title of this post is the headline of this new piece appearing in Newsweek magazine.  Here is an excerpt:

As the son of an LAPD reserve policewoman turned Nevada County, Calif., corrections officer, [Tea Party Patriots co-founder Mark] Meckler was always primed to be skeptical of the GOP’s tough-on-crime talking points. “Having grown up around law-enforcement folks, I know a large number who are very conservative and still think the war on drugs has been an immense failure,” he says. “That’s not a new position they’ve come to. I’ve been hearing this literally my whole life.”

But it wasn’t until he’d spent some time in the Tea Party, with its obsessive focus on balanced budgets and smaller government, that Meckler realized how well his conservative principles jibed with criminal-justice reform. It was all there, he says: a ballooning tab that was “busting state budgets”; a top-down, one-size-fits-all style of policing and imprisonment that was “making it hard for [former criminals] to become productive members of society”; and communities that had “lost the ability to take care of themselves” because they were “occupied” by agents of the state. “On the right, we always talk about self-governance,” Meckler explains. “So I thought, why haven’t we been applying those ideas to the criminal-justice system?”

He isn’t the only conservative to come to that conclusion. Inspired by the Tea Party ethos, heavyweight GOP governors such as Bobby Jindal and Mitch Daniels are now working to soften sentences, reduce recidivism, and cut costs in their home states. Meanwhile, Right on Crime, a Texas-based conservative group backed by Newt Gingrich, Jeb Bush, and Grover Norquist, is championing reform on the national stage. As the outfit’s mission statement puts it, there’s nothing “conservative” about “spend[ing] vast amounts of taxpayer money on a strategy without asking whether it is providing taxpayers with the best public-safety return on their investment.” Right on Crime points to the Lone Star State — which recently reduced its incarceration rate by 8 percent, cut crime by 6 percent, and saved $2 billion on prison construction by rerouting inmates to drug courts and treatment facilities — as an example of where that mindset can lead.

Regular readers are probably tired of hearing me assert that tea party talk should lead to lots of questions about modern mass incarceration and the drug war in the US, but I am not tired of seeing the mainstream media (finally!) pick up on this (obvious?) reality.

Some prior related posts (both old and new) on this front:

April 16, 2012 in Elections and sentencing issues in political debates, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, April 15, 2012

"Agency and Equity: Why Do We Blame Clients for Their Lawyers' Mistakes?"

The title of this post is the title of this notable new Foreword in the Michigan Law Review authored by Adam Liptak, which gets started this way:

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no.  You might even get a look suggesting that you had asked a pretty stupid question.  But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

This theory holds that the lawyer is the client’s agent.  What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly.  Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.

Let us put to one side the ideal case: a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer’s work, and fires her if she turns out to be disloyal or incompetent.  The lawyer in that case really is the instrument of her client’s will, and so the client may fairly be tagged with the lawyer’s errors.

Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned—or perhaps all of these things at once.  And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state.  Does it still make sense to consider such a lawyer an authentic agent of the client?

April 15, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Saturday, April 14, 2012

"With repeal of state death penalty, death row questions arise"

The title of this post is the headline of this effective local piece out Connecticut spotlighting a number of the legal issues that will be sure to clog up Connecticut's state and federal courts in the years to come.  Here are exceprts:

It will be about 10 days before the bill repealing Connecticut's death penalty gets written into its final form by non-partisan legislative staff, then gets shuttled to the Secretary of the State, who will present it to Gov. Dannel P. Malloy.

And around the time ink dries on his signature, the first appeals from the state's 11 death row inmates could be filed -- depending on the tactics of defense lawyers -- to have sentences reduced to life without the possibility of release. "Some lawyer, in short order, should be making an equal-protection claim," said Leonard M. Crone, president of the 300-member Connecticut Criminal Defense Lawyers Association. Even though the legislation was written to make sure those on death row would not be spared execution, once it is adopted, the issue could add another layer of appeals that may further delay death penalties, which already take decades to enact....

[T]here is a pending state Supreme Court decision that could result in a declaration the death penalty itself in unconstitutional. Another case, which has been delayed for years but is set to start later this spring in Rockville Superior Court, will take up the issue of racial disparity in the state's death penalty process. Six of the 11 people on death row are black....

