Wednesday, June 28, 2017

Two very different (but perhaps similar) tales of prison sentencing from outpost Virginia in incarceration nation

I generally do not blog all that often or that much about individual sentencing cases unless they involve high-profile defendants or high-profile issues or result in high-profile rulings.  But this afternoon I just happen to come across two notable local sentencing stories back-to-back from the same local Virginia paper that for me highlighted the enduring tendency in the United States to use imprisonment, and then more imprisonment, in response to any and every social and legal problem.  Here are the headlines and essentials that caught my eye:

"JMU student gets jail time for registering dead people"

A 21-year-old man who pleaded guilty last week to filing 18 phony voter registration applications in Harrisonburg will spend 100 to 120 days in prison, according to federal prosecutors in the Western District of Virginia.

Andrew J. Spieles of Harrisonburg admitted to filing the fraudulent registrations in August while working with Democratic-affiliated groups as a student at James Madison University ahead of the 2016 presidential election. The fraud was discovered after local election officials noticed that some applications had been filed in the names of dead people, including the father of a Rockingham County judge.

The offense was punishable by a fine of up to $100,000 and up to a year in prison. Spieles told investigators that he fabricated the applications to help a co-worker hit a registration “quota,” according to court documents. There is no indication any fraudulent votes were cast in November’s election as a result of the improper registrations.

"Jury recommends 65-year sentence for Charlottesville heroin dealer"

A Henrico County jury has called for a 65-year sentence for a man convicted of purchasing heroin at Short Pump parking lots so the drugs could be resold in Charlottesville, where the defendant lived.  The jury recommended that decades-long sentence for Norell Sterling Ward, 46, last week after convicting him on a count of conspiracy to distribute heroin and on two counts of possessing heroin with the intent to distribute, said Matthew C. Ackley, a deputy Henrico commonwealth’s attorney.

Attorneys in the case could not say whether a 65-year term, if enacted, would set any type of record punishment for this type of crime, but all agreed it would represent a significant sentence. “I can tell you that this is a high sentence and likely reflective of the community awareness of the heroin problem in Henrico,” Ackley said.

Ward was identified as a midlevel heroin distributor who would travel from Charlottesville to Short Pump to buy heroin in parking lots so the drugs could be distributed back in Charlottesville, Ackley said. The prosecutor said it’s estimated Ward distributed 4 to 6 kilograms of heroin over a roughly 18-month period. The defendant would purchase the drugs from parking lots at Short Pump-area businesses including McDonald’s, Whole Foods, Target and 7-Eleven, Ackley said.

Henrico Circuit Judge Richard S. Wallerstein Jr. will now weigh whether to follow through on the jury’s recommendation and impose the full 65 years at a September sentencing....

Ackley said Ward bought his heroin from a drug organization run by Shawn Lamont Bailey, a 46-year-old Henrico man who pleaded guilty in January to two felony counts of distributing heroin near his West Broad Village home. Bailey is to be sentenced next month. Under a plea deal, Bailey agreed to plead guilty in return for spending between 8 to 10 years in prison.

Ward, who is going to be formally sentenced on Sept. 13, has a criminal history that includes convictions for two burglaries as well as a conviction for possessing heroin, Ackley said.

June 28, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

En banc Sixth Circuit reverses preliminary injunction that had been preventing Ohio from moving forward with executions

Unsurprisingly, the en banc Sixth Circuit today ruled for the State of Ohio in its appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  Here is how the majority opinion (per Judge Kethledge, who wrote the dissent in the original panel ruling) in  In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. June 28, 2017) (available here) gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995).  Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head.  Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 749 N.E.2d 226, 237-39 (Ohio 2001).

Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip.  Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here.  See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016).  Yet here the district court thought the same procedure is likely invalid.  We respectfully disagree and reverse the court’s grant of a preliminary injunction.

The chief dissent was penned by Judge Moore (who wrote the majority decision for the original panel upholding the stay).  This dissent runs about twice as long as the majority opinion, and it gets started this way:

There is a narrow question before this court: Should Gary Otte, Ronald Phillips, and Raymond Tibbetts have a trial on their claim that Ohio’s execution protocol is a cruel and unusual punishment, or should Ohio execute them without such a trial?  The majority has concluded that there is no need for a trial on the merits of Plaintiffs’ constitutional claim. I disagree.

