Sentencing Law and Policy

Prosecutions dropped: the first tangible legal impact of marijuana legalization in Washington

This local piece, headlined "Marijuana prosecutions dropped in anticipation of legalization," reports on what seems to be the first legal consequence of the marijuana legalization initiative passed in Washington state. Here are the details:

Prosecutors and police in Washington moved Friday to swiftly back away from enforcing marijuana prohibition, even though the drug remains illegal for another month.   On Friday, the elected prosecutors of King and Pierce counties, the state's two largest, announced they will dismiss more than 220 pending misdemeanor marijuana-possession cases, retroactively applying provisions of Initiative 502 that kick in Dec. 6.

In King County, Dan Satterberg said his staff will dismiss about 40 pending criminal charges, and will not file charges in another 135 pending cases.  Pierce County Prosecutor Mark Lindquist said he will dismiss about four dozen cases in which simple marijuana possession was the only offense. "I think when the people voted to change the policy, they weren't focused on when the effective date of the new policy would be.  They spoke loudly and clearly that we should not treat small amounts of marijuana as an offense," Satterberg said.

The Seattle police and King County sheriff also announced Friday their departments would no longer arrest people for having an ounce or less of marijuana, the amount decriminalized by Initiative 502, which passed Tuesday....

Misdemeanor marijuana possession had not been a police priority in Seattle for years, but a study released in October found it was elsewhere: more than 241,000 people statewide were arrested for possession over the past 25 years, at an estimated cost of more than $305 million....

In interviews, Satterberg and Lindquist said their decisions do not amount to a free pass for marijuana, and the number of cases were so small that it won't save much money. But both said their decision reflected the voters' intent in passing I-502's decriminalization of marijuana for people 21 and over, and for an ounce or less....

The maximum penalties for misdemeanor marijuana possession are 90 days in jail, with one day mandatory, and a $1,000 fine, although most cases are resolved for less.

Snohomish County Prosecutor Mark Roe said in an email that his staff had put marijuana cases "on hold" before the election, and will decide how to handle them after speaking with other prosecutors at an upcoming meeting. After budget cuts, Roe said his staff has focused on more serious cases. "It simply hasn't been a big part of our work," he said....

Prosecutors across the state will decide whether charging possession cases would be contrary to "the new known intent of the law," said Tom McBride, executive director of the Washington Association of Prosecuting Attorneys.  He doubted that prosecutors would agree to overturn existing marijuana possession convictions, and prosecutors could clearly enforce existing law up until Dec. 6. "It is an equitable decision, not necessarily a legal one," he said.

Other agencies are also sorting out I-502's implications. The UW and Western Washington University reaffirmed that marijuana use on campus would still be banned, even after Dec. 6, because of zero-tolerance strings attached to federal funding.

SCOTUS grants cert on post-Booker ex post facto issue and DNA collection from arrestees

As reported in this SCOTUSblog post, the Supreme Court granted cert in four cases on Friday afternoon, two of which involve interesting criminal justice issues.  Both the criminal justice grants will get much less attention than the Justices' decision to take up a Voting Rights Act case.  (And the cool post-Booker sentencing issue in one of the criminal justice grants will get less attention than the DNA issue in the other.)  Via SCOTUSblog, here are the basics of the two criminal justice grants:

** Maryland v. King (12-207): Whether it violates the Fourth Amendment rights of an individual who is arrested and charged with a serious crime, but not convicted, for police to take an involuntary DNA sample.  Chief Justice John G. Roberts, Jr., earlier had blocked a ruling by Maryland’s highest state court finding a Fourth Amendment violation when the individual has not yet been convicted of a crime.

** Peugh v. United States (12-62): Whether it is a violation of the Constitution’s Ex Post Facto clause for a federal judge to impose a criminal sentence based on federal Guidelines in effect at the time of sentencing, if that sentence is longer than the Guidelines had specified at the time the crime was committed.  Lower courts are split on the issue.

In the weeks ahead, I will have a lot to say about Peugh, which raises interesting issues concerning the import and impact of the guidelines in the post-Booker federal sentencing system.

Another extreme drunk driving death reinforces my eagerness for greater toughness and technology

In part because a new new drunk driving story involves roads I drive on every week, I find myself yet again annoyed and frustrated that our criminal justice system does not treat more seriously and systematically a crime that kills and hurts so many innocent people every year.  This local story, headlined "Columbus Man Involved In Fatal Delaware Crash Faces OVI Charge," provides the basic details:

A Columbus man has been arrested and charged with operating a vehicle while impaired after he was involved in a fatal crash in Delaware County Thursday night [at 8:45pm].  Troopers from the Delaware post of the Ohio State Highway Patrol say Marc Kraft’s blood-alcohol level was three times the legal limit at the time of the crash Thursday night....

Kraft has had five prior DUI convictions in Pennsylvania dating back to 1989 and he has been without an operator’s license since 1992.

This other local story has more details on the crime and the carnage:

Witnesses reported seeing Kraft drive between 80 and 100 miles per hour....

[Heidi] Hecker, 36, died at the scene of the crash.  A 10-month-old infant inside the Subaru was transported to Nationwide Children's Hospital and was listed in critical condition on Friday morning.  Brad Weaver, who was also in the Subaru, was transported for medical attention and listed as in critical condition.