Michael P. Lawlor, undersecretary for justice policy in the state Office of Policy and Management, said Thursday that the reaction from defense attorneys in the state may be more subtle, particularly with many years of traditional appeals ahead of the death-row inmates. "The whole notion of the Supreme Court throwing out the death penalty is not what the law says," he said, stressing that the court traditionally draws a sharp line when new laws exclude those being punished under older statutes....

Malloy on Thursday acknowledged that death row inmates are all in various stages of appeals on other issues. "As you know we have not put a person to death who didn't volunteer for it," Malloy said, citing that both Ross in 2005 and Joseph Taborsky in 1960 chose to end appeals and meet the executioner. "Some of those appeals that go to the fundamental purpose of the statute, which will be changed," Malloy said. "So what happens in those cases I can't tell you."

Senate Minority Leader John McKinney, R-Fairfield, who led opposition against the repeal, said Thursday the way he understands the law, death-row inmates would not have to exhaust traditional appeals before filing constitutional appeals to win life in prison. "Once the governor signs the bill, there is a question as to whether the court would like to breach that issue prior to exhausting appeals," he said, noting that the issue might not be "ripe" in the eyes of the high court.

"Lawyers prefer not to do anything before it's necessary, so the more time the state is without a death penalty, the better the argument may be not to execute one of the 11 on death row," McKinney said. However, he predicted that now, those on death row will never pay the ultimate price for their crimes.

Recent related posts:

April 14, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, April 13, 2012

A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement

I had the great fortune and honor to be asked by folks at The Daily Beast to expound a bit on themes in this post from earlier this week titled "Could Romney appeal to independents and minorities with bold crime and punishment vision?."  The last few paragraphs of this now-published Daily Beast piece of mine adds these ideas to my prior thoughts:

A conservative politician with true conviction on [liberty and limited government] issues could further argue that federal and state governments ought to rely far less on incarceration as a response to less serious crimes, or that the long-running “war or drugs” (which surely restricts individual liberty, personal responsibility, and free enterprise as much as alcohol prohibition did a century ago) suffers from many of the same big-government flaws as other top-down efforts to improve society.

Of course, it may be not only naive but even foolish to expect Romney to pioneer change in this arena.  After all, he has not yet shown much boldness in his campaign strategies so far, and I wonder if he has either the political courage or the personal convictions needed to reshape the GOP message on crime and punishment for the better.  Indeed, when Romney was governor of Massachusetts, he took heat from both the left and the right when he tried to develop a “foolproof” death-penalty system for the state.  That experience, together with the knee-jerk tough-on-crime stance most politicians still readily embrace, may ensure that Romney will see more political risks than rewards on this path.

But there’s a “toe in the water” opportunity here, provided last summer by none other than Ron Paul. Together with outgoing Massachusetts Democrat Barney Frank, Paul introduced a bill that, while allowing the federal government to continue enforcing interstate marijuana smuggling, would let states develop and apply their own distinct laws on marijuana production and use so that individuals could grow and sell it in places that choose to make it legal.

If Romney were to express his support for this bill, he might not only pull in libertarian-leaning independents who have helped fuel the Paul campaign, but he would signal to minority groups — who rightly lament the disparate impact of the drug war on people of color — that he understands and respects their concerns.  Further, if Romney adopted this sort of “states’ rights” approach to marijuana laws and regulations, he could reinforce and reiterate the nuanced principles behind his claims in the health-care-reform debate that there are some areas where the federal government ought to butt out.

But Romney’s apparent lack of conviction isn’t his only obstacle.  In the last few election cycles, traditional criminal-justice issues have not been a topic of much discussion, perhaps because of recent declines in the crime rate and because, post-September 11, voters seem to care more about how candidates view the war on terror than how they view the war on drugs.  Tellingly, Romney’s official campaign website has an Issues page with detailed positions on two dozen topics, none of which address traditional crime and punishment concerns.  Yet that same page asserts that the “foundations of our nation’s strength are a love of liberty and a pioneering spirit of innovation and creativity,” and another page champions a “simpler, smaller, smarter government” and asserts that “as president, Mitt Romney will ask a simple question about every federal program: is it so important, so critical, that it is worth borrowing money from China to pay for it?”

