Thursday, March 14, 2013

As Maryland takes another step toward capital repeal, limbo looms for five on state's death row

03_13a_DeathPenaltyFullVizAs reported in this AP article, the Maryland House "on Wednesday night advanced legislation to repeal the death penalty in Maryland after delegates rejected nearly 20 amendments, mostly from Republicans, aimed at keeping capital punishment for heinous crime." Here is more:

The Senate approved the measure earlier this month. A final House vote on the legislation, a top legislative priority of Democratic Gov. Martin O’Malley, could come as soon as Friday.

Amendments defeated on the House floor would have maintained the death penalty in some cases, including acts of terrorism, for mass murderers, lawbreakers who kill police officers or firemen in the line of duty and for kidnappers who kill.   “We can’t get into the business of this crime is worse than another,” said Delegate Samuel Rosenberg, a Baltimore City Democrat who supports the measure.  “These are terrible cases, but the death penalty is not the way to go.”

With the repeal of the death penalty now nearly a done deal, the next interesting legal and policy question concerns what should become of the five murderers current on Maryland's death row.  That issue is the subject of this lengthy new Stateline article, headlined "Death Row Inmates In Limbo As Maryland Moves to Repeal Death Penalty." Here are excerpts:

After a years-long fight, Maryland is about to become the sixth state in as many years to repeal its death penalty. Gov. Martin O’Malley, who championed the repeal, says he will sign it into law. But the Democrat still faces a tough choice — what to do about the five remaining Maryland inmates on death row? The repeal bill makes no provision for the five men sentenced to death, which even after a repeal of the death penalty could legally still be executed, should they exhaust all of their appeals.

In 2011, Illinois Gov. Pat Quinn, a Democrat, commuted the sentences of all 15 death row inmates before signing a bill repealing the death penalty in his state. New Jersey Gov. Jon Corzine, also a Democrat, did the same for eight death row inmates before signing a death penalty repeal bill in 2007. But governors in Connecticut and New Mexico left their states’ death row inmates subject to the death penalty when they signed their states’ repeal bills.

In Maryland, the governor has virtually unlimited power to pardon or commute sentences, and many death penalty opponents have encouraged O’Malley to simply clear death row if he is morally opposed to the death penalty. The Maryland Senate added an amendment to the repeal bill expressing its will that all death row inmates have their sentences commuted to life in prison without parole. The executive clemency decision, however, is solely up to O’Malley.

O’Malley has three clemency options, says spokesperson Raquel Guillory: He can immediately commute all five death sentences, commute each sentence on a case by case basis, or do nothing. He is not expected to make a decision until after the legislative session ends in April.

O’Malley has been notably reluctant to commute any sentences or grant pardons during his seven-year tenure. He’s only granted 50 pardons out of 690 requests as of last December, according to The Washington Post. And he’s only commuted two sentences, one where an accomplice served three times as long as the shooter, and another where a witness recanted testimony that sent a man to prison for nearly 30 years.

O’Malley’s clemency record is in line with his overall stance of being tough on crime, stemming from his background as a Baltimore prosecutor. The majority of governors have broad, nearly unrestricted clemency power to pardon or commute sentences as they see fit. But few exercise that power regularly.

As Stateline has previously reported, governors contemplating higher office—and O’Malley is contemplating a presidential bid in 2016—have been wary of using their executive clemency powers. Well-publicized missteps by Govs. Michael Dukakis of Massachusetts, Mike Huckabee of Arkansas and Tim Pawlenty of Minnesota allowed their opponents to paint them as soft on crime.

Even though O’Malley’s clemency record is less than generous, his support for the repeal of the death penalty has brought him national attention. He’s not the only governor who’s opposed the death penalty, but he’s made it a central part of his political agenda and sold it as a public safety issue, says Shari Silberstein, executive director of Equal Justice USA, which advocates for the abolition of the death penalty.

“I think his actions are symbolic of changing national conversation surrounding the death penalty,” says Silberstein. “It’s not the third rail of politics anymore, and politicians aren’t going to have to ask themselves if they should take the risk (to oppose the death penalty) because it’s not a risk anymore. Politicians are finding that they’re not being hurt in polls.”...

Legislators in Colorado, Oregon, Kansas and Delaware are currently debating repealing the death penalty, and legislators in Montana gave a hearing to a death penalty repeal bill earlier this session. Colorado Gov. John Hickenlooper, a Democrat, is facing pressure to commute the sentences of two death row inmates nearing execution, and his commitment to the death penalty is wavering....

If O’Malley does not commute the sentences of Maryland’s death row inmates, he’ll be following the examples of Connecticut and New Mexico. But in those states, the remaining death row inmates have filed multiple appeals based on the legislature’s decision that death is no longer an acceptable sentence. The litigation stemming from the confusion could last years and there has been no ruling concerning all remaining death row inmates in either state.

March 14, 2013 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, March 13, 2013

"Deporting the Pardoned"

The title of this post is the title of this notable paper by Jason Alexis Cade.  As the paper's abstract reveals, this work touches on various issues that ought to be of interest to a various sentencing fans:

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions.  Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws.  As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation.  While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine the continuing validity of its own convictions.

This Article contends that limitations on the preclusive effect of pardons, expungements, appeals, and similar post-conviction processes undermine sovereign interests in maintaining the integrity of the criminal justice system, calibrating justice, fostering rehabilitation, and deciding where to allocate resources.  In light of the interests at stake, Congress should be required to clearly express its intent to override pardons and related state post-conviction procedures.  A federalism-based clear statement rule for statutory provisions that restrict generally applicable criminal processes would not constrain Congress’s power to set immigration policy, because Congress remains free to make its intent clear in the statute. But the rule would ensure that Congress, rather than an administrative agency, has made the deliberative choice to upset the usual constitutional balance of federal and state power.