There is no dispute that the second and third drugs in Ohio’s execution protocol cause immense pain.  There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling that pain.  After a five-day hearing on Plaintiffs’ motion for a preliminary injunction, the district court determined that there should be a full trial on the merits of Plaintiffs’ claim that Ohio’s use of midazolam as the first drug in a three-drug execution protocol creates a constitutionally unacceptable risk of pain. Despite the deferential standard of review that this court should apply, the majority casts aside the district court’s determination that Plaintiffs should have a trial before the state executes them.  The majority also determines that despite Defendants’ unequivocal sworn testimony that they would no longer use pancuronium bromide or potassium chloride in executions, judicial estoppel does not prevent their renewed attempt to use those drugs. For the reasons discussed below, I would hold that Plaintiffs should have a trial on their Eighth Amendment and judicial-estoppel claims, and I respectfully dissent.

This Ohio DRC execution page details that Ohio is scheduled to execute Ronald Phillips on July 26 and has scheduled executions for more than two dozen other Ohio inmates running all the way through 2020. This Sixth Circuit will surely be appealed by Phillips to the US Supreme Court in the coming weeks, but I would be very surprised if SCOTUS takes up the case after it has recently allowed other midazolam executions to go forward. And if Ohio is able to to complete executions uneventfully with its current protocol, the state could now be on a path to having more executions in the next few years than perhaps any other state in the nation.

June 28, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Trump Administration says it "strongly supports" latest Kate’s Law to increase penalties on illegal reentry

The Trump Administration yesterday released this (unusual?) "statement of administration policy" concerning a bill in the House of Representatives known as Kate's Law. Here is its full text:

The Administration strongly supports H.R. 3004, Kate’s Law. This bill commemorates Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father. The alleged shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions.

H.R. 3004 would increase the penalties that may be imposed on criminal aliens convicted of illegal reentry, deterring reentry and keeping criminal aliens off our streets. The bill is consistent with the Administration's broader efforts to strengthen enforcement of our immigration laws and improve the security of our Nation's borders.

If H.R. 3004 were presented to the President in its current form, his advisors would recommend that he sign the bill into law. 

Notably, as this White House statement indicates and as detailed in this recent Cato commentary by David Bier titled "Kate’s Law: A Waste of Federal Resources," the latest version of Kate's Law (H.R. 3004, available here) does not include the five-year mandatory minimum prison term that has appeared in some prior versions of "Kate's Law."  Rather, the version that the Trump Administration now "strongly supports" serves to raise the maximum prison term for various illegal reentry offenders with particular criminal histories.  Consequently, I do not think this version of Kate's Law would really have too much of an impact on too many illegal reentry cases.  In turn, advocates of federal sentencing reform who are justifiably concerned about great more use and reliance on federal mandatory minimum sentencing provisions should be pleased to see a version of Kate's Law apparently gaining steam that does not include any new mandatory minimum sentencing provisions.

One last cheeky comment combined with a final observation about this statement from the Trump Administration.  I was tempted to title this post, "Unlike Obama, Prez Trump formally expresses strong support for federal sentencing reform."  I decided not to use such a post title because, though I think it would be in many ways accurate, the phrasing would have a "fake news" quality to it.  Modern conversations about and references to "federal sentencing reform" are generally about lowering possible prison terms, not increasing them.  Moreover, the Obama Administration in various ways at various times over the course of the two terms did express support for federal sentencing reform.

That all said, I was tempted to title this post, "Unlike Obama, Prez Trump formally expresses strong support for federal sentencing reform," because this statement on Kate's Law showcases the kind of express and aggressive support that a White House can (and I think should) put behind criminal justice reform legislation it supports.  Though I am certain Prez Obama and his team worked behind the scenes in various ways and gave various speeches to support various sentencing reform efforts, I do not recall the Obama team ever issuing any formal "statement of administration policy" like this one from the Trump team in support of any particular sentencing reform proposal in Congress.  Of particular note, especially if we consider parallel points in a first Term, Prez Obama to my knowledge never formally expressed support from the White House as President in 2009 for bills in Congress that sought to completely equalize crack and powder cocaine sentencing (though the Holder DOJ did testify in support of complete equalization in front of the then Democratically controlled Congress).

UPDATE: I just now have seen that Attorney General Jeff Sessions is also adding his voice in support of Kate's Law via this official statement which includes these passages:

Countless families and communities have suffered as a result of these ‘sanctuary’ policies, which undermine federal law by safeguarding criminal illegal aliens from federal law enforcement. One victim of these policies was Kate Steinle, who was killed by an illegal alien who had been deported five times and yet still walked the streets freely. Her death was preventable, and she would still be alive today if only the City of San Francisco had put the public’s safety first. How many more Americans must die before we put an end to this madness?