The important recent work of many Republican governors on sentencing reform, as well as the existence of prominent conservatives supporting the Right On Crime movement, indicate that many on the right would support and even help champion a commitment to reconsider the efficacy of drug war and to question which parts of the massive federal criminal-justice system are not worth the cost.  Perhaps with prodding from those on both sides of the aisle, this election could bring us more real talk about criminal-justice reform from candidate Romney than from President Obama.

April 13, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack

US Sentencing Commission promulgates new guideline amendments

As reported in this official press release, earlier today "the United States Sentencing Commission promulgated amendments to the federal sentencing guidelines responding to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) regarding securities fraud, mortgage fraud, human rights offenses, drug offenses, and other offenses." Here are some of the specifics via this press release:

The Dodd-Frank Act contained directives to the Commission to review the fraud guideline with respect to securities fraud, fraud on financial institutions, and mortgage fraud. Judge Patti B. Saris, chair of the Commission, noted “Fraud offenses represent almost ten percent of the federal criminal docket annually, and have been the focus of congressional attention as evidenced by the directives to the Commission.” Judge Saris explained, “The Commission’s action today increases penalties for insider trading cases and ensures that no defendant will receive a reduced penalty because of a federal intervention, such as a bailout. The Commission also adopted presumptive rules governing the calculation of loss in mortgage and securities fraud cases.”

“This is the first step in a multi-year review of the fraud guideline,” stated Judge Saris. “We have received feedback from a number of stakeholders that broader review of the operation of the fraud guideline should be undertaken. Specifically, we have heard from the courts, defense attorneys, and prosecutors that the interaction of the loss attributed to an offense and the number of victims in an offense (the loss and victims tables in the guidelines), particularly in high-loss fraud cases, may result in disproportionate or disparate sentences. This is an area of the guidelines that the Commission must continue to review in a comprehensive manner.”...

The Commission also promulgated an amendment to the federal sentencing guidelines to cover substantive human rights violations.... The Commission also promulgated an amendment to the federal sentencing guidelines to address the growing number of federal drug cases involving the stimulant “BZP.”... The Commission also promulgated an amendment that provides a sentence reduction under the guidelines for certain low-level, non-violent offenders convicted of offenses involving precursor chemicals, which parallels provisions already in the federal sentencing guidelines for low-level, non-violent drug offenders who meet certain criteria.

The Commission also resolved a circuit conflict by confirming that for purposes of calculating a defendant’s criminal history under the federal sentencing guidelines, driving while intoxicated, driving under the influence and similar offenses are, without exception, always counted. The Commission’s actions today also resulted in amendments to the guidelines covering contraband cell phones in prison, cigarette offenses, trafficking in fake Indian goods, and animal crush videos.

The Commission must submit its 2011-2012 amendment package to Congress by May 1, 2012. Congress has 180-days to review the amendments submitted by the Commission. The amendments have a designated effective date of November 1, 2012, unless Congress affirmatively acts to modify or disapprove them.

An "unofficial" version of the new proposed amendments can be accessed at this link.  They run 62 (fun-loving) pages, and I hope to find time this weekend to try to figure out the biggest story within.

April 13, 2012 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Pot Groups See Obama 2012 Flip-Flop on Medical Marijuana"

The title of this post is the headline of this recent piece from US News and World Report, which gets started this way:

President Barack Obama touted a progressive attitude on medical marijuana on the campaign trail, but since taking office, Obama's administration has hardened its stance and supporters of the drug are crying foul on the flip-flop.

In a March 2008 interview, Obama told the Oregon Mail Tribune that medical marijuana ranked low on his list of priorities. "I think the basic concept of using medical marijuana for the same purposes and with the same controls as other drugs prescribed by doctors, I think that's entirely appropriate," Obama said.  "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue."

But the numbers tell another story. Since October 2009, Americans for Safe Access, a group committed to legalizing medical marijuana, estimates the Justice Department has carried out 170 raids on dispensaries and cultivation facilities in nine states. "Every time a dispensary is shut down, there are literally hundreds of people waking up that day wondering where they will get their medication," says Kris Hermes, the spokesperson for the Americans for Safe Access.

Hermes says he's confident that the number of raids since the president took office is actually around 200. "He's broadened his attack," Hermes says. "Until Obama was elected, George W. Bush had the most aggressive posture toward medical marijuana...he's been even more aggressive than his predecessor."  Americans for Safe Access estimates that during the entire eight years of the Bush administration, roughly 200 raids were carried out, something Hermes says the Obama administration has accomplished in less than four years....