March 13, 2013 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Does new Eighth Amendment limits on juve sentencing redefine requirements of juve transfer proceedings?

The question in the title of this post, to which I know many folks involved with juvenile justice reform have given thought, is prompted today by some interesting dicta at the end of an interesting Sixth Circuit concurring opinion rejecting an interesting habeas claim of ineffective assistance concerning a lawyers's failure to contest a Tennessee juve's transfer to adult court for a murder prosecution. The ruling in Howell v. Hodge, No. 10-5493 (6th Cir. Mar. 13, 2013) (available here), is mostly focused on habeas realities and Tennessee transfer laws, but these paragraphs at the end of Judge Stranch's concurring opinion out to be of broader interest:
I have recounted the evidence supporting the decision of the juvenile court at length because I believe it is important to clarify what I find problematic about the analysis of the expert reports and testimony.  Clarification is especially important due to the significance of transferring a juvenile to adult court for trial and sentencing, even where a terrible crime such as this one is at issue. The United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012), reviewed the considerations that it found must separate sentencing of adults from that of children, including: a juvenile’s impetuosity and lack of appreciation of risks and consequences; her inability to escape brutal and dysfunctional social or home situations; her incompetencies in dealing with the criminal justice system; and other factors relating to the diminished moral culpability of children.  The differences that make juveniles more susceptible to influence also result in a heightened capacity for change and, therefore, a greater prospect for reform. Id. at 2464-65, 2469.  Thus, in reviewing a decision to transfer a juvenile to adult court — especially one that results, as here, in a sentence of life without parole — Miller teaches that we must always be cognizant of “the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 2469 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).  These considerations and concerns are highlighted by the specific holding in Miller — that the Eighth Amendment prohibits states from imposing sentences of “mandatory life without parole for those under the age of 18 at the time of their crimes.” Id. at 2460.
Miller’s holding does not categorically foreclose the sentence of life without the possibility of parole imposed on Howell.   Language in the Court’s opinion, however, highlights my concerns about the analysis necessary when making and reviewing decisions to transfer juveniles to adult court and raises questions regarding the propriety of the sentence of life without the possibility of parole in this case.   The Miller majority observed that the reasoning of Graham v. Florida, 130 S. Ct. 2011 (2010), upon which it relied and which prohibits the imposition of life without the possibility of parole sentences on juvenile offenders for nonhomicide crimes, “implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Miller, 132 S. Ct. at 2465.  The majority also observed that “appropriate occasions for sentencing juveniles to [life without the possibility of parole] will be uncommon.” Id. at 2469. Moreover, in his concurring opinion, Justice Breyer argued that, based on Graham, “the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.” Id. at 2475-76.  As here, one of the defendants in Miller was found guilty of felony murder and was not responsible for the killing, and no evidence indicated that he had any intent to kill.  Id. at 2477.  In Justice Breyer’s view, before the State could continue to impose a sentence of life without parole for this defendant, it would first need to determine whether he “kill[ed] or intend[ed] to kill” because, “without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing [the defendant] to such a sentence, regardless of whether its application is mandatory or discretionary under state law.” Id. at 2475 (internal quotation marks omitted).  Though the scenario posited has parallels to Howell’s situation, Miller is not necessarily dispositive and these issues are not before us today

March 13, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

An effective primer on the federal tax issues facing state marijuana businesses

This notable new Forbes commentary by attorney Robert Wood, headlined "Dude, Can Marijuana Beat The Tax Man?," provides an effective overview of notable new issues raised by the intersection of modern marijuana reform and not-so-modern federal tax laws.   Here are excerpts from this latest piece (with links to some key resources in this area):

Aren’t marijuana growers, dealers and dispensaries just trying to pay their taxes and make a profit like everybody else?  In the staid world of tax law, it can seem downright strange to be worried whether someone has “trafficking” tax problems.  Such is the odd symbiosis between conflicting federal and state laws.

Federal law still outlaws marijuana even in states that legalize it.  Reminiscent of Al Capone, that makes taxes a big problem.... [L]egal dispensaries are still drug traffickers to the feds, so Section 280E of the tax code denies their tax deductions. Intended to prevent tax deductions by drug dealers, it covers medical marijuana too.  The IRS says it must enforce Section 280E no matter what state law says.

Indeed, of all the federal enforcement efforts, taxes hurt most.  “The federal tax situation is the biggest threat to businesses and could push the entire industry underground,” the leading trade publication for the marijuana industry reports.  One answer is for dispensaries to deduct other expenses distinct from dispensing marijuana. See Californians Helping to Alleviate Medical Problems Inc. v. Commissioner.

If a dispensary sells marijuana and is in the separate business of care-giving, the care-giving expenses are deductible.  If only 10% of the premises are used to dispense marijuana, most of the rent is deductible.  Good record-keeping is essential.  See Medical Marijuana Dispensaries Persist Despite Tax Obstacles.

Another idea is that Marijuana sellers might operate as nonprofit social welfare organizations.  See Growing the Business: How Legal Marijuana Sellers Can Beat a Draconian Tax.  That way Section 280E shouldn’t apply.  A social welfare organization must promote the common good and general welfare of people in its neighborhood or community.  Operating businesses in distressed neighborhoods to provide jobs and job-training for residents?  That could fit a dispensary nicely.

Meanwhile, Congressmen Jared Polis (D-CO) and Earl Blumenauer (D-OR) introduced a bill to end the federal prohibition on marijuana and allow it to be taxed.  This legislation would remove marijuana from the Controlled Substances Act.  That way growers, sellers and users could no longer fear violating federal law.  Their Marijuana Tax Equity Act would also impose an excise tax on cannabis sales and an annual occupational tax on workers dealing in the growing field of legal marijuana.

March 13, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 12, 2013

"'The Judge, He Cast His Robe Aside': Mental Health Courts, Dignity and Due Process"

Bob-dylan-drifters-escape-1968Hard-core Bob Dylan fans will should appreciate the title of this new Michael Perlin article available via SSRN, and all criminal justice fans should appreciate the importance of the substance of this new piece. Here is the abstract:

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in the United States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is certainly not without controversy.

These courts offer a new approach – perhaps a radically new approach – to the problems at hand. They become even more significant because of their articulated focus on dignity, as well as their embrace of therapeutic jurisprudence, their focus on procedural justice, and their use of the principles of restorative justice. It is time to restructure the dialogue about mental health courts and to begin to take seriously the potential ameliorative impact of such courts on the ultimate disposition of all cases involving criminal defendants with mental disabilities.

There has been much written about these courts, but little attention has been paid to two issues that must be considered seriously: the quality of counsel available to persons in mental health courts, and the question of whether the individual is competent to engage in mental health court proceedings. These are both discussed extensively in this paper.

Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. This entire discussion, while important and helpful, bypasses the critical issue that is at the heart of this paper: do such courts provide additional dignity to the criminal justice process or do they detract from that? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant.

In Part I of this paper, I will first discuss the underpinnings of therapeutic jurisprudence. I will next, in Part II, look at the structure of mental health courts, and will then raise the two concerns about such courts that are, I believe, of particular relevance to which I just alluded: questions of adequacy of counsel and the competency of defendants to voluntarily participate in such court proceedings. In Part III, I will then consider the role of dignity in this process, and look to ways that therapeutic jurisprudence can promote dignity in this context.

March 12, 2013 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

In Eighth Circuit, US Attorney says Miller is "substantive" and so should be applied retroactively

A helpful reader sent me this week a copy of a notable filing from a federal 2255 action in Johnson v. US, No. 12-3744, involving a federal defendant seeking resentencing based on the Supreme Court's Miller decision concerning the unconstitutionality of mandatory LWOP for juvenile offenders. The filing is notable because the feds concede that Miller can and should be given retroactive effect because, in the government's view, Miller announced a new rule that is "substantive."  Here is how the lengthy filing, which can be downloaded below, gets started:

The United States of America, by and through its attorneys, B. Todd Jones, United States Attorney for the District of Minnesota, and Jeffrey S. Paulsen, Assistant United States Attorney, submits this memorandum in response to petitioner Kamil Hakeem Johnson’s November 16, 2012, Motion Pursuant to Title 28 U.S.C. § 2244, Requesting Authorization To File a Second or Successive 28 U.S.C. § 2255 To The District Court (“Application”).

Johnson, who was a juvenile at the time of his 1996 offense, seeks authorization to file a second motion under Section 2255 to challenge the constitutionality of his mandatory life-without-parole sentence.  In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Although the Court had earlier held that a lifewithout- parole sentence for a non-homicide offense committed by a juvenile is always unconstitutional, see Graham v. Florida, 130 S. Ct. 2011 (2010), Miller did not bar such a sentence for a homicide committed before the age of 18.  132 S. Ct. at 2469. But under Miller, the sentencer for such a juvenile offense must have “discretion to impose a different punishment.” Id. at 2460.

Johnson’s mandatory life sentence is therefore constitutionally flawed.  This Court may certify a second or successive Section 2255 motion where, as relevant here, the application makes a prima facie showing that it relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” 28 U.S.C. § 2255(h)(2).  Because the United States agrees that Johnson’s reliance on Miller makes such a prima facie showing, his motion should be granted and the case certified for filing in the district court.

Download USA Miller 2255 Response

March 12, 2013 in Assessing Miller and its aftermath, Irizarry SCOTUS case, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, March 11, 2013

"How the Sequester Threatens the U.S. Legal System"

The title of this post is the headline of this lengthy new piece authored by Andrew Cohen for The Atlantic.  Here is how it starts and ends:

When the chief justice of the United States and the chief judges of each of the federal circuits gavel down the semi-annual meeting of the Judicial Conference of the United States on Tuesday, they will have on their agenda an unusual item: the alarming impact of the funding "sequester" on the nation's federal court system.  The world won't end if students are denied the chance to tour the White House.  It will not end if our National Parks open days late this spring.  But citizens everywhere will see vital legal rights denied or delayed by the forced budget cuts.

All of the constituencies of the judiciary agree on this issue.  Federal trial judges are quietly seething at the inability of the legislative and executive branches to avoid sequester.  Federal public defenders, whose budgets have been cut twice in two months, are furloughing and laying off staff.  The attorney general of the United States has expressed grave concern on behalf of prosecutors and federal law enforcement officials. And court administrators are expressing alarm over the effect of the cuts upon federal judicial services.

At the core of the problem is the fact that the judicial branch is financially beholden to the other two branches of government.  This separation of powers was designed by our nation's founders to limit the judiciary's independence, and it has, and nowhere is this dynamic more visible than when a chief justice like John Roberts has to grovel for funding or otherwise justify the judiciary's minuscule portion of the budget.  If the sequester isn't unconstitutional per se, it is causing an unconstitutional effect upon the swift, fair and equal administration of justice....

Beyond a reasonable doubt, the sequester is having a profound and pernicious effect on the government's ability to observe its constitutional commands -- and to provide justice to its citizens.  That's why the members of the Judicial Conference have a difficult and delicate task this week.  The judges and administrators must adequately express the scope of their concern, and effectively explain the impact the sequester will have on the judiciary, without offending the very politicians who control the federal judiciary's budget. It's not right.  It's not fair.  It's a terrible testament to judicial independence.  But sadly it's the way the politics of law works in America today.

Recent related posts:

March 11, 2013 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Will Maryland voters even get a chance to reconsider repeal of state's death penalty?

One reason I have been following closely the march in Maryland toward repeal of the state's death penalty has been because Maryland has a well-established process for voter referendum as a means to create a populist veto of any law passed by the state's legislature.  If Maryland's legislature repeals its death penalty and then there is a subsequent referendum on that repeal, the state-wide campaign for such ballot initiative would likely be quite interesting and the the vote outcome would likely be quite uncertain.  But this new local article, headlined "Death penalty repeal may not be petitioned onto ballot," suggests that Maryland voters might not even get a chance to vote in a referendum after death penalty repeal in the state. Here is why:

Del. Neil C. Parrott, chairman of petition website MDPetitions.com, said petitioning Gov. Martin O’Malley’s death penalty repeal to the 2014 general election ballot isn’t a foregone conclusion. That’s even though some opponents of the repeal, including Senate President Thomas V. Mike Miller Jr., D-Calvert, have said they think a referendum vote likely.

But “there’s no talk about” such a petition drive at the grass-roots, Parrott said. “It’s probably not going to be petitioned.” Parrott indicated he’s more interested in leading a petition drive against House Bill 493, the Referendum Integrity Act — a measure he believes could choke off future referendums if it passes.

The Washington County Republican led petition drives that placed on the 2012 ballot three measures passed by the General Assembly: legalizing same-sex marriage, in-state tuition for some illegal immigrants, and the state’s congressional redistricting plan. All three challenges failed.

Parrott said a drive to overturn the death penalty repeal would involve a long, difficult campaign all the way up to the 2014 election. And such efforts take money — something MDPetitions.com is “not very flush with,” Parrott said. “There’s going to be serious consideration whether we do one or not, because it is so difficult,” he said....

Parrott’s MDPetitions.com website makes it easier for people to generate signatures that match the way their names are rendered on the state’s voter rolls, so that they can’t be invalidated by elections officials. Before the website, only one referendum to overturn a state law made it onto the ballot in 20 years, a 1992 attempt to overturn Maryland’s abortion law. That attempt failed....

Parrott said O’Malley has introduced several “radical” measures — one of which, he said, is the death penalty repeal, Senate Bill 276. That bill has passed in the Senate. On Friday, the bill made it through a House committee. It is expected to pass in the full chamber. “Honestly, I hope (death penalty repeal) stops in the House,” Parrott said. “At this point, we’re just looking to see what happens.”

O’Malley said that even if the death penalty repeal goes to referendum, the voters will ultimately uphold it. “The people of our state want us to do the things that work and that actually reduce crime,” he said.

Recent related posts:

March 11, 2013 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Split Eighth Circuit panel weighs in on child porn restitutution issues

A few weeks ago, as reported in this post, the Sixth Circuit in US v. Gamble ended any betting on how that court was going to sort through the circuit-splitting issues concerning awards of restitution in child porn downloading cases.  Today, the majority of an Eighth Circuit panel in US v. Fast, No. 12-2752 (8th Cir. Mar. 11, 2103) (available here), was quick to adopt the majority approach to these issues (hat tip to How Appealing), via an opinion that gets started this way:

Robert M. Fast pled guilty to one count of receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court ordered him to pay $3,333 restitution to Vicky — the pseudonym for the child-pornography victim whose images were on Fast’s computer — under 18 U.S.C. § 2259. Vicky challenges the restitution award by direct appeal and in a petition for mandamus.  She argues that Fast need not proximately cause the losses defined in subsections 2259(b)(3)(A) through (E) to be liable for them, and that the district court misinterpreted the “full amount of [her] losses” under section 2259(b)(1).  Because she lacks standing as a nonparty to bring a direct appeal, this court grants the motions to dismiss by Fast and the government.  Having jurisdiction over her mandamus petition under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), this court denies her petition.  

Judge Shepherd authors an extended dissent, which gets started this way:

I concur with respect to sections I, II, and III of the majority’s opinion. I dissent with respect to sections IV and V, and with respect to the judgment, because I would follow the Fifth Circuit’s approach and hold that only damages awarded under 18 U.S.C. § 2259(b)(3)(F) are subject to a proximate cause requirement. See In re Amy Unknown, 701 F.3d 749, 752 (5th Cir. 2012) (en banc).  Consequently, I would grant Vicky’s petition for mandamus relief and remand for the district court to recalculate her losses.

As I have noted before (and likely will have an opportunity to mention again in the future), it seems only a matter of time before the Supreme Court will feel it has to take up these issues in some manner.

A few more recent and some older related federal child porn restitution posts:

March 11, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)

10EDITORIALSUB-articleLargeThe title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times.  Here are excerpts (with a final key point stressed by me below):

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge.  The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.”  The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases.  This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them.  Florida set up public defender offices when Gideon was decided, and the Miami office was a standout.  But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm.  In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers.  In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....

The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades.  They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....

After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases. 

There is no shortage of lawyers to do this work.  What stands in the way is an undemocratic, deep-seated lack of political will.

I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt load while there are, apparently, not enough viable jobs in the marketplace to employ all the debt-saddled new lawyers.  This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even while there are ample new lawyers looking for jobs and struggling to deal with their education debt. 

Leaders involved with legal-eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution.  Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would likely not even be a modern concern.  But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers (which the private legal marketplace now does not want). 

In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better. The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.

Cross-posted at PrawfsBlawg (where I will be guest blogging a bit the next few weeks).

March 11, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Sunday, March 10, 2013

Fascinating fight over death penalty realities and clemency rights gets to Oregon Supreme Court

As reported in this new local article, headlined "Oregon Supreme Court to hear Haugen death penalty case," this top court in Oregon is due to hear arguments this week in a very interesting case concerning both clemency rights and application of the death penalty. Here are the basics:

The next step in Gary Haugen’s request to be executed is up to the Oregon Supreme Court. When the seven justices hear oral arguments Thursday, they will consider only whether the twice-convicted murderer can legally reject an unconditional reprieve issued by Gov. John Kitzhaber on Nov. 22, 2011. Kitzhaber’s action blocked the execution two weeks before it was scheduled to take place.

Haugen won the first round Aug. 3 in Marion County Circuit Court, where visiting Judge Timothy Alexander ruled that Haugen could refuse the reprieve. The Supreme Court accepted Kitzhaber’s appeal directly.

In written arguments filed with the court, Kitzhaber said Haugen has no legal right to reject a reprieve based on three main reasons: the text of the Oregon Constitution; the historical circumstances of clemency; and previous court decisions about the governor’s clemency powers.

Haugen argued through his lawyer that Kitzhaber’s action was not a true reprieve, previous court decisions support his right to refuse it, and a reprieve deprives him of federal constitutional rights such as a ban on cruel and unusual punishment.

The newspaper account of this upcoming argument provides a brief review of the parties' arguments, as well as links to some brief. Included therein is a brief with a link to a filing by the ACLU. Upon seeing the link, I was unsure which side the ACLU should and would support, given my understanding that the ACLU opposes the death penalty but also supports a person's right to die. I will leave it to readers to guess (or figure out) which commitment proved more important to the ACLU in this notable setting.

March 10, 2013 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

"Neighborhoods Seek to Banish Sex Offenders by Building Parks"

The title of this post is the headline of this notable new article in today's New York Times.  Here are snippets:

Parents who pick up their children at the bus stop in this city’s Harbor Gateway neighborhood say they often see men wearing GPS ankle bracelets and tell their children to stay away.  Just up the street, 30 paroled sex offenders live in a single apartment building, including rapists and child molesters. More than 100 registered sex offenders live within a few miles.

So local residents and city officials developed a plan to force convicted sex offenders to leave their neighborhood: open a tiny park.

Parents here, where state law prohibits registered sex offenders from living within 2,000 feet of a school or a public park, are not the only ones seizing on this approach. From the metropolis of Miami to the small town of Sapulpa, Okla., communities are building pocket parks, sometimes so small that they have barely enough room for a swing set, to drive out sex offenders.  One playground installation company in Houston has even advertised its services to homeowners associations as an option for keeping sex offenders away.

Within the next several months, one of Los Angeles’s smallest parks will open here in Harbor Gateway, on a patch of grass less than 1,000 square feet at the corner of a busy intersection.  But even if no child ever uses its jungle gym, the park will serve its intended purpose.  “Regardless of whether it’s the largest park or the smallest, we’re putting in a park to send a message that we don’t want a high concentration of sex offenders in this community,” said Joe Buscaino, a former Los Angeles police officer who now represents the area on the City Council.

While the pocket parks springing up around the country offer a sense of security to residents, they will probably leave more convicted sex offenders homeless. And research shows that once sex offenders lose stable housing, they become not only harder to track but also more likely to commit another crime, according to state officials involved with managing such offenders.

“Putting in parks doesn’t just break up clusters — it makes it impossible for sex offenders to find housing in the whole city,” said Janet Neeley, a member of the California Sex Offender Management Board.  “It’s counterproductive to public safety, because when you have nothing to lose, you are much more likely to commit a crime than when you are rebuilding your life.”

Restrictions on where sex offenders can live, which have been passed in most states, have already rendered most residential areas in many cities off limits.   The number of homeless sex offenders in California has increased threefold since 2006, when the latest residency restrictions were passed, and a third of sex offenders on parole are now homeless, according to reports from the Sex Offender Management Board....

Mr. Buscaino said he supported housing for sex offenders, but said the pocket park would improve the quality of life in Harbor Gateway. “Let’s house them, absolutely, but not in a high-population area like this one,” he said.

Many of the sex offenders who live near Harbor Gateway have been placed there with the help of parole officers, precisely so they would not end up on the street.  The landlord of some nearby apartments where dozens of sex offenders on parole live, who spoke on the condition of anonymity for fear of retaliation, said that keeping paroled sex offenders together in transitional housing actually kept the community safer because it places controls on them even after they leave prison....

In some urban areas, however, there is already nowhere left for sex offenders to legally live.  In Miami, dozens of convicted sex offenders camped under a bridge, unable to find any other shelter, until the encampment was broken up several years ago.  Another camp in Miami, where a dozen offenders slept on the sidewalk, was dispersed last year when Marc Sarnoff, a city commissioner, had three pocket parks built in the neighborhood.

Mr. Sarnoff said he did not know where the offenders ended up.  “There has to be a strategy in place so they don’t just live on the sidewalk,” Mr. Sarnoff said.  “We need more resources in place so these guys don’t reoffend. But that’s beyond the city’s resources.  It has to be at the state level.”

March 10, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Upcoming symposium at Gerogetown on "Reducing Corporate Criminality"

I was so very pleased that my post here about the fantastic Missouri Law Review symposium in which I participated this past Friday prompted a member of the American Criminal Law Review at Georgetown University Law Center to send me news of another exciting (and free) criminal justice symposium taking place in DC this coming week. Here is the heart of the note about this symposium sent my way:

Your readers may be interested in our symposium next week: "Reducing Corporate Criminality: Evaluating Department of Justice Policy on the Prosecution of Business Organizations and Options for Reform."

Though our symposium is not specifically about sentencing issues, it is likely to be highly relevant to your readership in both public interest and white collar defense practices.  Our goal is to focus on issues facing current practitioners in addition to the traditional theoretical debates found in law reviews.  The symposium on March 15, 2013 will include four panels centered on (1) the evolution of DOJ guidelines on prosecuting business organizations; (2) a presentation on empirical evidence of trends in wrongdoing within business organizations; (3) suggested reforms to DOJ policy governing corporate prosecution; and (4) the effects of DOJ policy on the regulated entities.

More information (including the schedule of these panels and the terrific line-up of speakers) can be found here at this link.

As this post is intended to highlight, I am always eager to note and promote any and all criminal justice events that might be of interest to sentencing fans.  Consequently, as my schedule and energy permits, I will post news of any such event if details are sent my way.  And, when folks fo an effective job of providing me with blog-friendly, cut-and-paste-ready text about the event, it will often be much easier for my schedule and energy to facilitate posting and promotion.

March 10, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, March 09, 2013

"The Conservative Case Against More Prisons"

Mar-apr-cover-archiveThe title of this post is the headline of this lengthy new piece authored by Vikrant Reddy and Marc Levin, senior policy advisers to the Right on Crime campaign, and now appearing in The American Conservative. Here is how it starts:

Since the 1980s, the United States has built prisons at a furious pace, and America now has the highest incarceration rate in the developed world. 716 out of every 100,000 Americans are behind bars. By comparison, in England and Wales, only 149 out of every 100,000 people are incarcerated. In Australia — famously founded as a prison colony — the number is 130. In Canada, the number is 114.

Prisons, of course, are necessary.  In The Scarlet Letter, Nathaniel Hawthorne observed that “The founders of a new colony, whatever Utopia of human virtue and happiness they might originally project, have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil… as the site of a prison.”  As long as there are people, there will be conflict and crime, and there will be prisons.  Prisons, however, are not a source of pride.  An unusually high number of prison cells signals a society with too much crime, too much punishment, or both.

There are other ways to hold offenders — particularly nonviolent ones — accountable. These alternatives when properly implemented can lead to greater public safety and increase the likelihood that victims of crime will receive restitution.  The alternatives are also less costly.  Prisons are expensive (in some states, the cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should scrutinize government expenditures on social programs and demand accountability, they should do the same when it comes to prison spending.  None of this means making excuses for criminal behavior; it simply means “thinking outside the cell” when it comes to punishment and accountability.

This argument is increasingly made by prominent conservatives.  Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist have all signed the Statement of Principles of Right On Crime, a campaign that advocates a position on criminal justice that is more rooted in limited-government principles.  They are joined as signatories by the conservative criminologist John Dilulio and by George Kelling, who helped usher in New York City’s successful data-driven policing efforts under Mayor Rudolph Giuliani.  Some groups, like Prison Fellowship Ministries, approach the issue from a socially conservative perspective.  Others, like the American Legislative Exchange Council and the State Policy Network, have fiscal concerns top of mind.  Regardless, a sea change is underway in sentencing and corrections policy, and conservatives are leading it.

March 9, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack

Friday, March 08, 2013

Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)

I have been talking to a variety of federal criminal justice folks since sequestration became official on March 1, 2013, and there has been much buzz about possible furloughs.  And in his Senate testimony Wednesday, AG Eric Holder closed with this ominous comments about the impact of sequestration:

[C]uts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted.  Our capacity — to respond to crimes, investigate wrongdoing, and hold criminals accountable — has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts — on our entire justice system, and on the American people — may be profound.

But, as my post title suggests, I think we could and should improve the administration of justice and save money if DOJ and BOP and others would use existing statutory mechanisms to reduce federal prison populations and costs.  FPD Steve Sady recently reminded me that, a year ago, the federal defenders, drawing from data gathered by the Government Accountability Office, provided a simple roadmap of action that could and should be taken now to reduce excessive sentencing practices which is could save hundreds of millions of dollars just by better implementing certain "smart sentencing" statutes.

The title of the federal defender report, which is available here, sets the tone: "GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Over-Incarceration." The full report is a dense account of BOP policies that lead to longer periods of incarceration than necessary to accomplish sentencing goals; the key recommendations suggest we could achieve large savings simply by providing some relief to the least dangerous and most deserving of federal prisoners. This executive summary from the report makes these essentials clear:

First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:

• The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.

• The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.

• The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons,” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.

Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.

Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’ time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.

March 8, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

Is Miller an Eighth Amendment "bombshell or baby step"?

New-law-review-symposium13-large-bannerI have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post.  This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:

This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake. 

On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying?  The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts?  How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders?  What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial?  Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.

Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address.  She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.

March 8, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, March 07, 2013

Is a "model" medical marijuana law been concocted in the laboratory of Illinois?

As all good law geeks know, in a renowned dissent in New State Ice, Justice Louis Brandies famously observed that "one of the happy incidents of the federal system [is] that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."   This laboratory metaphor seems especially apt for what we see going on with marijuana reform in so many states; I especially like the notion that different states can and will refine their on-going social and economic marijuana experiments after seeing what works and does not work in other locales.

With that (social) science background, I found especially interesting this new local story from Illinois, which is headlined "House committee endorses medical marijuana pilot project."   Here is how the piece starts:

An Illinois House committee on Wednesday endorsed a proposed four-year pilot project to legalize medicinal use of marijuana.  State Rep. Louis Lang, D-Skokie, said if the project is approved, it would be the toughest medical marijuana law in the nation.  Currently, 18 states and the District of Columbia have laws permitting medical use of marijuana.

Lang, who is sponsoring the current version, said a similar measure that he unsuccessfully proposed last year outlined the toughest regulations ever written on the subject, and this year’s proposal “goes many steps further.”

“This is clearly model legislation for the country, if we were to pass it,” Lang said.

The proposal would allow patients diagnosed with specific conditions — such as cancer, multiple sclerosis and HIV — to get a special ID card allowing them to buy limited amounts of medical marijuana from state-licensed dispensaries.

Patients and caregivers would have to buy marijuana from one of 66 state-licensed dispensaries, which would get the marijuana from one of 22 state-licensed growers. “The bill will allow very sick people to get a product that they need to feel better,” Lang said. “Their quality of life is at stake.”

Given that two states have now already legalized small quantities of marijuana for recreational uses and they only a few states have been eager to embrace very tough regulations for medical marijuana, I am not sure State Rep. Lang should be so confident that the legislation he has proposed is likely to be embraced by lots of other states.  That said, if (and when?) there is a move in Congress to start to back away from federal pot prohibition, perhaps those states which experiment with the toughest medical marijuana laws will end up getting a special gold star for their laboratory reports.

March 7, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken

Thanks to a helpful reader, I have learned that earlier this week a representative of the US Department of Justice sent a lengthy and detailed letter to the US Sentencing Commission concerning its recent huge child pornography federal sentencing report (basics here and here).  Disappointingly, as of this writing, I cannot seem to find a copy of this important and interesting letter on the website of either the DOJ or the USSC.   ButI have a pdf copy of the letter, which is dated March 5, 2013, and I have posted the full 7-page letter below.

The lengthy letter needs to be read in full by any and everyone concerning with federal child porn sentencing dynamics.  And these sentences from the first page highlights that DOJ agrees with the USSC's basic conclusion that the current child porn federal sentencing guidelines are badly broken:

[T]he Department agrees with the Commission's conclusion that advancements in technologies and the evolution of the child pornography "market" have led to a significantly changed landscape -- one that is no longer adequately represented by the existing sentencing guidelines.  Specifically, we agree with the Report's conclusion that the existing Specific Offense Characteristics ("SOCs") in USSG § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness.  The current guidelines can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses.

Download DOJ letter to USSC on CP report

As I suggested in this recent post, now that the US Sentencing Commission has said that the current federal guidelines for child pornography are broken, it not longer seems proper for these guidelines to be given much weight and it seems plainly improper for within-guideline CP sentences to still carry a presumption of reasonableness on appeal. Now that the Justice Department has officially stated that it agrees with the USSC's position on these guidelines, I wonder if federal prosecutors will not be not merely authorized, but actually required, to agree with the common defense arguments in CP cases that the current guidelines should be afforded little or no weight in the broader 3553(a) analysis.

Indeed, in light of this DOJ letter, which details the many ways ways in which the current CP guidelines are broken, perhaps circuit courts should begin to adopt a blanket presumption of unreasonableness for any and every within-guideline child porn sentence. (Of course, that presumption could be rebutted if and when a district judge were to explain how other 3553(a) factors justified a within-guideline sentence in a child porn case. But, in light of what the USSC and DOJ are saying about the flaws of the current CP guideline, it would seem only logical now to view any within-guideline child porn sentence as presumptively flawed rather than presumptively sound.)

Recent related posts:

March 7, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Medical marijuana businesses see opportunity in Mass."

Follow MoneyOne need not remember this classic scene from a classic political movie to know that one of the best ways to understand and predict human behavior (of politicians and others) is to "follow the money."  This fascinating new Boston Globe article, with the headline that is quoted in the title of this post, has me thinking about these realities and the many ways in which they seem sure to impact our nation's quickly evolving perspectives on marijuana use and distribution.  Here are excerpts from the article:

Kayvan Khalatbari rings up more than $1 million in annual sales at Denver Relief, the medical marijuana dispensary he runs out of a downtown storefront, and business keeps getting better.

But rather than opening an additional store, Khalatbari, 29, is expanding in a different direction: He has been devoting more time to doing lucrative consulting work for about 15 fledgling cannabis entrepreneurs who are interested in setting up shop in Massachusetts.

Denver Relief is one of several companies in Colorado — the epicenter of the nation’s medical marijuana industry — eager to capitalize on the expected “green rush” as Massachusetts’ medical marijuana program gets off the ground this year.

There is lots of money to be made by the ancillary businesses — including consulting, accounting, law, and marketing — as well as in the treatment centers. “There is a great opportunity here in Massachusetts,” said Khalatbari, who charges $250 an hour for his services.

Tripp Keber, widely considered the king of cannabis-infused products, is also looking East. His Dixie Elixirs & Edibles enterprise earned more than $1 million in 2012 by selling medicated carbonated beverages, infused edibles such as chocolate truffles and fruit lozenges, and other items to roughly 500 medical marijuana dispensaries in Colorado, where medical marijuana has been legal since 2000. The medical marijuana business has spawned a variety of companies making products like drug-laced mints and containers. The bag at bottom right holds medicated drinks, balms, and salves.

Keber projects his company’s sales will more than triple this year as Dixie Elixirs strikes deals in Arizona, Washington, D.C., Connecticut, and Massachusetts. He is in discussions with six Bay State entrepreneurs, including one in Nantucket, to license the brand and technology.

At Dixie’s Colorado headquarters, molecular biologists wearing white lab coats work with mechanical engineers, chemists, food scientists, and a chef to create dozens of products in a Willy Wonka-like setting. They concoct a rainbow of elixirs, including sparkling pomegranate sodas formulated with up to 75 milligrams of THC (the active ingredient in marijuana) per 12-ounce serving and mandarin orange-flavored energy boosters with about 60 milligrams of THC and as much caffeine as a cup of premium coffee. The standard dose is about 10 milligrams, so such products are not intended to be single-serve.

Keber has more than 40 employees after acquiring four medical marijuana businesses and is negotiating to take over two more. To support the growing empire, Dixie has hired three law firms, five consultants, a graphic designer, and a security company.

“Medical marijuana has created a cottage industry. This business is growing exponentially,” Keber said during an interview in his office, where he proudly showcases Dixie’s most recent honor: a fake marijuana leaf in a snow globe emblazoned with the words “Most Valuable MMJ Business,” awarded by local cannabis consultants. (MMJ is industry shorthand for medical marijuana.)

“Two to three years ago, we couldn’t get someone to return our calls,” Keber said. “Now, on any day, we have three to five vendors calling, e-mailing, or knocking on our door wanting to do business with us.”

When states start medical marijuana programs, the business impact extends far beyond dispensaries and cultivation operations, said Chris Walsh, editor of the Medical Marijuana (MMJ) Business Daily, a trade publication based in Denver. Many other types of companies crop up to provide services, including hydroponics shops, software firms, and packaging vendors. For instance, MMC Depot, a Colorado company that sells high-end glass jars and colorful plastic prescription bottles to hold marijuana, is interested in opening an East Coast branch in Boston. “These other businesses generate millions of additional dollars in revenues and put more people to work,” Walsh said.

In Denver, Brian Vicente has built a law practice around medical marijuana. He helps start-ups across the country cope with local laws, negotiate leases, draw up mergers and acquisitions, and — if needed — represents them in court. The company is doing so well it recently moved from a modest office — with waiting room magazines that included The Hemp Connoisseur and High Times Medical Marijuana — to a brick mansion across the street.

Vicente’s firm has doubled its space and shares some with other medical marijuana firms. He was one of the first Denver professionals to set up an office in Massachusetts and hire a full-time lawyer, based in the Financial District, who helped organize the recently formed Massachusetts Medical Marijuana Association.

He estimates Massachusetts could enroll more than 100,000 patients within two years — similar to the patient base in Colorado. “We know this issue is going to be big, and we want to help it grow in the right direction,” Vicente said.

March 7, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, March 06, 2013

Notable commentary as Catholic University’s Columbus School of Law launches new clemency "partnership"

Copy%20of%20EhrlichI just came across this law school website account of an event last month launching an important new law school project in the Washington DC area. The discussion carries the heading "Law School to Host Clemency and Pardons Clinic in Collaboration with Former Governor Robert L. Ehrlich, Jr.," and here are some of the notable details from the launch event:

The Catholic University of America’s Columbus School of Law has been selected as the institutional home for “The CUA Law/Ehrlich Partnership on Clemency," among the country’s first law school-based clinics devoted to the research and study of executive clemency and the power of pardon.

The official announcement was made on at the National Press Club on Feb. 20 by Robert L. Ehrlich, Jr (above), who served as Maryland’s 60th governor from 2003-2007 and whose tenure was distinguished by the time he spent personally reviewing requests for pardons from convicted criminals.

Currently a senior counsel at King and Spaulding (which announced a $5,000 donation to the new partnership with another to follow next year), Ehrlich characterized the clemency project with the law school as a vital tool to educate and remind state chief executives of the vast power they possess but too often use infrequently.

“This is part of the job. But, your political courage quotient will be tested. It’s a strange issue, and neither Democrats nor Republicans seem to care very much about it,” Ehrlich said.

Under the auspices of its already established Innocence Project, the Columbus School of Law will expand the scope of its students’ current duties to include the preparation of pardon applications starting next August.

“We will also conduct a training program for newly elected state executives or their chiefs of staff, and we will provide a venue for educational and advocacy programs on executive clemency,” said law school Dean Daniel Attridge. “This is a splendid example of how our cooperative efforts can directly benefit our institution, our students, and our mission to serve the public.”

The announcement of the clemency clinic partnership came against the larger backdrop of a CUA Law sponsored symposium on the subject: “Smart on Crime: A New Era of Bipartisan Criminal Justice Reform,” that invited leading experts to dissect the shortcomings of the current system and suggest improvements.

Panelist Edwin Meese III, who served as served as the 75th Attorney General of the United States under President Reagan and currently holds a chair in public policy at The Heritage Foundation, said that California began improving its pardon policies dramatically back in the 1960s when Reagan served as governor.  But a pardon can rest on a convict’s behavior behind bars, and Meese said that brutal prison conditions can make it hard to be a model inmate....

There would be much less of a need for gubernatorial pardons in the first place if fewer behaviors were criminalized, said Rep. Bobby Scott, (D-VA). Mandatory minimum sentences for non-violent drug offenses, he said, are a big part of the problem. “These sentences discriminate against minorities and violate common sense,” said Scott. “We can reduce crime or we can play politics. Unfortunately, we can’t do both.”

Margaret Love, who served as the U.S. Pardon Attorney between 1990 and 1997 and focuses her private practice on the issue today, could not understand the reluctance of many politicians who hold the power of pardon to use it. “It should be one of the happiest duties of an executive. It should be easy,” said Love, who expressed surprise and disappointment in President Obama’s record so far of issuing just 22 presidential pardons, the lowest total to date in American history.

Three follow-up comments concerning this exciting new clemency intitiative:

1. I hope this new project might develop some sore of web presence, as I continue to believe there should be a lot more new media coverage and discussion of modern clemency issues.

2. I suspect it was just a coincidence that only a few days after this event, President Obama granted a significant and somewhat unexpected new batch of pardons (details here). Nevertheless, if I was in some way involved with this new clemency project, I would be dang sure to at least speculate that the timing of project's launch and these new pardon grants might have been more than mere coincidence.

3. Though never eager to look a gift horse in the mouth, I am a bit stunned that the massive King and Spaulding law firm only donated a measly $5,000 to this important endeavour.  A quick bit of research reveals that K&S has over 300 partners who with average profits/partner recently approaching $2,000,000/year.  If merely 1% of all the K&S partners had been willing to kick in just only 0.33% of their yearly profits to this important endeavor, this project would have gotten a donation twice as large.  I do not mean to be overly critical of K&S here, but I do mean to highlight how hard it often can be to get even those folks with very deep pockets to be willing to give significant sums to any criminal justice initiative even when it is headed by a former Republican Governor.

March 6, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (2) | TrackBack