Kate’s Law and the No Sanctuary for Criminals Act would penalize criminal illegal aliens who break our laws and the jurisdictions that attempt to shield them from justice. These bills can restore sanity and common-sense to our system by ending abusive attempts to undermine federal law, and they can prevent future tragedies by empowering law enforcement.

June 28, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (8)

Impressive refreshment of Restoration of Rights Project

CcrcIn this post nearly five years ago, I noted the creation by the National Association of Criminal Defense Lawyers (NACDL) of a terrific on-line resource profiling the law and practice in each US jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction.  Now, as detailed in this news release, this resource has gotten an impressive new update. Here are the details via the release:

The Collateral Consequences Resource Center and its partner organizations, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the National HIRE Network, are pleased to announce the launch of the newly expanded and fully updated Restoration of Rights Project.

The Restoration of Rights Project is an online resource that offers state-by-state analyses of the law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction.  Jurisdictional "profiles" cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. Each jurisdiction's information is separately summarized for quick reference.

In addition to the jurisdictional profiles, a set of 50-state comparison charts summarizes the law and illustrates national patterns in restoration laws and policies.  We expect to supplement these resources in weeks to come with jurisdiction-specific information about organizations that may be able to assist individuals in securing relief, and information on other third-party resources.

The resources that comprise the Restoration of Rights Project were originally published in 2006 by CCRC Executive Director Margaret Love, and the profiles and comparison charts have expanded over the years to broaden their scope and to account for the many changes in this complex area of the law.  The project has recently been hosted by CCRC and NACDL, and its resources have been published in the treatise on collateral consequences published jointly by NACDL and Thompson Reuters (West).

Project resources have now been re-organized into a unified online platform that makes them easier to access, use, and understand.  The short "postcard" summaries of the law in each state -- which serve as a gateway to more detailed information -- have also been reviewed and revised to provide a more current and accurate snapshot of applicable law in each state.

The Project is intended as a resource for practitioners in all phases of the criminal justice system, for courts, for civil practitioners assisting clients whose court-imposed sentence has exposed them to additional civil penalties, for policymakers and advocates interested in reentry and reintegration of convicted persons, and for the millions of Americans with a criminal record who are seeking to put their past behind them.

The Restoration of Rights Project is available now at: http://restoration.ccresourcecenter.org

June 28, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

"Cashing in on Convicts: Privatization, Punishment, and the People"

The title of this post is the title of this notable new paper by Laura Appleman available via SSRN. Here is the abstract:

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities.  This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society.  Criminal justice privatization severs an essential link between the people and criminal punishment.  When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, restorative retribution, the voice and interests of the community, and systemic transparency and accountability.

This Article shows what we lose when we allow private, for-profit entities to take on the traditional community function of imposing and regulating punishment.  By banking on bondage, private prisons and jails remove the local community from criminal justice, and perpetuate the extreme inequities within the criminal system. 

June 28, 2017 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, June 27, 2017

SCOTUSblog begins symposium on OT 2016 death penalty decisions

I will not likely remember the Supreme Court term just completed, October Term 2016, as especially notable for sentencing developments.  There were no big blockbuster sentencing cases, although the Beckles vagueness ruling was certainly consequential and a few other rulings will surely launch a few law review article.  And, of course, in the intricate and endlessly litigated world of the death penalty, a mixed bag of smaller SCOTUS rulings still add up to something worth watching (especially with the added bit of uncertainty that comes with Justice Gorsuch replacing Justice Scalia).

Helpfully for those who just cannot get enough of the SCOTUS capital docket, the folks over at SCOTUSblog have this new "Special Feature" in the form of a "Symposium on October Term 2016’s death-penalty decisions."   Here are links to the four pieces already up at SCOTUSblog, and I surmise more be coming:

June 27, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Will Trump Use Science to Fight Crime?"

The question in the title of this post is the headline of this notable new piece by Ted Gest at The Crime Report, which reports on what some criminologists had to say at a recent event about crime fighting in the Trump Administration.  Here are excerpts:

Leading criminologists expressed cautious optimism yesterday that President Trump will embrace evidence-based practices in his administration’s war on crime.

Laurie Robinson, who advocated the use of science in justice as an Assistant Attorney General in the Obama administration, declared, “I do not think the [criminal justice] field is turning back” on evidence-based programs. Robinson, now a member of the criminology faculty at George Mason University, said that officials “on the front line have to know what works, and how to pay for it.” She noted that bipartisan justice reform plans had been approved in recent years in such conservative states as Georgia, Louisiana and North Dakota.