Pro-marijuana groups say Obama has expanded the attack on medical marijuana from DOJ to a wide array of other federal agencies, including the Internal Revenue Service, which has lead dozens of audits of medical marijuana businesses. The IRS has also aggressively penalized medical marijuana businesses for selling an illegal drug by requiring the businesses to pay federal taxes on gross income, not net income, eliminating the tax break most businesses receive from deducting payroll costs.

The Department of Housing and Urban Development released a memo in 2011that allows public housing agencies to evict tenants who use medical marijuana. The Bureau of Alcohol, Tobacco, Firearms and Explosives also issued a memo in September banning the commercial sale of firearms to medical marijuana patients.

There are 16 states and the District of Columbia that have their own medical marijuana laws. And experts say U.S. attorneys' threats against local and state officials who enact medical marijuana laws in their states have even slowed down the implementation of new laws in Arizona, Montana, Rhode Island, and Washington.

April 13, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, April 12, 2012

Notable final(?) chapter in sad saga of former federal judge Jack Camp

This AP article, headlined "Review finds judge showed no bias," reports on the latest echoes of the (now dated) saga of former Judge Jack Camp who committed remarkable federal crimes while still on the bench. Here are excerpts from the piece, which also reviews the backstory:

Prosecutors say they have found no evidence that mental impairment or racial bias affected any cases handled by a disgraced judge who was sent to prison for buying drugs with a stripper, ending the U.S. Attorney office’s review of the ex-jurist’s legal decisions.

U.S. Attorney Sally Quillian Yates said her office reached that conclusion after examining the cases of 29 defendants who asked for the review after former U.S. District Judge Jack Camp was arrested in October 2010. Camp, who resigned from the bench, was sentenced to 30 days in prison in March 2011 after pleading guilty to drug-related charges.

Yates called for the review after witnesses interviewed as part of the federal investigation into Camp suggested he had a racial bias, and Camp admitted in court filings that a 2000 bicycling accident caused brain damage and led him to use drugs.

“I hope that this demonstrates to citizens we serve that we are committed to justice, not to convictions,” Yates said this week. “When you have a situation that strikes at the heart of our justice system, we have to do everything we can to assure that the public has confidence in the system.”

Camp, who has been out of prison for about a year, said in a statement to The Associated Press that he felt vindicated by the review. “Today, the U.S. Attorney has publicly confirmed what I never doubted throughout this ordeal,” he said. “I am pleased the report vindicates that my decisions were fair, impartial, and true to the law. Just as drug tests by the government had already shown no controlled substances, the report further confirms the fact that my work as a judge was never affected by drugs.”

Camp was 67 when he was arrested in a suburban Atlanta parking lot on Oct. 1 after he handed the stripper $160 to buy drugs from an undercover officer, according to court documents. The stripper was secretly cooperating with authorities.

The married judge, who has two grown children, pleaded guilty soon after his arrest to buying drugs for the stripper, possessing illegal drugs and giving the woman his $825 government-issued laptop. The former judge apologized at the March 2011 sentencing, saying he wanted to pay the debt he owed to society and rebuild his reputation.

Yates recused her office from the criminal case against Camp, but knew her office would need to deal with appeals filed by defendants who believed they were unfairly treated by the judge. Yates said she decided her office would not object to any requests by any defendant sentenced by Camp between March 2010 and September 2010 — when Camp was believed to have been using drugs — for a new sentencing hearing with a different judge.

Of the 12 defendants who did so, six received the same sentence Camp had imposed, and five others’ sentences were reduced. Two of those were reduced when the new judge accepted a request from prosecutors that Camp had rejected to reduce the sentence because the defendants cooperated with authorities. One case is still pending. It’s not unusual for a sentence to be reduced when the details of the case are heard by another judge....

Yates decided her office would consider reviews for the hundreds of cases that Camp heard during his 22-year career on the bench. “We recognize that feelings of racial bias don’t arise overnight,” she said. “We felt it was important to tell any defendant who went before Camp that we would hear their case regardless of when it happened.”

Twenty-nine defendants made the request, and Yates assigned a team of 25 attorneys to review the cases. They spent hundreds of hours reading the trial transcripts, vetting motions and reviewing court filings. Each filled out a nine-page form with details about the case, detailing any potential problems with Camp’s decisions and issues regarding the “fairness or integrity of the judicial process.”

The attorneys went to great lengths to document anything out of the ordinary involving each case, even noting when Camp, who was known as a temperamental jurist, became cranky, lost his train of thought or forgot the name of an attorney trying the case....

Yates said the review brings an end to her office’s vetting of the case. “This closes this chapter. It’s been a very difficult and troubling chapter for everyone,” she said. “But it’s something for us to be mindful of to make sure that the public be treated fairly.”

Camp, for his part, said he’s moving on from the “dark chapter” in his life. “I deeply appreciate the encouragement offered by friends both near and far as I have come to terms with my mistakes, learned to manage my condition, and begun to forge a meaningful path toward the future,” he said in the statement.

Related prior posts (which have generated lots of notable comments):

April 12, 2012 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5) | TrackBack

Connecticut bill to repeal of death penalty to become law with Governor's signature

As reported in this New York Times article, following "more than nine hours of debate, the Connecticut House of Representatives voted on Wednesday to repeal the state’s death penalty, following a similar vote in the State Senate last week."  Here is more:

Gov. Dannel P. Malloy, a Democrat, has said he will sign the bill, which would make Connecticut the 17th state — the 5th in five years — to abolish capital punishment for future cases.

Mr. Malloy’s signature will leave New Hampshire and Pennsylvania as the only states in the Northeast that still have the death penalty.  New Jersey repealed it in 2007. New York’s statute was ruled unconstitutional by the state’s highest court in 2004, and lawmakers have not moved to fix the law.

The vote, after more than two decades of debate and the 2009 veto of a similar bill by the governor at the time, M. Jodi Rell, a Republican, came against the backdrop of one of the state’s most horrific crimes: a 2007 home invasion in Cheshire in which Jennifer Hawke-Petit and her daughters, Hayley, 17, and Michaela, 11, were held hostage and murdered, two of the three raped, and their house set afire by two habitual criminals who are now on death row. Ms. Hawke-Petit’s husband, Dr. William A. Petit Jr., who was badly beaten but escaped, has since been an ardent advocate for keeping the death penalty.

The bill exempts the 11 men currently on death row, including Joshua Komisarjevsky and Steven J. Hayes, the men convicted of the Petit murders.

The measure was approved by a vote of 86 to 62, largely along party lines.  The legislation will make life in prison without possibility of parole the state’s harshest punishment.  It mandates that those given life without parole be incarcerated separately from other inmates and be limited to two hours a day outside the prison cell.

In a statement released late Wednesday night, Governor Malloy said the repeal put Connecticut in the same position as nearly every other industrialized nation on the death penalty.  “For decades, we have not had a workable death penalty,” he said, noting that only one person has been executed in Connecticut in the last 52 years.  “Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience.  Let’s throw away the key and have them spend the rest of their natural lives in jail.”

Thirteen proposed amendments from supporters of capital punishment, most of which would have allowed the death penalty in certain cases, were defeated during the debate, in which many legislators told personal stories of the effects of violent crime.  The lawmakers also invoked a wide variety of people, from mass murderers to Immanuel Kant to Sir Thomas More....

Republican critics of the bill said the exemption for those currently awaiting execution cast a cloud over the vote, both because it undercut the moral argument of death penalty opponents and because future appeals or government action had the potential to spare the 11 men....

After Connecticut’s repeal, 33 states will have capital punishment, along with the United States government when it prosecutes cases in the federal courts. Voters in California will be asked in November whether to abolish the death penalty in that state.

Capital punishment in Connecticut dates to colonial times. From 1639 to 2005, it performed 126 executions, first by hanging, then by the electric chair, and since 1973, by lethal injection. But since 1976, when the Supreme Court allowed the resumption of executions, there has been just one person executed in the state: Michael Bruce Ross, a serial killer who voluntarily gave up his right to further appeals and was put to death in 2005. The last person involuntarily put to death, in 1960, was Joseph (Mad Dog) Taborsky, who committed a string of robberies and killings....

In the Connecticut Senate, where passage seemed most in doubt, the bill was approved 20 to 16 on April 5, with 2 Democrats and all 14 Republicans opposed. Democrats have a majority in both chambers of the General Assembly....