To review: A loser with five prior DUI convictions and without a valid license for decades, while very drunk (with a BAC of at least .25), drives thirty MPH over the speed limit and slaughters an innocent woman and critically injures another man and an infant.  I continue to be troubled that we fail to apply some form of three-strikes (or four-strikes or five-strikes) and-you-are-out to serious drunk driving offenses like we do with many other plainly less dangerous crimes so that the tragic loss of innocent life in this case (and I suspect many others) might have been saved.  In addition, I continue to wish our society and car companies would worry less about helping us have new technologies to check twitter feeds in our cars and would instead develop new technologies to prevent anyone with a BAC above .10 from being able to get a car started.

Some related posts on my concerns about undue sentencing leniency for drunk drivers:

• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• More examples of undue leniency shown to repeat drunk drivers
• "Some Coloradans drive until they kill"
• Effective commentary complaining about undue leniency for drunk drivers
• Another sad example of a needless death because of weak sentences for drunk driving
• Is it time for Texas to consider making drunk driving a potential capital offense?
• Victim calls sentence for deadly DWI offense an "insult to humanity"

Does Prez Obama's re-election make broader use of clemency power more or less likely?

The question in the title of this post reflect my nagging concern that President Obama, now that he has four more years in his current job and thus now more reasons to avoid using his political capital on criminal justice issues, will not begin to use his clemency powers more robustly anytime soon.  As regular readers know, Prez Obama has been historically stingy in his use of his clemency powers during his first term (details here and here).  But, with a re-election vote always on the horizon during his first term, the disinclination to risk getting political flack from the tough-on-crime crowd perhaps provided an understandable (if not justifiable) reason for such little use of this historically important and constitutionally significant presidential power.

Now, of course, Prez Obama no longer has to think about his own re-election.  Nevertheless, I fear that the desuetude marking his first-term treatment of the clemency power could become a habit. Had Obama lost his re-election bid, he would have only two months to complete his presidential legacy and a spate of clemency grants might be anticipated to be part of his finishing act. But now he has an extra four years and lots of other political and practical concerns with a second term approaching; it seems quite possible (and I fear likely) that clemency grants (as well as broader and much needed clemency reform) will now remain a back-burner matter for this President. 

I hope I am wrong, and perhaps commentors can give me reasons to not feel too pessimistic on this front.

Related recent posts concerning federal clemency practices:

• "Obama Has Granted Clemency More Rarely Than Any Modern President"
• Press and pressure prompting talk of clemency reforms in White House
• "Presidential Pardons Heavily Favor Whites"
• Investigation reveals (shockingly?!?!) that politicians and politics impact federal pardons
• DOJ audit of federal clemency process with sound and fury signifying nothing
• Updated numbers on President Obama's disgraceful clemency record
• Noting President Obama's (still) stingy clemency record
• ProPublica reveals more ugliness in federal clemency process
• Public policy groups urge Senate Judiciary Committee to investigate US Pardon Attorney Office
• Commentary calls for "cleaning house" at DOJ's Office of the Pardon Attorney
• "Commutation Recipients Ask for OPA Investigation"
• "15 Law Professors Call on Senate to Investigate Office of U.S. Pardon Attorney"

New Vera Institute report looks at performance funding for criminal justice reform

As detailed in this helpful post by Alison Shames, headlined "Performance Incentive Funding Focus of New Vera Report," the Vera Institute of Justice has just released a terrific new research report on a notable new structure for developing criminal justice reform and helping to ensure a cost-effective criminal justice system.  Here is an explanation of the report (along with a link to the full report and an executive summary and additional resources):

The idea that our tax dollars should be directed towards programs that deliver positive outcomes to the community is neither novel nor radical — but there are some interesting and innovative “pay for success” strategies for achieving this.  Social impact bonds, which are being piloted in the United Kingdom, New York City, and Massachusetts, are perhaps among the best known of these.  In the field of criminal justice, performance incentive funding (PIF) is another promising approach being tried in the United States.

PIF programs encourage local jurisdictions to supervise more offenders in the community and achieve better outcomes, namely lower recidivism and fewer prison commitments. They are premised on the idea that if the supervision agency or locality succeeds in sending fewer low-level offenders to prison — thereby causing the state to incur fewer costs—some portion of the state savings should be shared with the agency or locality.  By delivering fewer prison commitments, agencies or localities receive a financial reward, which is reinvested into evidence-based supervision programs.

A new report from Vera’s Center on Sentencing and Corrections — Performance Incentive Funding: Aligning Fiscal and Operational Responsibility to Produce More Safety at Less Cost — details how PIF programs can lead to better offender outcomes while reducing overall corrections costs.  It presents the findings of a summit held in September 2011, which was convened by Vera, the Pew Center on the States, and Metropolis Strategies, to discuss the key challenges and tasks that states must address to develop and implement a PIF program.

Achieving positive outcomes, such as reduced recidivism and revocations and safer and stronger communities, is a goal that tax payers, policymakers, and criminal justice professionals can all agree on.  By emphasizing the use of evidence-based practices, reporting on outcomes, and paying for success, PIF programs can help states reduce their corrections costs, strengthen their community supervision programs, and build safer neighborhoods.

Intriguing accounts of how California's three-strikes reform will be implemented

The San Jose Mercury News and the Los Angeles Times both had interesting pieces today on how California's ballot-initiative reform of its three-strikes law will get implemented.  Here are snippets from the San Jose Mercury News piece, headlined "California Prop. 36: Families of some three-strikers hope for early release or shorter sentences":

By an overwhelming margin, they'd passed Proposition 36 to revise the state's tough Three Strikes Law. The new law prohibits judges from imposing a life sentence on most repeat offenders who commit minor crimes. But it also includes a provision that could result in an early release or shorter sentence for ... up to 3,000 inmates ... who were sentenced to life in prison for nonviolent, relatively minor crimes like stealing a credit card....

But just how fast lifers get a resentencing hearing before a judge -- and if they get out early at all -- is likely to depend on where they were convicted. The movement on cases might go more slowly in conservative places like the Central Valley, while in relatively liberal Los Angeles County and the Bay Area, things might move along more efficiently. "We're probably less likely to see the DA acquiesce on petitions for release or resentencing in many cases,'' said Kern County's interim chief public defender, Konrad Moore.

Jeff Adachi, San Francisco's public defender and a spokesman for the California Public Defenders Association, estimated it will take six months to a year in most counties. In contrast, Santa Clara County is nearly ready. The county's acting public defender, Molly O'Neal, has already drawn up a list of 127 three-strikers who may be eligible to apply for a shorter sentence or early release. "I hope we begin getting people out before the end of the year," O'Neal said. "This will right an unfairness in the system dating from (1994) when Three Strikes was passed."

The process will be much quicker in Santa Clara County because District Attorney Jeff Rosen promised well before the election that he would seek shorter terms or outright release for at least some three-strikers even if Proposition 36 lost. His office has already done much of the necessary research, cutting down on the need for lengthy court hearings in cases where he and O'Neal agree on a solution.

O'Neal said a Stanford law school graduate who worked on the university's Three Strikes Project is helping with the effort for free. The director of the project, law school Professor Michael Romano, co-authored Proposition 36.

Here are excerpts from the Los Angeles Times piece, which is headlined "Softer 3-strikes law has defense lawyers preparing case reviews":

A day after California voted to soften its three-strikes sentencing law, defense lawyers around the state Wednesday prepared to seek reduced punishments for thousands of offenders serving up to life in prison for relatively minor crimes.

The process of asking courts to revisit old sentences could take as long as two years and benefit roughly 3,000 prisoners.  They represent about a third of incarcerated third-strikers.

Proposition 36 garnered about 69% of the vote.  The initiative won in all 58 counties, amending one of the nation's toughest three-strikes laws, one that had overwhelming voter support when it was approved in 1994 amid heightened anxiety over violent crime. "People want a fair and just criminal justice system," said Michael Romano, who helped write the proposition and runs a Stanford Law School project that represents inmates convicted of minor third strikes....

Courts can reject a request to reduce a sentence if they determine the prisoner is a danger to public safety. Inmates with prior convictions for rape, murder and child molestation cannot be released under the measure.  "This is not going to open the prison floodgates," said Garrick Byers, a senior attorney with the Fresno County public defender's office.

Byers, who said he spoke for himself and not his office, received several calls from relatives of third-strikers Wednesday seeking help for loved ones and said he suspected that other attorneys around the state received similar requests.

In Los Angeles County, the public defender's office estimates 500 to 525 former clients could seek reduced sentences.  Hundreds more represented by private lawyers or the county's alternate public defender's office when they were originally sentenced under the law could also head back to court.

Although defense lawyers have plenty to do in the short term, Los Angeles County Public Defender Ron Brown said he expects the new law will have little impact on future cases. The county's prosecutors have followed a general policy of not seeking life sentences for relatively minor strikes since Steve Cooley became district attorney in 2000. "I don't see a major sea change for L.A. County," Brown said....

Mike Reynolds, whose daughter's 1992 murder led him to spearhead the creation of three strikes, said he believed many voters were misled to think Proposition 36 was a tough-on-crime measure.  He predicted the initiative would undermine an important deterrent and prevent prosecutors from locking up repeat offenders before they had the chance to hurt new victims. "This was a great day for criminals and their attorneys," Reynolds said.

Jared Loughner sentenced to seven consecutive life sentences plus 140 years

Largely because (and seemingly only because) federal prosecutors were willing to take the threat of a death penalty off the table, a very high-profile mass shooting in Arizona reach a sentencing result today less than two years after the crime.  This AP story, headlined "Life sentence in Ariz attack that wounded Giffords," reports on some of the basics:

Former Congresswoman Gabrielle Giffords, partially blind, her right arm paralyzed and limp, came face to face Thursday with the man who tried to kill her last year, standing beside her husband as he spoke of her struggles to recover from being shot in the head.

"Her life has been forever changed. Plans she had for our family and her career have been immeasurably altered," said astronaut Mark Kelly, both he and his wife staring at the shooter inside a packed courtroom. "Every day is a continuous struggle to do those things she once was so good at."

Jared Lee Loughner, 24, was then ordered to serve seven consecutive life sentences, plus 140 years in federal prison for the January 2011 shooting rampage that killed six people and wounded 13 others, including Giffords, outside a grocery store in Tucson, Ariz.

Loughner pleaded guilty under an agreement that guarantees he will spend the rest of his life in prison without the possibility of parole. He avoids a federal death sentence, although state prosecutors could still decide to try him.

One by one, survivors of the attack at a Giffords political event approached the courtroom podium to address Loughner, each turning toward him where he sat stoic and emotionless at a table with his attorneys. "You took away my life, my love and my reason for living," said Mavanell Stoddard, who was shot three times and cradled her dying husband in her arms as he lay bleeding on the sidewalk after shielding her from the spray of bullets.

Susan Hileman, who was shot, spoke to him, at times visibly shaking. "We've been told about your demons, about the illness that skewed your thinking," she said. "Your parents, your schools, your community, they all failed you. It's all true," Hileman said. "It's not enough."...

Some victims, including Giffords, welcomed the plea deal as a way to move on. It spared them and their families from having to go through a potentially lengthy and traumatic trial and locks up the defendant for life.

Giffords didn't speak, but stood by Kelly and kissed her husband when he was done. He grabbed her hand and they walked away, her limping. Earlier, Loughner told Burns that he would not speak at the hearing.

Both sides reached the deal after a judge declared that Loughner was able to understand the charges against him. After the shooting, he was diagnosed with schizophrenia and underwent forcible psychotropic drug treatments.

Christina Pietz, the court-appointed psychologist who treated Loughner, had warned that although Loughner was competent to plead guilty, he remained severely mentally ill and his condition could deteriorate under the stress of a trial....

It's unknown whether Pima County prosecutors, who have discretion on whether to seek the death penalty against Loughner, will file state charges against him. Stephanie Coronado, a spokeswoman for Pima County Attorney Barbara LaWall, said Wednesday that no decision had been made.

It's also unclear where Loughner will be sent to serve his federal sentence. He could return to a prison medical facility like the one in Springfield, Mo., where he's been treated for more than a year.  Or he could end up in a prison such as the federal lockup in Florence, Colo., that houses some of the country's most notorious criminals, including Oklahoma City bombing conspirator Terry Nichols and "Unabomber" Ted Kaczynski.

I am very interested to hear (especially from vocal death penalty advocate and opponents) whether folks think justice has now been served in this high-profile case. I am likewise interested to hear whether folks think Arizona prosecutors should now follow-up with state charges against Loughner.  

Early reactions to end of state pot prohibition in Colorado and Washington

Both the New York Times and Washington Post have lengthy new articles talking through what might happen now that voters in two western states have, via ballot initiative, legalized marijuana under state law.  Here are snippets from this New York Times piece, headlined "Voters Ease Marijuana Laws in 2 States, but Legal Questions Remain":

For supporters of legalizing marijuana, it was a historic moment, one that drew comparisons to the end of Prohibition: On Tuesday, voters in Colorado and Washington State made it legal to smoke pot recreationally, without any prescription or medical excuse....

[I]t will be a month before the measures are officially on the books, and longer still before state officials write the rules, tax codes and other regulations creating new state-licensed retail marijuana shops. But the larger, looming problem is a clash with the federal government, which still views marijuana as a Schedule I prohibited substance and has cracked down on states, like California and Montana, that have voted to allow medical marijuana.

In a statement on Wednesday, a spokesman for the Drug Enforcement Agency said the Justice Department was reviewing the ballot measures and declined to comment directly on how officials would respond to them. But he said the agency’s enforcement of federal drug laws “remains unchanged.” The United States attorneys in Denver and Seattle responded with nearly identical statements, offering no clue on whether they would sue to block the measures from being put into effect. It is a murky landscape now, one that potentially pits voters who supported President Obama and legalization against the president’s own Justice Department....

As soon as the laws are certified, it will be legal under Colorado and Washington law for adults 21 years and older to possess up to an ounce of marijuana.  In Colorado, people will be able to grow as many as six plants. In Washington, users will have to buy their marijuana from state-licensed providers....

The laws do not allow people to light up in public, and cities and counties will be able to block marijuana retailers, in much the same way that blue laws have restricted alcohol sales for decades. And it remains illegal to drive a motor vehicle while high on the drug....

It is still unclear how much will change. The streets here in Denver and across Colorado are already lined with shops, their windows decorated with green crosses and pot leaves, advertising all-natural plant treatments and herbal health aids....  To advocates, the real power of the measures’ passage may be that they signal a change in the way voters think about drugs and drug policy in the United States.  Brian Vicente, a leading campaigner for the Colorado initiative, summed it up this way: “It’s a historic one, man.”

And here are excerpts from this Washington Post piece, headlined "Legal battle looms over marijuana initiatives":

The Justice Department said it was reviewing the initiatives but would not comment further on how it would respond.  A spokeswoman for the Drug Enforcement Administration said that its enforcement of federal law, which bans production, possession and sale of marijuana, “remains unchanged.”...

Colorado Gov. John Hickenlooper (D) on Wednesday signaled his awareness of those conflicts, cautioning voters that it would take time to deal with the implications of the initiative. “The voters have spoken and we have to respect their will,” Hickenlooper said in a statement....

Hickenlooper’s office called the Justice Department on Wednesday to get guidance on how the state should proceed.  Eric Brown, a spokesman for Hickenlooper, said that Holder is scheduled to speak directly to the governor Thursday or Friday.

Washington Gov. Chris Gregoire (D) also indicated that she is uncertain about whether there will be a showdown with the federal government.  “The voters have decided to decriminalize marijuana possession and tax its sale and we will follow the will of the people,” Gregoire said in a statement.  “We are entering uncharted waters and many questions lie ahead as we work to implement this law.  Because marijuana is still illegal at the federal level, we are unsure how the federal government will proceed.”  Gregoire said that the state’s Liquor Control Board will be responsible for establishing the licensing and inspection procedures for the new measure over the next year.

California voters approve new sex offender law, parts of which get swiftly blocked by federal judge

I have not closely followed the particulars of Proposition 35 in California, a human trafficking ballot initiative which generated limited debate or controversy before election day.  But, as reported in this new piece from Wired, the initiative received overwhleming support yesterday and today was partially block by a federal judge.  Here are the details:

Immediately following the passage of a California proposition that would dramatically curtail the online, First Amendment rights of registered sex offenders, two civil rights groups filed a lawsuit to block parts of the overwhelmingly approved measure.

Proposition 35, which passed with 81 percent of the vote Tuesday, would require that anyone who is a registered sex offender — including people with misdemeanor offenses such as indecent exposure and whose offenses were not related to activity on the internet — would have to turn over to law enforcement a list of all identifiers they use online as well as a list of service providers they use.

The Californians Against Sexual Exploitation Act would force sex offenders to fork over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites or at online forums and in internet chat rooms.

The American Civil Liberties Union and the Electronic Frontier Foundation, which filed their suit (.pdf) on behalf of two registered sex offenders, say that although the measure is vaguely worded, in practice it likely means that registered sex offenders would have to provide user and screen names that they use for participation in online political discussion groups, forums about medical conditions, and even the comment sections of online newspapers and blogs....

The lawsuit, filed in San Francisco federal court, is demanding that a judge immediately block the measure’s internet-reporting provisions.... Michael Risher, an ACLU attorney, said Californians should be concerned that even though the bill only affects registered sex offenders now, the law creates a slippery slope for the same requirements to be applied to others.

He points, for example, to a California DNA-collection law that has expanded dramatically beyond the people it first targeted. Initially, the law required only those convicted of sex offenses and serious felonies to provide authorities with a DNA sample to be included in a state and federal database. But in 2004, this expanded to anyone convicted of a felony, and in 2009, to anyone simply arrested for a felony....

The measure would currently affect some 73,000 sex offenders registered in California, but the law also requires those convicted of human trafficking to register as sex offenders, thus widening the pool of people affected.

UPDATE: Citing First Amendment concerns, U.S. District Judge Thelton Henderson in San Francisco agreed with the plaintiffs, and late Wednesday tentatively blocked enforcement of the measure (.pdf) pending further litigation.

Judge Bright (in dissent) assails fraud guidelines and rote recitation of 3553(a) factors

Dissenting from an Eighth Circuit panel opinion today in US v. Spencer, No. 11-3463 (8th Cir. Nov. 7, 2012) (available here), Judge Myron Bright has lots to say about the harshness of the guidelines and about the failure of district judges to adequately explain their sentencing decisions.  Here is an excerpt (with most cites omitted) from a lengthy dissent worthy of a full read:

The fraud guidelines have been heavily criticized because they no longer provide a reasonable starting point for sentencing.  Adjustments based on the amount of loss lead to astronomical sentences that have little connection to criminality.  The much-below guidelines sentence imposed on Spencer suggests that the guidelines simply did not apply here. No reasonable judge would have imposed a sentence of over 20 years.  Spencer had zero criminal history points.  But even if the guidelines should not apply to a particular offender and his crime, a sentencing judge should not have unlimited discretion to impose a sentence without some proper basis.  A sentencing judge should be guided by § 3553(a). In order to adequately review a sentence, we need the sentencing judge to perform an analysis under § 3553(a) and to explain this analysis on the record.  Here, we do not know which § 3553(a) factors the sentencing judge relied on.  Saying simply, “This sentence is appropriate under § 3553,” is no different than an opinion stating “I hold for Party A because my findings are in his favor.”...

A district court is not required to provide “a mechanical recitation of the § 3553(a) factors when determining a sentence.”  United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (quotation omitted).  However, I believe the converse is also true — a mechanical recitation that the sentence complies with the requirements of § 3553(a) is insufficient.  It is impossible for an appellate court to meaningfully review a sentence without the underlying rationale.  This is especially true in areas like fraud, where the guidelines have been consistently and repeatedly disregarded by sentencing judges....

To ensure that criminal defendants receive fair sentences, this dissent urges that sentencing judges always engage in a meaningful analysis of the § 3553(a) factors — the process should not devolve to be rote, mechanical, and artificial.  Whether imposing a sentence within, above, or below the guidelines, the touchstone should always be the standard in § 3553 of a sentence sufficient but not greater than necessary and judges should verify the sentence pursuant to § 3553(a), explaining for the record “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed… (6) the need to avoid unwarranted disparities.” Id.

I acknowledge that conducting a § 3553(a) analysis in every case may be more work for a sentencing judge.  But this worthwhile endeavor could lead to great improvement in our current system.  Now sentencing courts have virtually unlimited discretion because appeals courts such as the Eighth Circuit will uphold a sentence as long as the sentencing judge says nothing more than, “I have…considered the other factors described in§ 3553(a)…. I find that the sentence imposed on [the defendant] is reasonable in light of the factors.” United States v. Hernandez, 518 F.3d 613, 616-17 (8th Cir. 2008) (upholding a sentence because the district court “expressly stated” it considered the § 3553(a) factors without further analysis); see also United States v. McGlothen, 556 F.3d 698, 702 (8th Cir. 2009) (“[T]here is no need to recite each § 3553 factor.”); United States v. Dieken, 432 F.3d 906 (8th Cir. 2006) (“[W]e do not require a district court to categorically rehearse each of the section 3553(a) factors on the record.” ).  I strongly disagree with the comments stated above in these appellate cases.

California voters appear to be approving three-strikes reform, rejecting death penalty repeal

As of the writing of this post, Election Day has been over for three hours in my time zone and is just about to end in California.  According to the result on this official California webpage with right now just over half of all precincts reporting, Proposition 34 calling for the repeal of California's death penalty is losing the popular vote by 46% to 54% and Proposition 36 calling for the reform of California's severe three-strikes sentencing law is winning the popular vote by 68% to 32%.

Assuming that the precinct which have reported are faily representative, it looks as though the voters in California are going to keep the death penalty on the books and are going to curtail the harshest aspects of the state's recidivism sentencing law.  Though I had predicted these basic outcomes (informed by the generally on-point polling data from the last few weeks on these issues), I am a bit surprised that the death penalty repeal vote is so close and that the three-strikes reform vote is so one-sided.

Ain't democracy grand!

Voters call for experimenting with pot in the state laboratories of Colorado and Washington

I thought it would be remarkable and remarkably important if voters in just one state through the ballot initiative process had legalized marijuana.  But, as reported in this NBC News piece headlined "Colorado, Washington approve recreational marijuana use," it appears voters in two states are ready to experiment with ending pot prohibition. Here are the basics:

Voters in Colorado and Washington on Tuesday approved measures allowing adults to use marijuana for any purpose, NBC News projected, marking an historic turning point in the slow-growing acceptance of marijuana usage.

In Massachusetts, voters also approved an initiative allowing people to use marijuana for medicinal purposes, NBC News projected. In Arkansas, a similar initiative failed, according to NBC News projections....

The laws legalizing marijuana for recreational or other purposes could face federal challenges, because marijuana possession is still a federal crime. But so far, the Justice Department has declined to discuss how it might react if the laws pass....

Opponent Kevin Sabet, a former senior advisor to the Obama administration and an assistant professor at the University of Florida’s college of medicine, said he was expecting legal challenges at the state and federal level. “This is just the beginning of the legalization conversation, so my advice to people who want to toke up legally or think that they can buy marijuana at a store tomorrow is that we’re a very long way from (that),” Sabet said.

Proponents of the legislation also said they expected some legal wrangling. “It sets up a clear and obvious challenge with the federal government,” said Allen St. Pierre, executive director of NORML, which has fought for years to legalize cannabis.

But proponents also were celebrating what they saw as a turning point in a long-running battle to make marijuana more available to the general public. “We are reaching a real tipping point with cannabis law reform,” said Steve DeAngelo, a longtime advocate for legalizing marijuana and the director of the nation’s largest medical cannbabis dispensary, Harborside Health Center in Oakland, Calif.

Colorado Gov. John Hickenlooper acknowledged legal challenges but said the state would work to resolve the conflict between federal and state laws. "It's probably going to pass, but it's still illegal on a federal basis. If we can't make it legal here because of federal laws, we certainly want to decriminialize it,” he told NBC’s Brian Williams.

This lengthy Huffington Post article discusses these developments and the intricacies of the legal process going forward in Colorado.   This piece also includes this amusing reaction to the Colorado outcome:

Colorado Gov. John Hickenlooper, a vocal opponent to the measure, reacted to the passage of A64 in a statement late Tuesday night: "The voters have spoken and we have to respect their will. This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug so don’t break out the Cheetos or gold fish too quickly."

With Prez Obama projected to win second term, could sentencing reform get a boost?

All the major networks are now projecting that President Barack Obama has tonight won a second term; my first thought, of course, is to start to speculate about what this could mean for the future of sentencing reform.  For many reasons, I think the outcomes of the three state marijuana legalization initiatives and the California three-strikes and death penalty initiatives could ultimately have more national criminal justice echoes than the presidential results.  Still, with the occupant of the White House now certain again, I see two great new uncertainties concerning the prospects for future criminal justice reforms:

1.  After a pretty "status quo" first term with very little political capital or energy spent on criminal justice reform, might President Obama give more attention to criminal justice reform issues in his second (lame-duck) term?  Might he, for example, start using his clemency powers more fully or urge his Justice Department to advocate more forcefully for reductions in federal prison populations?

2.  Upon recognizing that the party's national election fate could be doomed by an enduring failure to appeal to minority and younger voters, might some of the smartest stategists within the GOP view criminal justice reform (and especially drug war reform) as a potential means to seek to reconnect with these critical voting blocks?

I fear that the answer to all these questions will end up being no, but it could become a really exciting time for sentencing reform fans if some of these questions are answered yes.

Seeking Election Day predictions on the biggest criminal justice initiatives

As regular readers know, I will be staying up very late this evening to see election results from all the western states that have been criminal justice initiatives on the ballot today.  I have long been tentatively predicting that one of three marijuana legalizations initiatives will pass and that California voters will approve reform of its three-strikes law and reject abolition of its death penalty.  But this is guesswork, and I am eager to hear other prediction as we all await these (and other) results.

P.S.  Nobody is allowed to comment unless and until they have at least tried to vote!

SCOTUS busy with criminal justice issues as other branches await poll returns

As reported via this SCOTUSblog post, the Supreme Court spent the 2012 Election Day hearing two criminal justice cases:

In Evans v. Michigan, the Justices will consider whether the Double Jeopardy Clause bars retrial of a defendant who wins a directed verdict that was based on the prosecution’s failure to prove what the judge erroneously held to be an element of the offense. In Smith v. United States, the Justices will consider which party bears the burden of proof that an alleged conspirator’s withdrawal from a conspiracy occurred outside of the limitations period, thereby barring prosecution.

A busy week has kept me from having time to figure out if there could be some big sentencing issues lurking in these cases, but perhaps some readers can report whether either case could possibly be a sentencing sleeper.  The oral argument transcript in Smith v. United States is here, and the transcript in Evans v. Michigan is here.

If final polls are accurate, marijuana will soon be legal in Colorado (according to state law)

As reported in this TPM posting, two new polls from Colorado both showed majority support for the state's marijuana legalization ballot initiative:

A ballot measure to legalize marijuana in Colorado is seeing consistent support according to a pair of polls released Monday.  The first poll, from Democratic-leaning Public Policy Polling, showed support for Amendment 64 at 52 percent and opposition at 44 percent -- a gap two points smaller than PPP's previous poll from late October.  A SurveyUSA poll showed support at 50 percent and opposition at 44 percent, the first time support has reached the 50 percent mark in that firm's polling since mid-September....

PPP's poll, conducted from Nov. 3-4, surveyed 1,096 likely Colorado voters through automated telephone interviews and had a margin error of 3.0 percent.  SurveyUSA's poll, conducted on Oct. 28, surveyed 695 likely voters via landlines and cell phones and had a margin of error of 3.8 percent.

UPDATE: Commentors have rightly noted that pot will be legal only under state law and will still be illegal under federal law no matter what Colorado voters do. I have added to my post title to be more accurate.

Which Prez candidate should a single-issue, federal-sentencing-reform voter support?

I ask this question with a serious interest in encouraging a serious (and respectful) discussion of whether folks think either of the two fellows seeking to be the US President over the next four years is likely to get behind and seek to move forward with federal sentencing reforms. 

If time permits late tonight, I will update this post to explain why I truly am not sure if there is an obvious answer to which candidate is more likely over the next four years to be interested and able to engender serious federal sentencing reform.  In the meantime, let me hear readers thoughts only hours before the final day for voting begins.

Examining how Pennsylvania has responded legislatively to Miller

This local story out of Pennsylvania, headlined "New law gives Lancaster County judges discretion in sentencing juvenile killers," provides effective coverage on Pennsylvania's new sentencing laws for juvenile killers in response to the Supreme Court's Eighth Amendment ruling in Miller this past June.  Here are excerpts:

A newly-passed law could lead to lighter sentences for juvenile killers in Lancaster County and statewide, according to local experts.

Gov. Tom Corbett recently signed Senate Bill 850, making life behind bars no longer a mandatory sentence for juveniles convicted of first- or second-degree murder. In fact, a juvenile convicted of second-degree murder, under the law, can't be sentenced to life without parole.  The changes in sentencing statutes apply to those convicted after June 24....

In pending and future cases under the new law, judges still have the option of ordering a life-without-parole sentence to anyone convicted of 1st-degree murder, regardless of their age.  However, the new law give judges much discretion, and flexibility, in sentencing. "Like it or not, that is the role we entrust to judges," Lancaster County Judge Dennis Reinaker said.  "Nobody is going to agree with every decision we make.  As judges, we have different ideas about things.  And that's as it should be."...

Philadelphia-based Juvenile Law Center, an advocacy group for juvenile offenders, says Senate Bill 850 "misses the mark."  The group, a reputable source in the legal community, claims in an opinion piece that the new provisions "not only leave life without parole as an option for juveniles convicted of first-degree murder, but also impose severe mandatory minimum sentences as the only alternative option."

The bill applies many proposals from the state's District Attorneys Association. Lancaster County District Attorney Craig Stedman said those proposals involved some compromise. "We fought hard to preserve higher mandatory minimums and the life-without-parole option for first-degree murderers," he said on Thursday.  "And in exchange agreed to take the life-without-parole option off the table for second-degree murderers."...

Those convicted of first-degree murder, meaning an act that is pre-meditated with intention to kill, can still receive life-without-parole terms.  A person under age 15 convicted of first-degree murder faces a mandatory 25-year term; a person between 15 and 17 faces a mandatory 35-year term.  "It is critical for the protection of the public that Pennsylvania preserved the option to make sure that the worst of the worst have no possibility of ever being released to kill again," Stedman said.

Mandatory sentences are slightly less in second-degree cases, as locals say they should be. Second-degree murder is a killing that happens during the course of another felony, most commonly burglary or robbery.  The mandatory minimum sentence for a juvenile 15 to 17 convicted of second-degree murder shrinks to 30 years.  Convicted second-degree killers under age 15 face a mandatory minimum of 20 years....

Many lawyers that appeal second-degree cases here argue their client was merely a "lookout," and less culpable than the person who did the actual killing. "That's entirely different than someone who specifically intended to target someone," Lancaster County Judge David Ashworth said. "When I sentence anybody, I consider culpability."

Additional recent local coverage of this new juve sentencing law in the Keystone State can be found in the Reading Eagle via "Sentencing guidelines for juveniles revised" and in the Wilkes Barre Times-Leader via "Juvenile bill makes changes."

A few criminal justice headlines on Election Eve

I may be too exhausted from fast-forwarding through a stunning number of election ads to put together a detailed SL&P election 2012 guide in the next few days. Fortunately, a lot of the highlights for sentencing fans can be found in old and new media stories, such as these I noticed this morning:

• From The Crime Report here, "Election 2012: Crime Policy at the Crossroads"

• From the Daytona Beach News-Journal here, "Felons find restoring right to vote a harder task now"

• From Bloomberg here, "Marijuana’s Recreational, Medical Use on Ballots in Six States"

• From policymic here, "California Propositions: Prop 34 and Prop 36 Could Have National Reprecussions"

• From the National Journal here, "The 10 Biggest Legal Stories to Watch on Election Night"

"Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker"

The title of this post is the title of this notable new empirical paper by Professors Sonja Starr and M. Marit Rehavi now available via SSRN. Here is the abstract:

Current empirical estimates of racial and other unwarranted disparities in sentencing suffer from two pervasive flaws.  The first is a focus on the sentencing stage in isolation. Studies control for the “presumptive sentence” or closely related measures that are themselves the product of discretionary charging, plea-bargaining, and fact-finding processes.  Any disparities in these earlier processes are built into the control variable, which leads to misleading sentencing-disparity estimates.  The second problem is specific to studies of sentencing reforms: they use loose methods of causal inference that do not disentangle the effects of reform from surrounding events and trends.

This Article explains these problems and presents an analysis that corrects them and reaches very different results from the existing literature.  We address the first problem by using a dataset that traces cases from arrest to sentencing and by examining disparities across all post-arrest stages.  We find that most of the otherwise-unexplained racial disparities in sentencing can be explained by prosecutors’ choices to bring mandatory minimum charges.  We address the problem of disentangling trends using a rigorous method called regression discontinuity design.  We apply it to assess the effects of the loosening of the U.S. Sentencing Guidelines in United States v. Booker.  Contrary to prominent recent studies, we find that Booker did not increase disparity, and may have reduced it.

Great symposium at Washington & Lee on Gideon a half-century later

As detailed in this posting, the folks at Washington & Lee School of Law have on tap at the end of this week a terrific symposium titled "Gideon at 50: Reassessing the Right to Counsel."  Here are the details via the posting:

Fifty years ago the landmark case Gideon v. Wainwright established the right to counsel for criminal defendants. An upcoming symposium at Washington and Lee School of Law will explore the legacy of this case, its impact on the criminal justice system, and the future of the right to counsel.

The symposium is scheduled for Nov. 8-9 in the Millhiser Moot Court Room, Sydney Lewis Hall on the grounds of Washington and Lee University.  The event is free and open to the public.

W&L professor and symposium co-organizer J.D. King, who directs the school’s Criminal Justice Clinic, notes that this is not a celebration of the case, but rather a cold, hard assessment of what has gone right and what has gone wrong since Gideon became law.

“One of the failings of the criminal justice system is that while we do provide lawyers to people who can’t afford their own, there is no meaningful check on how good those lawyers are,” says King.  “The reality of indigent defense is that in many cases defendants get a lawyer in physical presence only.”

Another problem, says King, is how Gideon and the right to counsel has been limited to apply only to so-called “serious” cases, that is, cases that could result in incarceration. However, there are more serious consequences that can result from a misdemeanor conviction now than there were when Gideon was decided.

“You can get deported, kicked out of your housing, lose student aid, not a get a job because of a background check, or wind up on the sex offender registry, all for misdemeanors for which you were not entitled to counsel,” says King.

The symposium is especially timely, adds King, as the fiscal crisis of the last several years has put increased strain on funding for public defender systems.  Indeed, in many states, including Virginia, defendants eventually bear the burden of the cost of their attorney, which can force them to waive their right to counsel from the outset.

The symposium will bring together scholars and practitioners representing a range of views on the issues.  Symposium attendees include Norman Reimer, executive director of the National Association of Criminal Defense Lawyers and Robin Steinberg, founder of the visionary defense support service The Bronx Defenders, as well as leading academics from law schools around the country.

The symposium is sponsored by the W&L Law Review, the Frances Lewis Law Center, the National Association of Criminal Defense Lawyers and the Foundation for Criminal Justice. A complete list of panelists, symposium schedule and registration information is available online at this link.

Timely New York Times piece on felon disenfranchisement

Today's New York Times, the last one before the latest "most important election ever," has this effective editorial headlined "Wrongly Turning Away Ex-Offenders."  Here are excerpts:

The United States maintains a shortsighted and punitive set of laws, some of them dating back to Reconstruction, denying the vote to people who have committed felonies.  They will bar about 5.85 million people from voting in this year’s election.

In the states with the most draconian policies — including Alabama, Florida, Kentucky, Mississippi and Virginia — more than 7 percent of the adult population is barred from the polls, sometimes for life.  Nationally, nearly half of those affected have completed their sentences, including parole or probation.

Policies that deny voting rights to people who have paid their debt to society offend fundamental tenets of democracy.  But the problem is made even worse by state and local election officials so poorly informed about the law that they misinform or turn away people who have a legal right to vote....

A 2005 study by the Sentencing Project, a Washington research and advocacy group, found that 37 percent of public officials surveyed in 10 states either misstated a central provision of the voter eligibility law or were unsure about what the law said. Disenfranchisement and restoration policies represent a kind of “crazy quilt” of strictures that differ not just among states, but among counties, cities and towns as well.  Some states even ban people convicted of misdemeanors from voting.  With so much confusion among those who administer the laws, it is no surprise that people who are legally entitled to vote either don’t try out of fear that they would be committing a crime or are wrongly turned away.