Her comments came at the annual gathering sponsored by the Center for Evidence-Based Crime Policy at the George Mason campus, in northern Virginia near Washington, D.C.. The session opened with a discussion on the “Progress of Evidence-Based Crime Policy in the Last Three Decades.”

Some critics have expressed doubt that the new administration will base policies on scientific evidence, noting Trump’s professed disbelief in global warming and Attorney General Jeff Sessions’ advocacy of tough-on-crime practices that studies have found ineffective....

Denise O’Donnell, who headed the Justice Department’s Bureau of Justice Assistance under Obama, said many U.S. policing leaders have concluded that “there is power in data.” She cited such developments as the use of public opinion surveys by police departments in formulating policies on officers’ body-worn cameras.

James Burch, a vice president of the Washington, D.C.-based Police Foundation and a former Justice Department official, offered a “qualified yes” to the question of whether evidence-based criminal justice practices will continue under Trump. Burch said he detected a “different tone” in discussions among police chiefs and sheriffs at national conventions in recent years. Law enforcement officials are asking themselves “how do we hold ourselves accountable?” he said....

Speakers pointed out that in opening a national “summit” on crime reduction and public safety last week, Sessions said that in a new national “Public Safety Partnership” involving 12 localities, the Justice Department will provide “diagnostic teams” to “assess the local factors driving increased violent crime, and will help local leaders develop strategies to address those factors.”

June 27, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Pennsylvania Supreme Court issues major Miller ruling declaring presumption against the imposition of LWOP on juvenile killers

The Pennsylvania Supreme Court yesterday handed down a major ruling on the application and implementation of the Supreme Court's modern Miller Eighth Amendment jurisprudence. The lengthy ruling in Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017 (available here), gets started this way:

Qu’eed Batts (“Batts”) was convicted of a first-degree murder that he committed when he was fourteen years old. His case returns for the second time on discretionary review for this Court to determine whether the sentencing court imposed an illegal sentence when it resentenced him to life in prison without the possibility of parole. After careful review, we conclude, based on the findings made by the sentencing court and the evidence upon which it relied, that the sentence is illegal in light of Miller v. Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life in prison without the possibility of parole, imposed upon a juvenile without consideration of the defendant’s age and the attendant characteristics of youth, is prohibited under the Eighth Amendment to the United States Constitution), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that the Miller decision announced a new substantive rule of constitutional law that applies retroactively and clarifying the limited circumstances in which a life-without-parole sentence is permissible for a crime committed when the defendant was a juvenile).

Pursuant to our grant of allowance of appeal, we further conclude that to effectuate the mandate of Miller and Montgomery, procedural safeguards are required to ensure that life-without-parole sentences are meted out only to “the rarest of juvenile offenders” whose crimes reflect “permanent incorrigibility,” “irreparable corruption” and “irretrievable depravity,” as required by Miller and Montgomery.  Thus, as fully developed in this Opinion, we recognize a presumption against the imposition of a sentence of life without parole for a juvenile offender.  To rebut the presumption, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is incapable of rehabilitation.

Because Pennsylvania has a large JLWOP population impacted by Miller and because proving rehabilitation incapacity beyond a reasonable doubt seem to be perhaps close to impossible, this Batts ruling strikes me as a  big deal jurisprudentially and practically.  (And, for any remaining Apprendi/Blakely fans, it bears noting that the Batts opinion expressly rejects the defendant's contention that a "jury must make the finding regarding a juvenile’s eligibility to be sentenced to life without parole.)

June 27, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, June 26, 2017

SCOTUS denies cert on Wisconsin case with defendant challenging risk-assessment sentencing

I had thought I had reported on all the blog-worthy action in the the Supreme Court on this busy day via prior posts here and here and here ... until one of my favorite colleagues alerted me to the fact that today's SCOTUS order list also included a denial of cert in Loomis V. Wisconsin.  This local press article discusses thie cert denial under the headline "Supreme Court refuses to hear Wisconsin predictive crime assessment case."

As some may recall from some prior postings, Loomis concerned a due process challenge to the use of risk-assessment instruments at sentencing.  And, as noted here, the Supreme Court was interested enough in this issue to invite the Solicitor General to file a brief expressing the views of the United States.  But now it seems SCOTUS was not quite yet ready to take up this interesting and important issue in this case.

Some prior related posts on Loomis case:

June 26, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Should Ohio automatically release inmates if prisons too crowded?"

The question in title of this post is the headline of this Columbus Dispatch article which somewhat imperfectly describes one somewhat notable provision of a huge criminal justice revision proposal in the Buckeye State. Here is the context:

A proposed sweeping rewrite of Ohio’s criminal laws includes a provision that would allow the state to release hundreds of low-level, nonviolent inmates when the prison population hits 47,000. The state prison population last week stood at 50,093 — 3,093 above that threshold.

That change is among hundreds recommended by the Ohio Criminal Justice Recodification Committee, which on June 15 completed a two-year task of rewriting the entire state criminal code. The result is a 4,017-page bill submitted to the General Assembly. The committee composed of judges, legislators, prosecutors, law-enforcement officials and others voted 18-2 to recommend the overhaul.

Other changes include the return of a version of “bad time” for inmates who misbehave in prison, reduced add-on sentences for crimes committed while in possession of a gun, expanded opportunities for offenders to obtain drug treatment in lieu of prison, and an increase in the theft amount that triggers a felony charge to $2,500.

Created by the legislature, the committee was charged with “enhancing public safety and the administration of criminal justice.” The last time criminal laws were overhauled was 1974, although some statutes date to 1953 and have been “effectively superseded or contradicted” by new layers of laws. The committee’s recommendations need the approval of the legislature.

Judge Frederick D. Pepple of Auglaize County Common Pleas Court, chairman of the committee, said he’s pleased with the overall report. “These improvements make the system better and could save hundreds of millions of dollars. When I stand back and look at it, without getting into every nitty-gritty detail, I’m satisfied.”

Pepple said the rewrite cut down the length of the code by nearly 25 percent, mostly by condensing language. More important, Pepple said the changes would “significantly improve the quality of justice and better protect the people of Ohio ... We tried to make it readable and understandable so people know what is against the law.”

Franklin County Prosecutor Ron O’Brien was one of two committee members, along with Clark County Prosecutor Andy Wilson, to vote against the package. O’Brien said that while he agreed with most of the recommendations, several were deal breakers, including the prison-release provision, which he said would be like “Bastille Day every day.” O’Brien said he disagreed with granting “unilateral authority to reduce prison population.”

The provision would be triggered when the total prison population exceeds 43,500 men and 3,500 women for at least 30 days in a row. At that point, the director of the Department of Rehabilitation and Correction would “direct the parole board to select from those who are eligible for overcrowding parole release a sufficient number of prisoners to be released within thirty days to maintain the inmate population at less than 43,500 for males and 3,500 for females. No more than five hundred male inmates and five hundred female inmates may be released per month pursuant to this section.” The board would select inmates for release “who present the least threat to the public, including the victims and their families,” and those who have committed nonviolent and non-sex-oriented crimes.

In a statement to The Dispatch, Gary Mohr, director of the Department of Rehabilitation and Correction, said he voted for (but did not propose) the overcrowding release provision. However, he said he prefers a method built into the current state-budget proposal to divert nonviolent drug offenders to community treatment “to avoid the potentially lifelong collateral consequences of coming to prison.”...

Ohio Senate President Larry Obhof, R-Medina, praised the committee. “How this group of experts from varying political viewpoints worked together over the last two years speaks volumes about their commitment to pursuing reforms within Ohio’s criminal-justice system.” Holly Harris, executive director of the U.S. Justice Action Network, said that if the rewrite of criminal laws is adopted, “Ohio is ready to take another leap forward on reforming their justice system.”

June 26, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

House Oversight Committee schedules hearing this week on "Criminal Justice Reform and Efforts Reduce Recidivism"

Via a Twitter reference, I just saw that the Full House Committee on Oversight and Government Reform has now scheduled a hearing under the title "Criminal Justice Reform and Efforts Reduce Recidivism."  Other than this official calendar notice, I know nothing about this event or whether it suggests anything significant for any congressional criminal justice reform efforts.  But even without yet knowing more about what is leading to this House hearing, the very fact of a hearing with this "pro-reform" title provides some encouraging news for anyone concerned that Congress was not even going to keep discussing possible criminal justice reforms.

June 26, 2017 in Who Sentences? | Permalink | Comments (0)

Narrow ruling on Bivens case and rearguments now coming on two notable others

The Supreme Court's action on litigation involving the President's travel ban and a ruling for a church are certain to dominate headlines and SCOTUS analysis for the days to come.  But sentencing fans will not want to entirely overlook some lower-profile developments that also unfolded at SCOTUS this morning on three cases with criminal justice components.  In order to cover a lot of ground quickly, I will borrow language from Crime & Consequences and SCOTUSblog concerning what the cases concerned and what SCOTUS did:

The three cases:  Jennings v. Rodriguez (involving bond hearings for aliens detained pending deportation); Sessions v. Dimaya (concerning whether provisions governing an alien's removal from the United States, is unconstitutionally vague based on Johnson); Hernandez v. Mesa (civil case arising out of a shooting by a border patrol agent across the southern border) .

Today's action per SCOTUSblog: "Ordered reargument in cases involving immigrants' bond hearings and the vagueness of crime of violence in the immigration laws, and remanded for reconsideration of a cross-border shooting in light of an earlier decision."

This USA Today piece, headlined "Supreme Court punts on cross-border shooting, two immigration cases," provides more particulars and context.

June 26, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

SCOTUS rules IAC of appellate counsel in state postconviction proceedings does not excuse procedural default

Resolving a technical and important issue, the US Supreme Court this morning in Davila v. Davis, No. 16-6219 (S. Ct. June 26, 2017) (available here), refused to extend some inmate-friendly habeas jurisprudence. The opinion for the Court in the 5-4 ruling was authored by Justice Thomas and it begins this way:

Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground.  A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error.  An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. See Coleman v. Thompson, 501 U. S. 722 (1991).

In Martinez v. Ryan, 566 U. S. 1 (2012), and Trevino v. Thaler, 569 U. S. 413 (2013), this Court announced a narrow exception to Coleman’s general rule.  That exception treats ineffective assistance by a prisoner’s state postconviction counsel as cause to overcome the default of a single claim — ineffective assistance of trial counsel — in a single context — where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal. The question in this case is whether we should extend that exception to allow federal courts to consider a different kind of defaulted claim — ineffective assistance of appellate counsel. We decline to do so.

The dissent authored by Justice Breyer and joined by the other more liberal justces begins this way:

As the Court explains, normally a federal habeas court cannot hear a state prisoner’s claim that his trial lawyer was, constitutionally speaking, “ineffective” if the prisoner failed to assert that claim in state court at the appropriate time, that is, if he procedurally defaulted the claim.  See ante, at 1 (the prisoner’s failure to raise his federal claim at the initial-review state collateral proceeding amounts to an “adequate and independent state procedural ground” for denying habeas relief).

But there are equitable exceptions. In Martinez v. Ryan, 566 U. S. 1 (2012), and later in Trevino v. Thaler, 569 U. S. 413 (2013), we held that, despite the presence of a procedural default, a federal court can nonetheless hear a prisoner’s claim that his trial counsel was ineffective, where (1) the framework of state procedural law “makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,” id., at 429; (2) in the state “‘initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective,’” ibid. (quoting Martinez, 566 U. S., at 17); and (3) “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit,” id., at 14.

In my view, this same exception (with the same qualifications) should apply when a prisoner raises a constitutional claim of ineffective assistance of appellate counsel. See, e.g., Evitts v. Lucey, 469 U. S. 387, 396 (1985) (Constitution guarantees a defendant an effective appellate counsel, just as it guarantees a defendant an effective trial counsel).

June 26, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

A bit of criminal justice interest in last big SCOTUS order list of Term

The last big Supreme Court order list of OT16 is available here, and an assortment of cert grants and denials, summary opinions and concurrences and dissents are notable.  For criminal justice fans in particular, the denial of a big Second Amendment case out of California and some discussion around the GVRs in a few cases seem especially noteworthy.  And the discussion around the (partial) reversal of an erroneous mandatory minimum crack sentence in Hicks v. US will merit its own posy later today because of some of the comments by the newest Justice.  But first we have some more merits opinions coming (and I have to catch a plane, so perhaps commentors can review anything I missed in transit).

June 26, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, June 25, 2017

"A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors"

The title of this post is the title of this notable new note authored by Aditi Juneja now available via SSRN.  Here is the abstract:

In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts.  As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.”  This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process.  Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.

To achieve this goal, the note attempts to explain what factors individual prosecutors consider when plea bargaining. If provided a framework, prosecutors are capable of evaluating the multiple considerations that would be relevant in attempting to maximize the public good.  This note operates from the premise that it is possible, and perhaps preferable, to transform the culture of prosecutors’ offices from the ground up.  In order to contextualize the way these factors would be considered, it is important to understand the amount of prosecutorial discretion possessed by individual prosecutors.  As such, this note explores the scope of prosecutorial discretion in plea bargaining.  First, the note considers the scope of prosecutorial discretion possessed by individual prosecutors within the context of office customs, office policies, ethical obligations and laws. The note then outlines a framework of factors a prosecutor might consider in deciding what plea deal to offer including the completeness of information, purposes of punishment, the defense counsel, reasons a defendant might plead guilty besides factual guilt, and impacts of punishment on the legitimacy of law.  This is the first academic paper to suggest that line prosecutors themselves attempt to conduct a multi-factored analysis in determining what plea deal should be offered is necessary and that the plea deal should be distinct from the sentence that might be offered at trial given the lack of procedural safeguards.

June 25, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Could mental illness be the next big battle-front in debates over capital punishment?

The question in the title of this post is prompted by this lengthy Washington Post article headlined "He’s a killer set to die. But his mental illness has set off a new death penalty battle."  Here are excerpts:

Someone was trying to kill him. William C. Morva was certain of it.  He couldn’t breathe and he was withering away, he told his mother in a jailhouse call.

“Somebody wants me to die and I don’t know who it is,” he said.  “They know my health is dwindling, okay?” He sounded paranoid. His voice grew more frantic with each call over several months on the recorded lines.

“How much more time do you think my body has before it gives out?” he asked just months before he escaped from custody, killing an unarmed guard and later a sheriff’s deputy before his capture in woods near Virginia Tech’s campus.

Morva faces execution July 6 for the 2006 killings. With the date looming, Morva’s family, friends and lawyers are pressing for clemency from Virginia Gov. Terry McAuliffe (D) in what has become a broader national push to eliminate capital punishment for people with severe mental illnesses such as Morva’s delusional disorder....

The Supreme Court in recent years has ruled that juveniles, whose brains are not fully developed, and people with intellectual disabilities are not eligible for the death penalty.  Lawmakers in eight states, including Virginia, Tennessee and Indiana, have introduced bills that would expand the prohibition to people with severe mental illnesses.

A vote on an Ohio measure pending in the state legislature is expected this fall.  It is backed by a coalition of providers of mental-health services, social justice groups, religious leaders, former state Supreme Court justices and former Republican governor Bob Taft.  The bills address punishment, not guilt or innocence.  If lawmakers in Columbus sign off on the measure, Ohio would become the first state to pass an exclusion for severe mental illness among the 31 that retain the death penalty....

Advocates for reform say the penalty was not intended for people who are incapable of distinguishing between delusions and reality, and that jurors often misunderstand mental illness.  The reformers’ efforts have met with resistance mostly from prosecutors and law enforcement officials who say jurors already can factor in mental illness at sentencing and that the exemptions are too broad.

June 25, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3)

Saturday, June 24, 2017

Former DAG Sally Yates makes the case against AG Sessions new federal charging and sentencing policies

Former Deputy Attorney General Sally Yates that this new Washington Post commentary under the headline "Making America scared again won’t make us safer." Here are excerpts:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic.  Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then-Attorney General Eric H. Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.

That argument just isn’t supported by the facts.  Not only are violent crime rates still at historic lows — nearly half of what they were when I became a federal prosecutor in 1989 — but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison.  In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.

Contrary to Sessions’s assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities — the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before.  And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.

During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.  But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime — to the exclusion of virtually all other considerations, including the dangerousness of the offender.  Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary — 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.

Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders.  Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime....

While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.

Prior recent related posts:

June 24, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, June 23, 2017

Senate Judiciary Chair Grassley still talking up the prospects for federal statutory sentencing reform

This notable article from the Washington Free Beacon reports on some notable remarks by a critical member of Congress concerning federal sentencing reform.  The article is headlined "Sen. Grassley: Criminal Justice Reform Still on the Table," and here are excerpts:

Sen. Chuck Grassley (R., Iowa) believes that his criminal justice reform agenda, unsuccessful under the Obama administration, still has bright prospects, in spite of the less reform-friendly administration of President Donald Trump. Grassley, chairman of the Senate Judiciary committee, spoke at the American Enterprise Institute on Thursday morning about the Sentencing Reform and Corrections Act (SRCA), a bipartisan bill he first brought up in the last Congress....

"Long prison sentences always come with a cost. A cost to the taxpayers, a cost to families, and to our communities," Grassley said. "In many ways, and in many cases, the severity of the crime justifies these costs. But as we're all aware, that isn't always the case. Hence, the movement for sentencing reform."

The SRCA is meant to address these concerns through a number of approaches, Grassley said. These include expanded "safety valves" for non-violent offenders; a reduction in mandatory minimums for some drug crimes; and a reduction in sentences for offenders who complete programs designed to reduce recidivation. Grassley suggested that while the SRCA had the support of the Obama administration, the Trump White House, which has promised to "make America safe again," may be less friendly to the legislation.

"Obviously, the dynamic is different with a new president," Grassley said, but added that he was nonetheless "confident" about the SRCA's prospects. "We're looking forward to input from the administration" on the SRCA, Grassley said. "We had the support of the Obama administration. I think we have a chance of getting the support of this administration."

"I know that there is both support and opposition within this White House," Grassley said. "I certainly believe that it is consistent to be tough on crime and still support sentencing reform."

"We've been working since November to see what avenues we can have to move this bill along, particularly working with the executive branch of government. I'm confident about its prospects," he said....

Grassley criticized Sessions's comments that the administration would go back to pre-Obama sentencing discretion. "I'm not going to condemn people for finding fault with what Attorney General Sessions did when he spoke about going back to the pre-Obama, pre-Holder sentencing prosecutorial discretion that he gave to his U.S. Attorneys, that it was the wrong way to go. I could even say that I think it was the wrong way to go," he said.

Sessions opposed Grassley's bill when he was in the Senate. According to the Brennan Center for Justice, Sessions "personally blocked" the 2015 SRCA; he also, along with several of his colleagues, authored one of a series of op-eds opposing the bill. Sessions wrote an opinion piece for the Washington Post in June in which he insisted more stringent sentencing was needed to curb surging violent crime. He also attacked those who claimed incarceration was driven largely by low-level, nonviolent drug offenders.

Grassley, however, said Sessions' priorities need not conflict with the SRCA. "There doesn't have to be anything incompatible with what he's doing, with what we're trying to do, because what we do is give people that have been sentenced unfairly, and they feel it, and their lawyers feel it, another bite at the apple, by going before a judge to plead their case, that their sentence ought to be shorter," Grassley said.

Helpfully, the American Enterprise Institute has this webpage with a video of the event at which Senator Grassley spoke, and he had a lot more to say than what is quoted above.

June 23, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases its proposed priorities for 2017-18 amendment cycle

Download (1)Because of reduced membership and election transitions, as reported here, the US Sentencing Commission decided not to promulgate guideline amendments in the 2016-17 amendment cycle.  (For a variety of reasons, I think this was a wise decision even though, as noted in this post from December 2016, just before a number of Commissioners' terms expired, the USSC unanimously voted to publish some ambitious proposed amendments for 2017.)  The USSC still has a reduced membership — it is supposed to have seven members and right now has only four — but that has not prevented it from now releasing an ambitious set of proposed priorities for 2017-18 amendment cycle.  Nearly a dozen priorities appear in this new federal register notice, and here area few that especially caught my eye (with some added emphasis in a few spots): 

[T]he Commission has identified the following tentative priorities:

(1) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(2) Continuation of its multi-year study of offenses involving MDMA/Ecstasy, tetrahydrocannabinol (THC), synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone)....

(3) Continuation of its work with Congress and other interested parties to implement the recommendations set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c). The Commission also intends to release a series of publications updating the data in the 2011 report.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate, including possibly amending Chapter Four and Chapter Five to provide lower guideline ranges for “first offenders” generally and to increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table....

(9) Continuation of its study of alternatives to incarceration, including (A) issuing a publication regarding the development of alternative to incarceration programs in federal district courts, and (B) possibly amending the Sentencing Table in Chapter 5, Part A to consolidate Zones B and C, and other relevant provisions in the Guidelines Manual....

(11) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

June 23, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"People keep voting in support of the death penalty. So how can we end it?"

The title of this post is the notable headline of this notable new commentary by noted death penalty abolitionist Austin Sarat.  The first sentence of the headline highlights an important political reality, and the commentary goes on to review recent political developments and to emphasize the political challenges that abolitionists face.  I recommend the commentary as a modern recap on the state of capital politics and as providing insights on how abolitionists can seek to develop a claim that capital abolition is not anti-democratic.  I found found this little piece of political history especially interesting:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once.  From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America’s tough-on-crime, law-and-order era.

In a few of those elections, voters have been asked only to approve technical changes in their state’s death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let’s consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back — only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

June 23, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)