The political fight over the bill could persist long after the vote. Republicans are likely to put the issue in play in the fall when all 36 State Senate and 151 State House seats are up for election.  A recent Quinnipiac University poll found that 62 percent of Connecticut residents thought abolishing the death penalty was “a bad idea,” though polls over time have found respondents split relatively evenly if given the option of life without parole as an alternative to executions.

Governor Malloy's statement — in which he states "I am pleased the House passed the bill, and when it gets to my desk I will sign it" — is available at this link.

Recent related posts:

April 12, 2012 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, April 11, 2012

Zimmerman charged with second-degree murder in Florida shooting of Trayvon Martin

Via this breaking USA Today news report about the latest developments in the high-profile Zimmerman-Martin, it appear that George Zimmerman is to be charged with second-degree murder and is already in custody:

The shooter in the Trayvon Martin case will be charged with second-degree murder and is in custody, the Associated Press reports a law enforcement official says. The news organization reports that 28-year-old George Zimmerman is custody, but will not say where.

The special prosecutor in the Trayvon Martin shooting case said Wednesday that she will release "new information" today at 6 p.m. ET. Several news outlets, including the Associated Press, are reporting that Florida State Attorney Angela Corey will file criminal charges against neighborhood watch volunteer George Zimmerman.

Zimmerman, whose father is white and mother is Latina, told police he shot Trayvon in self-defense after following the unarmed black teen in a gated Sanford community Feb. 26. The decision on charges in this case is a particularly brutal and difficult choice, legal and forensic analysts say. Zimmerman's claim of self-defense, Florida's stand your ground law, questions about racial profiling, intense public attention and nationwide rallies calling for Zimmerman's arrest have combined to make the case a complicated stew, the analysts say.

Though I am not an expert on Florida's homicide laws, I would guess that second-degree murder is the harshest charge that was reasonably available to the special prosecutor.  And here is what a quick google search turned up about the potential sentencing realities if Zimmerman is ultimately convicted on this charge:

The crime of Second Degree Murder is classified as a First Degree Felony and is assigned a Level 10 offense severity ranking under Florida's Criminal Punishment Code. If convicted of Second Degree Murder, a judge is required to impose a minimum prison sentence of 16+ years in prison up to a maximum of life in prison.

Now the big question in this case turns from whether Zimmerman will be charged to whether he will be convicted and/or whether a plea deal may be sought or suggested by either the prosecutors or the defense.  Interesting times.

Prior posts on this case:

April 11, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (26) | TrackBack

DC Circuit say a lot on safety valve, acceptance of responsibility, and ineffective assistance

The DC Circuit does not issue many sentencing opinions, but those that come from the circuit tend to cover important ground in interesting ways.  Such is the case with the panel opinion (unsealed today) in US v. Rodriguez, No. 10-3017 (DC Cir. Mar. 9, 2012) (available here). The opinion is not readily summarized, but I thought this section (with cites and quotes removed) discussing ineffective assistance at sentencing was of particular note:

Rodriguez’s lawyer failed to request safety-valve relief after Rodriguez truthfully debriefed. Indeed, Rodriguez’s lawyer suggested that the district court had rejected the safety valve and that it was off the table....  Familiarity with the Guidelines is a necessity for counsel who seek to give effective representation.  When a lawyer fails to raise an applicable provision of the Guidelines, he fails to provide effective assistance. Rodriguez’s lawyer was (or should have been) aware that his client had fully and truthfully debriefed and there was no “objectively reasonable” or strategic reason not to argue its applicability.

Moreover, given the applicability of the safety-valve provision, we believe there is at least a reasonable probability that, had Rodriguez’s lawyer raised it, Rodriguez would have received a lower sentence.  Our sister circuits have held that once a defendant satisfies the five requirements, the district court has no discretion to withhold its application, and that the safety-valve provision is mandatory.

The post-Booker sentencing scheme, which requires the district court to determine the Guidelines range before exercising its discretion, presupposes that the appropriate range is an important guide in the exercise of that discretion.  Here, Rodriguez’s offense level adjustment under the safety-valve provision and corresponding two-point decrease under the drug guideline would reduce his Guidelines range from 78-97 months to 63-78 months.

April 11, 2012 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack