Monday, April 02, 2012

Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging

Thanks to a helpful reader, I just learned about the potent opinion issued late last week by US District Judge John Gleeson in United States v. Dossie, No. 11-CR-237 (E.D.N.Y. March 30, 2012) (available for download below). The opinion is a must-read for various reasons as these opening paragraphs suggest:

This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” -- to borrow a phrase from Attorney General Eric H. Holder, Jr. -- because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.

There is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it.  He can do so by

  • citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adjustment under U.S.S.G. § 3B1.1(a);  
  • citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy of a three- or two-level upward adjustment under § 3B1.1(b) or (c); and  
  • withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.

I respectfully urge the Attorney General to implement such a policy.  It is a modest request. It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted.  By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair.  The reform would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one.  Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.

Download US-Dossie opinion

April 2, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Lots more interesting criminal justice work from SCOTUS via orders and opinions

Though the Supreme Court will not be hearing argument for the next two weeks, the Justices provides still more reason for criminal justice folks to buzz about their work through the issuance of notable orders and opinions this morning.  SCOTUSblog, of course, is the place to go for all the SCOTUS news, and here is the live-blogging summary of some of the Court's work this morning:

[A grant in] 11-702, Moncrieffe [v. Holder, which concerns whether state conviction that covers distribution of a small amount of marijuana without remuneration constitutes an "aggravated felony" for deportation purposes]...

First opinion: 10-788, Rehberg v. Paulk (Alito), affirmed 9-0. A governmental grand jury witness has the same absolute immunity as a trial witness. The opinion in Rehberg is here.

[Second opinion:] 10-945, Florence -- affirmed.  Justice Kennedy writes the opinion, except as to Part IV.  Roberts, Scalia, and Alito join the Kennedy opinion in full; Thomas in part. Breyer writes the lead dissent.  The search procedures at the jails strike a reasonable balance.  Roberts and Alito write concurring opinions.  The part of the opinion that Thomas does not join says the Court leaves open what to do when the inmate will not be admitted into the general jail population.  Here is the opinion.

The Alito concurrence joins the opinion but says it is limited to admission to the general population without physical contact.  The Roberts concurrence draws attention to the fact that Florence was arrested on a warrant and had to be admitted to the general jail population. It's unclear how much the Court has decided.

Final opinion: 11-199, Vasquez [concerning harmless error review] -- dismissed as improvidently granted.

There is much of criminal justice interest in all of these ruling, though arguably nothing that significant to hard-core sentencing fans.  Still, I suspect the ruling, the voting particulars and the dicta of Florence is a matter on which I will have later commentary.  In the meantime, here is part of Lyle Denniston's first take on the Court's work regarding jails and strip searching:

Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures.  The prisoner, however, may be told to manipulate some part of the body.  A partial split within the five-Justice majority made it appear that the decision did not authorize jail officials to conduct a strip search unless the prisoner was to be placed among other prisoners at the facility. Two Justices wrote separately in an effort to narrow the ruling, and their votes were essential to the 5-4 result.

The decision was a clear defeat for challengers to strip searches as a general policy.  The Court explicitly refused to limit the authority to use such searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.  The same kind of visual inspection of an arrestee’s naked body, the Court declared, can be applied to anyone placed in the general population of a jail or prison, even if only temporarily.

The ruling also was a personal defeat for a Burlington County, N.J., man, Albert W. Florence, who was subjected to strip searches at two county jails over a six-day period of confinement after he had been arrested while driving on a state highway, based upon an out-of-date warrant.  The warrant was for failure to pay a fine, but he had actually paid the fine; court records had not been updated.  Florence has contended in public comments that he believed he had been targeted because he was a black man driving an expensive car.

As if somehow to help justify its ruling against his challenge to the strip searches, the Court’s main opinion by Justice Anthony M. Kennedy opened with a description of Florence’s earlier run-in with police, seven years before the arrest that led to the strip searches.... Although the Kennedy opinion would later say that police need not make a strip search policy depend upon an arrested individual’s prior history in crime, the inclusion of the background material about Florence’s history appeared to be aimed at showing that police could not know the character of any individual they had brought in, and thus needed a policy applying to all to ensure that no threat would enter the facility with that prisoner.

April 2, 2012 in Pot Prohibition Issues, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, April 01, 2012

Did severe sentence impact Arkansas Supreme Court's teacher-student "right to sex" ruling?

As noted in this Reuters article, the "Arkansas Supreme Court struck down a state law on Thursday that banned teachers from having sex with students under age 21, overturning a sexual assault conviction against a former teacher who had a consensual relationship with an 18-year-old student." The Arkansas Supreme Court's ruling in Paschal v. Arkansas, 2012 Ark. 127 (Ark. Mar. 29, 2012) (available here), is based on the Arkansas Constitution and a prior state ruling concerning right to sexual autonomy among consenting adults.  Here is more on the ruling (with my emphasis added) via the Reuters report:

In a 4-3 decision, the court vacated the conviction against David Paschal, a former teacher in the Elkins School District in northern Arkansas, because the girl was legally an adult during the relationship.

For about five months, Paschal, then 36, had a consensual sexual relationship with the female student at Elkins High School, according to court documents.  The girl had been a student of Paschal in tenth and eleventh grades, and she later became his classroom aide and offered to babysit his children.  The two began their affair in 2009, when she was a senior, and Paschal was arrested the following year.

In 2011, he was convicted of four counts of second-degree sexual assault and one count of bribing a witness at a jury trial last year. He was sentenced to 30 years in prison.

"Regardless of how we feel about Paschal's conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts," Chief Justice Jim Hannah wrote in the decision.  The issue presented to the court hinged on "Paschal's fundamental right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult. We hold that it does," the majority said.

In the dissent, Justice Robert Brown wrote that the decision "minimizes the role of a teacher." He also argued that the state has a general interest in the ensuring the welfare of children in school against teachers who abuse positions of trust and authority.

Neither the majority nor the dissent in Paschal makes any significant mention of the sentence that had been imposed on this defendant for having sex with his 18-year-old student.  But, as suggested by the title of this post and the fact I stressed above, I suspect that the severe sentence given to David  Paschal played a role — perhaps a large role — in convincing four Arkansas justices to strike down his convictions.  I really wonder if this case comes down the same way had the defendant received, say, a prison term of only three years rather than a term of three decades.

April 1, 2012 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Interesting piece about jury sentencing without guidelines in Virginia

This local article, headlined "Virginia judges rarely question juries' sentencing recommendations," highlights how jury sentencing in some cases may create disparities in Virginia. Here are excerpts:

128 years. And a day.  That's how much time a Hampton Circuit Court jury recommended this week that a Poquoson man, Robert King Via Jr., should spend behind bars in a 2010 home invasion case.

The jury said Via, 21, should go to prison for a century, plus 28 years and a day, for forcing his way into a home along with two other people, holding four people at gunpoint, and making off with cash.   Via was found guilty of conspiracy, armed burglary, robbery, four counts of abduction — based on holding people at gunpoint — and firearms charges.

By contrast, Samual Goodwin Sanchez, 20, of Poquoson, a co-defendant who pleaded guilty to robbery, abduction and firearms charges in the same case, ended up with only 13 years to serve.  He could be out in 11 years.

It would be interesting to see if the jury would have slammed Via as hard as they did if they had access to state sentencing guidelines, which look a criminal backgrounds, injuries to the victims and other factors.  It's designed to help equalize sentences around the state.

In Virginia's sentencing system, judges — who handle lots of cases a year and can put things in context — get those guidelines when they're issuing the sentence.  But jury members, who are usually sitting for the first time and don't have that frame of reference, do not.  Make sense to you?  Not to us, either.

Moreover, juries sometimes ask if the sentence they're about to recommend will run concurrently or consecutively, which seems an important thing for them to know. But the juries are told "not to concern themselves" with such matters. They are kept in the dark about the fact that sentences run consecutively unless a judge intervenes.

All this wouldn't be a problem if the jury sentencing recommendations were treated as just that — recommendations — and judges had the fortitude to act as safeguards when decisions are out of line.  Instead, Virginia judges seem bizarrely averse to questioning the recommendations, treating them as some sort of divine command.

April 1, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Is undue "secrecy" in the execution process a constitutional problem?

The question in the title of this post is prompted by this lengthy new local article, headlined "Cruel and unusual?: Death row inmate challenges state execution procedure," discussing the on-going litigation over Alabama's execution process and protocol.  Here is how the piece starts:

A death row inmate who had his execution blocked by a federal court that cited Alabama’s “secrecy” concerning its execution procedure says that procedure could leave him conscious while drugs that stop his breathing and his heart flow through his body.

Attorneys for Thomas Arthur, who was convicted in a 1982 murder-for-hire scheme, argue that the use of pentobarbital to anesthetize a prisoner during an execution violates Arthur’s Eighth Amendment protections.

Suhana Han, Arthur’s attorney, claims the drug does not work fast enough to prevent the inmate from feeling the potentially painful effects of the two drugs that follow, and that the state’s secrecy surrounding its execution protocols makes it impossible to determine whether its use constitutes cruel and unusual punishment, or even if the state follows its own procedures during executions.... “What we’re asking the court to do is allow us the opportunity to prove our claim,” Han said. “Alabama has never had its lethal injection process challenged at trial on the merits.”

Arthur was scheduled to be executed March 29, but the 11th Circuit Court of Appeals on March 21 overturned a lower court’s dismissal of Arthur’s appeal on the use of pentobarbital, finding there was no evidence that Alabama was conducting executions in a constitutional manner. The situation, the court wrote, was “exacerbated by Alabama’s policy maintaining secrecy surrounding every aspect of its three-drug execution method. It is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution,” the court wrote.

Brian Corbett, a spokesman for the Alabama Department of Corrections, declined comment last week, saying he was not at liberty to discuss the state’s execution procedures. The Alabama Attorney General’s office also declined comment on the case.

April 1, 2012 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, March 30, 2012

"Ohio's execution process, Death Row inmates face uncertain future"

The title of this post is the headline of this new piece from my own Columbus Dispatch.  Here are excerpts:

With Ohio’s execution process tied up in court, 153 inmates on Death Row face an uncertain future.  The 2011 Capital Crimes report, issued today by Ohio Attorney General Mike DeWine, summarizes the status of the death-penalty process, including the 12 inmates with scheduled execution dates and 46 inmates lethally injected since 1999. The report, required annually by state law, goes to the governor, state lawmakers and the courts.

What DeWine’s report does not say is when, or if, executions will resume. Reginald Brooks, a Cuyahoga County man who murdered his three sons in their beds, was the last person executed, on Nov. 15 last year.

Since then, the state has been tied up in federal court on a legal challenge to the lethal injection process. U.S. District Judge Gregory L. Frost has been highly critical of the state’s lethal-injection protocol and stopped an execution; Gov. John Kasich postponed others, anticipating federal court entanglements....

DeWine reported there are 14 convicted killers with scheduled death dates, although the number is now 12 with two having been postponed. The death dates run through Jan. 16, 2014. The 46 men who have been executed were responsible for killing 76 people, 17 of them children.

UPDATE:  This follow-up article, headlined "Ruling is near on capital punishment," suggests a ruling in to be coming soon concerning Ohio's lethal injection process:

U.S. District Judge Gregory L. Frost said this week that he will make a decision “in due course” on a legal fight over Ohio’s lethal-injection protocol.  Frost recently finished a seven-day hearing on the case of Mark W. Wiles of Portage County.  He is set to be executed on April 18.

Because of continued litigation over the lethal-injection process, there has not been an execution in Ohio since Nov. 15 when Reginald Brooks, a Cuyahoga County man who murdered his three sons, was put to death.  Frost found flaws in state procedures in that case, effectively putting executions on hold.

In addition, the full 2011 Capital Crimes report issued yesterday by Ohio Attorney General Mike DeWine is avaiable via this link.

March 30, 2012 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Interesting appeal by federal prosecutors of interesting white-collar sentence

This local press report, headlined "U.S. appeals sentence of Michael Peppel, former MCSi executive," reports on federal prosecutors' decision to appeal an interest white-collar sentence that gave a maximum fine but minimum jail time to a corporate criminal.  Here are the basic details: 

Federal prosecutors are challenging the seven-day jail sentence given last year to Michael E. Peppel, former top executive of MCSi Inc., for his guilty pleas to felony crimes related to the company’s 2003 collapse and insolvency.

Peppel’s sentence failed to reflect the seriousness of his offenses, provide just punishment, promote respect for the law or send a message of deterrence for those who would commit similar crimes, U.S. Attorney Carter Stewart argued in his written arguments filed with the 6th U.S. Circuit Court of Appeals on Tuesday.

Stewart asked the Cincinnati-based appeals court to throw out the seven-day punishment and order resentencing by U.S. District Judge Sandra Beckwith, who sentenced Peppel on Oct. 24....  Peppel was also fined the legal maximum of $5 million, must disclose his criminal record to all employers, must submit to random drug testing and must do community service, according to his sentencing terms.  He has already served his seven days behind bars.

His lawyer, Ralph Kohnen, said the defense will fight efforts to impose a longer term of incarceration on Peppel, who was MCSi’s president and chief executive officer. “The government’s decision was unfortunate,” Kohnen said Thursday. “Judge Beckwith’s sentence was thoughtful and appropriate. Her sentence was just, proper and fair.”

Under a court-approved agreement that took effect this month, Peppel has committed to pay $3,000 per month toward his $5 million fine.  At that rate, it would take him 50 years to pay $1.8 million of the fine and 100 years to have paid $3.6 million of it.

Peppel, 44, avoided trial in August 2010 by pleading guilty to willful false certification of a financial report by a corporate officer; money laundering, and conspiracy to commit securities fraud. He could have faced up to 50 years in prison. The government said his crimes helped sink MCSi, a Kettering-based computer and audiovisual equipment company. Its failure cost 1,300 employees their jobs, benefits and retirement income and left investors holding worthless stock.

Beckwith initially determined that, under federal sentencing guidelines, a prison term for Peppel of eight to 10 years would be appropriate.   But after the defense presented 113 letters of support from Peppel’s family and friends, and argued that he had already been publicly humiliated and agreed to a lifetime ban on his ever serving again as a corporate chief executive, the judge imposed the seven-day jail term. Beckwith said she does not believe Peppel is likely to repeat his crimes and does not represent a threat to the public.

For a variety of reasons, in cases like this in which there appears to be no threat to public safety, I see as quite reasonable a judge's decision to impose a huge fine (which makes a defendant essentially an indentured servant to federal taxpayers for life) rather than requiring a lengthy prison term (which requires federal taxpayers to pay for a defendant's room-and-board while he catches up on reading at Club Fed).  But, obviously, federal prosecutors have a different view and I will be very interested to see how this appeal ends up playing out in the Sixth Circuit.

March 30, 2012 in Booker in district courts, Booker in the Circuits, Criminal Sentences Alternatives, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, March 29, 2012

Japan gets back into death penalty business with three hangings

Recent political developments in Japan had led me and others to think that country might remove itself from the short list of developed nations still making regular use of the death penalty.  However, this new Reuters story, headlined "Japan hangs 3 murderers in first executions since 2010," suggests that capital punishment is not yet dead in the Land of the Rising Sun. Here are the details:

Japan hanged three convicted multiple murderers on Thursday, the Justice Ministry said, its first executions in almost two years putting it back alongside the United States as the only leading developed nations to carry out the death penalty. Justice Minister Toshio Ogawa authorized the executions of the three men and they were hanged in jails in Tokyo, Hiroshima and Fukuoka, the ministry said.

They were the first executions in Japan since two death row inmates were hanged in July 2010. Those executions marked the first time capital sentences had been carried out since the Democratic Party of Japan took power in late 2009.

There are currently 132 inmates on death row in Japan, Kyodo news agency reported. They include 13 members of the doomsday cult that staged deadly gas attacks on the Tokyo subway in 1995.

Japanese media reported that one of the men executed on Thursday had killed five people at a train station in western Japan in 1999.

A government survey in 2009 showed that 86 percent of Japanese people supported the death penalty. Despite the delay between executions, there has been no formal moratorium on capital punishment.

Former justice minister Keiko Chiba, an opponent of the death penalty, authorized and attended the 2010 hangings and later allowed the media into the death chamber in an attempt to stir up public debate. Ogawa, who took office in a cabinet reshuffle in January, has said he would order executions of those on death row because the Japanese people supported capital punishment....

Japan and the United States are the only countries in the Group of Eight leading economies to carry out the death penalty. Both have been the target of strong criticism by Amnesty and other human rights groups.

March 29, 2012 in Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (5) | TrackBack

Could the "Walmart of Weed" in DC impact political perspectives on pot policy?

The question in the title of this post is prompted by this interesting new AP piece headlined "'Walmart of weed' opening store in Washington, D.C." Here are excerpts:

A company dubbed the "Walmart of Weed" is putting down roots in America's capital city, sprouting further debate on marijuana — medical or otherwise.

Just a few miles from the White House and federal buildings, a company that candidly caters to medical marijuana growers is opening up its first outlet on the East Coast.  The opening of the weGrow store on Friday in Washington coincides with the first concrete step in implementing a city law allowing residents with certain medical conditions to purchase pot.

Like suppliers of picks and axes during the gold rush, weGrow sees itself providing the necessary tools to pioneers of a "green rush," which some project could reach nearly $9 billion within the next five years.  Admittedly smaller than a big box store, weGrow is not unlike a typical retailer in mainstream America, with towering shelves of plant food and vitamins, ventilation and lighting systems.  Along with garden products, it offers how-to classes, books and magazines on growing medical marijuana.

"The more that businesses start to push the envelope by showing that this is a legitimate industry, the further we're going to be able to go in changing people's minds," said weGrow founder Dhar Mann.

Although federal law outlaws the cultivation, sale or use of marijuana, 16 states and the District of Columbia have legalized its medical use to treat a wide range of issues from anxiety and back pain to HIV/AIDS and cancer-related ailments. Fourteen states also have some kind of marijuana decriminalization law, removing or lowering penalties for possession.

Nearly 7% of Americans, or 17.4 million people, said they used marijuana in 2010, up from 5.8%, or 14.4 million, in 2007, according to the Substance Abuse and Mental Health Services Administration. A Gallup poll last year found a record-high of 50% of Americans saying that marijuana should be made legal, and 70% support medical uses for pot....

[A] recent push from the federal government to crack down on medical marijuana dispensaries has led several states to delay or curtail their dispensary programs for fear of prosecution. It means some medical marijuana users may seek to grow their own — paving the way for companies like California-based weGrow to open a budding number of locations across the country to help legal users and larger cultivators grow their own pot plants.

WeGrow doesn't sell pot or seeds to grow it.  The store, however, makes no secret that its products and services help cultivators grow their own plants for personal use or for sale at dispensaries.  Selling hydroponic and other indoor growing equipment is legal, but because those products are used to cultivate a plant deemed illegal under federal law the industry has tried to keep a low profile....

Mann, who opened the first store in Sacramento last year, said he started his venture after he was kicked out of a mom and pop hydroponics store in Berkeley, Calif., just for mentioning marijuana.  WeGrow has since opened a location in Phoenix and also will open stores in San Jose and Flagstaff, Arizona, in the near future.  The company has franchisees in New Jersey, Delaware, Pennsylvania, and plans to expand into Oregon, Washington state and Michigan.

The frankness of the business comes as public attitudes toward marijuana use and legalization in the U.S. transform.  But federal pressure on customers means companies catering to the marijuana industry could take a hit — in their wallets and with jail time. "There's a whole host of risks associated with investing and opening up shop here," said Jason Klein, a D.C. attorney who represents medical marijuana operators.  "These entrepreneurs see themselves as doing yeoman's work, putting themselves in personal risk … to get medicine to the sick people who deserve it."

D.C. officials on Friday are set to announce those eligible to apply for permits to grow and sell medical marijuana to dispensaries under the district's 2010 law.  Applicants must sign a statement saying they understand a license doesn't authorize them to break federal law.

"They do so at their own peril because I can't imagine that the federal government is going to allow marijuana selling for any purpose right in their backyard," said Kevin Sabet, a former senior adviser to the president's drug czar and an assistant professor in the College of Medicine at the University of Florida.  "Whether it's D.C. or all the way out in California, the government's been pretty clear that medical marijuana doesn't pass the giggle test."  Sabet said the idea of dispensaries trying to be passed off as a medical establishment is a joke, adding that the grow store will be the first in a series events where people are going to try to "make big money off an illegal drug."

The national medical marijuana market was estimated to be worth $1.7 billion in 2011 and is projected to reach $8.9 billion within five years, according to an economic analysis done for the American Cannabis Research Institute. The study also says that nearly 25 million Americans are potentially eligible to use medical marijuana based on current state laws.

"There's great potential for the industry across the country," said Steve Fox, a spokesman for the National Cannabis Industry Association, a D.C.-based trade group representing marijuana-related businesses. He said support for the businesses has emerged in states like California, Colorado and Washington state. "They are showing that just like any other industry, there's a demand for a product and these businesses are sprouting up to address the need."...

For Alex Wong, the franchisee of the D.C. weGrow store, his involvement in the industry is both personal and professional. The mid-40s entrepreneur was drawn to the business after seeing the firsthand effects of his mother's colon cancer and learning that medical marijuana might have made her more comfortable during treatment. "It is a viable medicine," said the. "All I can do is use my small business expertise to lend a hand in this movement."

Rafael Lemaitre, spokesman for the Office of National Drug Control Policy, issued a statement saying science and research — not politics — should drive the approval process for medicine, and to date the "smoked form of marijuana has not met the modern standard" established by the Food and Drug Administration.

"Chronically ill and suffering patients deserve access to modern medicine that is proven to be effective and safe," Lemaitre said. "We ardently support continued research into medical uses for the components of marijuana and will continue to do so."

Mann, however, says medical marijuana cultivation and distribution is going to happen with or without federal government approval. "Regardless of how rigorously they want to enforce intervention, it's not going to stop the industry," Mann said.

As regular readers know, I keep hoping that a time will come when those on the political right live up to their appealing advocacy for liberty, free markets and limited government by embracing those marijuana entrepenuers who are trying their best to serve a (reasonable?) human demand for a natural product.  I doubt that the coming of the Walmart of Weed to the DC area will move the political needle overnight, but I do think this is one more step to what is seeming like an inevitable march toward an eventual end to pot prohibition.

March 29, 2012 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

"Putting The Compassion Into 'Compassionate Release' With A Little Help From Setser"

The title of this post is the title of this great new post by Federal Public Defender Steve Sady over at the Ninth Circuit Blog, which discusses one (of many) interested aspects of the Supreme Court's sentencing ruling in Setser yesterday (basics here). The post demands a full read, but here are key excerpts:

Your client from years ago calls you with terrible news.....he has a terminal illness; his family suffered a tragedy; an injury or illness renders him no longer able to care for himself. You look through the statute book and see that Congress anticipated this type of issue.  Under 18 U.S.C. § 3582(c)(1)(A), the sentencing judge has the authority to reduce the federal sentence at any time based on “extraordinary and compelling reasons.” Congress assigned to the Sentencing Commission the task of defining “extraordinary and compelling reasons,” including examples, in 28 U.S.C. § 994(t).  The Bureau of Prisons (BOP) acts as the gatekeeper, filing a motion where such reasons exist, leaving to the sentencing judge the decision whether, considering all the factors under 18 U.S.C. § 3553(a), the motion should be granted.  Great theory; horrible reality.

The BOP hardly ever files § 3582(c) motions and when it does, the standard is imminent death or what we call “the death rattle rule.”  In about 24% of the cases where a motion is filed, the prisoner dies before the sentencing judge has a chance to rule.  Although the Sentencing Commission has broadly defined “extraordinary and compelling reasons” in U.S.S.G. § 1B1.13, the BOP expressly refuses to implement the Commission’s standard in its so-called “compassionate release” program, as the Government Accountability Office confirmed in its February 2012 report....

[T]he Supreme Court just gave our § 3582(c) litigation a big boost in Setser.  First, in holding that the power to run sentences concurrently or consecutively resided in the Judicial Branch, not the Bureau of Prisons, the Court rejected the BOP’s usurpation of sentencing authority: “But the Bureau is not charged with applying 3553(a).”  Exactly.  The BOP’s practice of only filing § 3582(c) motions that it believes should be granted now runs contrary to Supreme Court authority.  But there’s more.  During oral argument, the attorney defending the district court’s authority to order a federal sentence to run concurrently with a not-yet-imposed state sentence asserted that the federal court could review subsequent state court action through § 3582(c).  Didn’t he realize that the BOP only allowed consideration of imminent death (see 21 Federal Sentencing Reporter 167 (February 2009))?  Although the statute is nowhere in the briefing, the Setser opinion states, “[W]hen the district court’s failure to ‘anticipat[e] developments that take place after the first sentencing,’. . . produces unfairness to the defendant, the Act provides a mechanism for relief,” then sets out the text of § 3582(c)(1)(A). The BOP’s stingy reading of the statute is completely inconsistent with the Supreme Court’s broad reading, and the Court has added to the Sentencing Commission’s recognition of factors “other than, or in combination with” its listed factors that should now include subsequent state sentencing proceedings.

I likewise found notable and valuable the SCOTUS comments about § 3582(c)(1)(A) in Setser v. US, No. 10-7387 (S. Ct. March 28, 2012) (available here).  In addition to the important comments stressed in Steve Sady's post linked above, I also thought it important that at the very end of the Setser opinion the Court indicated that an imprisoned defendant who fails to get requested relief from the BOP adminstrative review process "may seek a writ of habeas corpus.  See 28 U.S.C. §2241."  Because I am not often involved in BOP-related issues, I am unsure if it is well known and/or common for imprisoned federal defendants to seek habeas review via 28 U.S.C. §2241 of BOP decisions that adversely impact them.  If not, the Setser ruling might, in this additional way, prove to be a very positive development for those already serving legnthy federal prison terms.

Prior related posts:

March 29, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Vermont exploring racial disparties in its prison population

Few people likely think first of Vermont when concerned about racial disparties in the operation of criminal justice systems, but this local article from the Green Mountain State highlights that Vermont's legislators are (justifiably) concerned on this front.  The piece is headlined "Vermont bill calls for study of prison population by race," and here are excerpts:

It’s been a vexing puzzle for years, and Vermont lawmakers have decided to take a step at trying to solve it: Why do African-Americans make up 10.3 percent of Vermont’s prison population when they are just 1 percent of residents in the nation’s second-whitest state?

Traffic stops and roadside searches have been studied for years as a possible source of race-based bias among Vermont law enforcement. A new study, contained in a bill given preliminary approval by the House on Tuesday, will look at whether bias enters the picture when defendants are sentenced in court.

“There’s a dramatic disparity between those who are incarcerated and what our census data show,” said Rep. William Lippert. The Hinesburg Democrat chairs the House Judiciary Committee and described the bill to his House colleagues Tuesday. It won preliminary approval on an overwhelming voice vote and was up for final House action Wednesday before moving to the Senate.

The figures are striking: African-Americans make up just 1 percent of the population of a state that is 95.3 percent white, yet they make up 10.3 percent of Vermont inmates. Put another way, a Vermont inmate is more than 10 times as likely as a resident at large to be African-American.

According to the legislative findings at the beginning of the bill, a statistical technique called regression analysis indicated that black men were 1.5 times more likely, and women 2.6 times more likely, to be arrested in Vermont than their white counterparts....

The bill requires that a key part of the study look at prior criminal records of defendants, including prior convictions from out of state. Appel said there is widespread belief — but not enough data to back it up — that African-Americans frequently get into trouble in Vermont when they bring illegal drugs from elsewhere to sell in the state.

“Is it racial profiling, or black men preying on our kids by selling drugs in our communities? It’s long overdue for us to get a handle on what’s driving these disparities,” Appel said. “That’s what this study is designed to answer.”

March 29, 2012 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Don't severability difficulties suggest the ACA individual mandate is constitutional?

As the title suggests, I am going off-topic in this post because I am puzzled after reading Dahlia Lithwick's discussion here at Slate concerning the final day of the SCOTUS health care reform litigation.  (Arguably, I am not straying too far off-topic given not only the discussion of the Booker remedy in the argument, but also Justice Scalia's joking suggestion it would violate the constitutional ban on cruel and unusual punishment to force the Justices to read all of ACA.)  Specifically, if the ACA challengers assert and many Justices believe that none of the indisputably constitutional parts of ACA can stand without the individual mandate, doesn't that notion itself indicate that the mandate has to be a "necessary and proper" adjunct to how Congress has through ACA sought to regulate commerce in health care and insurance?

I raise this point because my understanding of the Raich decision, and especially Justice Scalia's Raich concurrence, was that it was "necessary and proper" for Congress to prohibit private growing and possession of a plant on private property because doing so was a permissible adjunct to how Congress sought to regulate (i.e., prohibit) any and all commerce in that plant.  In other words, I read Raich to mean that, absent some other express constitutional prohibition on state action, Congress can tell people what they can and cannot do (even concerning noneconomic private actions) if doing so is essential to its legitimate regulatory powers. 

Thus, when ACA challengers argue that all of ACA must fall because the individual mandate is the essential heart of the whole regime, I cannot help but thinking this very potent severability claim itself provides a basis for finding the individual mandate a constitutional exercise of Congressional power. 

Am I missing something here?

Recent related posts:

UPDATE:  A number of commentors sensibly suggest that the key issue here may be how to read and apply the term "proper" in the "Necessary and Proper" clause.  The ACA challengers who believe the whole law should come down may well be arguing — or at least may be very willing to concede — that the individual mandate is "necessary" to the operation of other (constitutiuonal) parts of ACA, but the mandate is still not constitutional because that mandate is not "proper" because it unduly infringes on individual liberty and/or improperly realigns the relationship between "the people" and the federal goverment, which is supposed to be a government of limited powers.

I find this textual hook for the argument appealing, but this approach to striking down the individual mandate would still seem to require repudiating the holding and logic of Raich.  Raich held that it was necessary and proper for Congress, in service to promoting a heathier population and/or to prevent a harmful market in pot, to make it a crime for a private person to grow and possess a plant on their own property.  That conclusion surely seem to suggest that it is also necessary and proper for Congress, in service to promoting a heathier population and/or to promote a helpful market in insurance, to penalize a private person if he decides he does not want to purchase health insurance. 

Readers should understand, as perhaps they already do, that I am setting out this argument because I am "rooting" for the individual mandate to be upheld.  I am genuinely unsure about what I hope SCOTUS will do in the ACA cases.  But I am sure that Raich still strikes me as a horrible ruling if one genuinely believes in the importance of a sacred sphere individual liberty and/or that the federal goverment must be a government of limited powers.  Thus my argument really is that, if (and when?) SCOTUS is going to strike down all or lots of ACA, logic and principle suggest it ought also reverse Raich along the way.

March 29, 2012 in Who Sentences? | Permalink | Comments (18) | TrackBack

Wednesday, March 28, 2012

The Sentencing Project provides "Felony Disenfranchisement: An Annotated Bibliography"

I received an e-mail earlier this week from The Sentencing Project announcing this new publication, titled "Felony Disenfranchisement: An Annotated Bibliography," which "provides an overview of more than 80 journal articles and books on felony disenfranchisement over the past two decades." Here is the introduction of the document:

While the right to vote is a cornerstone of American democracy, a substantial and growing population of citizens is restricted from participation in the electoral process.  Current estimates suggest that about five million Americans are ineligible to vote as a result of having a felony conviction.  Depending on the state in which they have been convicted, these people may be disenfranchised while incarcerated, on probation or parole, or even after completing a sentence.  As a result of the dramatic expansion of the criminal justice system in recent decades, the number of people with convictions, and hence disenfranchised, is at a record high.

Since the first modern-day estimates of the disenfranchised population were developed in the late 1990s, there has been a surge of policy reform activity around the country.  Two dozen states have enacted various policy and practice reforms designed to either scale back the number of persons disenfranchised or remove some of the barriers to rights restoration.

Along with this movement has come a new generation of scholarship on the issue of felony disenfranchisement.  A wealth of studies and analyses have been produced in recent years that examine disenfranchisement from a variety of perspectives -- law, social science, history, and journalism.  Overall, these writings provide new estimates of the statistical impact of disenfranchisement, assess legal and moral perspectives on the policy, and place the issue in a comparative international context.

This bibliography provides an overview of the scholarship on felony disenfranchisement over the past two decades.  We hope that it will prove useful to policymakers, scholars, journalists, and others engaged in examining this fundamental issue of democratic participation.

March 28, 2012 in Collateral consequences, Who Sentences? | Permalink | Comments (0) | TrackBack

A timely article urging prosecutors to be "color-conscious" rather than "color-blind"

With all the controversy and media attention surrounding the shooting of Trayvon Martin by George Zimmerman and the response of the Florida criminal justice system, I think this article recently posted on SSRN is especially intriguing and timely.  The piece is titled "Re-Imagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors," and is authored by Justin Murray. Here is the abstract:

Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral.  They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America.  They are unable to detect the ways in which their own discretionary choices — and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors — contribute to the staggering and unequal incarceration of black Americans.

In this article, I aim to undermine this color-blind assessment of criminal justice and explain why prosecutors should embrace a color-conscious vision of their professional duties.  Color consciousness is complex and multi-dimensional.  It involves understanding the ways in which America’s long history of segregation generated the harsh socioeconomic conditions that lead so many young black males into a life of crime.  It also demands awareness of the frequency of racial profiling and acknowledgment of widely shared stereotypes that lead so many Americans to automatically perceive black men as potentially dangerous, violent and criminal.  Finally, color consciousness recognizes the exclusion of blacks from political power and how this exclusion shapes the substantive content of the criminal law.  Prosecutors should not only strive to acquire insight into how race operates in the criminal-justice system, but also to allow these insights to guide relevant aspects of their practice, including the ways in which they interact with police, charge crimes, negotiate plea agreements, present their case to jurors, and more.

Taking these steps, particularly when they redound to the benefit of criminal suspects and defendants, would depart from the adversarial norm that largely defines the professional ethics of American lawyers. Normally, attorneys are expected to zealously represent the interests of their clients and to leave ultimate decisions about what is fair and true to the judge and jury.

Prosecutors are different.  They have a dual obligation to serve both as vigorous advocates within adversarial relationships and as officers of justice.  Currently, no uniform guidelines exist as to the relative weight of the two components of prosecutors’ dual role, so they must make complex judgments about how to negotiate the intrinsic dissonance of their professional identity in a range of different situations.  This article advances a context-specific argument that prosecutors and the institutions that supervise them should be more concerned with pursuing justice than with being a vigorous adversary when dealing with the subtle racial dimensions of their work.

This article, which surely was written well before the Martin-Zimmerman tragedy took place, appears focused mostly on how prosecutors ought to be conscious of racial realities in cases involving young black male defendants.  In the Martin-Zimmerman situation, the twist is whether and how prosecutors who might be inclined to "embrace a color-conscious vision of their professional duties" should change their approach to a case when it involves a young black male victim.

Recent related post:

March 28, 2012 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

"How Would Jesus Punish Drug Use?"

The title of this post is the headline of this recent Huffington Post commentary authored by Molly Gill, who is the Director of Special Projects for Families Against Mandatory Minimums. Here are some excerpts from a potent piece discussing the always interesting connections between religious convictions and criminal justice doctrine:

The first and only time I heard evangelical mega-figure Pat Robertson speak in public, he wasn't calling for the legalization of pot. I was 21, a junior at Oral Roberts University, playing endless rounds of "Pomp and Circumstance" on my viola with the school orchestra. Robertson was present to give the commencement address to that year's graduates.  I can't remember what he exhorted them to do, but I'm positive it didn't involve toking up.

Robertson still isn't spreading that message, but his recent comments about legalizing pot, the cruelty and irrationality of mandatory minimum prison sentences for drug crimes, and the expensive and failed War on Drugs are refreshing.  Our harsh mandatory prison terms for drug offenses are incompatible with Christian principles of justice.  This conviction -- and the faith I and Robertson share -- drove me first to law school and then to Washington, D.C. to work on criminal sentencing reform for Families Against Mandatory Minimums (FAMM), a secular organization.  I join Robertson in posing a question all evangelicals should be striving to answer:

How would Jesus want us to punish?

Most Christians would start with Exodus 21's command that "an eye for an eye" is the right approach.  Sadly, this verse has been cited to justify heartless vengeance in our criminal laws: "do the crime, do the time."  The verse isn't a license to punish, but a limitation on punishment: the time must fit the crime and not be excessive. Giving either less or more punishment than the crime or the offender deserves is an injustice....

Jesus turned the "eye for an eye" concept on its head in Matthew 5, when he said, "You have heard that it was said, 'Eye for eye, and tooth for tooth.' But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also." Anyone can hit back, but it takes real Christian love to show compassion to criminals -- in Jesus' words, to love our law-breaking neighbors as ourselves and to treat them as we would like to be treated....

Our lawmakers are to blame.  Too many Christian legislators wear their faith like a badge of honor and proclaim a belief in redemption and forgiveness, but vote for more mandatory minimum prison sentences in election years.  These lawmakers would do well to remember James 2:17: "Faith by itself, if it is not accompanied by action, is dead."  (James 2:13 is another good reminder.  That verse tells believers to show others the same mercy they've received: "Judgment without mercy will be shown to anyone who has not been merciful.  Mercy triumphs over judgment.")

The Book of James also teaches that a true mark of our faith is caring for widows and orphans. Every time we lock up a breadwinner, we create a widow.  Every time we incarcerate a parent, we create an orphan.  The Christian organization Prison Fellowship does wonders in recruiting the faithful to care for prisoners and their families, but it also urges legislators to reform the laws that are at the root of the problem. Both prison ministry and sentencing reform advocacy are essential.  Christians should support reforming mandatory sentencing laws that perpetuate an over-reliance on prisons and fail to deliver the compassion, services and opportunities for redemption that prisoners and their families need.

More leaders like Robertson should tell Congress to remove the thumb of mandatory minimum sentences from our scales of justice. Our judges need flexibility and discretion to require an eye for an eye -- nothing less and nothing more. They also need more compassionate, redemptive -- I daresay Christian -- sentencing options that treat offenders like the valuable children of God we all are.

Some related older and newer posts:

March 28, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

A little talk about Booker remedy when debating ACA severability

I am listening to the oral arguments of this morning's health care litigation (available at this link), in which the question on tap concerns whether and how SCOTUS ought to strike down other parts of the Affordable Care Act if it strikes down the individual mandate as unconstitutional.  In two parts of that argument, the remedy adopted in Booker gets mentioned.  Not surprisingly, the Justices and the advocates seem to give different spins to what the Court did in the remedy portion of Booker and what that means for severability doctrines.

March 28, 2012 in Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (1) | TrackBack

Fascinating and surprising opinion from SCOTUS in Setser

The Supreme Court this morning handed down an interesting sentencing opinion in Setser v. US, No. 10-7387  (S. Ct. March 28, 2012) (available here), with Justice Scalia authoring the opinion of the Court and Justice Breyer issuing a dissenting opinion (in which Justices Kennedy and Ginsburg joined).  The 6-3 outcome (with all four of the newer Justices along for the ride with Justice Scalia) showcases, yet again, that the Supreme Court's work in sentencing cases is always intriguing and defies the usual left-right divide that often defines the Court's work in other areas.  But the ruling is especially surprising because the Court rejected the position advocated by both the defendant and the US government, and it is especially fascinating because the opinions have a lot more "sentencing dicta" than I had expected this little case to produce.

To understand the Setser basics, here is the concluding paragraph of the majority opinion and the dissenting opinion:

Opinion in Setser:  Because it was within the District Court’s discretion to order that Setser’s sentence run consecutively to his anticipated state sentence in the probation revocation proceeding; and because the state court’s subsequent decision to make that sentence concurrent with its other sentence does not establish that the District Court abused its discretion by imposing an unreasonable sentence; we affirm the judgment of the Court of Appeals.

Dissent in Setser:  Because the Court does not ask why the “multiple sentencing” provision leaves out the authority at issue — concerning the not-yet-imposed sentence — it reaches what I believe is the wrong result.  Consequently, with respect, I dissent.

As these final sentiments highlight, it may be only hard-core sentencing geeks like me who see reason to get worked up about this Setser ruling.  Still, I recommend even the casual federal sentencing fan to take the time to review these opinions closely; it seems to me that there is a lot of "there there" upon careful reading.

March 28, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, March 27, 2012

Georgia poised to "nestle [its] miscreants in a down-filled feather bed of comfort"

ImagesCASZS4J3The title of this post is drawn from an amazing line in an amazing email reportedly sent by a local sherrif to county residents in reaction to a state sentencing reform bill that just received unanimous approval from the Georgia Senate.  This Atlanta Journal-Constitution piece, headlined "Senate unanimously approves sentencing reform bill," provides the details of this latest example of tight budgets prompting significant (cost-saving) sentencing reforms in a "red" state:

The state Senate on Tuesday unanimously approved legislation to reform Georgia's criminal sentencing laws to divert nonviolent drug and property offenders away from costly prison beds, saving the state tens of millions of dollars in projected corrections spending.

House Bill 1176, approved by a 51-0 vote, is intended to steer some low-level offenders to pretrial diversion programs such as drug and mental health courts and reserve the prison system for the state's most dangerous criminals.

The initiative is a top priority of Gov. Nathan Deal. The legislation must be approved once more by the House before it goes to the governor's desk for Deal's signature. House passage is a near certainty, as it initially passed the chamber with almost unanimous support.

"HB 1176 outlines much-needed reforms that will improve public safety, lower recidivism rates and bring real costs savings to Georgia taxpayers," Sen. Bill Hamrick, R-Carrollton, who handled the bill in the Senate, said. "Without action, taxpayers would have paid $264 million over the next five years to accommodate a rising prison population."...

If the bill is enacted, Georgia would follow a number of other conservative southern states -- including Texas and South Carolina -- that have already adopted so-called "smart on crime" sentencing reform legislation.

Some who have followed the legislation said it would go too far in lessening punishment for some crimes, while others said the initiative does not do enough to reform the criminal justice system.

In an email last week to Putnam County residents, Sheriff Howard Sills strongly criticized HB 1176. "Every thief, burglar, check forger and hoodlum from Trenton to Tybee, from Bainbridge to Blue Ridge will be grinning from ear to ear if this passes," Sills wrote. "When it comes to being soft on crime, this legislation will nestle our miscreants in a down-filled feather bed of comfort they never remotely thought they could slumber in."

Sara Totonchi, director of the Southern Center for Human Rights in Atlanta, disagreed. The bill, she said, "implements a very modest slice" of the reforms recommended by a special council of judges, lawyers and other officials that held meetings and issued a report on the initiative. "If Georgia is to realize the crucial cost-saving and public safety benefits that have been promised, future reforms must be far more bold and innovative than what we've seen in 2012," Totonchi said.

A key provision of HB 1176 would create new categories for drug possession crimes, with less severe penalties for those caught with small amounts of narcotics and the most severe penalties for those found with large quantities. It also would increase the felony thresholds for theft and shoplifting crimes.

March 27, 2012 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"U.S. judge bars import of drug used in death penalty"

The title of this post is the headline of this new Reuters report on a seemingly significant ruling coming from the DC federal district court today. Here are the details:

A U.S. judge on Tuesday barred U.S. authorities from importing an anesthesia drug used in carrying out death sentences because the Food and Drug Administration never approved the drug for use in the United States, and he ordered supplies be confiscated.

A group of death row inmates had sued the FDA last year over improperly allowing shipments into the country of sodium thiopental, a sedative used as the first of three drugs administered in carrying out executions.

A year ago, state officials in Tennessee and Kentucky turned over their supplies of the drug to the FDA amid an investigation into how it was imported. U.S. authorities seized a supply of thiopental from state of Georgia. The FDA had sought to have the challenge dismissed, arguing that it was using its discretion by allowing the shipments into the country and also that it deferred to law enforcement with respect to the drugs used for executions.

U.S. District Judge Richard Leon sided with the inmates, criticizing the FDA for departing from its longstanding practice of not allowing unapproved drugs into the United States. "The FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!" Leon wrote in his 23-page opinion.

He also ordered that the FDA notify all state correctional departments with thiopental made overseas that they are not allowed to use it and that they must return their supplies to the agency immediately.  With the supply of thiopental dwindling, Leon noted, some states have switched to pentobarbital to sedate death row inmates before they are injected with the cocktail of other drugs used to carry out death sentences....

Fordham University law professor Deborah Denno called the decision "very important" and said if the thiopental was obtained from overseas, "we don't know the conditions under which those drugs were housed and transported, which could affect their quality."

A spokesman for the Justice Department, which represented the FDA in the case, declined to comment. The agency could appeal. Bradford Berenson, a lawyer for the death row inmates, said: "It's unfortunate that FDA behaved as if there were some kind of death penalty exception to the clear requirements of federal law but gratifying that a federal judge recognized that no such exception exists."

The case is Beaty et al v. Food and Drug Administration et al in U.S. District Court for the District of Columbia, No. 11-cv-289.

Via this post about the ruling appearing at The BLT, I can here link to the full Beaty opinion.  As the opinion notes, a few of the states with the most upcoming serious execution dates (Ohio, Oklahoma and Texas) have recently stopped using thiopental, so the impact of this ruling may not be profound nationwide.  But it will be interesting to see if the FDA will appeal and/or if state who still rely on thiopental in their execution protocols will now be subject to inquiry and litigation concerning the source of this drug.

March 27, 2012 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

Liberty, commerce, the federal drug war, health care reform and the Constitution

I have not paid all that much attention to the health-care-reform litigation, although it is hard for a law professor who dabbles in constitutional theory to avoid giving the basic issues some thoughts.  And now that the case is being argued before the Supreme Court (and with the buzz from yesterday's argument suggesting that the Justices are eager to get to the substantive constitutional issue at the heart of the case), I cannot help but express my two (superficial?) cents on the legal issues at the heart of the cases. 

In short form, I remain deeply disappointed that the bipartisan affinity for the federal war on drugs produced the 2005 Gonzales v. Raich decision, which held that Congress had constitutional authority based on the Commerce Clause to punish via federal criminal law the "intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes."  If Congress has constitutional authority under the Commerce Clause to threaten someone with a year in federal prison simply for growing and consuming a plant on their own property in an effort to feel better (and thereby seek to avoid having to purchase health care resources from others), it is hard for me to understand why Congress lacks the authority to require someone to pay a fine if he does not purchase health insurance and yet still will consume health care resources (funded in part by the Congress) if he has an emergency medical condition.

Put more directly, whether the constitutional concern is personal liberty or limits on federal power, I think it is much harder to justify the reach of the federal drug war in Raich than to justify the reach of federal health care reform and the individual mandate.  But, sadly, while so many are energized and eager (mostly for political, not leagl reasons) for SCOTUS to strike down all of federal health care reform, so few in 2005 were energized and eager for SCOTUS to strike down the most extreme application of the federal drug war.  This is not only disappointing, in my view, but also another great example of the old aphorism "what comes around, goes around."

March 27, 2012 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Alcohol industry resistant to federal support for more DUI prevention technology

This interesting new article from Politico, which is headlined "Fight brews over DUI technology," provides another clear example why I think parents (and others) should worry much more about the harms fostered by the alcohol industry than by the marijuana industry. As these excerpts highlight, the lobbies for booze peddlers are hard at work trying to prevent the development and more widespread use of new technologies to prevent drunk driving:

Safety advocates and alcohol interests are squaring off over legislation intended to reduce alcohol-related traffic deaths through the use of devices that prevent drunken drivers from starting their cars.  Tucked into the Senate’s transportation bill is a provision that directs the National Highway Traffic Safety Administration to study “more widespread deployment of in-vehicle technology” that would prevent drunken driving....

The idea is to develop some kind of nonintrusive technology based around touch or breathing that would be able to sense when a driver is drunk and disable the car. Technology on the market now — called “ignition interlocks” — require a driver to blow into a Breathalyzer device attached to the car’s dashboard and then wait 30 seconds until the sample is analyzed.  Only then will the car start.

The research is trying to develop a “far less intrusive” technology more acceptable to the general public, which consumers eventually would be able to choose as an option on a new car — similar to picking leather seats or a sunroof.

Sarah Longwell, managing director of the American Beverage Institute, a group that represents alcohol distributors and restaurants that serve alcohol, said the provision is the proverbial camel’s nose under the tent that could lead to mandating these devices on all new cars. “They’re developing it for all cars as original equipment.  The bill doesn’t mandate anything, but ultimately that’s what they want,” Longwell said.

But J.T. Griffin, senior vice president of public policy for Mothers Against Drunk Driving, said all the program would do is enable research.  “Car companies right now are trying to figure out how to do it and if it can even be done.  The goal is this would be a voluntary technology,” Griffin said. “MADD’s perspective is, we think every parent in America is going to want this on their vehicle.”...

On this portion of the bill, the American Beverage Institute is waging a pretty lonesome war. The research provision has the support of the Distilled Spirits Council of the United States, the National Beer Wholesalers Association and the Wine and Spirits Wholesalers of America.

The other provision in question — which is in both the House and the Senate versions of the surface transportation bill — has drawn more opposition. The language stipulates that if states want about 5 percent of their regularly allocated safety money, they must enact a law that requires first-time DUI offenders to install an ignition interlock device if they want to continue driving.

“Both bills take a little bit of a different approach to safety, but at the end of the day, the states that pass ignition interlocks for all convicted offenders will receive additional money,” said Griffin of MADD. “This is a huge component of MADD’s campaign to eliminate drunk driving.”...

At present, 16 states have this sort of “all-offender” mandate for ignition interlocks on their books, and an additional 22 states require them for repeat offenders or those whose blood-alcohol content was especially high.  These programs generally require an offender to install an ignition interlock in order to avoid a complete driver’s license suspension for a period of time.

And, according to research by the Insurance Institute for Highway Safety, the all-offender mandate seems to be making a difference.  The study examined drivers in Washington state — one of the states that has an ignition interlock mandate for first-time offenders — and concluded that recidivism fell by 12 percent among first-timers who installed an interlock.

In New Mexico — the first state to mandate an ignition interlock — expanding the mandate to include first-time offenders reduced DUI-related fatalities by 35 percent over four years, according to data made available by the office of Sen. Tom Udall (D-N.M.).

Longwell of the American Beverage Institute said her group opposes the language because it would apply to first-time offenders no matter what their blood-alcohol content was.  ABI is pushing for the devices to be required only for repeat offenders or those whose blood alcohol content is .15 and higher.  If a first-time offender should be given an ignition interlock, “a judge should be involved” in the decision, she said.  “We treat different types of offenders differently, so we still want some kind of proportional response there,” Longwell said.

On this issue, ABI has some company. The Distilled Spirits Council, for instance, also does not support an ignition interlock mandate for first-time offenders.  “We continue to strongly support the use of judicial discretion and education” for offenses involving something other than “hard-core” offenders — those who are repeat violators or who blow high alcohol levels on a Breathalyzer test, the Distilled Spirits Council said in a statement.

Udall said the proof of the all-offender interlock mandate’s effectiveness is in the statistics.  “We made a dramatic difference in eight years with this,” Udall said, noting that he has been involved with pushing for policies that reduce drunken driving deaths since his time as New Mexico’s attorney general in the early 1990s.  “People shouldn’t be losing their lives as a result of drunk drivers. The thing you really learn more than anything is these are preventable deaths; it’s not like they have to happen,” Udall said.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

March 27, 2012 in Offense Characteristics, Technocorrections, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, March 26, 2012

US Sentencing Commission releases new annual report and sourcebook of federal sentencing stats

Though I continue to have a severe case of March Madness thanks to my Buckeyes making it to the Final Four, the US Sentencing Commission has just posted some new goodies on its website that would also enable me to have a severe case of federal sentencing data madness. Specifically, here's what now available for download via the USSC's website:

NEW 2011 Annual Report and Sourcebook of Federal Sentencing Statistics

The 2011 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2011. See the Commission's 2011 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.

I hope to see if there are any interesting stories to mine from these new federal sentencing materials in the next few days.  Readers/commentors are welcome and encouraged to help the effort, as there is more of note in these new USSC documents.

UPDATE on 3/27: I just received this email notice of an additional release from the USSC concerning its most up-to-date full-year data runs:

The United States Sentencing Commission's Final Quarterly Data Report for fiscal year 2011 is now available on the Commission's website. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.  

View the Final FY11 Quarterly Sentencing Update.

March 26, 2012 in Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Notable new ACLU of California report on state's prison realignment efforts

Asset_upload_file954_10684The ACLU of California has recently released this significant new report titled "Public Safety Realignment: California at a Crossroads," examining and assessing recent California efforts to deal with its prison overcrowding problems. Here is the start of the report's executive summary:

California is at a criminal justice crossroads.  After decades of “tough on crime” policies and draconian sentencing practices, the state correctional system — one of the largest incarcerators in the largest incarcerating country in the world — finally buckled under its own weight.  Faced with a historic U.S. Supreme Court order requiring the state to reduce overcrowding, California made a momentous decision: it would no longer take into state facilities or under state custody most people convicted of low-level, non-violent offenses, instead tasking counties with dealing with these individuals at the local level.

Legislatively codified as the Public Safety Realignment Act, or Assembly Bill 109 (AB 109), this major policy shift has put California’s 58 counties in the driver’s seat.  Each county will choose its own path, but their futures are intertwined. Poor implementation in one county will inevitably affect others. All will affect California taxpayers.

The ACLU has conducted an in-depth review of all 53 available county realignment implementation plans, and we have analyzed the statutory changes and related state laws and budget allocations.  We have identified four major interrelated themes:

• A troubling lack of state monitoring, data collection, outcome measurements and funding incentives to help counties successfully implement realignment.

• A dramatic increase in spending on county jails — facilitated by billions of dollars in state funding — particularly in those counties that have historically sent more people to state prison for low-level, non-violent offenses.

• A shockingly high number of people who present no real threat to public safety being held in county jails before having their day in court, incarcerated without trial simply because they cannot afford bail.

• A promising commitment — though not yet realized — by many counties to adopt alternatives to incarceration and evidence-based practices to reduce recidivism.  A few counties are adopting innovative programs and approaches that can serve as models for the rest of the state, but all too often our analysis revealed few, if any, resources allocated for such programs

March 26, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

A dog-sniff cert grant and lots of GVRs after last week's SCOTUS criminal justice action

While most eyes and ears focused on the Supreme Court this week have a health-care-reform focus, the Justices today released an order list with some criminal justice doings (along with a couple civil case opinions).  Here are the basics via this SCOTUSblog post:

The court  announced  orders today from its March 23 conference.  The Court granted certiorari in one case, Florida v. Harris, involving the question of whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is sufficient to establish probable cause for the search of a vehicle.  The Court also issued orders granting, vacating, and remanding ten other cases in light of its prior decisions.  A number of the GVRs were in light of decisions the Court issued last week in Lafley v. CooperMissouri v. Frye [and] Martinez v. Ryan.

March 26, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Saturday, March 24, 2012

Perspectives on the import and impact of Lafler and Frye

23plea-graphic-articleInlineThe New York Times yesterday published this effective piece, headlined "Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals," discussing the Supreme Court's important rulings this week in the Sixth Amendment rulings Lafler and Frye. Here are excerpts:

For years, the nation’s highest court has devoted the majority of its criminal justice efforts to ensuring that defendants get a fair day in court and a fair sentence once a trial is concluded. But in two decisions on Wednesday, the Supreme Court tacitly acknowledged that it has been enforcing an image of the system that is very different from the real, workaday world inhabited by prosecutors and defense lawyers across the country.

In that world, 97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence.  Courtroom trials, the stuff of television dramas, almost never take place.

Ronald F. Wright, a professor of law at Wake Forest University, said that for generations plea bargains have been the rule rather than the exception, “and the Supreme Court has, until the last two or three years, found a way to ignore that.” Professor Wright likened the court’s decisions on Wednesday to “Rip Van Winkle waking up.  He looks around and says, ‘Wow, when I went to sleep the world was full of trials.’ ”...

Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with so little oversight that one law professor, Stephanos Bibas of the University of Pennsylvania, has compared it to a Turkish bazaar.

Reacting to the decisions, legal scholars on Thursday used words like “huge” and “bold” to describe them. “I can’t think of another decision that’s had any bigger impact than these two are going to have over the next few years,” Professor Wright said.  Perhaps how bold was reflected in the intensity of Justice Antonin Scalia’s scathing dissent, which excoriated the court for elevating the “necessary evil” of plea bargains into “a constitutional entitlement.”

But what legal experts seemed to agree on was that it was difficult to gauge what concrete effects the rulings would have on everyday legal practice.  Professor Bibas said that they would probably lead to a flurry of postconviction filings by people who believed their lawyers were at fault for their failure to get a better deal.  “But very few of them will succeed,” he said. “Courts are very good at tossing these cases out.”

The rulings, he added, might also result in requirements that plea offers be put in writing — something that Justice Kennedy noted was already the case in Arizona.  While many states require plea agreements to be written and presented before a judge, plea offers are often verbal and made in informal settings.

More significant, Professor Bibas said, was the symbolic importance of the court recognizing the need for closer monitoring of pretrial negotiations.  “I’m not a big fan of plea bargaining,” he said, “but the least we can do is to clean up the messy way it’s practiced.”

However, Nancy King, a law professor at Vanderbilt University, worried that the court’s rulings would distract states from more important issues.  “Ironically, by beefing up the resources devoted to postconviction litigation, the court may have actually made it more difficult for states to provide competent legal assistance to those indigent defendants who should never be convicted in the first place,” she said....

Steve Banks, attorney in chief for the Legal Aid Society in New York, noted that in 15 states, including New York, prosecutors are not required to turn over their evidence or witness lists to the defense until just before trial, making it difficult for defense lawyers to properly assess the merits of a plea offer.  “Now that the Supreme Court has said that you are entitled to effective assistance at the plea-bargaining stage of the case,” Mr. Banks said, “It’s hard to imagine how prosecutors in states like New York, with antiquated discovery statutes, can continue to withhold critical information.”

But one former prosecutor sided with Justice Scalia.  The implication of the decisions is that defendants should be rewarded with the lesser sentences afforded by plea bargains simply because “the squeezed economics of the system virtually demand that almost all cases be processed by watered-down negotiation rather than by trial,” said William G. Otis, a former c Appellate Division chief at the United States attorney’s office in the Eastern District of Virginia.  “That view of the system is perverse,” Mr. Otis said, “a virtual tip of the hat to cynicism sailing under the flag of practicality.”

Recent related posts:

March 24, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Vacated death sentence cuts number of women on federal death row in half

As reported in this AP piece, a ruling by a federal district judge earlier this week "removed one of the two women on federal death row Friday, saying lawyers for the Iowa woman convicted in the 1993 execution-style murders of five people failed to present evidence about her troubled mental state that could have spared her from capital punishment."  Here are the basic details from a mega-ruling:

In a 448-page ruling, U.S. District Judge Mark Bennett threw out Angela Johnson's death sentence, saying her defense lawyers were "alarmingly dysfunctional" during the 2005 trial that made her the first woman to be sentenced to death in the federal system since the U.S. Supreme Court reinstated the punishment in 1976....

Bennett's ruling doesn't throw out her convictions — he said evidence of her guilt was overwhelming. Johnson and boyfriend Dustin Honken committed the murders to thwart a federal investigation that threatened to end Honken's reign as one of the Midwest's largest methamphetamine kingpins, and buried the bodies to cover them up.

After separate trials, jurors sentenced Honken to death for the two children's murders while Johnson was sentenced to death on four counts.... The bodies of the victims — drug dealers-turned-government witnesses Terry DeGeus and Greg Nicholson; Nicholson's girlfriend, Lori Duncan; and Duncan's daughters, Kandi, 10, and Amber, 6 — were found in shallow graves near Mason City in 2000. They were discovered after Johnson, serving time on drug charges, sketched out a locator map to a jailhouse informant....

Bennett said that he understands his ruling will upset victims' families, but Johnson's defense was so riddled with missteps that her rights were violated. "I believe that I have done my duty, in light of what is required by the Constitution — the foundational document of our Nation's enduring freedoms, including the right not to be put to death when trial counsel's performance was so grossly constitutionally inadequate," he wrote.

During the penalty phase of Johnson's trial, Bennett said defense lawyers failed to present expert testimony about her mental health at the time of the murders that could have helped explain her involvement to jurors.  He said they should have presented evidence about the impact of serious brain impairments, personality disorders and her prior methamphetamine use.

Bennett said defense lawyers also failed to present evidence that could have undercut the prosecution's claim that she participated in DeGeus' killing out of revenge, because of their prior relationship's abusive nature.  He said they should have had experts argue she was suffering from battered woman's syndrome and wouldn't have wanted him dead....

Iowa does not have the death penalty, and Bennett said few lawyers in the state had expertise in capital punishment.  He said he tried to assemble "dream team" of lawyers for Johnson — including Alfred Willett, of Cedar Rapids; Patrick Berrigan of Kansas City, Mo.; and Dean Stowers of Des Moines — but they performed poorly. Willett and Berrigan didn't return messages Friday. Stowers agreed the defense team was dysfunctional. "I'm happy she's going to get a new shot at things because she deserves it," he said.

Bennett, appointed to the bench by President Bill Clinton, has acknowledged his personal opposition to the death penalty.  In a 2006 speech about the two capital murder cases, he said he set aside his personal beliefs in the interest of fairness.  But he added he had "grave concerns" the death penalty could be applied unfairly.

The full 448-page opinion, which concludes by noting that the defendant prevailed "on only four of the sixty-four grounds that she asserted," can be accessed via this link.

March 24, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"Battling Collateral Consequences: The Long Road to Redemption"

The title of this post is the title of this new and timely article by Joann Sahl, which is available via SSRN.  Here is the abstract:

Mississippi Governor Haley Barbour issued 193 controversial pardons on January 10, 2012, his last day in office. Former Ohio Governor Ted Strickland, who left office in January 2011, also faced criticism when he granted 280 pardons.  Both governors publicly acknowledged that they granted most of their pardons to rehabilitated ex-offenders who sought to overcome the civil consequences of their criminal convictions.  These consequences, known as collateral consequences, impede the ability of millions of ex-offenders to find employment, housing or other important benefits.

This Article explores the increasingly important, but controversial, role that governors play in the battleground of collateral consequences.  Their use of their redemptive pardon power has become critical to ex-offenders to overcome the collateral consequences of their convictions so they may reintegrate into society.  This Article examines the redemptive pardon process through the lens of two ex-offenders who made the journey from conviction to pardon.  As their stories reveal, the pardon process is long and arduous.  This Article recommends that governors adopt an expedited process for redemptive pardons so ex-offenders may have more timely relief from the burden of their collateral consequences.

The redemptive pardon serves an important role for ex-offenders who seek a second chance, but it is impossible for governors to consider and to grant the pardon applications of millions of ex-offenders. States must offer other remedies to ex-offenders that can also serve to ameliorate the impact of collateral consequences.  This Article recommends changes to judicial expungement statutes, using Ohio as a model, to offer this needed relief.

The redemptive pardon and judicial expungement process will help ex-offenders in their ongoing struggle with the collateral consequences of their convictions, but true relief can only occur if there is an end to collateral consequences.  This Article urges states to abolish collateral consequences and it highlights Ohio’s efforts as a model for this change.

March 24, 2012 in Clemency and Pardons, Collateral consequences, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, March 23, 2012

Should Florida's Gov have appointed a black (or Hispanic) prosecutor to take over the Trayvon Martin case?

AngelaCoreyI have not yet blogged about the (still-growing?) controversy over how Florida law and officials have been handling the high-profile shooting case that has been the subject of much media attention.  But, as the question in the title of this post reveals, I have a provocative query in the wake of the latest development in the case. This local story, headlined "Gov. Rick Scott appoints special prosecutor for Trayvon Martin case," provides some of the basics:

Under the glare of protests and the national media spotlight, the Sanford police chief and the Brevard-Seminole County prosecutor both stepped aside Thursday in the case of a neighborhood watch volunteer who fatally shot an unarmed black teenager. 

Gov. Rick Scott appointed Angela B. Corey, state attorney for the Jacksonville area, as special prosecutor to head the state investigation of the Feb. 26 slaying of Trayvon Martin, 17, of South Florida.  Scott also announced that a task force headed by Lt. Gov. Jennifer Carroll will study Florida's "stand your ground'' law.  The government's statement suggested that Brevard-Seminole State Attorney Norm Wolfinger was forced out....

George Zimmerman, 28, was the neighborhood watch captain at the Retreat at Twin Lakes, a townhouse complex in the small town north of Orlando.  A Hispanic former insurance agent with a history of reporting the presence of black men to police, Zimmerman shot Martin in the chest.

Jennifer_Carroll_Official

The killing came after Zimmerman called police saying he saw someone in a hoodie walking too slowly in the rain, peering at houses.  After the shooting, he told police he was attacked and fired in self-defense....

 

The Sanford Police Department is under fire for its handling of the investigation and for accepting the shooter's self-defense claim. Accused of lying to reporters and Trayvon's parents, protecting the shooter and ignoring key witnesses, Lee decided to step aside Thursday. His decision came a day after a 3-2 Sanford City Commission vote of "no confidence" in the chief....

Martin's parents said that the chief's stepping down wasn't enough and that Zimmerman should be taken into custody. "We want an arrest, we want a conviction and we want him sentenced for the murder of my son," Martin's father, Tracy, said to fiery crowd of about 1,000 supporters in downtown Sanford.... 

Scott said the task force led by Carroll will take a closer look at the 2005 "stand your ground" law, and other issues surrounding the case. "After listening to many concerned citizens in recent days, I will call for a Task Force on Citizen Safety and Protection to investigate how to make sure a tragedy such as this does not occur in the future, while at the same time, protecting the fundamental rights of all of our citizens — especially the right to feel protected and safe in our state," Scott said in a release.

The task force will convene after the investigation takes place, and will include public hearings. In addition to Carroll, the Rev. R. B. Holmes Jr., pastor of the Bethel Missionary Baptist Church in Tallahassee, has agreed to be the vice chair of the task force. Attorney General Pam Bondi and the Legislature's Republican leadership — some of whom co-sponsored the "stand your ground" law — also supported the new task force.

The Justice Department and FBI have opened a civil rights investigation, and a grand jury will meet April 10 to determine whether to charge Zimmerman.  Before the rally, Martin's parents met with the U.S. attorney for Florida's Middle District, the deputy assistant attorney general for civil rights in Washington and the head of the FBI's Tampa office to discuss the investigation.  "We listened carefully to the concerns of the family and their representatives," Special Agent Dave Couvertier, an FBI spokesman, said in a statement. "We continue to extend our deepest condolences to Trayvon's family for their loss."

I have posted the pictures of the two persons given new responsibilities in this matter by Florida's governor, as well as titled this post with a provocative question, in large part because race (and arguably gender) has much to do with this particular case and the large issues that it raises about self defense law and practice.  I especially do not envy Angela Corey's challenge to deal with both the uncertain facts and the certain identity politics surrounding this case.

In this press story, I also find notable (and quite troublesome) that Trayvon Martin's father is not merely demanding an investigation and arrest, but also saying at a rally that "we want a conviction and we want him sentenced for the murder of my son."  That quote leads me to believe and fear that this case will continue to be the source of significant controversy and racial tensions in Florida (and elsewhere) no matter what the new prosecutor and task force does in the weeks and months ahead.

UPDATE:  And this new AP story, headlined "Obama says shooting death of Fla. teen a 'tragedy'," reinforces my sense that this story is going to be making lots of headlines for lots of reasons for quite some time.  Consider these comments by President Obama, in particular, as we think about the importance of optics on the operation and the perceptions of our criminal justice system:

Obama expressed sympathy for the parents of 17-year-old Trayvon Martin, who was shot on Feb. 26 in Sanford, Fla., a suburb of Orlando, by a neighborhood watch volunteer who said he was acting in self-defense. "I can only imagine what these parents are going through, and when I think about this boy, I think about my own kids," Obama said, calling the case a "tragedy."

The nation's first black president aimed his message at Martin's parents, saying, "If I had a son, he'd look like Trayvon. I think they are right to expect that all of us as Americans take this with the seriousness that it deserves, and we're going to get to the bottom of what happened."

Obama said that "every parent in America should be able to understand why it is absolutely imperative that we investigate every aspect of this and everybody pulls together, federal state and local, to figure out exactly how this tragedy happened."

"What happened to Trayvon Martin is a tragedy. There needs to be a thorough investigation that reassures the public that justice is carried out with impartiality and integrity."

March 23, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (22) | TrackBack

Thursday, March 22, 2012

Are SCOTUS rulings in Lafler and Frye as revolutionary as Gideon?

The question in the title of this post is prompted by a quote in Adam Liptak's coverage of the big Sixth Amendment rulings handed down by the Supreme Court yesterday in this front-page New York Times article.  Here are snippets:

Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers....

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance.  “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

Recent related posts:

March 22, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (33) | TrackBack

Colorado federal prosecutor explains to Boulder DA his pot prohibition plans

As reported in this prior post, Boulder's District Attorney last week wrote to Colorado's federal prosecutor in Colorado to urge him to stop threatening to prosecute medical-marijuana dispensaries abiding by state law.  Now, as reported in this follow-up article, US Attorney John Walsh has written back to explain why he is so eager to have the federal war on drugs waged against some medical-marijuana dispensaries.  Here is more:

In the letter to Garnett, Walsh reiterated that he decided to target dispensaries within 1,000 feet of schools after seeing evidence of a rise in youth marijuana use that coincided with the boom in medical-marijuana businesses in Colorado. "We concluded that our responsibility — as federal law enforcement officials and also as Coloradans living in the very Colorado communities impacted by these alarming trends — required a response," Walsh wrote to Garnett.

More than 20 dispensaries closed or moved after receiving letters from Walsh's office. Walsh told Garnett he plans to send more letters to other dispensaries until no such businesses remain in Colorado within 1,000 feet of schools. "This program," Walsh wrote, "is not at the direction of Washington, D.C., but at my direction as U.S. Attorney and as a Coloradan."

Colorado law places a 1,000-foot buffer between dispensaries and schools but also allows local governments to shrink that distance or grandfather in existing businesses. Medical-marijuana advocates say there is no evidence dispensaries — near schools or otherwise — are illegally selling to kids.

The fascinating full two-page letter from USA Walsh to the Boulder DA can be accessed here

I would LOVE to hear from members of the federal Tea Party caucus (e.g., Michelle Bachmann) or from other Republicans who have stressed states rights to be free from federal overreach and over-regulation about this interesting spat over local pot policies.  This dispute seems like an opportunity to discover whether some on the right who complain about the size and growth of the federal government are really troubled by all forms of big government or only those forms of big government that they do not agree with.

Recent related post:

March 22, 2012 in Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Split Eleventh Circuit panel keeps Alabama lethal injection challenge alive (for now)

As reported in this AP article, the Eleventh Circuit "has revived an Alabama death row inmate's challenge of his state's new three-drug lethal injection protocol."  The per curiam opinion from the Eleventh Circuit panel (available here) ends this way:

To survive a motion to dismiss, Arthur has to plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550 U.S. 554, 570 (2007). Here, Arthur has alleged enough facts to constitute a plausible Equal Protection claim because he alleges that Alabama has substantially deviated from its execution protocol in a manner that significantly reduces inmate safeguards.  He alleges that Alabama’s lethal injection protocol requires pinching the inmate as the last consciousness check after the initial injection of pentobarbital and prior to injecting the final two lethal drugs.  The consciousness check is performed to reduce or eliminate the risk of excruciating pain that would follow the injection of the second and third drugs in the lethal injection protocol. Arthur alleges that based on eyewitness testimony, the State of Alabama failed to perform the pinch test during the 2011 execution of Eddie Powell, even though Powell’s eyes remained open, his head turned from side to side, and he clenched his jaws.

Arthur alleges that Alabama’s reduction in safeguards burdens his right to be free from cruel and unusual punishment. “[S]ubjecting individuals to a risk of future harm — not simply actually inflicting pain — can qualify as cruel and unusual punishment.” Baze v. Rees, 553 U.S. 35, 49 (2008). Significant deviations from a protocol that protects inmates from cruel and unusual punishment can violate the Eighth Amendment. Indeed, the Sixth Circuit recently affirmed an order to stay an execution because four core deviations from Ohio’s lethal injection protocol, including foregoing mandated vein assessments, burdened the Equal Protection rights of inmates in Ohio. See In re Ohio Execution Protocol Litigation, No. 12–3035 (6th Cir. Jan. 13, 2012), affirming, Cooey v. Kasich, 801 F. Supp. 2d 623, 643-644 (S.D. Ohio 2011) (“We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted.”).

Here, Arthur alleges that Alabama failed to perform a required consciousness check in a recent execution, a significant deviation from its execution protocol. In light of Arthur’s other allegations regarding the veil of secrecy that surrounds Alabama’s execution protocol, it is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution.

Accordingly, accepting Arthur’s allegations as we must at the motion to dismiss stage, we conclude that the district court erred in dismissing Arthur’s Equal Protection claim at this stage of the proceedings and remand for further factual development.

A very lengthy dissent by Judge Hull and Alabama's likely eagerness to go forward with an execution scheduled for next week leads me to believe that this matter may be considered in some way by the full Eleventh Circuit or perhaps even the Supreme Court before long.  In other words, this is a story to keep watching.

March 22, 2012 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, March 21, 2012

In 5-4 split, Justice Kennedy give defendants right to counsel wins in Lafler and Frye

I am on the road and thus forced to phone-blog to report today's big SCOTUS news: two wins for defendants in the state cases involving claims of ineffective assistance of counsel during plea bargaining. Links and commentary will follow late tonight once I get a chance to see the opinions.

UPDATE: A great colleague sent me an email to make sure I realized these cases were, in her words, HUGE!

STILL MORE: Now back at a full-functioning computer, I can here now link to the SCOTUSblog summary of these rulings (together with links to the opinions):

Justice Kennedy (the author of four of the Court’s seven opinions this week) announced the first two opinions of the day.  In the first opinion, Missouri v. Frye, the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.

In the second opinion of the day regarding ineffective assistance of counsel at the plea bargain stage, Lafler v. Cooperthe Court vacated the decision of the Sixth Circuit and remanded the case for further proceedings. Also by a vote of five to four, the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.

March 21, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

How important (and distinct) is harmless error analysis for sentencing?

The question in the title of this post is prompted by the fact that the Supreme Court hear oral argument today in Vasquez v. United States (SCOTUSblog case page here), which concerns the meaning and application of the federal harmless error rules.  The SCOTUSblog folks have an effective oral argument preview in this post, which includes this background and insights:

Vasquez v. United States [concerns] the meaning of the harmless error rule in Federal Rule of Criminal Procedure 52(a) and 28 U.S.C. § 2111. These similarly worded provisions govern appellate review of any trial error to which counsel objected below; they provide that if an error does not affect “substantial rights,” then it was harmless, and an appellate court should not reverse to correct it.  The proper scope of the harmless error rule has divided the courts of appeals.  Many hold that unless the government proves that the error could not have had any material effect on the proceedings below, it cannot be harmless. Others hold errors harmless when the evidence of the defendant’s guilt is overwhelming. Because the harmless error rule governs so many cases, its meaning is one of the most important questions in criminal appellate law....

It will be interesting to see whether the Court regards the harmless error rule as primarily concerned with process, or instead with results.  Vasquez argues that the Seventh Circuit erred because it failed to consider how close the case was, and failed as well to analyze the effect of the error on the overall verdict.  But if the Seventh Circuit had gone through the motions of such an analysis and reached the same conclusion, it is not clear what else Vasquez would say the court was required to do.  The rules set forth by the United States, on the other hand, are more concerned with the outcome of the analysis.

Another interesting question is whether the Court will treat the error in this case as serious or not. Vasquez argues that the error was global -- i.e., that because the tapes suggested that even his attorney didn’t believe in his defense, they tainted the jury’s consideration of the case as a whole.  Respondent argues that the error was minor -- the tapes would have been admitted anyway, and the court’s only error was failure to provide a limiting instruction. Both characterizations have some force to them.

As the Vasquez case itself spotlights, the harmless error rule arises most often (and its stakes are heightened) after a defendant has been convicted at a trial in which an error occurred.  And yet, because the vast majority of convictions and sentencings follow a plea, whether and how harmless error doctrines apply in other contexts will impact how consequential any ruling in Vasquez will become.

In the wake of Booker, I thought that some circuit courts might start making aggressive use of harmless error analysis to reject defense claims of guideline calculation errors.  But, perhaps for good reason given the considerable significance and weight that the guidelines still have in most courts after Booker, there has not developed a robust harmless error sentencing jurisprudence.  But perhaps readers have some distinct sentencing experiences with harmless error rules in other settings.  If so, do tell.

March 21, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 20, 2012

Seeking policy preferences: no LWOP for younger juves or no mandatory LWOP for all juves?

Today's oral argument in the two big JLWOP cases in the Supreme Court (basics reported here) suggests that some Justices may be drawn to a substantive Eighth Amendment rule precluding any and all very young offenders (say those 14 and under) from ever getting an LWOP sentence, while others may be drawn to a procedural rule precluding a mandatory LWOP sentence for any juvenile.

Putting to one side for now constitutional concerns about the development of Eighth Amendment doctrine for this case and other, I wonder which rule would be preferred simply as a matter of public policy among readers of this blog.

March 20, 2012 in Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Via narrow 7-2 ruling for defendant, SCOTUS dodges Sixth Amendment issue in Martinez v. Ryan

In an apparent (and reasonable?) effort to avoid a major constitutional ruling concerning the Sixth Amendment right to counsel, Justice Kennedy today, writing for seven Justices in Martinez v. Ryan (opinion here), adopts "a more narrow, but still dispositive" rule that a "federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding."  For a variety of reasons, I think this way of resolving Martinez v. Ryan is designed to try to ensure the ruling ends up not being especially consequential.

While others can debate the wisdom of this ruling and the effort to dodge a big Sixth Amendment pronouncement, I will highlight the first paragraphs of the dissent written by Justice Scalia (and joined by Justice Thomas).  In addition to sumarizing what the majority does, the dissent laments where this ruling might lead:

Let me get this straight: Out of concern for the values of federalism; to preserve the ability of our States to provide prompt justice; and in light of our longstanding jurisprudence holding that there is no constitutional right to counsel in state collateral review; the Court, in what it portrays as an admirable exercise of judicial restraint, abstains from holding that there is a constitutional right to counsel in initial-review state habeas.  After all, that would have meant, in a case such as the one before us, that failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, would constitute cause for excusing procedural default.  See Strickland v. Washington, 466 U. S. 668 (1984).  Instead of taking that radical step, the Court holds that, for equitable reasons, in a case such as the one before us, failing to provide assistance of counsel, or providing assistance of counsel that falls below the Strickland standard, constitutes cause for excusing proceduraldefault.  The result, of course, is precisely the same.

Ah, but perhaps the explanation of why the Court’s action today amounts to praiseworthy self-restraint is this:It pronounces this excuse from the usual rule of procedural default only in initial-review state habeas raising an ineffective-assistance-of-trial-counsel claim. But it could have limited its invention of a new constitutional right to collateral-review counsel in precisely the same fashion -- and with precisely the same consequences. Moreover, no one really believes that the newly announced “equitable” rule will remain limited to ineffective-assistance-of-trial counsel cases.  There is not a dime’s worth of difference in principle between those cases and many other cases in which initial state habeas will be the first opportunity fora particular claim to be raised: claims of “newly discovered” prosecutorial misconduct, for example, see Brady v. Maryland, 373 U. S. 83 (1963), claims based on “newly discovered” exculpatory evidence or “newly discovered” impeachment of prosecutorial witnesses, and claims asserting ineffective assistance of appellate counsel.  The Court’s soothing assertion, ante, at 14, that its holding “addresses only the constitutional claims presented in this case,” insults the reader’s intelligence.

UPDATE: Over at her Habeas book blog, Professor Nancy King has this extraordinary post on the Martinez ruling which concludes with these notable queries:

The decision raises many questions; here are just a dozen that come to mind: (1) Will the limitation to IAC-at-trial claims withstand the inevitable pressure to expand the ruling to Brady, jury misconduct, and other late-discovered claims? (2) Will a substantial showing of IAC in state collateral review also excuse failures to raise claims of IAC on direct appeal? (3) Is the “some merit” test different than “prejudice”? (4) Could a State avoid the rule in Martinez by replacing a rule banning IAC claims on direct appeal with a rule making appellate review of such claims (with or without remand to the trial court for fact development) discretionary? (5) How will Martinez affect federal prisoners? (6) Will this mean more evidentiary hearings in federal court to demonstrate the ineffectiveness of counsel on collateral review? (7) Who will be able to take advantage of this “equitable” pronouncement – will it be retroactively applied? (8) Will Congress react by amending Section 2254(i)? (9) What if a state decides not to review ineffective assistance claims at all? (10) Will the ruling prompt more waivers of the right to bring ineffective assistance claims in state cases, and how will state courts handle those? (11) How will this affect the provision of defense services at the trial level where they are most needed – isn’t it more likely to harm state defendants by stretching thin resources even thinner? (12) What other changes to habeas review can we expect to see from the Court exercising its equitable authority?

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

Monday, March 19, 2012

Video preview of Jackson and Miller Eighth Amendment cases

As repeatedly mentioned recently, the Supreme Court is due to hear oral argument tomorrow in Jackson v. Hobbs and Miller v. Alabama, the two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  The crackerjack folks here at the OSU Moritz College of Law has put together this video preview of the case (in which you can see me magically placed in front of the US Supreme Court while I discuss the basic jurisprudential issues in Jackson and Miller and also this amicus brief that I put together along with a group of my students for these cases).

Some recent related posts providing previews of Jackson and Miller cases:

March 19, 2012 in Jackson and Miller Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Keep Fighting Drugs: Giving up is not an answer"

The title of this post is the headline of this National Review Online commentary authored by (my former law school classmate) Artur Davis, who served four terms in Congress representing Alabama’s 7th district.  Here are excerpts from an interesting piece that merits a full read:

On the African-American left, the momentum is building for a rollback of the War on Drugs.  This is a consistently vague agenda; it shifts from legalizing marijuana, to freeing police resources for more urgent matters, to comprehensive sentencing reform, and all points in between.  But at its worst, it is a dangerously misplaced priority, and a sad reminder of the leadership vacuum in the one community that is trapped in a depression.

To be sure, critics of the War on Drugs have some indisputable facts on their side: Prisons at the federal and state level are crowded with relatively inconsequential, low-level dealers who are hardened by their stint behind bars, and who are often rendered permanently voteless and jobless when they resurface.  A disproportionate number of those men, and ever so occasionally women, are black, a factor that helps give prisons the ugly look of a barricaded ghetto.  (See Michelle Alexander’s best-seller The New Jim Crow.)...

Most of these flaws have a valid remedy that policymakers should consider.... All these shortcomings need to be addressed. 

But the War’s sharpest critics would probably consider [sentencing] reforms to be piecemeal and tepid. Their rhetoric, if not their specific proposals, suggests that they would be dissatisfied with any regime that stresses incarceration and punishment, and that they would distrust even a system that treats the bit players differently from the ringleaders.  According to this view, the status quo is so steeped in disparity and so invidious in its purpose that it would take something quite close to disarmament to undo the damage.

Michelle Alexander’s recent work, for example, explicitly ties the origins of the War to the rise in conservative, law-and-order politics and to a backlash against the assertiveness of the civil-rights movement.  Her charge ignores the objective facts that (1) the crack trade exponentially expanded in the Eighties, and (2) the users who were maimed by the drugs and their trade were overwhelmingly African-American. Her book offers a strangely sympathetic treatment of the viciously predatory men who ran that trade and built mini-fortunes from it....

John McWhorter, in The New Republic, makes a claim even more circuitous than Alexander’s: that it’s the drug crackdown — and not the drug epidemic itself, or the explosion of births out of wedlock, or crushing poverty, or abysmal education, or the insidious gang culture — that is responsible for the rise in inner-city alienation. That is a sweeping underestimation of every destructive trend in distressed communities, and it is as single-mindedly wrong as Alexander’s effort to read right-wing politics into what was, after all, predominantly a crackdown on black-on-black crime. (It is worth noting that, for all their flaws, drug sentences are the rare instance in which crimes with black victims are consistently punished severely.)

There is of, course, a cruel set of ironies at work here.  In associating the devastated lives of young, poor black men so tightly with the War on Drugs, liberals are doing exactly what the most unfeeling conservatives do when they collapse all inner-city black men into vignettes of current and future street criminals.  In arguing that incarceration and punishment drive poverty in the black community, the Left is unintentionally mimicking the Right’s bias that poverty is secondary to a pattern of criminal irresponsibility in the destruction of the ghetto.  In its zeal to encourage a radical scaling back of the drug laws, the Left is short-changing the importance of education, jobs, and community reinvestment — in other words, it is de-emphasizing priorities in the same way the Right is accused of doing.

A lot can and should be said about Davis's notable perspective on these issues, but I think the folks at National Review do his commentary a significant disservice by giving it the title that headlines the piece.  Davis is making an interesting (though surely contestable) claim that racial sentencing disparities and the impact of the drug war is not a healthy focus for those principally concerned with the state and future fate of black community.  But that claim does not amount to significant advocacy for continuing the drug war, it just is an effort to urge a certain group of advocates not to put too much emphasis on this front.

March 19, 2012 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

Notable NJ criminal justice feud between US Attorney (appointed by Ds) and federal judge (appointed by Rs)

A helpful reader altered me to this fascinating article from the New York Times reporting on a significant spat between a notable federal judge and the US Attorney in New Jersey, some of which appears to be centered on mandatory minimum sentencing matters.  As my post title hints, this quarrel is especially interesting and telling because the US Attorney is a Democratic appointee complaining about a Republican-appointed judge being too soft:

The judge, William J. Martini, 65, a Republican congressman in the 1990s, has taken to rolling his eyes and barking “sit down” at federal prosecutors while declaring their tactics “grossly offensive.”

The United States attorney, Paul J. Fishman, 55, a Justice Department official under President Bill Clinton, has had his prosecutors call the judge “misguided,” “irrational” and worse in court filings.

The feud centers on two cases, a murder trial and a drug trial. In the murder case, Judge Martini dismissed some charges in a racketeering indictment and limited the evidence that Mr. Fishman’s office could introduce.  In the drug case, Judge Martini refused to impose a mandatory 40-year sentence, which he said was excessive for a street-level trafficker.

Both cases featured Judge Martini steaming about what he labeled overzealous prosecutors, an appeals court overruling him, and Mr. Fishman’s prosecutors claiming that he proceeded to cripple their cases anyway.  Each side has cast itself as fighting for justice and has suggested that the other was out of control, in an important test of the roles of the judiciary and the prosecution.

“We’re talking about a life imprisonment case here, and he should be tried fairly,” Judge Martini said in the murder case, implying that prosecutors did not agree with that fundamental principle of fairness.

But the real cringing among lawyers started when Mr. Fishman’s office asked a federal appeals court not only to overturn the judge’s ruling in the drug case, but also to remove him from the case, saying it seemed that he “could no longer be impartial.”  One removal request would be startling enough, coming from a United States attorney who files all his cases in federal court. But soon, Mr. Fishman’s prosecutors had begun a second written attack on Judge Martini, the likes of which lawyers here said they could not recall.

The prosecutors went after Judge Martini aggressively in the murder case, involving witness-killing charges against a former federal prosecutor turned defense lawyer, Paul W. Bergrin.  They said the judge had displayed an “unwillingness to conduct a fair trial” and should be removed from that case as well.  Judge Martini “had several inexplicable blowups,” Mr. Fishman’s brief added.  The two cases will soon reach the federal appeals court in Philadelphia, and the stakes are high for both men.  Neither would be interviewed for this article.

Judge Martini, who has a reedy voice and a thatch of wiry hair, could be branded by a higher court as biased against prosecutors or, perhaps more damaging in the close-knit legal community in Newark, as an unpredictable bearer of grudges.  Mr. Fishman, compact and intense, could come to be known for crossing the line that often keeps such personal battles private in the courts, infuriating many of the state’s federal judges....  Some lawyers said they were stunned by Mr. Fishman’s move against Judge Martini.  “I don’t think they’re acting rationally,” said Gerald Krovatin, a defense lawyer who has appeared before the judge....

The drug case involved an Irvington heroin trafficker, Douglas Kennedy, who had been convicted on drug and gun charges. Judge Martini railed against the prosecutors for demanding the “draconian” mandatory 40-year sentence, and constructed a legal argument to impose a 15-year sentence instead.

The prosecutors appealed. Judge Martini was overturned by a federal appeals court. He then presented a different legal analysis and again sentenced Mr. Kennedy to 15 years. He said the prosecutors had misused their power in pushing for the longer “sledgehammer” sentence for “street activity” that often got more lenient treatment.

Now the prosecutors want the appeals court to overturn the sentence again and send Mr. Kennedy’s case to another judge. They said they had told Judge Martini that most judges would have imposed the maximum. Judge Martini’s reply: “Well, that’s not Judge Martini.”

March 19, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Report on Southern Union argument suggests SCOTUS will apply Apprendi to fines

This AP report on today's oral argument in Southern Union, the Apprendi fines case before the US Supreme Court, indicates that "several justices sounded skeptical of the government's case for upholding the penalty against Texas-based Southern Union Co. over its improper storage of mercury in a building in Pawtucket."  Here is more from the press account:

Unlike other Supreme Court disputes involving corporations, this case does not appear to divide the justices along ideological lines. In the sentencing cases, conservative Justice Antonin Scalia has been the most forceful advocate for reining in judges and requiring juries to find any facts that could lead to a longer sentence.

Scalia said he sees the Southern Union case as a logical extension of the court's earlier rulings. He said it would be odd to require a jury to establish facts that lead to even the shortest jail term, yet give judges freedom to decide on fines that "will make a pauper of you."

But another conservative justice, Samuel Alito, seemed more open to the administration's argument. Alito, a former prosecutor, has been more supportive of the government's side in sentencing cases.

Joyfully, we can all now read the oral argument transcript ourselves in Southern Union because it is now posted here at the Supreme Court's official website.  I hope to have time later today to read and provide further comments on the full argument. 

Some recent related posts:

UPDATE:  The transcript reveals every Justice played their expected role, with Justice Alito and Breyer continuing to have a very hard time accepting Apprendi and Justice Scalia continue to stress its import.  I expect there are five votes (and perhaps more) for Southern Union to prevail, but I also expect we will see a narrow opinion in order to garner the most votes and reduce multiple opinions.

March 19, 2012 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

SCOTUS grants cert on two capital habeas cases

As reported here at SCOTUSblog, the Supreme Court this morning kick off a week that has lots of criminal justice issues afoot with certiorari grants in two capital habeas cases: Ryan v. Gonzales (SCOTUSblog case page here) and Tibbales v. Carter.

According to the folks at SCOTUSblog, "Ryan is about appointment of counsel for indigent capital defendants" and Tibbales concerns whether "capital prisoners have a right to competence in habeas proceedings, and can a court order an indefinite stay of habeas proceedings." Based on these descriptions, I surmise neither of these cases are likely to be blockbusters or even to have much impact outside of the technical world of federal habeas process.  But the cases may end up providing the newer Justices with an opportunity to articulate their views on just how different death penalty all and practice should be.

UPDATE:  This new AP article provides more details on the cases the Supreme Court this morning decided to take up:

The Supreme Court has agreed to hear appeals from two states objecting to federal court-ordered delays for death row inmates claiming serious mental health issues.... In each case, a death row inmate won an indefinite delay from federal judges based on disputed claims of mental incompetence to understand the proceedings against him and aid in his own defense.

Sean Carter was sentenced to death for raping and killing his adoptive grandmother in 1997.  Ernest Valencia Gonzales received a death sentence for a murder in Arizona in 1990.

STILL MORE:  Lyle Denniston has this new post at SCOTUSblog discussing these circuit grants, which provides this basic thematic context:

The Justices’ agreement to take on two new death-row cases brings the Court back to an exploration of the rights of individuals who have been sentenced to death in murder cases and then are found to be mentally incompetent. If they are actually insane, they cannot be executed, under the Court’s 1986 decision in Ford v. Wainwright.   The mentally retarded were also shielded from execution by the 2002 decision in Atkins v. Virginia.  Those rulings meant flat bans on the death penalty.   But the Court has not sorted out what other legal rights the mentally ill on death row have when, having failed in challenges in state court, they turn to federal courts to press their legal claims.

March 19, 2012 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 18, 2012

Extraordinary review of federal sex offender civil commitment program

USA Today has published this extraordinary report on the federal sex offender civil commitment program under the headline "Sexual predators rarely committed under Justice program." Here is how it gets started:

Inside the sprawling federal prison here is a place the government reserves for the worst of the worst — sexual predators too dangerous to be set free.

Six years ago, the federal government set out to indefinitely detain some of the nation's most dangerous sex offenders, keeping them locked up even after their prison sentences had ended. But despite years of effort, the government has so far won court approval for detaining just 15 men.

Far more often, men the U.S.Justice Department branded as "sexually dangerous" predators, remained imprisoned here for years without a mandatory court hearing before the government was forced to let them go, a USA TODAY investigation has found. The Justice Department has either lost or dropped its cases against 61 of the 136 men it sought to detain. Some were imprisoned for more than four years without a trial before they were freed.

Dozens of others are still waiting for their day in court. They remain in a prison unit where authorities and former detainees said explicit drawings of children are commonplace, but where few of the men have received any treatment for the disorders that put them there.

Despite that, neither the Justice Department nor other watchdog agencies have offered any public assessment of how well the federal civil commitment law works.

For this investigation, USA TODAY reviewed all 136 cases that have been brought to court, drawing on thousands of pages of legal filings and dozens of interviews with attorneys, psychologists and former detainees.

The outcomes documented by that review have raised questions about a system meant to control men too seriously ill to control themselves. A federal appeals court in Richmond, Va., has already called delays in bringing the men to trial "troubling," and suggested that they could raise concerns about the detainees' constitutional right to due process. And Rep. Jim Sensenbrenner, R-Wis., one of the law's key supporters, said "there will be somebody who will have to answer" for them.

"We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime," said Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital. "If it's going to be done, it has to be done in a just and fair manner."

Many of the men the government sought to detain have been found guilty of molesting children or brutal sexual assaults. One killed a woman. U.S. Bureau of Prisons psychologists certified that the men also suffer from mental abnormalities making them "sexually dangerous," a determination that keeps them locked up while their cases are reviewed. By law, a federal judge must ultimately decide whether the government can prove the inmate is too dangerous to be released. Worst of the worst

But in case after case, those determinations have come into question. In at least two cases, the government could not prove the men had committed crimes serious enough to justify committing them. Others had not been found guilty of a "hands-on" sex offense in decades. Some psychological assessments failed to fully account for men's ages, a key factor when assessing risk.

March 18, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Saturday, March 17, 2012

Alaska's interesting experiences with circle sentencing

This interesting new AP piece, headlined "Alaska courts taking new approach to rural justice," reports on a state's willingness to keep trying a non-traditional sentencing process in the hope of achieving better outcomes for all involved.  Here are the details:

Alaska Magistrate Mike Jackson of Kake first heard of "circle sentencing" in the mid-1990s, when alcohol-related problems in his village were burgeoning.  Kake had higher rates of accidental deaths, child abuse and suicides than just about anywhere in the state.

The idea of forming circles, Jackson learned, was for a moderator to bring together family, friends and others who know a victim or offender to help a judge hand down a fair sentence by considering local history, community beliefs and other views of a defendant's background.  It was used after a guilty plea or a conviction.

He tried out the idea in 1999 with a woman convicted of crimes related to her alcohol addiction.  She had previously refused in-patient treatment.  At the circle, state authorities told her it was her last chance before losing her kids, and her friends and family persuaded her to get help.

"She came back and was sober," said Dinah Aceveda, who helped organize that circle and 66 others since.  "She changed her life from that.  When you have good people around you in that circle, in that community, that's what can happen."

Circle sentencing is about to be used for the first time in a felony case in Alaska.  Jackson said the system recognizes Tlingit traditions and approaches to justice used since time immemorial in ways lost on state courts.  "What matters most under state court is punishment and control," said Jackson, who also is a tribal court leader.  "Determining guilt and punishment for the offender is the focus, but under circles it's holistic in views of the community and the victim."

In 2003, researchers from the Kennedy School of Government at Harvard University visited Kake and decided to honor the southeast Alaska community for its efforts at justice reform.  A report on the town said the circle's successes were occurring where the state court system had repeatedly failed....

[C]ircle justice most often involved cases related to domestic violence, child neglect and minors consuming alcohol, and has expanded little.  Concerns have been expressed about unequal punishments for similar crimes, with some worried that people will get off easy. There are specific cases when circles proved ineffective that serve as fodder for critics....

Galena Magistrate Christopher McLain has advocated bringing courts to rural communities and using circles when possible since he took the bench in 2008.  He said those familiar critiques miss the point.  Judges follow state sentencing guidelines and make the final decision when circles are used, McLain said. And at least as many examples of ineffective outcomes exist in state courts, he said.

"(Circles) let me take community recommendations and craft a sentence that's rehabilitative," he said. "But people don't get off easy.  Many times they end up with a harsher punishment, but the point is we realize that we need each other to survive out here, and we're going to have to live with each other after the punishment is over."

March 17, 2012 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, March 16, 2012

"Ravi found guilty on 24 of 35 charges in webcam case"

The title of this post is the headline of this local report on the high-profile state criminal trial of a Rutgers student that has been taking place in New Jersey.  Here are the basics:

Dharun Ravi has been found guilty of 24 of 35 separate charges by a Superior Court jury here. Following three days of deliberation, the jurors found Ravi guilty of invasion of privacy, bias intimidation, attempted invasion of privacy, tampering with physical evidence, hindering apprehension or prosecution, witness tampering and tampering with physical evidence.

Three of the counts carry a possibility of jail time; they are the bias intimidation charges as well as the hindering apprenhension count.  Sentencing has been scheduled for May 21.

In all, the former Rutgers student was charged with 15 counts for using a webcam to spy on his gay roommate’s encounter with another man in their college dorm room in September of 2010.

Media attention at the Middlesex County Courthouse is intense, with more than 100 news gatherers covering the trial. The 12 jurors with three alternates worked their way through a verdict sheet that asked them to decide Ravi’s guilt on 35 different separate questions regarding the 15 counts.  The charges included invasion of privacy, attempted invasion of privacy, bias intimidation, tampering with physical evidence, hindering apprehension or prosecution, witness tampering and tampering with physical evidence....

On Sept. 19, 2010 Ravi was alleged to have briefly spied on Clementi and a man known only as M.B. for a few seconds with Molly Wei, a dorm mate who was a resident across the hall from Ravi.  Ravi was charged with making a second attempt to spy on them two days later. Clementi jumped off the George Washington Bridge on Sept. 22, 2010.  The trial has drawn national media attention because of discussions it has raised regarding cyber-bullying, misuse of social media and anti-gay bias.

Because New Jersey sentencing law is complicated (thanks in part to Apprendi, which notably came out of New Jersey and involved judicial fact-finding about racial bias to increase a sentence), I have no idea what kinds of sentence(s) Dharun Ravi might be facing.  Because I have seen reports that Ravi might now also need to fear deportation, constitutional gururs can already begin spotting Padilla-related issues along with Apprendi issues in this high-profile case.

Free from even knowing yet what applicable state sentencing law provides, I am very eager to hear from readers about what kind of sentence they think should (or will) be imposed upon Dharun Ravi following these convictions.  I have not followed the case closely enough to have a sense of all the relevant sentencing consideration, but I do sense that the forthcoming sentencing could end up raising a lot of interesting legal and policy issues.  Thus, I suspect this may be just the first post in a series as this case turns toward sentencing.

March 16, 2012 in Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (37) | TrackBack

Colorado DA tells federal prosecutor to stop being a buzz kill in Boulder

As reported in this interesting local article, "Boulder District Attorney Stan Garnett has sent a letter to the top federal prosecutor in Colorado, asking the feds to drop their crack-down on medical-marijuana dispensaries that are abiding by state law." Here is more:

In the letter, dated Tuesday, Garnett writes that Colorado has created a system for regulating medical-marijuana businesses that is working and argues it is not worth the federal government's time to target dispensaries abiding by state law.

"I can see no legitimate basis in this judicial district to focus the resources of the United States government on the medical marijuana dispensaries that are otherwise compliant with Colorado law or local regulation," Garnett wrote in the letter to Colorado U.S. Attorney John Walsh. "The people of Boulder County do not need Washington D.C. or the federal government dictating how far dispensaries should be from schools, or other fine points of local land-use law."

Garnett's letter comes following the most direct crack-down yet in Colorado on dispensaries by federal law enforcement officials. Earlier this year, Walsh sent letters to 23 medical-marijuana dispensaries that were within 1,000 feet of a school, ordering them to close or face civil or criminal punishment. All those ordered to do so shut their doors.

Colorado law establishes a 1,000-foot buffer between dispensaries and schools but also allows communities to vary the distance or grandfather in pre-existing businesses. All the dispensaries that received letters were apparently complying with state and local laws.

But federal law makes all marijuana possession and sales illegal. Drug sales within 1,000 feet of a school bring enhanced penalties. Walsh said he sent the letters because he's concerned that the presence of medical-marijuana businesses near schools may be encouraging the increase the state is seeing in youth use of marijuana....

In his letter, Garnett said federal law enforcement officials should instead focus elsewhere: on terrorism, organized crime or major trafficking of hard drugs like cocaine or methamphetamine. Continuing to target dispensaries, Garnett wrote, "would be very disruptive to communities who have spent significant time and resources exercising their right of local control to balance the competing issues around medical marijuana."

The full letter reference here is available at this link.

March 16, 2012 in Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, March 15, 2012

Despite increased public support, Connecticut legislature again discussing death penalty repeal

215044780-14174705As reported in this local article, for the third time in as many years, the legislature in Connecticut is in the midst of debating repeal of the state's death penalty.  Here is how the article begins:

For the third time since 2009, the legislature's judiciary committee on Wednesday pondered the fate of Connecticut's death penalty, but those who want to abolish capital punishment believe this may be their year.

"I think there's a real sense of urgency," Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty, said Wednesday evening, about eight hours into a hearing on the topic. "We debated this so often, we just need to seal the deal."

Jones noted that this year, the two Democratic Senate leaders, President Pro Tem Donald Williams of Brooklyn and Majority Leader Martin Looney of New Haven, were among the first to testify in support of the bill, which would replace the death penalty with life in prison with no possibility of release. And, he said, the NAACP is also making a big push for repeal.

The emotional topic of repealing the state's death penalty drew large crowds to the state Capitol complex but the one individual whose pro-death penalty view has dominated the debate in recent years did not attend. Dr. William Petit, the sole survivor of a horrific home invasion in Cheshire in 2007, has been a familiar presence at past legislative hearings on the topic, but this time, neither Petit nor his sister, Johanna Petit Chapman, was present.

"We firmly believe that the death penalty is the appropriate sanction in certain heinous, cruel and depraved crimes,'' Chapman wrote in an email to reporters. "Let us take the 'c' word out of the discussion. There is no such thing as 'closure' when your loved one is savagely taken from you. There can, however, be adequate and just punishment and that is the death penalty."

The Cheshire case has loomed over the death penalty debate. Last year, a similar bill cleared the committee but did not come up for a vote in the House or Senate after two key Democratic senators pulled their support, citing the ongoing trial of one of the men accused in the Petit killings. Since then, both suspects in the case have been convicted and sentenced to death.

The death penalty bill is "prospective" in nature, meaning it would not apply to the 11 men on Connecticut's death row. Several experts testified that defense attorneys would use abolition of capital punishment to preserve the lives of those currently sentenced to death.

However, a review by the Quinnipiac University School of Law Civil Justice Clinic found that appeals brought by defense lawyers after the death penalty is abolished are not necessarily upheld. After lawmakers in New Mexico banned the death penalty for all new crimes in 2009, a death row inmate appealed his sentence, arguing that once capital punishment has been repealed, it should be repealed for all, regardless of when the crime was committed. A judge in New Mexico rejected that argument.

Sen. John Kissel, a Republican from Enfield, whose district includes several prisons, asked what would happen to those who commit capital felony crimes in the future if capital punishment were replaced with life in prison without the possibility of parole. He said he wants to make sure such prisoners remain segregated from the general prison population and given no perks if the death penalty is repealed.

March 15, 2012 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Seeking early predictions on Southern Union (and Apprendi's future)

This coming Monday, the Supreme Court will hear oral argument on the biggest Apprendicase to come down the pike in a few years.  SCOTUSblog has this effective new argument preview posted on the case, and here is how it begins:

On Monday, March 19, the Supreme Court will hear oral argument in Southern Union Co. v. United States, a case that could bring about profound changes in the way courts impose criminal fines, which serve as the principal sanction for organizations, including corporations.  The Court will have to determine whether fines are subject to the principle announced in Apprendi v. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  To date, the Court has applied this principle only to the death penalty (Ring v. Arizona) and to sentencing schemes limiting years of incarceration a judge may impose in the absence of specific factual findings (Blakely v. Washington, United States v. Booker, Cunningham v. California, and Oregon v. Ice).

The issue arises in the context of an environmental criminal statute authorizing a prison term and a fine “per day” of violation.  The jury was not asked to determine the number of violation days; it returned a general verdict of guilty.  However, the court imposed a sentence based on the premise that the violation had occurred for more than one day.  If the Supreme Court finds that the trial court engaged in judicial fact finding -- and if Apprendi applies to fines -- the sentence violates due process and the Sixth Amendment right to jury trial.

The decision in this case could turn on the Court’s assessment of the judicial role in imposing fines at the time of the Founders and whether fines -- the sanction for corporate “persons” -- are a fundamentally different punishment from incarceration.  Considerations concerning the administration of justice may come into play.  Finally, the opinion should clarify the significance of Oregon v. Ice, the Court’s most recent relevant precedent.

Another Southern Union preview can be found in this Greenwire piece, which includes this discussion of some underlying facts:

Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA. Although a jury deliberated on the question of Southern Union's guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.

Under RCRA, the company faced a criminal penalty of up to $50,000 a day. The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.

Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product.  The company maintained it had stored the mercury carefully and that it would eventually be recycled. The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.

After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee. Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.

Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals. In December 2010, the court -- going further than Smith -- held Apprendi didn't apply to financial penalties.  It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury's role beyond what it has done in the past.

Southern Union and its supporters -- which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief -- say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi....

Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Iceruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries. "This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty," Verrilli said.

The former is a "deprivation of property," while the latter is a "deprivation of liberty or life," he said.  Verrilli delved into English common law in making the case that judges traditionally had "more discretion with respect to fines than they did in imposing terms of imprisonment or death."...

Whatever the court rules, it is not likely to directly affect a large number of cases. There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting. "It's a narrow category of cases," said criminal law expert Ryan Scott, an associate professor at Indiana University's Maurer School of Law....

Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court when Apprendiwas decided and two -- Justice Elena Kagan and Justice Sonia Sotomayor -- have been appointed since Ice was decided.  As Scott put it, it is an "unusually difficult one to guess."

I share Professor Scott's view that predicting an outcome, or even the votes of  particular justices, in Southern Union is unusually difficult.  I can make a plausible prediction that Southern Union could possibly win 9-0 because I doubt that the Court's still-remaining Apprendi dissenters (Justices Breyer and Kennedy) will be distinctly eager to prevent Apprendi's extension into this arena.  And yet, in Ice, a one-time (though fickle) Apprendi supporter, Justice Ginsburg, wrote a broad opinion for the Court limiting Apprendi's reach and suggesting that she (as well as Justice Alito, who was another key swing vote in Ice) may be increasingly concerning about what could happen if Apprendi rights were extended into new sentencing settings.  If Justice Ginsburg remains very concerned about the expanding the borders of Apprendi-land, I could imagine her (perhaps with the help of the Apprendi-haters) seeking to persuade some of the new Justices to draw another line in the jurisprudential sand here.

As my post title suggests, I am very eager to hear from readers concerning their perspectives on the Southern Union case in particular and on Apprendi jurisprudence more generally now that it is a full dozen years since the Sixth Amendment started playing a big role in sentencing law and policy.

Some recent related posts:

March 15, 2012 in Blakely Commentary and News, Blakely in the Supreme Court, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (14) | TrackBack

Wednesday, March 14, 2012

"60-year sentence reinstated for Hurricane Katrina housing scam"

The title of this post is the headline of this local news report, which gets started this way:

The Louisiana Supreme Court on Tuesday reinstated a 60-year prison sentence for a former Alabama lawmaker who bilked a half-dozen New Orleanians out of $250,000 with the promise of new modular homes after Hurricane Katrina. The court found that Orleans Parish Criminal District Judge Darryl Derbigny didn't abuse his discretion on Feb. 12, 2010, when he sentenced John Colvin to six consecutive 10-year sentences.

Colvin, 65, a former state legislator and water board member in Rainbow, Ala., pleaded guilty in 2009 to six counts of theft.

From the end of 2007 through the spring of 2008, Colvin held himself out as a licensed contractor, though he never registered as one in Louisiana. Colvin invoked God, his mother and children to secure contracts with mostly older residents put out by the storm.

He took from $39,400 to $63,500 from each victim, much of it Road Home money, and did little or none of the promised work. In some cases, his victims said, he left some holes dug or a few stakes in the ground.

A panel of the Fourth Circuit Court of Appeal overturned Derbigny's sentence, citing a 1979 Louisiana Supreme Court decision that states: "For an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed ..."

Judge Roland Belsome also cited those who spoke on Colvin's behalf -- Alabama Lt. Gov. Jim Folsom sent a letter of support -- along with his lack of a criminal record and his attempt to return $5,000 to one victim before his arrest. But in an odd twist, the appeals panel also said it didn't think a 10-year sentence -- with each count running concurrently -- was enough, considering the "economic and emotional harm" to the victims.

The Supreme Court rendered that opinion moot Tuesday, finding in its 10-page reversal that the 60-year sentence wasn't disproportionate to the offense. Colvin engaged in "a pattern of conduct that clearly reflected more than business ineptitude and was fraudulent from the outset, " the court found.

The court also didn't buy Colvin's expression of remorse and contrition at his sentencing hearing, noting that only a month earlier he had blamed another contractor for botching the jobs and sapping the money. Colvin's attorney, Craig Mordock, didn't immediately return a call for comment.

The 10-page opinion for the Supreme Court of Louisiana is available at this link.

March 14, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Oregon murderer seeks to reject and escape Governor's execution reprieve

As reported in this local article, which is headlined "Inmate Haugen still seeks execution," a convicted murderer in Oregon is pressing very interesting legal claims in order to get executed.  Here are the basics:

Death row inmate Gary Haugen, thwarted in his bid to be put to death, is challenging the execution reprieve that Gov. John Kitzhaber issued in November. The 49-year-old, twice-convicted killer is pursuing a new execution date.

Haugen’s attorney has mailed a motion to the Marion County Circuit Court asking for a new death warrant.  In a letter to Kitzhaber released Tuesday, Portland attorney Harrison Latto asserts that the governor exceeded his constitutional authority in issuing Haugen a temporary reprieve.  He said Haugen feels trapped in “legal limbo” and subjected to “cruel and unusual punishment.”

“Mr. Haugen does not feel that you are treating him mercifully by forcing him to remain in a kind of legal limbo that will last for an uncertain period of time, potentially as long as seven years, at the end of which he might, or might not be put to death,” Latto wrote. “Putting Mr. Haugen into that position against his will is more accurately described, in his view, as cruel and unusual punishment. While you have every right, of course, to lead a campaign to repeal the death penalty in Oregon, Mr. Haugen should not be forced to serve as a pawn in that effort....

On Nov. 22, Kitzhaber announced that he was halting Haugen’s scheduled Dec. 6 execution. He also said that he won’t allow any executions to occur while he is governor. In canceling Oregon’s first execution in 14 years, the Democratic governor denounced the death penalty in broad terms, describing it as “an expensive and unworkable system that fails to meet basic standards of justice.”...

In challenging the reprieve, Latto maintains it is “legally ineffective and void” because it was filed in court by a previous attorney representing Haugen, who “acted without his knowledge or authorization.”

“He is filing today a motion asking the court to annul that filing,” Latto wrote, referring to Haugen. “An act of this importance cannot be legally accomplished by a lawyer unless he acts according to the express instructions of his client.” Latto also asserts that Kitzhaber exceeded his authority by issuing Haugen a reprieve for an indefinite period of time. A reprieve, he said, must be issued for a specific period, and it must also be accepted by the inmate....

“There is strong legal authority supporting the idea that pardons, commutations, and reprieves are acts that must be based upon the Governor’s individualized judgment that a particular person deserves that relief,” he wrote. “In Mr. Haugen’s case, you made no such judgment. Your action, in contrast, is more in the nature of an attempted nullification of a particular Oregon law. The Governor, under the Oregon Constitution, has no such power.”

The full 4-page letter from Haugen's lawyer to the Governor of Oregon is available at this link, and it is truly fascinating.  I would be very interested to hear legal and policy opinions on how officials and judges likely will and/or should respond to Haugen's claims.

March 14, 2012 in Clemency and Pardons, Who Sentences? | Permalink | Comments (3) | TrackBack

Interesting fraud testimony submitted to US Sentencing Commission for amendment hearing

Today, as detailed in this official agenda, the US Sentencing Commission is in the midst of a full-day public hearing concerning possible guideline amendments.  That agenda includes links to all the submitted written witness testimony, and the discussion of the fraud guidelines and how loss should be calculated in a variety of context should be of extra interest to any and all white-collar practitioners. 

Not surprisingly, the Justice Department's testimony on these fronts seems (based on my too-quick scan) to support additional or revised guideline enhancements on a variety of fronts while also apparently opposing the potential adoption of any loss calculation provisions that might favor defendants.  Meanwhile, private and public defense attorneys seem to be saying in their testimony (here and here and here) that the fraud guidelines are already too severe.  And, providing a distinct (and somewhat parochial) perspective, the testimony from the Probation Officers Advisory Group appears to be (perhaps justifiably) much more concerned with how the guidelines can ensure already complicated loss calculations do not get even more complicated.

For a whole host of reasons, I do not envy the challenges facing the USSC in trying to sort out a clear and sensible path forward in this arena.  I strongly feel that the loss rules are a mess and the source of considerable problems, but I fear that sensible reform requires a broad (and difficult) reassessment of just when and how loss should be a key factor in the sentencing of white-collar offenders and also requires much greater attention to mens rea factors that, problematically, rarely get enough attention at sentencing because these factors are impossible to readily quantify.

March 14, 2012 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 13, 2012

Notable comments on sentencing policy reform from AAG Breuer

This DOJ release, headlined "Assistant Attorney General Lanny A. Breuer Speaks at the Benjamin N. Cardozo School of Law," provides the text of a speech given today by the head of Justice Department's Criminal Division. Intriguingly, the text includes a lot of sentencing reform discussion and merits a full read.  These notable passages seemed especially worth highlighting:

Although the Criminal Division’s primary mission is to investigate and prosecute crime, because we are in Washington, D.C., the division also plays a unique role in the development of criminal law policy. And I consider it to be a critical aspect of the Division’s work to advocate for reforming those aspects of the criminal justice system that we view as not working, or in need of improvement....

Today, I want to tell you about one example in particular, involving sentencing policy....

Twenty-six years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that created, among other things, an extreme difference in sentencing policy for crack cocaine and powder cocaine offenses....

Data compiled by the U.S. Sentencing Commission indicated that, among other effects, the extreme disparity in sentences for crack and powder cocaine offenses had a disproportionate impact on African Americans.  For example, in 2006, according to the commission, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were white.

As a result, the crack and powder cocaine regime came to symbolize a significant unfairness in the criminal justice system, and the Sentencing Commission and others began advocating many years ago for the 100:1 ratio to be reduced.  But it was not until 2010, when President Obama signed the Fair Sentencing Act, or FSA, into law that something was done about it.

Early in this administration, the Justice Department began advocating to completely eliminate the disparity in crack and cocaine sentencing, and reduce the ratio to 1:1. Indeed, days after I joined the Justice Department, in 2009, I was proud to testify before Congress on behalf of the administration in favor of eliminating the disparity.

The FSA reduced the ratio from 100:1 to 18:1. In doing so, it did not go as far as we had urged. But the act was nevertheless hugely important, going a long way toward eliminating the appearance of racial bias in the sentencing system.

Of course, our work in the area of sentencing is not done.  As I’m sure many of you know, the U.S. Sentencing Guidelines went into effect in 1987, prescribing specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.  In 2005, however, the U.S. Supreme Court decided in the case of Booker v. United States, that federal judges could treat the sentencing guidelines as advisory only. And there is evidence that unwarranted sentencing disparities have been increasing in recent years. One area among others in which we have seen significant such disparities is financial fraud.  With increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently and without regard to the federal sentencing guidelines.  For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size.  This is another challenge in sentencing that we will need to address in the coming months and years.

The Fair Sentencing Act is just one example, albeit a very important one, of many I could give you where Criminal Division lawyers and others in the department have worked hard to advance needed legislation and reform an aspect of the criminal justice system in need of repair.  Your own Benjamin Cardozo once said, “Justice is not to be taken by storm. She is to be wooed by slow advances.”  In Washington, certainly, change rarely comes quickly, and because it is always the product of compromise, usually no one gets exactly what they were hoping for.  That was indeed the case with respect to the Fair Sentencing Act.  At the same time, when you see what is involved in moving a dramatic piece of legislation, or reforming something as fundamental as sentencing policy, such “slow advances” represent enormous achievements.

I adore the notion of seeking to "woo" Lady Justice though slow advances; extending the metaphor, I think we might well view debates over sentencing reform as a product of a number of different suitors pitching woo at Lady Justice.

March 13, 2012 in Booker and Fanfan Commentary, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (7) | TrackBack