Tuesday, November 04, 2014

Will Election 2014 speed up or slow down the marijuana reform movement?

This new Quartz piece, headlined "However the US votes on marijuana today, it’s 2016 that really matters," highlights that the marijuana reform movement will march on even if voters this election cycle reject various reform initiatives now on the ballot: 

There are three marijuana ballot initiatives in today’s midterm elections — in Alaska, Oregon and Washington DC — where voters will decide on outright legalization of recreational marijuana.  In a fourth ballot, in Florida, voters will vote on a proposed amendment to the state’s constitution, which would legalize medical marijuana.  Initiative 71 in the nation’s capital is the only ballot that looks certain to pass. The remaining three are expected to go down to the wire.

While passage of these ballots could potentially signal growing momentum for the pro-marijuana legalization movement nationally, marijuana advocates are looking to the 2016 general elections as a more accurate barometer of where they stand within the American cultural and political mainstream.  The reason being is that more younger and minority voters — groups who polls show support marijuana legalization in higher numbers — vote during quadrennial general elections, while the electorate tends to be older and more conservative in the midterms.

At least five US states — Arizona, California, Maine, Massachusetts and Nevada — will hold ballot initiatives in 2016.  And the diverse political makeup of those states, from the conservative battleground of Arizona to the liberal hotbed of Massachusetts, means that success at the ballot box would show that legalization spans the political and ideological spectrum, says Mason Tvert, spokesperson for the Marijuana Policy Project.  “Whatever happens Tuesday, we don’t see a step backwards for the movement going into 2016,” Tvert tells Quartz.  “Public opinion is on our side, it is only going in one direction, and that is toward an end to marijuana prohibition in this country.”

Though it is a near certainty that marijuana reform issues will be an even bigger part of the political conversation in 2016 than in 2014, I expect the final voting results in Alaska, Florida, Oregon and Washington DC will have a huge impact on the tenor and tenacity of those advocate pushing for and resisting reform. If most of the reform initiatives pass in this year, advocates for reform will be able to continue a narrative of legalization's inevitability it will become every harder for serious candidates for state and federal offices to avoid discussing this issue. But if all of these initiatives fail, opponents of reform can and will assert that the voters are already starting to turn away from supporting legalization now that they are seeing what it really means in a few states.

Over at Marijuana Law, Policy & Reform, I have completed this series of posts on the dynamics in play in the three states with big reform initiative on the ballot:

November 4, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS hears argument in two notable federal criminal justice cases this week

Though today, Election Day 2014, is a big day for citizens to consider who gets to be in charge of making federal laws in Congress, tomorrow is a big day for SCOTUS Justices to consider the reach of some of those laws.  Via SCOTUSblog, here are the basics of the two federal criminal justice cases being hear in the Supreme Court on Wednesday:

 Yates v. United States, No. 13-7451

Issue Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

Johnson v. United States, No. 13-7120

Issue:  Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

November 4, 2014 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, November 03, 2014

"Narcotics Prosecutors as Problem Solvers"

The title of this post is the title of this intriguing little new piece by Mark Osler now available via SSRN.  Here is the abstract:

When deciding whether and how to pursue narcotics cases, federal prosecutors should focus not on number of convictions or quantity of drugs intercepted, but rather on whether they are solving problems through the cases they choose.  He first examines federal prosecutors' extremely broad discretion in selecting narcotics defendants and charges, as well as some of the negative effects of the failure to employ a "problem solving" rubric in the war on drugs to date.  He then suggests a number of changes that such a rubric would bring to the way narcotics cases are pursued, including a change in the proxy that prosecutors use for defendant culpability from drug quantity to drug profits.

November 3, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"

Download (2)Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang.  His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system.  But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage.  In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.  The outcome is very largely determined by the prosecutor alone....

Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain.  If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources).  Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little.  Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense.  For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).

Prior related posts on Judge Rakoff's commentaries:

November 3, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Sunday, November 02, 2014

Interesting review of the (too cautious?) work of California's Attorney General

Images (1)The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:

Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional.  Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."

That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....

On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.…  [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."

Harris, 49, bristles at the suggestion that she is afraid to take stands.  "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview.  She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....

During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy.  She also has created units to focus on cyber-crime and cyber-privacy.  In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights.  In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed.  He pointed to a study that blamed logjams in the system on various factors.

Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law.  If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court.  If she decided against an appeal, the death penalty in California would probably end.  "We will have to see what the court rules," Harris said, without elaborating on her thinking.

She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division.  Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."

When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris.  "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...

[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"

Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.

She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."

November 2, 2014 in Death Penalty Reforms, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

"Crashing the Misdemeanor System"

The title of this post is the title of this intriguing article by Jenny Roberts recently posted on SSRN. Here is the abstract:

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis.  Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing. 

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court.  This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.”  Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts.  Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively.  As a result, many cases end in a quick guilty plea with little or no jail time.  The “broken windows theory” suggests that everyone benefits from such efficiency.

Yet the effect of misdemeanor convictions is anything but minor.  A quick guilty plea appears advantageous for a disorderly conduct misdemeanor in exchange for the night already served in jail.  But this conviction can, and does, lead to eviction from public housing.  It can, and does, pose a bar to showing “good moral conduct” for citizenship.  And it can, and does, make it difficult to find work in an era when employers routinely run criminal background checks.  The many harsh collateral consequences of even a “minor” misdemeanor conviction create serious barriers to the most basic aspects of life.  Mass misdemeanor processing thus harms the individual, his family, his community, and society.

Refusing to process individuals quickly would impose some of the real costs of mass misdemeanor processing on the justice system itself.  Such a “crash” of the criminal justice system would not be dramatic.  Instead, if defense counsel litigated some of the many factual and legal issues that misdemeanors present, the system would grind to a halt under its own weight.  The representation would be nothing more than Gideon and its progeny require, but would shift the burden for mass misdemeanor processing to the prosecution and the courts from misdemeanor defendants. Under this weight, legislators might reduce the short- and long-term costs of mass misdemeanor policing.  Prosecutors might exercise greater discretion, and police officers might maintain order without needless arrests.

Part I explores the idea of crashing the system as a potential response to the misdemeanor crisis.  Part II describes the potential role for defense counsel in such an institutional response.  Part III outlines specific strategies that specialized defender practice groups might pursue to crash the system.  Part IV explores arguments for and against efforts to crash the existing misdemeanor system.

November 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, November 01, 2014

Notable account of all the advocacy and interests surrounding California's Prop. 47

Today's Los Angeles Times has this lengthy discussion of the advocacy interests surrounding the big criminal justice initiative on the California ballot this election season. The piece is headlined "Prop. 47 puts state at center of a national push for sentencing reform," and here are excerpts:

The statewide initiative on Tuesday's ballot to reduce penalties for illicit drug use and petty theft is part of a multimillion-dollar campaign to revise sentencing laws in California and across the nation.

Five major foundations, headlined by a philanthropic group run by New York billionaire George Soros, have poured millions of dollars to push for changes in California's policies on crime and imprisonment.  The campaign is aimed at shaping public opinion, media coverage, research and grass-roots activism on the issue.

Proposition 47 would reclassify possession of heroin, methamphetamine and other illegal drugs, and theft of $950 or less, as misdemeanors in California. If the measure passes, California will become the first state to "de-felonize" all drug use, opening the door for similar efforts in other states.

"We hope we're setting a precedent for the nation," said Lynne Lyman, state director of the National Drug Policy Alliance, an active supporter of Proposition 47.  "We are hoping it will signal that we don't need to be so tough on crime all the time."  Proponents of the ballot measure have raised $9 million — at least $2 million of which came from two of the foundations — for their campaign thus far.  Opponents have raised just $526,000, state election records show....

Since 2011, the foundations have awarded at least $14 million in grants to almost three dozen California-based groups that are earmarked for "criminal justice reform" or to influence public opinion. Soros' Open Society Foundations in 2012 also gave a $50-million grant to the National Drug Policy Alliance to "advance drug policy reform" in states across the nation.

The coordination by a few wealthy foundations to change public policy represents a legitimate but worrying form of political influence, said Robert McGuire, who tracks such activity for the Center for Responsive Politics.  The foundation grants are not disclosed publicly in the same way campaign contributions are reported.  Foundation nonprofit tax filings often do not become public until two years after money is spent.  "Nonprofits are allowed to do this, but voters have a right to know what interest is trying to get them to vote a certain way," McGuire said.

The California effort was initiated by Tim Silard, who ran alternative sentencing programs for California Atty. Gen. Kamala Harris when she was San Francisco district attorney, and Dan Zingale, who was chief of staff to then-first lady Maria Shriver....  Silard and Zingale said they sought a strategy that could break the grip of "tough on crime" politics in California....

Coalition members say they are driven by a belief that California — and the rest of the nation — locks up too many people for too long and that public safety would be better served by putting resources toward job training, mental health and drug addiction treatment.  An opening to change that trend surfaced in the U.S. Supreme Court's 2011 ruling that conditions in California's overcrowded prisons were unconstitutionally dangerous, upholding a lower-court order to reduce the prison population....

In 2013, Soros provided money to create a new organization called Vote Safe to launch Proposition 47.  Soros, a hedge fund manager widely known for bankrolling progressive campaigns and a decade-long battle against the war on drugs, has a representative on Vote Safe's three-member advisory board.  The campaign manager for both Citizens for Safety and Justice and Vote Safe is Lenore Anderson, another former aide to Kamala Harris who once ran the public safety offices in San Francisco and Oakland. Anderson said the ballot initiative was encouraged by polls that showed a softening in public attitudes toward criminal punishment.  "The whole country right now is going through transformation in attitudes on criminal justice," she said. "We felt it was a big moment."

Violent crime in California had dropped precipitously, hitting a 45-year low in 2011. In the fall of 2012, California voters passed another Soros-backed initiative to lift three-strikes penalties for nonviolent felons....

Supporters of Proposition 47 also emphasize that drug laws have a disparate impact on Latino and African American communities. Lyman of the Drug Policy Alliance hammered on that point during a Proposition 47 rally at a Los Angeles church a week ago. "The war on drugs and mass incarceration is just an extension of slavery," she said.

Prior related posts on California's Prop 47:

November 1, 2014 in Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, October 31, 2014

New reduced federal drug sentencing guidelines about to become official

Hard core federal sentencing nerds know that November 1 is a special day because it is the official date on which any proposed changes to the sentencing guidelines proposed by the US Sentencing Commission become official in the absence of congressional rejection thereof.  Tomorrow, November 1, 2014, is especially notable because it will make official the most significant and consequential reduction in guideline sentencing ranges in history.  This USSC press release, which includes a statement from the chair of the USSC, provides background context for why this is such a big deal: 

[Background:] The United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines, voted unanimously in April to reduce sentencing guidelines levels for most drug trafficking offenses and voted unanimously again in July to make that change retroactive.  Because Congress has not acted to disapprove the Commission’s actions, the amendment becomes effective tomorrow.  Offenders sentenced after tomorrow will be sentenced under the new, reduced guidelines, and current prisoners may begin petitioning courts for sentence reductions based on retroactive application of the reduced guidelines. Prisoners can have their sentences reduced if courts determine that they are eligible and a reduction is appropriate, and they may not be released pursuant to such reductions before November 1, 2015.

[Comment by USSC Chair Patti Saris:] “The reduction in drug guidelines that becomes effective tomorrow represents a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety.  Commissioners worked together to develop an approach that advances the causes of fairness, justice, fiscal responsibility, and public safety, and I am very pleased that we were able to agree unanimously on this reasonable solution.  I am also gratified that Congress permitted this important reform to go forward.

This amendment is an important start toward addressing the problem of over-incarceration at the federal level. Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment.  Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties.  I hope that Congress will act promptly to pass comprehensive sentencing reform legislation.”

October 31, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Shrinking Prisons: Good Crime-Fighting and Good Government"

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

Liberals have long advocated prison reforms like reduced sentence lengths and alternatives to incarceration. Recently, however, conservatives have put these ideas on the congressional agenda — and their inspiration comes from that bastion of tough-on-crime conservatism, Texas.

Surprising? Perhaps. But seeing this coming didn’t require any sort of crystal ball. One had only to notice the forces driving every trend today: less money, higher expectations, and lower “weight.” Around the world and especially in the United States, both the public and private sectors have been under pressure since the Great Recession to cut costs and make the most of constrained resources. At the same time, consumers have become accustomed to expect better and better performance for their dollars. Many people have dismissed as “immature” or unrealistic the electorate’s expectation that governments provide both lower taxes and more services, but it’s not unreasonable given what the private sector has been able to deliver over the last generation.....

It’s overdue, then, for the public sector to revisit the costliest, least productive, and least “weightless” business lines in its portfolios—human services generally, and the corrections system in particular. What smacks more of outdated big government than large, costly, coercive institutions?

Incarceration as we know it today was originally a “progressive” idea. Compared to the days when every offense was punishable by execution — or at least corporal punishment — and prisons were simply a slow form of death, the modern penitentiary was conceived as a humane instrument of rehabilitation, not just punishment: The idea was that sitting alone in a cell and contemplating one’s transgressions — like a penitent — would lead to self-improvement. A close cousin, historically and conceptually, of the poorhouse and insane asylum, the penitentiary proved as much a misnomer, however, as today’s “corrections.” Nonetheless, along with the notion of redemption through hard work, the concept appealed to Jacksonian reformers and launched the first great era of prison construction in America. The second wave peaked, similarly, with the advent of the Progressive Era, which refined the concept with such additions as parole, probation, and indeterminate sentencing.

The third and latest wave of prison enthusiasm, however, was a reaction—against both liberal modifications to incarceration regimes and the social tumult of the ’60s. The War on Drugs increased the numbers of prisoners and lengthened the duration of sentences. The surge in incarceration also has been directly related to race: African-American males are jailed at about six times the rate of whites and three times the rate of Hispanics.

As a result, the United States today has the highest documented incarceration rate in the world: 743 adults per 100,000 population, or nearly 2.3 million adults, nearly one-quarter of the world’s total prison population. More than twice that number are on probation or parole, with more than 70,000 juveniles in detention, as well — roughly one in every 30 Americans is under supervision of some sort, a seven-fold increase since 1980....

Institutionalized correction, while more expensive, is less effective in reducing most crime than virtually any alternative. A 2001 report by New Jersey’s State Commission on Criminal Resentencing found that alternative sanctions and prisons have very similar effects on recidivism, while alternative sanctions free up prison bed space for more violent offenders. Similarly, a 2002 Justice Policy Institute report on Community Corrections programs in Ohio found shorter stays and lower recidivism or re-incarceration rates for clients from community-based correctional programs than for prison inmates.

As a result, many states — mostly Southern — are changing their approach, and saving money. Oklahoma, which was recently in the spotlight for its hard line on executions, has reduced its prison population by nearly 1,800 prisoners, projected to save the state approximately $120 million over the next 10 years. Georgia has become a leader in the use of “drug courts,” which divert offenders into alternatives to prison.

The Urban Institute reports that eight states — Arkansas, Hawaii, Louisiana, Kentucky, New Hampshire, North Carolina, Ohio, and South Carolina — have reliable enough data to provide preliminary findings on the effects of system reforms. These show early successes in slowing and even reducing prison-population-growth rates.

But the poster child is Texas. In 2007, conservative legislators in Austin were staggered by projections for how much it would cost to run the Department of Criminal Justice if the system went unchanged. The state faced the prospect of building approximately 17,000 new prison beds within five years at a cost of nearly $1.15 billion.  Instead, the legislature budgeted approximately $250 million for community-treatment programs and increased the number of inmates served by in-prison treatment and rehabilitation programs.  In 2009, the state added reentry-program coordinators to help reduce the number of released inmates who return to prison.  Texas’s effort now forms the basis for the bipartisan prison-reform legislation moving through Congress.

This has implications beyond prison reform. Governments today face increasing pressure to cut costs, but their citizens still want and need government services. Elected officials everywhere must figure out how to square this circle—to deliver better service at lower cost.  A major part of the answer will lie in moving from costly, outdated “solutions” based on large one-size-fits-all institutions to individualized, dispersed, home- and community-based solutions that use new technologies and evidence-based strategies....

The corrections field shows most starkly that the conservative critique of liberal programs — large, outdated, costly, and one-sized-fits-all — is valid, but also that the solutions liberals have been advocating for the past several decades, with the benefits of years of experimentation and evidence, provide a path forward.

October 31, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, October 30, 2014

New York Times editorial makes the case for California's Prop 47

Today's New York Times has this editorial headlined "California Leads on Justice Reform: Prop 47 Could Take the State a Step Further in Reducing Overcrowding." Here are excerpts:

For a long time, the conventional political wisdom was that no one ever lost an election for being too tough on crime.  That wisdom has been turned on its head in recent years, as both politicians and the public are realizing how much damage the lock-’em-up mind-set has caused....

A familiar retort is that crime is down precisely because the prisons are full, but that’s simply not true.  Multiple studies show that crime has gone down faster in states that have reduced their prison populations.

An encouraging example comes from California, the site of some the worst excesses of the mass incarceration era, but also some of the more innovative responses to it.  For five years, the state has been under federal court order to reduce extreme overcrowding in its prisons.  In response, voters in 2012 overwhelmingly approved a ballot measure to scale back the state’s notorious “three-strikes” law, leading to the release, so far, of more than 1,900 prisoners who had been serving life in prison — in some cases, for petty theft.

Dire warnings that crime would go up as a result were unfounded.  Over two years, the recidivism rate of former three-strikes inmates is 3.4 percent, or less than one-tenth of the state’s average.  That’s, in large part, because of a strong network of re-entry services.

The 2012 measure has provided the model for an even bigger proposed release of prisoners that California voters will consider on the ballot next week.  Under Proposition 47, many low-level drug and property offenses — like shoplifting, writing bad checks or simple drug possession — would be converted from felonies to misdemeanors.

That would cut an average of about a year off the sentences of up to 10,000 inmates, potentially saving the state hundreds of millions of dollars annually.  To keep people from returning to prison, or from going in the first place, the savings would be invested in anti-truancy efforts and other programs like mental health and drug-abuse treatment. Some would go to victims’ services, a perennially underfinanced part of the justice system.

Law-enforcement officials, not surprisingly, oppose the measure, warning that crime will go up.  But they’ve already been proved wrong on three-strikes reform.  Californians — who support the proposition by a healthy margin, according to polls — have now seen for themselves that they don’t have to choose between reducing prison populations and protecting public safety.

It is very rare for lawmakers anywhere to approve legislation to shorten sentences for people already in prison; it is virtually unheard-of to do it by ballot measure. California’s continuing experiment on sentencing can be a valuable lesson to states around the country looking for smart and safe ways to unravel America’s four-decade incarceration binge.

Prior related posts on California's Prop 47:

October 30, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

"Physicians, Medical Ethics, and Execution by Lethal Injection"

The title of this post is the title of this new article by I. Glenn Cohen, Robert Truog, and Mark Rockoff available via SSRN. Here is the abstract:

In the wake of the recent botched execution by lethal injection in Oklahoma, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project issued a set of recommendations for sweeping legal and administrative reforms of this method of capital punishment.  This Article discusses the Committee’s recommendation that medical personnel perform the medically-related elements of lethal injection executions.  Noting that such involvement is prohibited by the codes of medical ethics of professional societies in every medical profession, this Article argues that significant ethical concerns dictate that medical professionals should refuse to participate in lethal injection executions.

Related post: 

October 30, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, October 29, 2014

Federal judge (improperly?) delays imposing max sentence on fraudster to allow time to consider withdrawal of plea

This Newsday article provide an account of a seemingly unusual development as a federal district judge was about to throw the book at a high-profile white-collar defendant.  Here are the details:

Onetime New York Islanders part owner Stephen Walsh was hit with the maximum sentence of 20 years for a $50 million fraud on Wednesday, but the judge postponed imposing it to let stunned defense lawyers consider an appeal or voiding his guilty plea.

Walsh, 70, of Sands Point, an Islanders executive and co-owner from 1991 to 2000, was accused in 2009 of bilking investors in his WG Trading Company to finance a lavish lifestyle. He pleaded guilty in April, and partner Paul Greenwood pleaded guilty in 2010.

At the sentencing before U.S. District Judge Miriam Cedarbaum in Manhattan, Walsh said he was "deeply sorry," while his lawyer argued most investors were made whole and said Walsh deserved credit for charitable work, such as co-founding a Long Island Alzheimer's foundation. They asked for 18 to 24 months with community service.

But Cedarbaum was unmoved, noting that the scam went on for 13 years and Walsh fought the charges for five years before pleading guilty and taking responsibility. "The proceeds of this scheme were used for personal extravagances and high living," she said. "Lots of people lost lots of money, and some of it will trickle back to them, but that does not justify using it for your own benefit and spending it on frivolous things."

The judge said she was imposing the maximum penalty for securities fraud of 20 years. That was the sentence recommended by probation officers, called for under federal sentencing guidelines and urged by prosecutors.

Walsh, as part of his plea, had agreed to not appeal any sentence up to 240 months.  But white-collar defendants frequently get more lenient treatment -- in part because many judges feel federal guidelines overemphasize the significance of the amount of loss in calculating sentences -- and the sentence produced gasps from Walsh's friends and family in the gallery. "Oh my God!" said one woman.

Defense lawyer Michael Tremonte first asked Cedarbaum to impose 20 years and a day, so it would become appealable.  "I don't think anyone expected we would be at the outer range of the hypothetical guideline range," he said.  "There is not another case even remotely like it where a 20-year sentence has been imposed."

The judge refused, telling him that she would not circumvent a plea agreement in which Walsh gave up his right to appeal the sentence.  But she agreed to postpone imposing the sentence until Tuesday, to give Tremonte the chance to consult with Walsh and research grounds for withdrawing the plea. Tremonte and prosecutors had no comment after the hearing.

Walsh and Greenwood were charged soliciting $7.6 billion, mostly from institutional investors, to pursue a conservative investing strategy, and then misappropriating it. Walsh allegedly used investor money to finance a divorce settlement and fund businesses for his children, and Greenwood purchased expensive stallions and high-priced teddy bears.

I am inclined to be a bit sympathetic to the defense side here because I find troublesome any and all waivers of the right to appeal a sentence.  That said, I would guess that the defendant here had sound legal representation and knowingly agreed to a plea deal that included such a waiver, and thus I am not especially inclined to believe he should now be able to back out of the deal because it did not work out the way he expected.   And I am not aware of any case in which a judge defered imposition of a sentence to give the defendant a chance to try to undo a plea deal simply because that judge was going to impose a long sentence that was, as reported above, "recommended by probation officers, called for under federal sentencing guidelines and urged by prosecutors."

October 29, 2014 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Is the death penalty really dying a slow death . . . in Texas?!?

The question in the title of this post is prompted by this new piece from The Atlantic, headlined "In Texas, the Death Penalty is Slowly Dying Out: The Lone Star State carried out its fewest executions since 1996 this year." Here are excerpts:

On Tuesday night, the state of Texas executed Miguel Paredes by lethal injection for murdering a woman and her two children sixteen years ago.  With no executions scheduled by the state department of criminal justice for November or December, Paredes' death marks the tenth and final execution for Texas this year — the fewest in almost two decades.

2014 wasn't anomalous either.  Executions in Texas, the most prolific death-penalty state in the country, spiked after Congress restricted federal appeals in death-penalty cases with the Antiterrorism and Effective Death Penalty Act in 1996.  Since then, however, the death penalty has been in overall decline both in Texas and nationwide.  Thirty people have been executed so far this year in the entire United States, whereas Texas alone executed 40 people at its peak in 2000.

What's driving the decline?  Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application.  The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana....

But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment.  Texas had led the nation in imposing the death penalty on under-18 defendants prior to Roper; 29 inmates had their sentences reduced accordingly after the ruling.  More inmates left Texas' death row alive than dead that year for the first time since 1989.  At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole, thereby lowering the number of new death-penalty convictions.

Other extrajudicial factors are also slowing down the death penalty in Texas and around the United States.  Thanks to a European Union embargo that bars the sale of lethal-injection drugs to the U.S., executions nationwide have slowed precipitously as states scramble to find replacements and substitutes....

This doesn't mean executions will completely halt any time soon in Texas.  State officials say they have a sufficient supply of pentobarbital for upcoming executions thanks to a secret supplier they refuse to name through 2015.  Six in 10 Americans still support the death penalty according to a recent Gallup poll, and Greg Abbott, who will likely be elected governor of Texas next week, is also a staunch proponent.  Reversing the overall downward trend, however, would require either a drastic shift in the Supreme Court's jurisprudence or a complete overhaul of Texas sentencing law.  Neither are imminent.

I am glad this piece concludes by noting a number of reasons why the death penalty is very likely to persist in Texas for the years to come. Rather than talking about the death penalty potentially dying in Texas, I think the notable data on death sentences and executions in the state over recent years ought to be examined and analyzed as part of an effort to assess what might be deemed a "sound" or "stable" use of the death penalty within a state clearly committed to having the punishment be a significant aspect of its modern punishment system.

October 29, 2014 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, October 27, 2014

Two condemned New Mexico murderers left behind after death penalty repeal seek relief from NM Supreme Court

As reported in this local article, headlined "Convicted murderers ask to be taken off death row," in New Mexico the "last two inmates on death row are asking the state’s highest court to get them off the list."  Here is more:

New Mexico’s only inmates facing possible execution want the state supreme court to declare their death sentences unconstitutional because capital punishment was abolished after their convictions.

Attorneys for the two convicted killers say their sentences are unconstitutional, while the state is still backing their death penalty. The hearing lasted around an hour and half Monday morning, but no official decision will be made for at least a few months.

Attorneys for Timothy Allen and Robert Fry argued this morning that carrying out their death sentence would be cruel and unusual punishment and would violate “equal protection” rights for the two as New Mexico residents.

New Mexico repelled the death penalty in 2009 and the two are arguing that because of that, their sentences should be changed, even though they were both convicted when the death penalty was still law.  Allen killed 17-year old Sandra Phillips in 1994 after kidnapping her and trying to rape her.  Robert Fry was convicted of killing a mother of five in 2000.  He also murdered three other people in the ’90s.

Attorneys for the two men argued that the death penalty is cruel and unusual based on a report from the state’s Death Penalty Task Force which cited cost and liabilities with a death sentence. They also argued that it violates equal protection to effectively set a date when people can and can’t face the death penalty.

Meanwhile, the state argued that justices would be “overstepping” their reach if justices chose to allow Allen and Fry to live. The state says that would be like the justices re-interpreting what the legislature wished to do....

New Mexico has only executed one person in the last 54 years. It was Terry Clark who was a convicted child rapist and killer.

October 27, 2014 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Prosecutors in South Africa indicate they plan to appeal Pistorius outcome

As reported in this article, headlined "South Africa prosecutors to appeal against Pistorius sentence," it appears that the Blade Runner is not done running from serious legal difficulties. Here are the bascis:

South Africa’s state prosecutor plans to appeal against Oscar Pistorius’s culpable homicide conviction and five-year prison sentence for shooting his girlfriend Reeva Steenkamp, it said on Monday.

Nathi Mncube, spokesman for the National Prosecuting Authority, said the NPA expected to file papers in the next few days. Until the papers were filed, it would not announce the grounds for appeal, it said.

But Pistorius’s conviction for culpable homicide has drawn criticism from some legal commentators. After the athlete, a double-amputee who starred at the 2012 London Olympics and Paralympics, was sentenced last week, there was more controversy when lawyers said he could serve as little as 10 months, or a sixth of the five-year term.

In South Africa, an appeal can only be made on a matter of law, “where we think . . . the judge made an error in interpretation and in the manner in which she applied the law to the facts”, Mr Mncube said.

Pistorius had been charged with premeditated murder after shooting Steenkamp, a 29-year-old model and law graduate, four times through the locked toilet door in a bathroom at his home in the early hours of Valentine’s Day last year.   But Judge Thokozile Masipa ruled that the prosecution failed to show Pistorius had intent to kill, while saying there was “no basis on which this court could make inferences of why the accused would want to kill the deceased”. Instead, she appeared to believe Pistorius’s version of events, despite describing the 27-year-old as a “poor” and “evasive” witness.

October 27, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

"Truth, Justice, and the American Style Plea Bargain"

The title of this post is the title of this article by Ken Strutin now available via SSRN. Here is the abstract:

In the 2011 term, the Supreme Court decided two cases, Missouri v. Frye and Lafler v. Cooper, which highlighted whether the Sixth Amendment right to counsel safeguarded the integrity of the trial or encompassed non-trial facets such as the plea bargain.  This line of decisions has been followed most recently by Burt v. Titlow, which further defined the role of postconviction record-making in assessing the fundamental question: Did the right to effective assistance of counsel protect the accuracy of the verdict or the fairness of the process?

Through the prism of recent Supreme Court plea bargaining decisions this Article examines their implications for the competing goals of truth versus process.  Part I frames the argument about the nature of criminal justice and the tension between fact-finding trials and resolution making plea negotiations.  Then, those values are scrutinized in the context of three recent and watershed Supreme Court decisions: Part II Missouri v. Frye, Part III Lafler v. Cooper, and Part IV Burt v. Titlow.  Lastly, Part V considers the lessons of wrongful incarceration as guideposts to align accuracy with certainty in the administration of justice.

October 27, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, October 25, 2014

"Jury Says Castrated Sex Offender Should Be Freed"

The title of this post is the headline of this notable AP story out of California.  Here are the intriguing details:

A Southern California jury on Friday found that a castrated sex offender who preyed on young girls should no longer be considered a sexually violent predator and is eligible for release. Jurors in Orange County determined that Kevin Reilly, 53, does not need to remain locked up at a state mental hospital. He could be released as early as Friday, his lawyer said, but online jail records show he remained in custody as of mid-afternoon.

"There was simply no evidence he was likely to reoffend," said Holly Galloway, deputy public defender. "What the jury did was amazing because they followed the law and that's a hard thing to do with someone with his history, but it's the right thing to do."

Reilly served time in prison for sex offenses committed in the 1980s and 1990s and has been locked up in a state mental hospital since 2000 under a California law that enables authorities to forcibly commit sex offenders they believe will reoffend. He paid to be surgically castrated in 2003 to help control his pedophilia and completed a treatment program for sex offenders in 2010. State-appointed evaluators found he was not likely to reoffend, Galloway said, adding that Reilly also completed a bachelor's degree and master's degree.

Prosecutors argued that Reilly is still dangerous and that the effects of his castration, which aimed eliminate his sex drive, can be mitigated through testosterone injections. Michael Carroll, deputy district attorney, said Reilly did not confess to molesting one of his victims until three years ago and there were conflicting reports about what he told his evaluators and the court.

"I don't think he was honest during his treatment," Carroll said. "I think he continued to lie and attempted to manipulate because his ultimate purpose, I think, is to get out of the hospital, not necessarily to prevent creating any future victims." Reilly served time for committing lewd acts on four young girls over more than a decade, and later conceded he had abused at least three others, Carroll said. Most of the girls were between 4 and 8 years old.

He is required to register as a sex offender once he is released, and is planning to move to Utah, where he will participate in an outpatient treatment program for sex offenders and look for an accounting job, Carroll said.

Stories like this one provide support for my general view that juries, serving often as the conscience of a community, can and should be more often trusted to make difficult sentencing-type determinations and should not be relegated only to serving as a limited (and infrequently used) fact-finder in the operation of modern criminal justice systems.

October 25, 2014 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider

As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case.  Here are the details:

The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.

In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.

The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....

The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept.  Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.

Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....

But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....

“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....

The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013.  The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence.  But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated.  Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.

The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.

October 25, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, October 24, 2014

Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion

As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:

In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.

Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”

The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.

Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.

A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”

The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....

Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....

Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”

Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.

The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.

October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, October 23, 2014

Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty

As reported in this story from the Catholic News Service, the leader of the Catholic Church can now be added to the list of persons vocally advocating against life without parole sentences.  Here are the details:

Pope Francis called for abolition of the death penalty as well as life imprisonment, and denounced what he called a "penal populism" that promises to solve society's problems by punishing crime instead of pursuing social justice.

"It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor," the pope said Oct. 23 in a meeting with representatives of the International Association of Penal Law.

"All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty. And this, I connect with life imprisonment," he said. "Life imprisonment is a hidden death penalty." The pope noted that the Vatican recently eliminated life imprisonment from its own penal code.

According to the Catechism of the Catholic Church, cited by Pope Francis in his talk, "the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor," but modern advances in protecting society from dangerous criminals mean that "cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent."...

The pope denounced the detention of prisoners without trial, who he said account for more than 50 percent of all incarcerated people in some countries. He said maximum security prisons can be a form of torture, since their "principal characteristic is none other than external isolation," which can lead to "psychic and physical sufferings such as paranoia, anxiety, depression and weight loss and significantly increase the chance of suicide." He also rebuked unspecified governments involved in kidnapping people for "illegal transportation to detention centers in which torture is practiced."

The pope said criminal penalties should not apply to children, and should be waived or limited for the elderly, who "on the basis of their very errors can offer lessons to the rest of society. We don't learn only from the virtues of saints but also from the failings and errors of sinners."

Pope Francis said contemporary societies overuse criminal punishment, partially out of a primitive tendency to offer up "sacrificial victims, accused of the disgraces that strike the community." The pope said some politicians and members of the media promote "violence and revenge, public and private, not only against those responsible for crimes, but also against those under suspicion, justified or not."

He denounced a growing tendency to think that the "most varied social problems can be resolved through public punishment ... that by means of that punishment we can obtain benefits that would require the implementation of another type of social policy, economic policy and policy of social inclusion." Using techniques similar to those of racist regimes of the past, the pope said, unspecified forces today create "stereotypical figures that sum up the characteristics that society perceives as threatening."

October 23, 2014 in Purposes of Punishment and Sentencing, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, October 22, 2014

Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?

The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:

So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).

Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....

To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.

Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.

She is particularly open about her support for marijuana legalization, arguing in a recent CNN.com op-ed that the “solution is clear: …states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.”...

But Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.

Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”

Sound public policy must be based on facts, not radical unsafe, and dangerous theories.

I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."

The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.

That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate.  (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.)   I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues.  But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.

October 22, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, October 21, 2014

"Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases"

The title of this post is the title of this intriguing new empirical study authored by Joanna Shepherd and Michael Kang.  Here is the study's summary:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals.  State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections.  Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections.  These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights.  Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

This study’s two principal findings:

  • The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.  As the number of airings increases, the marginal effect of an increase in TV ads grows.  In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

  • Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision.  Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

The study is based on the work of a team of independent researchers from the Emory University School of Law.  With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013.  State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases.  These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.

The findings from this study have several important implications.  Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves.  Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.

October 21, 2014 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Koch Industries give "major grant" to NACDL to help with indigent defense

I noted in this post back in April that the Koch Brothers have a history of supporting criminal justice reform groups and efforts. That interesting story now has another interesting chapter as evidence by this new press release headlined "NACDL Selected to Receive Significant Grant from Koch Industries, Inc. to Address Nation's Profound Indigent Defense Crisis." Here is how the press release gets started:

The National Association of Criminal Defense Lawyers (NACDL), the nation's preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing, has been selected by Koch Industries, Inc. to receive a major grant in support of NACDL's efforts to address the nation's profound indigent defense crisis.

There are two components to this generous and critical initiative:

  • Significant expansion of access to training through an ambitious combination of scholarship support for indigent defenders, web-based training via the Internet, and targeted on-site training for indigent defense providers who lack adequate resources to provide comprehensive continuing education for line attorneys and supervisors.
  • Examination of state level indigent defense delivery systems in order to ascertain strengths that can be replicated elsewhere as well as weaknesses and the ways in which those can be rectified.

Both components will seek to achieve the goals set forth in the American Bar Association's Ten Principles of a Public Defense Delivery System, which are widely recognized as providing a comprehensive framework for the effective delivery of legal services for the indigent accused.

October 21, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias

A high-profile (and high-cost) capital case starts its next big phase as reported in this new AP article headlined "Opening statements expected in Jodi Arias sentencing retrial." Here are the basics:

Jurors in Phoenix will once again be asked to decide whether Jodi Arias should be executed for the gruesome murder of her former boyfriend. Lawyers are expected to make opening statements Tuesday at the sentencing retrial, more than a year after a jury found her guilty of killing Travis Alexander in June 2008. The first jury deadlocked on whether to sentence her to life imprisonment or death.

A new jury that was picked over the past several weeks will be sworn in as the former waitress tries to make another case that her life should be spared.  They won't consider whether or not she's guilty -- that's already been decided.  The retrial is expected to last into December....

Arias stabbed and slashed Alexander nearly 30 times, slit his throat so deeply she nearly decapitated him and shot him in the forehead.  She left his body in his shower where friends found him about five days later at his suburban Phoenix home.  She acknowledged she killed Alexander, but claimed it was self-defense after he attacked her.  Prosecutors said it was premeditated murder carried out in a jealous rage after the victim wanted to end their affair and planned a trip to Mexico with another woman.

Weeks after Arias was convicted, the jury failed to reach a unanimous decision on her punishment.  Her attorneys have since sought, unsuccessfully, to dismiss the death penalty as an option.  If another deadlock occurs, the death penalty would automatically be removed as an option, leaving a judge to sentence Arias to one of two options: life in prison or life in prison with the possibility of release after 25 years.

The sentencing retrial will be a mini-trial of sorts to get a fresh jury up to speed on the case.  Four hundred people were called as prospective jurors.  Many of them were cut after they said they either made up their minds about the case or knew too much to be impartial.  Some jurors cited their objection to the death penalty.

At her last trial, she testified for 18 days, describing for jurors an abusive childhood, cheating boyfriends, dead-end jobs, a shocking sexual relationship with Alexander, and her contention that he was physically abusive....

The costs of defending Arias have topped $2.5 million and will mount during a second penalty phase. Prosecutors have declined to provide their costs to try the case.

I am pleased this AP article ends with a discussion of the economic costs of this notable case. Because it is unlikely Arias will ever be executed even if she is sentenced to death, and because imposition of a death sentence will ensure years of state and federal appeals at taxpayer expense, I think prosecutors in this case are likely to do more harm to Arizona taxpayers than to Jodi Arias via this retrial. 

Some prior posts on the Arias case:

October 21, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend

Download (1)As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:

The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully.  Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....

During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name.  He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013.  But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.

Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment.  He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters.  "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration.  As a family, we are ready to support and guide Oscar as he serves his sentence."

The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."

The prosecution had asked for a minimum prison sentence of 10 years for Pistorius.  After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing.  Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....

Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.

She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."

In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."

The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.

In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.

On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.

Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.

The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.

Previous related post:

October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, October 20, 2014

New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders

Download (2)I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court.  Here is how the Globe article starts:

The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.  

Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000.  “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.

Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing.  His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system.  “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.

Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.”  That means considering mental health or substance abuse treatment as well as time in prison.  Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.

Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse.  Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.”  She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”

Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said.  “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”

The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users.  “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said.  “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”

Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:

Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.  In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence.  For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.

I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years.  But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.  And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.

October 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS order list gets week off to exciting start for criminal justice fans

As reported here and here at SCOTUSblog and here at How Appealing and here at Crime & Consequences, the Supreme Court this morning issued this order list which included one notable GVR and three grants of certiorari.  All of this SCOTUS action has a direct or indirect connection to criminal justice issues; these excerpts from Lyle Denniston's SCOTUSblog reporting highlights the basics of the cert grant: 

The Supreme Court, taking on an issue that reaches hotels and motels across the nation, agreed on Monday to rule on the power of city governments to require commercial lodgings to open their guest lists to the police. In agreeing to hear a Los Angeles case, the Justices also said they would rule on whether a lawsuit can be filed to use the Fourth Amendment to strike down a police inspection law in its entirety, whatever the factual situation in a given case.

The case of Los Angeles v. Patel was one of three new cases the Justices accepted for review.... Other issues in the newly granted cases focus on whether federal courts have power to order that guns taken from an individual during a drug prosecution should be transferred when the case is over to a neighbor and a friend to whom the owner wanted to sell them (Henderson v. United States), and whether it is unconstitutional for a state court to exclude an accused individual and defense lawyers from a hearing to examine the legality of prosecutors’ exclusion of minority jurors from serving (Chappell v. Ayala).

In addition, the notable GVR involved the application of the Burrage causation issue resolved last SOCTUS Term in a criminal prosecution involving a doctor convicted of four counts of unlawful distribution of a controlled substance leading to death.  Justice Alito, joined by Justice Thomas, concurred in a written opinion to make clear that "nothing in today’s order should be understood as suggesting that petitioner is entitled to acquittal."

October 20, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Why Did the Supreme Court Sidestep Sentencing Dispute?"

The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro.  Here are excerpts:

The U.S. Supreme Court's ­refusal to add a Washington drug case to its docket would not ordinarily get much notice.  But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-­running dispute over judicial discretion in ­sentencing.

The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted.  In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.

"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."

Cato Institute senior fellow Ilya Shapiro said, "It's not just high-­profile culture-war issues like same-sex ­marriage and the right to bear arms that the Supreme Court is avoiding like the plague."  Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked.  "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along.  As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable ­practice" of basing sentences on uncharged or unproven offenses.

An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review.  "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."

In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....

Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....

The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."

Previous related posts on the Jones case:

October 20, 2014 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Sunday, October 19, 2014

Judicial misconduct complained against Fifth Circuit Judge Jones based on provocative death penalty speech dismissed

Thanks to recent posts at Hercules and the Umpire and at Crime & Consequences, I see that the judicial misconduct complaint filed against US Circuit Judge Edith Jones of the Fifth Circuit based on a provocative speech she gave concerning the death penalty at a law school.  The lengthy dismissal order is available here, and this AP article reviews the basics:

A council of federal judges has dismissed a misconduct complaint against a conservative appellate judge who was alleged to have made racially discriminatory remarks at a lecture on the death penalty.

Judge Edith Jones ... allegedly said at a speech in February 2013 at the University of Pennsylvania law school that certain racial groups like African-Americans and Hispanics are predisposed to crime, and are prone to commit acts of violence and to be involved in more violent and heinous crimes than people of other ethnicities.

Thirteen individuals and public interest groups filed a judicial misconduct complaint against Jones, and Chief Justice John Roberts assigned the case to the appeals court in Washington at the request of the chief appeals judge in New Orleans. The dismissal, which took place in August, was publicly disclosed Wednesday.

In a lengthy inquiry, a three-judge panel of the judicial council was unable to find any recording of Jones' remarks, forcing them to rely on varying recollections of audience members about precisely what Jones said. "It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are `disproportionately' involved in certain crimes and `disproportionately' present in federal prisons," said the panel. "But we must consider Judge Jones' comments in the context of her express clarifications during the question-and-answer period that she did not mean that certain groups are `prone to commit' such crimes," the panel of judges said.

"In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial," said the panel. "They resemble other albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system."

Attorney Maurie Levin, who represents the complainants, said the ruling "essentially credits Judge Jones' stale recollections over the testimony of a lawyer and five law students who set down their recollections not long after the lecture. There is simply no way to understand that as a fair weighing of the evidence." The complainants are appealing to the Committee on Judicial Conduct and Disability of the judicial council.

I especially recommend Judge Richard Kopf's analysis and reactions in his post at Hercules and the Umpire, and I found noteworthy and important these particular reactive insights from Judge Kopf:

The work of the Special Committee and Professor Jeffrey Bellin makes me proud to be a federal judge. The clarity, tone, thoroughness and objectivity which is evident in the Report of the Special Committee is remarkable....

In my opinion, the essential allegations of the complaint lack a credible factual basis. With the aid of Professor Bellin’s searching investigation, the Report of the Special Committee, in restrained terms, explains why that is so.

I fear that complaints like this one will chill, and may even be intended to chill, judicial speech concerning the law, the legal system, and the administration of justice, particularly when the judge does not share the jurisprudential or ideological views of the listeners, and despite the fact that federal judges are expressly encouraged under the Code to speak about the law and how to improve it.

As distinguished from my fears expressed in the preceding paragraph, the Report of the Special Committee does a skillful job of explaining why controversial speech by a federal judge in the context of a talk on the law does not violate the Code.

Prior related posts:

UPDATE: Judge Kopf now has this additional interesting post on this matter titled "On being 'uncomfortable' and 'offended' — the ethics complaint against Judge Jones and the student affiants."

October 19, 2014 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, October 18, 2014

With DAG James Cole also stepping down, new appointments will remark DOJ

DownloadAs detailed in this Los Angeles Times article, "Deputy Attorney General James M. Cole said in an interview Thursday that, like his boss, he will soon leave the Justice Department." Here is more about the emptiness at DOJ and DAG Cole's work and legacy:

The coming departure of Cole, who for four years has been the day-to-day boss of the department, adds to a growing leadership vacuum at the federal government’s top law enforcement agency. Atty. Gen. Eric H. Holder, Jr. announced last month that he would leave as soon as a successor is confirmed, though the Obama administration has so far not announced a replacement.

At least half a dozen other top positions at Justice, including the associate attorney general, the No. 3 job, are currently filled with acting appointees.

Cole said he was particularly proud of his efforts to take a softer federal approach to enforcement of federal marijuana laws, a project to encourage nonviolent prisoners serving long drug sentences to apply for a presidential commutation, and prosecution of Credit Suisse bank and individual Swiss bankers for helping U.S. citizens evade taxes.

He has also been closely involved in Holder’s “smart on crime” initiative to reduce the prison population and the large proportion of African Americans in federal prisons.

Cole said he expected to leave in early January, after someone has been chosen to take his place, on a permanent or acting basis.

October 18, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, October 17, 2014

ProPublica urges next AG to "Fix Presidential Pardons"

The title of this post is drawn from the headline of this strong new piece from the Editor-in-Chief of ProPublica. The full headline and subheadline provides the basics: "For the Next Attorney General, a Modest Suggestion: Fix Presidential Pardons; More than two years ago, a ProPublica series showed that white applicants were far more likely to receive clemency than comparable applicants who were black. Since then, the government has spent hundreds of thousands of dollars on a study, but the pardons system remains unchanged." And here are a few excerpts from a piece that is styled as an open letter to the next Attorney General:

Dear Possible Attorney General Nominees (You Know Who You Are),...

More than two years ago, ProPublica reporters Dafna Linzer and Jennifer LaFleur revealed that white applicants were nearly four times as likely to receive a presidential pardon as were comparable African Americans. The story appeared on the front page of The Washington Post, our publishing partner. I know, I know, this seems improbable but LaFleur spent many months doing a statistical analysis that eliminated every other factor we could imagine that might explain this disparity. We sent our findings and methodology to several leading experts in the field. All agreed that race was the only factor driving the vast difference. We published our methodology and you can read it here. Linzer's reporting on the pardons process suggested that it was far more subjective than you might have thought. We wrote about how race creeps into decision-making even when no one is overtly biased. It's worth a look.

Given the starkness of these findings, we at ProPublica thought, naively, that your predecessor and his boss would move immediately to address this problem. As I'm sure you're aware, a president's authority to grant pardons is one of the only unchecked powers in our constitutional system of checks and balances. When it comes to pardons, President Obama can do whatever he wants.

We were told by several political insiders that the pardon stories did not prompt reform because of their timing. They appeared in late 2011, just as the president was gearing up for what was expected to be a bruising campaign for a second term. It was not considered the politically ideal moment for the nation's first African-American president to make the justice system fairer for people of color. And so the government did what it so often does in such circumstances: It commissioned a study to see if our findings were correct....

If history is any guide, you'll be getting a tsunami of pardon requests in the last months of the administration. It might be nice to have come up with some serious reforms by then to fix a process that is so demonstrably flawed. There are lots of ideas about what could done, from setting up an independent pardons commission to taking the pardons office out of the Justice Department.

Good luck with the confirmation hearings. And remember, two years can fly by a lot quicker than you'd ever imagine....

Best Regards,

Stephen Engelberg/Editor in Chief, ProPublica

October 17, 2014 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, October 16, 2014

"Is Hillary Clinton ready for marijuana's 2016 push?"

The title of this post is the headline of this notable and lengthy new CNN article.  Here are excerpts:

When Hillary Clinton graduated from Wellesley College in 1969 -- where the future first lady and Secretary of State says she did not try marijuana -- only 12% of Americans wanted to legalize the drug.  In 45 years, however, the tide has changed for legalization: 58% of Americans now want to make consumption legal, two states (Colorado and Washington) already have and two more states (Oregon and Alaska) could join them by the end of the year.

Despite their growth in approval, many activists see 2014 as a smaller, but important, step to their end goal.  It is 2016, when voters will also have to decide who they want in the White House, that marijuana activists feel could be the real tipping point for their movement.

"There will certainly be even more on the ballot in 2016," said Tamar Todd, director of marijuana law and policy and the Drug Policy Alliance.  "More voters coming to the polls means more support for marijuana reform and in presidential election years, more voters turn out."

Demographics and money are also an important consideration.  Big donors who are ready to fund pro-legalization efforts are more loose with their money in presidential years, according to activists, while Democrats and young people are more likely to turn out. This means legalization activists will be better funded to reach the nearly 70% of 18 to 29 year old Americans who support legalization.

On paper, activists feel their plan will work. But it is one yet to be decided factor -- who Democrats will nominate for president in 2016 -- that could throw a wrench into their push. Clinton is the prohibitive favorite for the Democrats' nomination, but to many in the marijuana legalization community, she is not the best messenger for their cause.

"She is so politically pragmatic," said Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws.  "If she has to find herself running against a conservative Republican in 2016, I am fearful, from my own view here, that she is going to tack more to the middle. And the middle in this issue tends to tack more to the conservative side."...

Clinton has moved towards pro-legalization, though. Earlier this year, during a town hall with CNN, she told Christiane Amanpour that she wants to "wait and see" how legalization goes in the states before making a national decision. At the same event, she cast some doubt on medical marijuana by questioning the amount of research done into the issue.

Later in the year, Clinton labeled marijuana a "gateway drug" where there "can't be a total absence of law enforcement."

"I'm a big believer in acquiring evidence, and I think we should see what kind of results we get, both from medical marijuana and from recreational marijuana before we make any far-reaching conclusions," Clinton told KPCC in July. "We need more studies. We need more evidence. And then we can proceed."

This is more open, however, than in 2008 when Clinton was outright against decriminalization, a step that is less aggressive than legalization. Despite warming on the issue, Clinton's position is concerning to activists like St. Pierre because he feels they are far from solid. "If reforms keep picking up... the winds in our sails are clear," he said. "But if we lose one of more or all of those elections this year, cautious people around her could make the argument that this thing has peaked and you now have to get on the other side of it."

Cross-posted at Marijuana Law, Policy & Reform

October 16, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 15, 2014

Will Eric Holder still be Attorney General well into 2015?

The question in the title of this post is prompted by this recent press report that "President Obama plans to wait on nominating a new attorney general to replace Eric Holder until shortly after the November election." Here is more on the slow pace of Holder's departure from the Office of Attorney General: 

A source close to the process on Tuesday confirmed to Fox News that the president plans to wait until after the Nov. 4 midterm elections. The source said the administration considers the appointment to be serious and wants to wait so the nomination doesn’t get mired in election-year politics. Democrats reportedly had asked the president to hold off until after Nov. 4.

But some Senate Republicans wanted Obama to wait until the new Senate is seated in January to name his pick to succeed Holder. By naming a nominee shortly after the election yet before the new year, the White House would be putting his or her confirmation in the hands of some lawmakers who are not returning in 2015 -- and thus no longer accountable to voters. Further, the White House would be handing the nomination to a Democrat-controlled Senate, despite the possibility that control of the Senate could flip to Republicans in January.

Sen. Ted Cruz, R-Texas, has warned that confirming Holder’s successor before a new Congress is sworn in “would be an abuse of power that should not be countenanced."...

White House Press Secretary Josh Earnest, asked about the timing, said Tuesday that it will take a "little bit of time" to choose the right nominee for the job. But he urged the Senate to "act quickly and in a bipartisan fashion to confirm that person."

The lame duck timetable covers just seven legislative calendar weeks, not accounting time off for holiday recesses. But the White House has pointed out there is precedent for such a move. The day after the 2006 midterm, President George W. Bush nominated Robert Gates as secretary of defense and he was confirmed in less than a month with bipartisan support.

A few recent related posts:

October 15, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, October 14, 2014

AG Eric Holder officially says federal prosecutors should no longer require defendants to "waive their right to bring future claims of ineffective assistance of counsel"

I have long thought it both bad policy and ethically suspect to expect or require criminal defendants to waive future rights (as opposed to current rights) in a plea agreement.  Consequently, I am very pleased to see this new press release coming the the US Department of Justice, titled "Attorney General Holder Announces New Policy to Enhance Justice Department's Commitment to Support Defendants' Right to Counsel." Here are the details (with my emphasis added):

Attorney General Eric Holder, along with Deputy Attorney General James M. Cole, announced today that the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel.  The new policy bolsters the department’s commitment to ensuring that individuals are ably represented as they face criminal charges and marks the Attorney General’s latest step to reform the criminal justice system.

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” said Attorney General Holder. “Under this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.  I am confident in the ability of our outstanding prosecutors to ably and successfully perform their duties without the use of these waivers, as the vast majority of them already do.  Moving forward, I am certain that this more consistent policy will help to bring our system of justice closer in line with our most fundamental values and highest ideals.”...

Deputy Attorney General Cole unveiled the new policy through a memorandum to all federal prosecutors and through a conference call today. Prior to today’s action, 35 of the department’s 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel. While the department believes such waivers are legal and ethical, the new policy will create a uniform policy for all U.S. Attorneys to follow.

The memo directs federal prosecutors to no longer ask defendants to waive future claims of ineffective assistance of counsel in plea agreements. It also instructs prosecutors to decline to enforce waivers that have already been signed in cases where defense counsel provided ineffective assistance resulting in prejudice or where the defendant’s ineffective assistance claim raises a serious issue that a court should resolve.

As noted in this prior post, a few months ago the the Supreme Court of Kentucky unanimously rejected a challenge by the federal government to Kentucky Bar Association Ethics Opinion stating that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  Thus, I think DOJ is still on shaky ground when it asserts a belief that such waivers "are legal and ethical," but this suspect view becomes a lot less worrisome if the feds no longer plan to use such waivers nand also will not seek to have them enforced.

Kudos to AG Holder and others in DOJ for making the sounder ethical and policy approach to this significant matter now official DOJ policy.  And, notably, those who regard national consistency in federal sentencing policy and practice to be important should also welcome this universal policy decision coming from Main Justice.

UPDATE: The one-page memo referenced in this press release can be downloaded here:  Download DOJ Policy on Waivers of Claims of IAC

October 14, 2014 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation

I cannot resist the urge to use this space to reflect upon (and perhaps salve) my disappointment in the learning the certiorari petition in Jones v. US, No. 13-10026 — a case in which I wrote this SCOTUS amicus brief in support of cert — came up only one SCOTUS vote short of making it as the petition today was denied over a dissent authored by Justice Scalia and joined by Justices Thomas and Ginsburg.   As I briefly explained in this initial post on the cert denial, I find especially notable and troubling that neither Justices Sotomayor and Kagan provided the key single additional vote for cert given that both were in the majority in two recent cases which, I think, further set a foundation for finding constitutional limits on guideline punishment enhancements based on acquitted conduct.

As I have explained in prior posts and in my Jones amicus brief, in Peugh v. United States, 133 S. Ct. 2072 (2013) (authored by Justice Sotomayor), the Supreme Court clarified that Guideline ranges, even though now only advisory after Booker, still have consequential “force as the framework for sentencing” and thus are subject to at least some constitutional limitations on how they are calculated and applied. Id. at 2083-84.  And in Alleyne v. United States, 133 S. Ct. 2151 (2013) (with both Justices Sotomayor and Kagan as key votes to reverse a pre-Blakely/Booker precedent), the Supreme Court overturned a prior holding that had failed to recognize that the constitutional protections of the Fifth and Sixth Amendments apply fully not only to facts raising maximum sentences, but whenever the law creates a “linkage of facts with particular sentencing ranges." 133 S. Ct. at 2159-62.

I continue to believe (or at least want to believe) that the huge acquitted conduct guideline punishment enhancements at issue in Jones have to trouble greatly any Justice who truly accepts the Apprendi-Blakely Sixth Amendment jurisprudence, AND who truly believes the advisory federal sentencing guidelines still have constitutionally-significant legal force (as Peugh holds), AND who truly claims the Constitution is concerned with judicial findings of facts that raise punishment floors as well as ceilings (as Alleyne holds).  In other words, I continue to believe (or at least want to believe) that Justices Sotomayor and Kagan would be votes to reverse the sentences at issue in a case like Jones if and when cert is ever granted to review huge acquitted conduct guideline punishment enhancements.  

So why wasn't cert granted this time around, especially with Justices Scalia, Thomas and Ginsburg vocally in support of such a grant in Jones?  As the title of this post is meant to suggest, I think Justices Sotomayor and Kagan may have concluded it would be virtuous and valuable to be passive in this setting, at least for right now, because any extended SCOTUS consideration of extended acquitted guidelines punishment could give Sixth Amendment rights (and SCOTUS itself) an extended black eye (especially if one or both of them might ultimately be inclined to uphold extended acquitted guidelines punishments in Jones).  

I have long hoped for and sought a cert grant on acquitted conduct enhancements because I have long believed jurisprudes on both the left and the right will (and should) have a hard time defending, especially in light of the strong jury-rights rhetoric in cases like Apprendi and Blakely, a federal guideline sentencing system that still recommends huge punishment increases based essentially on judicial rejection of a not-guilty jury verdict.  (Notably, the only time SCOTUS directly addressed this issue, in the 1997 Watts case, the Court issued a summary reversal to permit acquitted conduct enhancements and thus prevented full briefing or oral argument on the matter.)   But yet again because of another cert denial, we will not learn if Justices Breyer and Kennedy (or even CJ Roberts), who in other settings express concerns about prosecutorial power and excessive sentencing, might be cajoled through full briefing and argument to see the constitutional vices of allowing prosecutors and judges to trump juries in the federal sentencing process. 

Finally, once one starts thinking about the possibility that Justices Breyer and Kennedy and even CJ Roberts might have been especially eager right now to dodge full consideration of acquitted conduct punishments, it becomes hard to avoid speculating about "long confernce" deals to deny cert and thereby dodge consideration now of other (higher profile) hard constitutionally issues.  As all Court-watchers know, the really big cert-denial news after the SCOTUS long conference involved denials in all the same-sex marriage cases from around the country.  Dare I show my ignorance about what really goes on behind SCOTUS doors when I wonder if, at least tacitly, a large block of Justices concluded during the long conference that it was in every Justices' interest to be "deeply in denial."  Just a (silly?) thought.

Previous related posts on the Jones case:

October 14, 2014 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case

I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal.  As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference."  Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg.  Mega-bummer!!!

Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original): 

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal.  See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment).  If so, their constitutional rights were violated.  The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.”  Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).  We have held that a substantively unreasonable penalty is illegal and must be set aside.  Gall v. United States, 552 U.S. 38, 51 (2007).  It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.  It may not be found by a judge.

For years, however, we have refrained from saying so.  In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case.  We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness.  551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”).  Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....

This has gone on long enough.  The present petition presents the nonhypothetical case the Court claimed to have been waiting for.  And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.  Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs.  The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions.  But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.  

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated.  744 F. 3d 1362, 1369 (2014).  We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land.  Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases.  But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne.  As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.

Previous related posts on this case and acquitted conduct sentencing enhancements:

October 14, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, October 13, 2014

Oklahoma AG requests additional delay before state gets back to executions

As reported in this Reuters article, "Oklahoma's attorney general has filed a request to delay three upcoming executions in Oklahoma due to a lack of drugs and to provide more time to implement new lethal injection protocols, according to court documents obtained on Monday."   Here is more:

Attorney General Scott Pruitt has asked the Oklahoma Court of Criminal Appeals to delay two executions set for November and one set for December because the state does not have the necessary drugs or the medical personnel to carry out the executions, a filing from last week showed. The drugs used during executions in the United States are under scrutiny after inmates in troubled executions in Ohio, Oklahoma and Arizona took longer than is typical to die and showed signs of distress.

Pruitt requested a Jan. 15 execution date for Charles Warner, convicted of raping and murdering 11-month old Adrianna Walker. Pruitt was scheduled to be executed Nov. 13. His original execution date was April 29, the same night of the botched execution of condemned murderer Clayton Lockett. Lockett's execution prompted the state to delay all executions pending a review and investigation into why it took Lockett over 40 minutes to die....

Richard Eugene Glossip and John Marion Grant were also scheduled for execution in 2014, but Pruitt asked that their executions be set for Jan. 29 and Feb. 19, respectively. Robert Patton, director of the Oklahoma Department of Corrections, issued a statement on Monday supporting the 60-day delay.

Dale Baich, attorney for Warner, issued a statement applauding Pruitt's request, saying more time is needed for the federal courts to review a lawsuit filed by 26 inmates, including Warner, Glossip and Grant. The lawsuit argues that the state is experimenting on death row inmates with untested lethal injection drugs, violating the law’s ban on cruel and unusual punishment.

October 13, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"

The question in the title of this post is the first line of this AP article headlined "Factors that may affect if Pistorius spends time in prison." Because I know very little about South African sentencing law and procedure, I found this AP article quite informative, and here are excerpts:

Judge Thokozile Masipa began hearing testimony Monday before deciding what sentence the double-amputee Olympic athlete should serve.  Pistorius was acquitted of murder in Steenkamp's shooting death but convicted of a lesser charge of culpable homicide, or killing Steenkamp through negligence.  It has a wide range of possible sentences in South Africa, from a fine and no prison time to as much as 15 years in jail....

Judge Masipa will hear testimony from a small number of witnesses called by the defence and then prosecution before deciding on Pistorius' sentence.  The defence began presenting witness testimony on Monday, arguing why the judge should be lenient.  Prosecutors could call Steenkamp's family members to show that Pistorius should be sent to prison for years because of the suffering he has caused....

Pistorius' lawyers cited what they say is his remorse and previous good character as reasons for a lenient sentence.  Defence lawyers began by calling a psychologist who has counselled the athlete since he killed Steenkamp. Dr. Lore Hartzenberg testified that Pistorius was a "broken man" wracked with grief following the shooting, and had lost his reputation, his friends and his career.  The defence hopes her testimony -- which focused on what she said was Pistorius' emotional pain following an accidental killing -- will help persuade Masipa that Pistorius is remorseful, has suffered already and shouldn't be sent to prison because he needs ongoing therapy.

Prosecutor Gerrie Nel countered that Pistorius was "still alive" and Steenkamp wasn't and that should be considered....

Pistorius' work with charities before the Feb. 14, 2013 shooting was listed extensively by his agent, Peet van Zyl, who was also called by the defence.  Van Zyl's testimony was designed to paint the Paralympic champion as a generally good person who had no previous criminal record.  He also said that Pistorius had lost all his athletics endorsements because of the court case and had already been punished financially.

A social worker from South Africa's department of correctional services was the only one of the three defence witnesses who testified on the first day of the hearing to suggest a sentence.  Joel Maringa said three years of "correctional supervision" would be appropriate, where Pistorius would be partly under house arrest and have to do community service, but would also be able to train and attend athletics meets.

Nel fiercely criticized that suggestion, saying it was "shockingly inappropriate" after Pistorius killed someone.  The prosecution, which sought a murder conviction, has insisted that Pistorius should go to prison because of the level of negligence he displayed when he fired four hollow-point bullets through a toilet cubicle door in his home and into a small space without checking who was inside.

Masipa's options are wide-ranging: She could order a fine and a suspended prison sentence, meaning the 27-year-old Pistorius spends no time in jail unless he offends again.  But she could also sentence him to up to 15 years in prison.  In between those two scenarios, Masipa could order he be put under house arrest for a period.  Pistorius could apply for parole after serving half of any prison sentence.

October 13, 2014 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (1) | TrackBack

Noting how politicians can be pro-life and pro-death (penalty) in Texas

This local story on modern Texas politics, headlined "Being pro-life in gov's race doesn't extend to death row," highlights what concerns about the sanctity of life real mean in the Lone Star State.  Here are excerpts:

When Attorney General Greg Abbott talks about his opposition to abortion, he often mentions his Catholic faith. Not so when he talks about his support for the death penalty, whose abolition is advocated by Pope Francis.

“Catholic doctrine is not against the death penalty, and so there is no conflict there,” Abbott, the Republican nominee for governor, said when asked about that point in a meeting with the San Antonio Express-News Editorial Board.  The Catholic catechism doesn't exclude the death penalty as an option if that's the only way to defend human lives from an offender, but it says that given current options, such cases “are very rare, if practically non-existent.”

Pope Francis, in reaffirming the church's call to abolish the death penalty last year, asked that such sentences be commuted to a lesser punishment allowing for the offender's reform, the National Catholic Register reported.  “The difference, of course, is one between innocent life and those who have taken innocent lives,” Abbott said of his position on abortion versus the death penalty.

A different view on capital punishment would itself be seen as tantamount to a political death sentence in Texas.  Abbott's Democratic opponent, Sen. Wendy Davis, also backs the death penalty — even though as a Fort Worth City Council member in 2000 she voted to impose a moratorium on it, and even though the Texas Democratic Party platform calls for substituting life in prison for capital punishment, saying the death penalty is applied disproportionately to the poor and persons of color.

The moratorium didn't pass, and Davis said that the questions prompting her to support it then have largely been answered through such means as advancement in the use of DNA evidence. “Obviously, before we mete out the most serious of punishments, we need to know we've done everything to assure that the person on the receiving end of that punishment is guilty,” Davis told the Express-News Editorial Board in a separate appearance Friday. “We have made some advances in that regard. ... Is there still work to do? Absolutely.”

Both candidates credited work by Sen. Rodney Ellis, D-Houston, on the issue. Abbott cited his efforts with Ellis on legislation to expand DNA testing in death penalty cases. “I know that the only way the death penalty will work is to ensure its absolute accuracy — that everyone who is given the death penalty is guilty of the crime for which they were accused and convicted of committing,” Abbott said.

Being sure can be difficult.  In 2010, Anthony Graves became the 12th death-row inmate to be exonerated in Texas, absolved of the 1992 Burleson County murder for which he was convicted.  Michael Morton, who served 25 years in his wife's Williamson County murder before being exonerated, told CNN, “I thank God this wasn't a capital case.”...

Abbott and Davis both said if elected, they'll also take care in presiding over executions. “I will ensure that before I ever allow an execution to occur, I will be 100 percent convinced that the person who is being sentenced to the death penalty is guilty of that crime,” Abbott said. Davis said, “As governor, I'll take that very seriously and make sure that before that punishment is meted out that we have done everything we can to answer the questions that need to be answered.”

October 13, 2014 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, October 12, 2014

"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw"

The title of this post is the title of this intriguing new paper by U.S. District Judge Mark Bennett. Here is the abstract:

Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic.  It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor.  Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges.  The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random.

Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005).  Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed.  This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences.  This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.

This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress.  It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines.  If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.

October 12, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Documenting a notable California legal crusade against sex offender restrictions

This lengthy local article, headlined "Pair seeks repeal of sex-offender laws in California," provides a detailed review of a notable effort to take down via court challenges local sex offender restrictions. The piece merits a full read, and here are a few highlights:

A crusading civil rights attorney and a registered sex offender have partnered in a legal battle that has prompted dozens of California cities to repeal or revise what the pair believe are unconstitutional ordinances restricting the activities of sex offenders.

Since March, Santa Maria attorney Janice Bellucci and Frank Lindsay, a 62-year-old water-treatment specialist from Grover Beach and registered sex offender for 35 years, have filed 18 lawsuits in federal court challenging ordinances in cities from Stockton down to National City.

To date, Bellucci has settled 15 of the lawsuits, while 38 other cities have avoided litigation by agreeing to repeal their ordinances. Six other cities have voluntarily suspended enforcement of their ordinances, while ordinances in another 18 cities are still under review.

“The way I look at it is that I’m protecting the Constitution of the United States as well as the state of California,” said Bellucci, president of California Reform Sex Offender Laws, a nonprofit she launched three years ago as an affiliate to the national Reform Sex Offender Laws organization.

While Bellucci believes she’s fighting for the rights of oppressed sex offenders, others say she’s endangering the state’s youth. “As an elected official and as a mother, I’m concerned about the health and safety of our young people who don’t have a voice,” said Carson Councilwoman Lulu Davis-Holmes. Carson is one city sued by Bellucci that plans to fight the lawsuit. “Our kids did not make the choice to be molested,” Davis-Holmes said. “I personally think we need to do more to protect those who cannot protect themselves,”

Bellucci’s flurry of lawsuits was prompted by a 4th District Court of Appeal’s decision in January that found sex offender ordinances in Orange County and the city of Irvine cannot impose restrictions more stringent than state law, which only restricts sex offenders who are on parole and whose victims were under the age of 14 from visiting public parks without the express permission of their parole agent.

In addition to the suits she filed with Lindsay, Bellucci has filed two lawsuits on her own, challenging ordinances in Canyon Lake and Commerce. Those complaints do not name Lindsay as a plaintiff because ordinances in those cities do not apply to sex offenders whose convictions are as old as Lindsay’s.

In April, the state Supreme Court declined a petition by the Orange County District Attorney’s Office to review the appellate court ruling, leaving it intact. The appellate court ruling, coupled with the spate of litigation initiated by Bellucci, could have a major impact on the lives of California’s 107,913 registered sex offenders, roughly 14 percent of the nation’s 774,600, as cities and counties are forced to either repeal their ordinances or make them uniform with state law.

This companion article, headlined "Sex-crimes convict says registration has ruined his career, endangered his life?," provides a profile of the sex-offender who is the plaintiff in much of the discussed California sex offender litigation.

October 12, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, October 10, 2014

Wyoming Supreme Court joins group deciding SCOTUS Miller ruling is retroactive

As reported in this local article, headlined "Casper man convicted of murder as a teenager now has possibility of parole," the Wyoming Supreme Court had a big ruling yesterday on juve life sentences.  In Wyoming v. Mares, 2014 WY 126 (Wyo. Oct. 9, 2014) (available here), the Court held that Miller v. Alabama announced a substantive rule that is to be applied retroactively under Teague and also that a Wyoming statute enacted last year making juves parole eligible should be applied retroactively. Here is how the unanimous opinion in Mares gets started:

In 1995, Edwin Mares was convicted of felony murder as a juvenile and sentenced to life in prison, which sentence was by operation of law the equivalent of a sentence of life imprisonment without the possibility of parole.  In 2013, Mr. Mares filed a motion, pursuant to Rule 35 of the Wyoming Rules of Criminal Procedure, to correct an illegal sentence. Through that motion, Mr. Mares contended that his sentence of life without the possibility of parole was unconstitutional in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).  This Court accepted certification of two questions from the district court.  The first question concerns the test to be used in determining the retroactivity of new constitutional rules when a judgment is challenged on collateral review.  The second question is whether Miller applies retroactively under our chosen test.

We conclude that as a result of amendments to Wyoming’s parole statutes in 2013, Mr. Mares’ life sentence was changed from one of life imprisonment without the possibility of parole to one of life with the possibility of parole in twenty-five years.  This change occurred by operation of the amended law, and the sentence Mr. Mares challenged in his Rule 35 motion therefore no longer exists.  We are aware, however, that other collateral challenges to juvenile offender sentences are pending throughout our district courts, and we therefore, in the interests of judicial economy and to avoid conflicting rulings, choose to answer the certified questions.  In response to the first certified question, we hold that the proper rule for determining whether a new constitutional rule applies retroactively to cases on collateral review is the test announced by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).  In response to the second question, we conclude that under a Teague analysis, the rule announced in Miller applies retroactively to cases on collateral review.

October 10, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, October 09, 2014

New survey shows significant and growing support for "eliminating mandatory minimum prison sentences for nonviolent offenders"

As reported via this FAMM news release, which is headlined "New Poll Finds 77% of Americans Support Eliminating Mandatory Minimums for Non-Violent Offenses," there is new polling data suggesting that large and growing percentages of Americans favor mandatory minimum sentencing reform. Here are the basic details:

A new Reason-Rupe Public Opinion Survey finds that 77 percent of Americans support eliminating mandatory minimum sentences for non-violent drug offenses.  That number is up from 71 percent in December 2013, the last time Reason-Rupe polled on the question.  You can find the full survey results here (PDF); mandatory minimums are question 17. 

“Almost three decades have passed since the United States instituted harsh mandatory minimums for non-violent drug offenses.  During that time, countless lives have been ruined and countless families destroyed.  The American people have noticed, and they want no more of it,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.

The poll question Reason-Rupe posed reads as follows: “Would you favor or oppose eliminating mandatory minimum prison sentences for nonviolent offenders so that judges have the ability to make sentencing decisions on a case-by-case basis?”

Seventy-seven percent of respondents said they favored eliminating mandatory minimums, while only 17 percent of respondents said they were opposed.  When Reason-Rupe asked the same question in December 2013, 71 percent of respondents were in favor of eliminating mandatory minimums, and 24 percent were opposed.

October 9, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Texas succeeds with new laws intended to disrupt school-to-prison pipeline

Discovering the (perhaps somewhat unexpected) success of reforms in (perhaps somewhat unexpected) states is one of the great joys of following closely state-level criminal justice policy and practice.  For example, this new local article showcases how Texas is achieving success at addressing problems often stressed by juvenile justice advocates.  The piece is headlined "New laws drastically cut prosecutions of Texas students," and here is how it starts:

Working as intended, two state laws passed in 2013 have fueled a larger-than-anticipated 83 percent decline in the number of Texas schoolchildren prosecuted in adult court for infractions such as disrupting a classroom, court figures show.  Including other misdemeanor school-based offenses, almost 90,000 juvenile cases were kept out of adult court by the new laws, which were written to encourage schools to handle most behavior problems internally instead of relying on police or the courts, two Texas House committees were told Wednesday.

“We were expecting a drop. I don’t think we were expecting that significant a drop in the first year,” said David Slayton, director of the state Office of Court Administration.  The sharp decline in the number of juvenile prosecutions, publicized for the first time at Wednesday’s joint hearing of the House Corrections and Public Education committees, offered early evidence that the laws were working to reduce the number of children saddled with criminal records for relatively minor school offenses, legislators and criminal justice advocates said.

“We have seen major success as a result of the passage of these bills,” said Mary Schmid Mergler with Texas Appleseed, a legal advocacy group.  “School discipline had increasingly moved from the schoolhouse to the courthouse, and misbehavior that used to mean a trip to the principal’s office was landing children in court and resulting in criminal convictions,” she said.

The offenses targeted by the laws are prosecuted in municipal and justice of the peace courts — adult settings that lack protections found in juvenile court, such as appointed lawyers and confidentiality rules — and can result in criminal convictions that often make it difficult to find housing, enter college or join the military, Mergler said.

The laws, known as Senate Bills 393 and 1114, barred police officers from writing tickets for Class C misdemeanors that occur on school grounds, though traffic violations are exempt from the ban.  Officers also cannot issue citations for school offenses such as causing disruptions in class or on a school bus.

October 9, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Fifteen Years of Supreme Court Criminal Procedure Work: Three Constitutional Brushes"

The title of this post is the title of this lovely essay by Daniel Richman now available via SSRN. Here is the abstract:

This essay — written in connection with a French National Research Agency project on “Neo or Retro Constitutionalisms” — is an effort to pull together the last fifteen years of Supreme Court criminal procedure cases expanding constitutional protections. It identifies three different styles: thin and clear doctrinal lines on miniature doctrinal canvases that have only passing connections to criminal justice realities; episodic and self-limiting engagements with a potentially larger regulatory space; and a grand style that hints at sweeping structural ambitions but collaborates with other regulatory authorities.

Readers undoubtedly can come up with more than three styles.  But, in any event, the exercise highlights the limited nature of the Court’s work during this period, the limits of formalism, and the need for scholars to disaggregate broad references to “constitutionalism.”

October 9, 2014 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, October 08, 2014

Ninth Circuit panel chastises prosecutors for breaching "fast-track" plea agreement

A Ninth Circuit panel has handed down a lengthy, must-read opinion today in US v. Morales Heredia, No. 12-50331 (9th Cir. Oct. 8, 2014) (available here).  The start of the opinion should make clear to federal practitioners, especially in border districts, why this case is notable:

Every day along the southwest border, previously deported aliens lacking entry documents are arrested, detained, and charged with illegal reentry.  Once convicted, they serve a term of imprisonment, and then are again deported.  The numbers are so great that federal prosecutors in these border states began to resort to an efficient means of securing a conviction: a “fast-track” plea agreement that binds the government and the defendant, but not the district judge.

The government secures the benefit of a streamlined process that minimizes the burden on its prosecutorial resources.  It need not go before a grand jury to secure an indictment; battle motions, including collateral attacks on the underlying deportation; prosecute a jury trial; or oppose an appeal.  The defendant, in turn, waives constitutional and other rights and agrees to a term of incarceration and, often,a term of supervised release ordinarily discouraged by the U.S. Sentencing Guidelines.  What is the incentive for the defendant to take this deal?  The prosecutor binds his office to recommend a four-level downward departure in the offense level now advised by the Guidelines, and to present a “united front” in favor of a reduced sentence to the district judge.  If the judge does not accept this sentence, the defendant may walk away from his guilty plea, and proceedings will begin anew.

Paul Gabriel Morales Heredia (Morales) was one such defendant.  But in Morales’s case, the orderly and efficient plea-bargaining process did not play out as intended.  The government extended the promise of a reduced prison term with one hand and took it away with the other.  The prosecutor’s recommendation of a six-month prison term rang hollow as he repeatedly and unnecessarily emphasized Morales’s criminal history, adding for good measure his personal opinion that “defendant’s history communicates a consistent disregard for both the criminal and immigration laws of the United States.” Morales’s counsel timely objected and sought specific performance of the plea agreement.  The district judge denied this relief on the irrelevant ground that the prosecutor’s statements did not influence him.  We conclude that Morales is entitled to relief, and we vacate his sentence and remand for further proceedings before a different judge.

October 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Criticizing the tenure of AG Eric Holder based on the death penalty as a human rights issue

This extended New Republic commentary authored by Mugambi Jouet, somewhat inaccurately titled "What Eric Holder — and Most Americans — Don't Understand About the Death Penalty," takes shots at Holder's specific record on the death penalty:

Attorney General Eric Holder's recent resignation announcement prompted a flurry of assessments on his six years of service under President Obama. He let Wall Street off too easy. He was a hero to the poor. He compromised civil liberties in the name of national security—and defended civil rights better than any attorney general before him. But the debate over Holder’s record has overlooked one of the most important aspects of his legacy. Holder has been profoundly at odds with the rest of the Western world on one of the most significant human rights issues of our time: the death penalty.

All Western democracies except America have abolished capital punishment and consider it an inherent human rights violation. America further stands out as one of the countries that execute the most people. Thirty-nine prisoners were executed by the United States in 2013. While that figure marked a continuing decline in the annual number of U.S. executions, it still placed America fifth worldwide, right behind several authoritarian regimes: China, Iran, Iraq, and Saudi Arabia.

No federal prisoner has been executed since 2003, yet Holder’s decisions could ultimately lead this de facto moratorium to end, as he authorized federal prosecutors to pursue capital punishment in several dozen cases. "Even though I am personally opposed to the death penalty, as Attorney General I have to enforce federal law," Holder has argued. Prosecutors actually have the discretion not to pursue the death penalty at all — at the risk of losing popularity — since enforcing the law does not require pursuing capital punishment as opposed to incarceration....

Holder notably approved the decision to seek the death penalty in the federal trial of Dzhokhar Tsarnaev, who is accused of perpetrating the Boston Marathon bombings of 2013 — and whom a majority of Americans want to be executed. Nevertheless, the state of Massachusetts has abolished the death penalty and only 33 percent of Boston residents support executing Tsarnaev as opposed to sentencing him to life in prison without parole. However, Holder’s decisions supporting capital punishment have hardly been limited to terrorism cases. For example, he authorized the recent decision to seek the death penalty for Jessie Con-Ui, a Pennsylvania prisoner accused of murdering a federal correctional officer....

The death penalty is rarely framed as a human rights issue in America, unlike in other Western democracies. That's partly because the principle of human rights plays a very limited role overall in the legal and political debate in the U.S., where "human rights" commonly evoke foreign problems like abuses in Third World dictatorships — not problems at home.

The situation is different on the other side of the Atlantic, where the European Court of Human Rights tackles a broad range of problems facing European states, from freedom of speech to labor rights, discrimination, and criminal justice reform. National human rights commissions also exist in multiple countries, including Australia, Denmark, France, Germany, and New Zealand. These bodies focus mostly or exclusively on monitoring domestic compliance with human rights standards. On the other hand, the Tom Lantos Human Rights Commission, an arm of the U.S. Congress, focuses on the human rights records of foreign countries.

The relative absence of human rights as a principle in modern America is remarkable given how U.S. leaders actively promoted the concept in its infancy. President Franklin Delano Roosevelt invoked “human rights” in his “Four Freedoms Speech” of 1941. Eleanor Roosevelt was among the architects of the Universal Declaration of Human Rights of 1948. As the human rights movement progressed in later decades, Martin Luther King said in 1968 that “we have moved from the era of civil rights to the era of human rights.”

Even though Holder regards King as one of his models — and despite his proposals to make the U.S. penal system less punitive and discriminatory — the nation’s first black attorney general hardly put human rights at the center of his agenda.

The death penalty is far from the only human right issue where America stands apart from other Western democracies. America effectively has the world’s top incarceration rate, with 5 percent of the world’s population but 25 percent of its prisoners. America is likewise virtually alone worldwide in authorizing life imprisonment for juveniles. Its reliance on extremely lengthy periods of solitary confinement has been denounced by the U.N. Special Rapporteur on Torture. The extreme punishments regularly meted to U.S. prisoners are generally considered flagrant human rights violations in other Western countries. Nevertheless, Holder argued that America has “the greatest justice system the world has ever known.”

By the same token, no other modern Western democracy has gone as far as America in disregarding international human rights standards as part of anti-terrorism measures. This trend has been epitomized by indefinite detention at Guantanamo and the torture of alleged terrorists under the Bush administration. These practices have sharply divided U.S. public opinion but only a segment of Americans have depicted them as “human rights” abuses....

[T]he limited weight of human rights in the U.S. legal and political debate is not without consequences. Human rights are a far stronger basis to oppose practices like the death penalty or torture than the administrative arguments frequently invoked in America. The human rights argument against such practices is largely based on the premise that they violate human dignity....

Holder's narrow focus on problems with the administration of capital punishment suggests that he is among the many U.S. public officials and reformers who believe they have no duty to assess the “moral” issues regarding the death penalty. Whether this stance is justified or not, it seems quite exceptionally American in the modern Western world. Most contemporary European, Canadian, Australian, and New Zealander jurists probably would disagree with the notion that it is not their duty to assess whether executions violate human dignity.

Martin Luther King, who considered the death penalty an affront to human dignity, argued that “a genuine leader is not a searcher for consensus but a molder of consensus.” Perhaps Eric Holder — and his boss, Barack Obama — would have been willing to argue that the death penalty is dehumanizing if they did not fear losing popularity.

October 8, 2014 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, October 07, 2014

Arkansas deputy AG cut to pieces while trying to defend prison beard-cutting policies

This morning the Supreme Court head oral argument in a prisoner rights case, and this SCOTUSblog report on the argument from Lyle Denniston suggests it did not go well for one advocate.  Here is the start of Lyle's argument recap:

The Supreme Court on Tuesday sent a blunt message to prison officials planning a policy that limits the religious freedom of inmates: it would be important to have a good reason for the restriction before it gets into court.  Trying to bolster the rationale at the lectern is not a promising strategy.

A lawyer for Arkansas prison officials found that out in two quick exchanges with Justice Samuel A. Alito, Jr., that came close to collapsing his case.

David A. Curran, a deputy attorney general from Little Rock, arguing for the state in the case of Holt v. Hobbs, took his turn before the Justices after two lawyers on the other side had repeatedly complained that the state simply had no real justification for banning all beards on inmates, even for those who might want insist that they need one for religious reasons.

Curran tried to offer two rationales: the policy keeps prisoners from hiding anything dangerous or illegal in their chin hair, and it helps the guards identify the inmates as they move about in the prison yard or working in the farm fields.  (A third rationale, put forward only briefly, is that “prisoners are capable of a lot of mischief.”)  But the more he talked, the more the skepticism spread across the bench.

Clearly, though, his worst moments came when Justice Alito quietly probed both of the primary arguments.

As to the contraband-hiding problem, Alito suggested that the prison guards could just hand an inmate a comb and have him run it through the beard, “to see if a SIM card — or a revolver — falls out.”  It produced a broad wave of laughter in the courtroom, at the quite ridiculous image of a gun being stashed in a half-inch beard.  (There were enough modernists in the audience to know that a SIM card is a tiny electronic chip that identifies the assigned user of a cellphone; cellphones are not allowed in Arkansas prisons.)

As to the altered-identify problem, Alito tried verbally to imagine how an inmate wishing to enter the wrong barracks after a work period outside would — while out in the field — produce a razor, shave the beard, switch photo ID cards with an inmate who looked like him beardless, and go into a barracks different from the one specified on that ID card.  That, too, was such a stretch that it taxed credulity.

Other Justices had also given Curran little peace, although the Court’s members did at times make some determined — and mostly frustrated — attempts to define a standard as to when courts should defer to prison officials’ judgment about what is required for prison safety, and a standard to determine when a restriction on religious practice among inmates would go too far.

October 7, 2014 in Prisons and prisoners, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, October 06, 2014

Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case

Regular readers likely recall a number of posts about the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. As I noted in this post last week, this case, Jones v. US, No. 13-10026, was consider by the Justices at their "long conference." When there was subsequently no announcement of cert being granted last week, I assumed today's SCOTUS order list (noted here) would include Jones v. US, No. 13-10026, on the long list of cases for which certiorari was denied.

But, while the Justices surprised many court-watchers today by denying cert on all the same-sex marriage cases, they surprised me by "relisting" Jones v. US, as noted in this official docket report, for consideration again at the Court's conference this coming Friday.  This is relatively big news — to the extent that not making a cert decision is big news — because a relist is usually a strong signal that one or more Justices are strongly interested in the case and want some more time to mull over the possibility of a grant of cert or some other significant action.

Still, as the title of this post is intended to connote, I am trying real hard to resist getting excited by the prospect of cert being granted in Jones (and/or in another acquitted conduct case) real soon.  It is quite possible — dare I say perhaps even likely — that this relist is just a sign that a Justice or two is working on a dissent from the denial of cert review and need another few days to put the finishing touches on that dissent.   Indeed, given how crisply the acquitted conduct issue is presented in Jones and how many prior petitions have failed to garner the votes need for a cert grant in recent years, it is hard to imagine that the Justices want or need more time to mull this over.  But, while the Dougie Downer voice in my head will keep telling me not to get too excited by all this, the optimist voice in my head keeps imaginging that the big baseball and Sixth Amendment fans on the Supreme Court, namely Justices Scalia and Sotomayor, are going to convince enough of their colleague to finally be willing to "play Ball" and take up the acquitted conduct issue in Jones v. US.   

Previous related posts on this case and acquitted conduct sentencing enhancements:

October 6, 2014 in Blakely in the Supreme Court, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Reviewing California's debate over lowering sentences through Prop 47

I have noted in a few prior posts some of the details of California's Proposition 47, which seeks to reduce penalties for certain offenders convicted of low-level property and drug crimes.  This new New York Times article, headlined "California Voters to Decide on Sending Fewer Criminals to Prison," discusses the current state of debate over Prop. 47.  Here are excerpts:

Twenty years ago, amid a national panic over crime, California voters adopted the country’s most stringent three-strikes law, sentencing repeat felons to 25 years to life, even if the third offense was a minor theft.  The law epitomized the tough-on-crime policies that produced overflowing prisons and soaring costs.

Now California voters appear poised to scale back the heavy reliance on incarceration they once embraced, with a measure that would transform several lower-level, nonviolent felonies into misdemeanors punishable by brief jail stays, if that, rather than time in a state penitentiary.  The referendum on Nov. 4 is part of a national reappraisal of mass incarceration.

To its advocates — not only liberals and moderates, but also an evangelical conservative businessman who has donated more than $1 million to the campaign, calling it “a moral and ethical issue” — the measure injects a dose of common sense into a justice system gone off the tracks. 

“Law enforcement has been on an incarceration binge for 30 years, and it hasn’t worked,” said George Gascón, the San Francisco district attorney and a former police chief who, bucking most of his counterparts around the state, is the main sponsor along with a former police chief of San Diego. For the large numbers of nonviolent offenders with mental health or substance abuse problems, Mr. Gascón said, “Incarceration doesn’t fix the problem.”

California has already been forced by federal courts to trim its prison population because of inhumane crowding, which it did mainly by sending more offenders to county jails.  Two years ago, in a previous referendum, voters took the worst sting off the three-strikes law, shortening the sentences of those whose third crime was a minor one.

The new initiative would have wider effects, altering penalties for low-level theft and drug-possession crimes that result in felony convictions, and sometimes prison terms, for thousands of nonviolent offenders each year.  Proposition 47, as it is called, would redefine thefts, forgery and other property crimes involving less than $950, and possession for personal use of drugs including heroin and cocaine, as misdemeanors — punishable by at most one year in a county jail, and often by probation and counseling. The changes would apply retroactively, lightening the penalties for thousands already in prison or jails....

The proposals here are modest compared with changes recently taken by other states to curb prison growth.  But Proposition 47 has drawn harsh attack from law enforcement officials, including most district attorneys and the association of police chiefs, which calls it “a dangerous and radical package” that will “endanger Californians.”...

In a poll in September conducted by the Public Policy Institute of California, 62 percent of voters said they supported the initiative, and only 25 percent said they opposed it. Proponents like Mr. Gascón and Darrell Steinberg, the Democratic president pro tem of the State Senate, say this shows that the public is far ahead of timid legislators, necessitating the unusual step of a ballot initiative....

But opinions could change, especially if the two sides mount television campaigns in coming weeks. One of the most outspoken opponents, Shelley Zimmerman, the chief of police in San Diego, has already gone on the offensive.  “Virtually all of law enforcement is opposed,” Chief Zimmerman said.  “It’s virtually a get-out-of-jail-free card” for 10,000 felons, many with violent histories.  She and other opponents have zeroed in on two details: Stealing a gun worth less than $950 and possessing date-rape drugs would no longer be automatic felonies....

So far, supporters of the proposal have a large financial advantage, raising more than $4 million as of last week, half of which had been used to get the measure on the ballot, compared to less than $300,000 for the opponents, with most of that donated by a law enforcement officers’ association.  Large donations in support have come from the Open Society Policy Center, a Washington-based group linked to George Soros; the Atlantic Advocacy Fund, based in New York; Reed Hastings, the chief executive of Netflix; and Sean Parker, the former president of Facebook. 

But the largest single donor is B. Wayne Hughes Jr., a conservative Christian businessman and philanthropist based in Malibu. In one of the most tangible signs yet of growing concern among conservatives about the cost and impact of incarceration, Mr. Hughes has donated $1.255 million....

Even if Proposition 47 passes, California will still lag behind many other states, including some that are politically conservative, in reforms that have achieved prison cuts with no increase in crime, said Adam Gelb, director of the Public Safety Performance Project of the Pew Charitable Trusts.  Just looking at the dollar threshold for theft or forgery felonies, he noted, Mississippi recently raised its cutoff to $1,000, and South Carolina to $2,000. “This reform may be modest,” Mr. Gascón acknowledged. “But California led the way early on in draconian sentencing, and now I’m hoping that these reforms, too, will have an impact on the state and the nation.”

Prior related posts:

October 6, 2014 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack