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March 30, 2013

Controlled Substances # 1: Teaching Drug Possession

31-cEIG37XL._SL500_AA300_Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

Drug laws raise a range of policy questions that are likely to have obvious appeal to anyone interested in the criminal justice system. From marijuana legalization to the role of race in the enforcement of drug laws, a course on Controlled Substances offers a lot of interesting issues to consider and debate.

But what about the drug laws themselves? I think there is a misperception among some criminal law teachers that the law of drug crimes is simple. Nothing could be further from the truth.

Take drug possession. Does possession in the criminal law mean ownership or something else? During alcohol prohibition, most courts equated possession with something close to ownership and overturned the convictions of defendants who had only temporarily held alcohol in their hands to drink it. As one Judge explained: “Possession of whisky within the meaning of the prohibition law contemplates a control of the whisky, whereas when the whisky is in the main the whisky controls the man.” The same does not seem to be true today for drugs.

In the first possession case in my book, Hawaii v. Hogue, 52 Haw. 660 (1971), the defendant was convicted after taking a marijuana pipe from another person, drawing a couple of puffs from it, and passing it to someone else. In a brief opinion, the majority upholds Hogue’s conviction over a longer dissent that relies heavily on the alcohol prohibition-era precedent. The dissent argues that by criminalizing possession, rather than use, the legislature indicated it “did not intend to prohibit the use of marihuana directly” and so the court “should not indirectly do so by broadly defining possession so as to include the superficial custody required for the immediate inhalation of marihuana.”

The majority does not engage the dissent on this point, which provides a nice opportunity to get students actively thinking about whether this is really true, along with the broader question: What, exactly, do we seek to punish by criminalizing possession? The classroom discussion will highlight the different possible goals we might be trying to achieve by criminalizing drug possession. It will also draw out a very plausible alternative to the dissent’s view: maybe the legislature decided to criminalize possession rather than use because use is typically harder to uncover than possession. If that is the case, there would be nothing incompatible with legislative intent in punishing Hogue.

At the heart of the section on possession is a series of constructive possession cases. Constructive possession is the theory by which a person can be convicted of possessing an item that she does not hold in her hands. If I live alone and the police find drugs in my dresser drawer with my fingerprints on the baggie, constructive possession is easy. Beyond that, however, things can get a little trickier.

What happens if I’m staying in a hotel with a friend and the police come inside and find drugs on the bathroom counter? The case law almost uniformly says this sort of evidence, alone, is not enough to prove beyond a reasonable doubt that either one of us possessed the drugs. To convict me of possession, the government must prove I had the power and intent to exercise dominion and control over the drugs. Proof that I was present in a place with drugs and that I knew they were there isn’t enough.

Courts have struggled to outline exactly what is needed to convict someone in an ambiguous constructive scenario case, however. A furtive movement? Actual possession of a large amount of cash? Actual possession of drug paraphernalia? At what point can a rational jury conclude beyond a reasonable doubt that someone found near drugs is guilty of possession and not just in the wrong place at the wrong time? Trying to find an answer can be a little frustrating at times. Indeed, in 1971, D.C. Circuit Court Judge Tamm remarked that “[t]he more cases one reads on constructive possession, the deeper is he plunged into a thicket of subjectivity.” But, it is also a fun and rewarding intellectual challenge.

In the book, I include constructive possession cases in a few specific settings: vehicles, so-called “open air” drug markets, and go-betweens. These cases provide an excellent opportunity to consider broader criminal law problems, including the distinction between knowledge and intent, the proof beyond a reasonable doubt standard, and the dividing line between the fact finder and the court.

I’ll close this post with a few words about the practical relevance of possession. In 2011, there were 1.25 million arrests for drug possession, more than for any other single crime except larceny at 1.26 million. Possession also comes up in other contexts throughout the criminal law (gun possession, possession of burglar’s tools, etc.). Almost every law student who goes onto practice criminal law will see their share of possession cases—whether it is a border bust or a baggie of drugs under a passenger’s seat. At a time when law schools are rightly concerned about making students more practice ready, I think there is a strong case to be made that possession deserves at least as much attention in our criminal law curriculum as, for example, homicide offenses.

Prior post in series:

March 30, 2013 in Guest blogging by Professor Alex Kreit | Permalink | Comments (4) | TrackBack

March 29, 2013

"Gideon Skepticism"

The title of this post is the title of this notable new piece on SSRN by Alexandra Natapoff. It provides a provocative perspective in a month that has included lots of Gideon celebrations now that the decision is 50 years old.  Here is the abstract:

The criminal defense lawyer occupies a special doctrinal place in criminal procedure. It is the primary structural guarantor of fairness, the single most important source of validation for individual convictions. Conversely, if a person did have a competent lawyer, that generates a set of presumptions that his trial was in fact fair, the evidence sufficient, and his plea knowing and voluntary. This is a highly problematic legal fiction. The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices.

A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about. In response to these limitations, criminal scholarship offers a variety of skeptical counter-narratives about the ability of defense counsel to police the accuracy and fairness of their clients’ guilty pleas and sentences.  Such skepticism is particularly appropriate in the misdemeanor context, in which millions of cases are created and rushed through an assembly-line process without much evidence or scrutiny.

In this world, the presence or absence of counsel is just one piece of a much larger puzzle of systemic dysfunction.  Accordingly, while the right to counsel remains an important ingredient in fair trials and legitimate convictions, it cannot bear the curative weight it has been assigned in the modern era of overcriminalization and mass judicial processing. Other legal actors and institutions should share more responsibility for protecting defendants, a responsibility that now rests almost entirely and unrealistically on the shoulders of defense counsel.

March 29, 2013 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1) | TrackBack

Two notable resentencing stories via the New York Times

Continuing its recent notable extra interest in an array of modern sentencing stories, today's New York Times has two pieces that are both must reads for all sentencing fans.  And because neither story enables simply summarization, I will just here reprint the headlines and the links:

Ever the nerdy and obsessed sentencing law professor, I could readily imagine teaching a week of classes about either of these noteworthy cases.  But I wonder if readers think one or the other of these modern sentencing stories merits some extra blog attention.

March 29, 2013 in Death Penalty Reforms, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (11) | TrackBack

"Toward a Common Law of Plea Bargaining"

The title of this post is the title of this notable new article by Wesley Oliver available via SSRN. Here is the abstract:

This article contends that Missouri v. Frye and Lafler v. Cooper, holding that defendants have a right to an effective criminal negotiator, are landmark decisions, but not because they will cause the reversal of any substantial number of convictions. These opinions could have a far greater impact than that. These opinions may cause criminal defense lawyers to embrace their role as negotiators. The recognition that negotiation is as central to their duty under the Sixth Amendment as litigation should cause them to study the negotiation tactics and experiences of their colleagues just as they now very effectively learn from their trial and appellate skills. The opinions also encourage trial courts, in crafting remedies for ineffective assistance of counsel during plea bargaining, to inquire into a reasonable prosecutor’s motives for offering a plea lost by counsel’s ineffectiveness. In so doing, post-conviction courts would be crafting advisory guidelines for the exercise of prosecutorial discretion.

Plea bargaining has become an unregulated process, with enormous power vesting in the hands of prosecutors, over the forty years since the Supreme Court acknowledged the existence of criminal negotiations. Separation of powers concerns and respect for the power of parties to contract have caused academic proposals for direct judicial regulation of the plea bargaining process to be largely ignored. By nudging defense lawyers to re-envision their role in the system and giving post-conviction courts an opportunity, as they are crafting remedies, to comment on the appropriate exercise of prosecutorial discretion, the Supreme Court has created circumstances permitting the indirect regulation of plea bargaining.

Decades of cases from the Supreme Court have made limitations on prosecutors in this process seem constitutionally impossible. In a decision appearing to relate only the role of defense counsel, the Court may have found a way, consistent with long-standing constitutional principles, to impose some oversight on the previously unchecked prosecutor.

March 29, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5) | TrackBack

You be the sentencing judge: what is a fair and effective sentence of 86-year-old mercy killer?

I thought that, while folks continue to vigorously debate how Colorado prosecutors should deal with mass murderer James Holmes in the comments to this recent post, it would also be interesting to hear how readers might sentence a very different killer due in court today in Arizona.  This USA Today article, headlined "Man charged in 'mercy killing' set for sentencing: 86-year-old World War II veteran said his wife was set to be admitted to a hospital, then a nursing home," sets out the essential of another hard case:

George Sanders appeared frail and tired in the hours after he shot his ailing elderly wife in the head, wrapped in a blanket as he sat being questioned by a detective.

"She never wanted to outlive me and be left at the mercy of someone else," Sanders tells a Maricopa County sheriff's detective in an interrogation recorded the day his wife, Virginia Sanders, 81, was found shot in the couple's home.  "We loved each other so much," Sanders said.  "It was a wonderful life in spite of all the hard things we had at the end."

The 86-year-old was initially charged with first-degree murder for the Nov. 9 shooting of his wife but later pleaded guilty to manslaughter in what attorneys on both sides have called a "mercy killing."

Sanders could face probation or up to 12 1/2 years in prison at his sentencing hearing Friday....

The World War II veteran told authorities his wife was diagnosed with multiple sclerosis in 1969, and the couple moved from Washington state to the retirement community of Sun City outside Phoenix about seven years later for the warm, dry climate as she was now in a wheelchair.  "We did a lot of things together, always loved each other," he told the detective, adding that her health began to deteriorate over the last few years.  "I took care of her through that day and night," Sanders said.

Eventually, as his own health deteriorated, he said the couple hired a caregiver.  He said his wife had been diagnosed with gangrene on her foot just a few days before the shooting and was set to be admitted to a hospital, then a nursing home.  "It was just the last straw," Sanders said.  "She didn't want to go to that hospital ... start cutting her toes off."

He said he talked it over with his wife and she begged him to kill her. "I said, 'I can't do it honey,'" he told police. "She says, 'Yes you can.'"

Sanders said he got his revolver and wrapped a towel around it so the bullet wouldn't go into the kitchen.  "She says, 'Is this going to hurt,' and I said, 'You won't feel a thing,'" he said. "She was saying, 'Do it. Do it. Do it.'  And I just let it go," Sanders added.

I have highlighted in this story the sentencing range provided by state law for this crime. Because the Arizona legislature apparently believes that some persons convicted of manslaughter should get a sentence of only probation, and because I have a hard time thinking of too many more mitigated cases of manslaughter, I would likely impose a sentence of probation on Mr. Sanders. But perhaps others have a different perspective on what they think sentencing justice demands in this kind of case.

UPDATE: This report via ABC News has a headline with the ultimate sentencing outcome: "Man, 86, Gets Probation in Ariz. Mercy Killing."  Here is a snippet from the story:

The judge, who complimented the prosecutor for being "courageous" in recommending probation, allowed Sanders to walk out of the courtroom.  Judge John Ditsworth said his sentence of two years' probation was "individualized and tempers justice with mercy."

"It is very clear that he will never forget that his actions ended the life of his wife," Ditsworth said as Sanders stood at a podium, his hands clasped and shaking.  "In this set of facts, there was a perfect storm of individual circumstances which placed Mr. Sanders in a position where had to make a decision," Ditsworth said.  "This set of facts hits close to home for all of us."

March 29, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (13) | TrackBack

March 28, 2013

You be the prosecutor: will you accept Aurora theater shooter's plea offer and drop pursuit of the death penalty?

Regular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant. Recently, however, I have enjoyed the debate engendered by encouraging readers to imagine being a prosecutor tasked with a tough sentencing decision, and this story from Colorado highlights that some state prosecutors are in now in the capital sentencing spotlight in a high-profile mass murder case:
The man accused of murdering 12 people during the Aurora movie theater massacre is willing to admit to the killings if doing so will save his own life.

In a surprise motion filed Wednesday, lawyers for James Holmes said he has offered to plead guilty in exchange for a life in prison with no chance of parole. The offer was first made prior to the arraignment hearing earlier this month, according to the motion. "Mr. Holmes is currently willing to resolve the case to bring the proceedings to a speedy and definite conclusion for all involved," the lawyers wrote in their motion.

The move swings the spotlight onto prosecutors, who have said they will announce during a court hearing Monday whether they will seek the death penalty. Prosecutors are talking with theater shooting victims and their families to hear their opinions on capital punishment for the case.

Holmes' attorneys wrote in their motion that prosecutors have not accepted the offer. Denver defense attorney Dan Recht said the offer narrows prosecutors' decisions to a single question: Is death the only acceptable punishment in the case? "Holmes can't offer any more than he is offering," said Recht, who has been following the case. "The choice for the prosecution could not be clearer."

All right all you would-be prosecutors out there: do you accept this plea offer from James Holmes? Should the views of theater shooting victims and their families be central to this decision or just one of a number of other factors to consider?

March 28, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (51) | TrackBack

"Buzzkill? Cash-strapped states eye pot tax"

Grow_the_economy_medical_marijuana_voteThe title of this post is the headline of this lengthy new article in Politico.  Here are excerpts:

Now that voters in Colorado and Washington have legalized recreational marijuana use, dope smokers there can light up without the usual paranoid fear that the cops are at the door.  The taxman is another matter.

Cash-starved legislators are seeing dollar signs in dime bags — with talk that a tax on marijuana could pump hundreds of millions or even billions into budgets still reeling from the recession.

“I’ve seen some estimates in the high tens of millions, as much as $100 million for [Colorado],” said Rep. Jared Polis (D-Colo.), who’s pushing a federal legalization in Congress. Money like that could make a big difference, he said — including a “substantial dent in needed school improvements, particularly in poorer districts.”

It’s long been a central argument of the pro-marijuana crowd: Get marijuana out of the hands of dope dealers, tax it like you do cigarettes, then sit back and watch the money pour in.  “We all know where the money from nonmedical marijuana sales is currently going,” said a narrator in a Colorado campaign ad from last year, nodding to Mexico. "It doesn't need to be that way. If we pass Amendment 64, Colorado businesses would profit, and tax revenues would pay for public services and the reconstruction of our schools."

Dale Gieringer, director of California National Organization for the Reform of Marijuana Laws, estimates that legalizing pot would bring in at least $1.2 billion to his state alone. His study assumes a traditional sales tax plus an additional $50 levy per ounce of marijuana, which runs between $280 and $420.  His study argues that legalization could also generate $12 billion to $18 billion in new economic activity for California.

The skeptics’ response: What are you smoking?  “This is not a cash cow that can solve anyone’s fiscal problems,” said Harvard economics professor Jeffrey Miron, a pro-legalization scholar at the libertarian Cato Institute who says Gieringer’s numbers are roughly three times what they should be.  “There is a lot of exaggeration about how big the revenue can be.”

Advocates “want to be allowed to smoke in peace,” Miron said. But, they’re “nervous about making that argument.  They’re afraid that argument won’t win the day, so they have focused in many cases on the revenue side.”  Miron estimates that a nationwide legalization that taxed marijuana like alcohol and tobacco would mean $6.4 billion in new tax revenue — $4.3 billion for Uncle Sam and $2.1 billion for the states.

The estimates are necessarily hazy.  No one knows how much marijuana is bought and sold today, let alone how legalization will affect consumption and prices.  “When you go to legalize, you have reduced risk in producing and distributing the drug.  That’s a real component of the monetary price of marijuana,” said Rosalie Liccardo Pacula, the co-director of the RAND Drug Policy Research Center.

She expects prices to fall by 70 to 85 percent in both Colorado and Washington — and that means taxes, if levied as a percentage of price or value, will also fall considerably.  But she acknowledges that it’s hard to know for sure.  “You have to know more about the structure of the demand curve, which we don’t have any data on because this is black-market; it’s all conjecture,” Liccardo Pacula said.

And even lawmakers looking to cash in know they’ve got to be careful.  Tax marijuana too much and it drives users right back to illegal dealers.  Nobody knows what that price point is. “You want to make sure the black market doesn’t have an advantage over the regulated market because if it does, then the whole concept fails and people will continue to buy marijuana illegally — so there has to be a price advance for the legal market,” Polis said....

Washington state lawmakers are considering tweaks to accompany a voter-approved 25 percent tax on each of the three levels of marijuana production.  In Colorado, lawmakers on a pot legalization panel met Friday to brainstorm how to tax it.  The voter-approved November ballot initiative called for an excise tax of no more than 15 percent but didn’t specify a levy.  Last week, a statewide task force on legalization recommended they levy an excise tax and a sales tax of up to 25 percent.

Colorado’s task force also advised Gov. John Hickenlooper and Colorado’s congressional delegation to push for a federal tax code modification in Washington, D.C., that would allow the state’s marijuana businesses to claim tax deductions. Companies selling illegal substances are currently barred from receiving federal deductions and credits....

The Colorado Center on Law and Policy last August estimated that legalization would bring in $24 million in excise tax revenue, $8.7 million in state sales tax revenue and $14.5 million in local tax revenue.  Washington’s Office of Financial Management estimates that marijuana revenues levied on growers, processors and retailers will bring in just over $565 million in 2017.

A few recent and older related posts: 

March 28, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (5) | TrackBack

Sixth Circuit panel grants habeas relief to Tennessee defendant sentenced in violation of Blakely

Sadly, I no longer get ample opportunities to blog about Blakely Sixth Amendment sentencing issue these days -- though I suppose this could change if (and when?) the Supreme Court give these issues a new boost via a big ruling in Alleyne in the near future.  Joyfully, this morning brings a little Blakely-era nostalgia via the Sixth Circuit's habeas grant in Lovins v. Parker, No. 11-5545 (6th Cir. Mar. 28, 2013) (available here).   This extended decision gets started this way:

After a Tennessee state court jury convicted petitioner Derry Lovins of second-degree murder, the state trial court judge made additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three years based on those findings.  In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the threeyear sentence enhancement was unconstitutional under the rule of Blakely v. Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts that were not found by a jury.  The history of Lovins’s requests for relief in state court is byzantine, but the legal principles are not.  Lovins’s direct appeal was not final until almost three years after the Blakely decision, and therefore Blakely applies to his case under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane, 489 U.S. 288 (1989).  For this reason, and because the procedural default doctrine does not bar our review of the merits of Lovins’s Blakely claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT a writ of habeas corpus on the Blakely sentencing claim only.  We AFFIRM the district court’s denial of relief on all of Lovins’s other claims.

March 28, 2013 in Blakely in Appellate Courts, Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0) | TrackBack

March 27, 2013

"On Emotion, Juvenile Sex Offenders, and Mandatory Registration"

The title of this post is the title of this paper authored by Catherine Carpenter recently made available via SSRN. Here is the abstract:

It is both unremarkable and true that juveniles are different from adults. United States Supreme Court decisions over the past decade have highlighted the extent of the differences.  Yet, played out against the backdrop of sex offender registration laws, the conversation takes an abrupt turn.  Rather than differentiating between adult and juvenile offenders, federal sex offender registration laws require juveniles convicted of certain sex offenses to face the same onerous registration and notification burdens as their adult counterparts.

Tracking the shift in sex offender registration models from “likely to reoffend” to “conviction-based" assessment, this article argues that “conviction-based” assessment is an unstable proposition when applied to child offenders for two fundamental reasons. First, juvenile offenders lack intentionality and purpose that adult offenders possess, thereby diminishing the value that a conviction carries.  Further, and more importantly, studies reveal that the commission of juvenile sex crimes does not portend future predatory behavior, raising the question of the purpose of registration for this class of offenders.

Ultimately, the legislative push to require juvenile sex offenders to suffer serious register and notification burdens demonstrates convincingly the pitfall that impacts the entire debate over sex offender registration.  Emotional rhetoric controls the legislative agenda, even in the face of compelling arguments to the contrary.

March 27, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack

Death penalty repeal moves forward in Delaware while faltering in Colorado

The latest sign of the sentencing times is that death penalty repeal bills are getting extended consideration in many states.  And, as these two local article reveal, the fate of these bills are often unpredictable.  Here are the headlines and leads from the latest developments in two states:

From Delaware, "Delaware Senate votes to repeal death penalty":

Senate Bill 19, an act to repeal the death penalty in Delaware, narrowly passed the state Senate Tuesday with a vote of 11-10.  A discussion spanning almost three hours in the Senate Chamber garnered impassioned testimonies from police officers, legislators and families as well as state attorneys of either support or opposition for the death penalty.

The bill’s primary sponsor, Karen E. Peterson, D-Stanton, issued an amendment to the bill which she introduced that afternoon.  The amendment removed the retroactive provision which stated that “any person who has been sentenced to death prior to the effective date of this act shall instead be punished by imprisonment for the remainder of the person’s natural life without benefit of probation or parole or any other reduction.”  Meaning, the 17 men on Delaware’s Death Row would still get the death penalty.

From Colorado, "Death penalty repeal effort blocked by two Democrats":

Two Democrats broke ranks Tuesday and voted against a bill to repeal Colorado’s death penalty, killing the measure and ending a week-long legislative soap opera surrounding it.

A week after the House Judiciary Committee delayed a vote on House Bill 1264 after hearing nine hours of public testimony, the panel took up the measure again Tuesday afternoon.  Even as the hearing began, the sponsors scrambled to determine whether they had the votes to pass the legislation out of the committee; and, upon realizing they did not, they pushed ahead with an up or down vote anyway rather than tabling the measure.

After an hour of discussion, the measure went down on a 4-6 vote with two Democrats, Reps. Lois Court of Denver and Brittany Pettersen of Lakewood joining the panel’s four Republicans and voting no.

March 27, 2013 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2) | TrackBack

March 26, 2013

Pennsylvania Supreme Court addresses Miller's impact for some of its state's juvenile murderers

As reported in this local news article, headlined "Supreme Court: Juvenile killer to get new sentencing,"  Pennsylvania's top court handed down today a long-awaited ruling concerning the sentencing of juvenile offenders in the Keystone State.  Here are the basics via this news report:

Teenage killer Qu'eed Batts will receive a new sentencing hearing for the gang-ordered murder he committed in Easton when he was 14, but he could still end up spending the rest of his life in prison nonetheless.

That's what advocates on both sides of Batts' case said Tuesday following a long-anticipated Pennsylvania Supreme Court ruling on how the state should address Batts and nearly 500 other once-youthful murderers whose automatic life without parole sentences were declared unconstitutional last year by the nation's highest court.

Given the federal ruling that such sentences are cruel and unusual punishment, Batts must be given a new sentencing hearing in which he receives a maximum sentence of life and a minimum sentence determined by the judge, said the opinion by Justice Thomas Saylor.

But what that minimum sentence might be was unanswered by court, with advocates for juveniles acknowledging that it probably could still be a life sentence, or a prison term that is so long that it is, in essence, life.  "That could be anything," said Robert Schwartz, the executive director of the Juvenile Law Center of Philadelphia, which argued on behalf of Batts.  "It appears that it also could be a minimum of life.  There is absolutely nothing to guide [the sentencing judge's] discretion."

In reaching its decision, the Supreme Court addressed an issue that it struggled with during oral arguments in September: What to do over the fate of Batts and other juveniles murderers serving a now-unconstitutional sentence.  The court rejected the stance taken by the Juvenile Law Center: that youths serving life terms should be resentenced under the charge of third-degree murder, which can bring at most 20 to 40 years in prison.

Northampton County First Deputy District Attorney Terence Houck said the ruling was a victory for prosecutors that leaves open the possibility that Batts should never be released, as Houck plans to argue at resentencing.  "All they are saying is that there has to be a minimum.  That minimum can be 150 years," Houck said, adding: "I don't think Batts should ever get out.  He's the poster boy for life in prison."  Batts, now 21, shot to death 16-year-old Clarence Edwards and wounded 18-year-old Cory Hilario in 2006 in the West Ward....

Under state law, murders in the first and second degree must result in a life sentence, with no other punishment possible — the exact scenario the nation's top court deemed unconstitutional for those under 18....

Pennsylvania leads the nation in the number of juveniles jailed for life, according to the Campaign for the Fair Sentencing of Youth, which opposes that penalty.  Pennsylvania has 444 such inmates, followed by Michigan at 346 and Louisiana at 332, the Washington, D.C.-based group says.  The Juvenile Law Center puts Pennsylvania's number closer to 480, including one inmate in Graterford State Prison who has spent 59 years behind bars.

The extended majority opinion in Pennslyvania v. Batts is available at this link, and a brief concurrence is available at this link.  A quick read of the ruling suggests to me that Deputy DA Terence Houck is right to view this ruling as a victory for prosecutors: in addition to rejecting claims that the defendant should be subject to sentencing under a lesser-degree of homicide, the Batts court also rejected any claim that the Pennsylvania Constitution's prohibition of "cruel punishment" should be interpreted to give juvenile defendants any more protection than the US Constitution and its prohibition on "cruel and unusual punishment."

Finally, while the news report suggests this ruling resolves the fate of all juve LWOP sentences in Pennsylvania, my quick review of the Batts opinion suggests that the ruling does not address any Miller retroactivity rulings.  For some reason, I had thought retroactivity issues were before the Pennsylvania's top court, but the Batts ruling states in its first sentence that it "concerns the appropriate remedy, on direct appeal, for the constitutional violation occurring when a mandatory life-without-parole sentence has been imposed on a defendant convicted of first-degree murder, who was under the age of eighteen at the time of his offense" (emphasis added).

How Appealing has a round up of additional press coverage concerning the Batts ruling here.

March 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8) | TrackBack

Notable coalitions in 5-4 SCOTUS ruling on front-door drug sniffs as searches

Though not concerning matters at the heart of sentencing law and policy, today's lone Supreme Court ruling concerning application of the Fourth Amendment should hearten anyone eager to see five-four split SCOTUS rulings that do not swing only on what Justice Kennedy thinks.  Today's SCOTUS ruling in Florida v. Jardines (available here) concerning whether a dog sniff at a front door is a search had this notable line up of Justices:
SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO,J., filed a dissenting opinion, in which ROBERTS, C.J., and KENNEDY and BREYER, JJ., joined.

From a quick review, I do not see much more that gets me all that excited or interested in Jardines, but maybe hard-core Fourth Amendment fans and/or dog lovers will provide a different view via the comments.

March 26, 2013 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

New York Times editorial urges "Shrinking Prisons, Saving Billions"

While on the road, I missed this notable New York Times editorial from this past weekend.  Here are excerpts:

The mandatory sentencing craze that gripped the country four decades ago drove up the state prison population sevenfold — from under 200,000 in the early 1970s to about 1.4 million today — and pushed costs beyond $50 billion a year.  Until recently, it seemed that the numbers would keep growing. But thanks to reforms in more than half the states, the prison census has edged down slightly — by just under 2 percent — since 2009.  A new analysis by the Pew Charitable Trusts shows that the decline would have been considerably larger had the other states not been pulling in the opposite direction.

Over the last five years, 29 states have managed to cut their imprisonment rates, 10 of them by double-digit percentages.  California, which has been ordered by the Supreme Court to ease extreme prison crowding, led the way with a 17 percent drop, mainly by reducing parole and probation revocations and shifting custody of low-level offenders to counties.  Other states reduced prison terms for low-level offenses; diverted some offenders to community supervision; and strengthened parole programs, so that fewer offenders landed back in jail for technical violations like missed appointments or failed drug tests.

Even law-and-order states like Texas, which cut its imprisonment rate by 7 percent, have discovered that they can shrink the prison population without threatening public safety. Investing heavily in drug treatment and community supervision, Texas has avoided nearly $2 billion in spending on new prisons, while the crime rate has dropped to levels unseen since the 1960s.  But even as the national prison population has declined, 20 other states — including Arizona, Arkansas, Pennsylvania and West Virginia — keep sending more people to prison than need to be there....

States that lag in reducing their prison populations should swiftly embrace these kinds of reforms.

March 26, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

March 25, 2013

"Pardons and the Theory of the 'Second Best'"

The title of this post is the title of this new paper by Chad Flanders now available via SSRN. Here is the abstract:

This paper explains and defends a “second-best” theory of pardons. Pardons are “second-best” in two ways.  First, pardons are second-best because they represent, in part, a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime.  In the familiar analogy, pardons act as a “safety valve” on a criminal justice system that doesn’t work as, ideally, it should.  Pardons, in the non-ideal world we live in, are sometimes necessary.

But pardons are also “second-best” in another way, because they can represent deviations from certain other values we hold dear in the criminal law: fairness, consistency, and non-arbitrariness.  Pardons, when they are given, can all too often reflect patterns of racial bias, favoritism, and sheer randomness, both when they are given too generously or not generously enough.  So we need to have a theory of how the pardoning power should be used, even when it is used to correct what are obvious injustices in the criminal justice system.

This paper both takes up the task both of showing how pardons are justified, but more importantly, also gives a theory on when they should be used. It introduces two constraints on the pardon power, one which constrains pardons when considered individually, and another which constrains pardons when we consider them as a whole. It is this latter ground that has been left mostly underdeveloped in the literature: we seem to know that pardons when given en masse can be controversial, but we lack adequate terms to explain why they might be morally problematic. This paper fills that gap in the literature, and in the process provides a general framework for analyzing when various “second-best” moves are permissible in reforming and correcting injustices in the application of the criminal law.

March 25, 2013 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Eleventh Circuit discusses key factor in application of federal safety valve

While on the road, I missed an intriguing lengthy Eleventh Circuit panel decision in US v. Carillo-Ayala, No. 11-14473 (11th Cir. Mar. 22, 2013) (available here), concerning the application of the safety-valve provision of federal law allowing sentencing below an otherwise applicable mandatory minimum.  Here is how the opinion gets started:

This case presents an issue of first impression in this Court concerning the “safety valve,” but one the trial judge noted is an all too frequent conundrum for a sentencing judge. When a defendant stands convicted of a drug offense carrying mandatory minimum terms of imprisonment and supervised release, the sentencing judge may impose a sentence below the other wise mandatory minimum terms if the defendant meets five criteria. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.  Only one of the five criteria is relevant here.  It requires the defendant to show that he “did not . . . possess a firearm . . . in connection with the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2).

Defendant Arturo Carillo-Ayala admits he was a drug dealer and admits he sold firearms, but his ostensible business plan was “Guns and Drugs Sold Separately.”  The question before us is whether a drug-dealer who also sells firearms to a drug customer possesses those firearms “in connection with” the charged drug offense.  The answer is “not necessarily.”

March 25, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Is the right to counsel "violated every day ... in thousands of courtrooms across the nation"?

Kevin-s-burke-hedThe provocative question in the title of this post is prompted by this provocative commentary by Kevin Burke, who just happens to be a Minnesota trial judge on the Hennepin County District Court and the immediate past president of the American Judges Association. The commentary is headlined "Happy anniversary, Clarence Gideon," and here are just a few notable excerpts:

There are many legal scholars who point to Gideon v. Wainwright as the linchpin of a series of cases that reformed the American criminal justice system.  Miranda followed, requiring police to tell suspects of their right to remain silent and right to a lawyer. The obligation of prosecutors to disclose favorable evidence to the defendant followed the Gideon decision.  And then juveniles were granted due-process rights.

But today there are those who claim it is all a mirage.  The right to counsel they say is just “another lie we tell each other to hide the truth” about unequal justice in America.  Andrew Cohen wrote this week, “for all the glory we heap upon Gideon, for all the preening we display about our fealty to the rule of law, the sad truth is that there is no universal right to counsel today. We know today which path our legal and political leaders chose.  Instead of ensuring that the right to counsel kept pace with the explosion of criminal cases, the Supreme Court and the Congress (and state legislatures) allowed the right to be left by the side of the road.”...

Within a decade of the decision in Gideon the United States Supreme Court ruled that a defendant did not have a right to a meaningful relationship with a lawyer; appointing one the defendant hardly met was sufficient.  But the biggest blow to the right to counsel was Strickland v. Washington, a 1984 decision in which the United States Supreme Court established such a low legal standard for recognizing “effective assistance” of counsel that they effectively gutted Gideon....

At a symposium on Gideon in Washington, D.C., last week, Supreme Court Justice Elena Kagan said, "You see too many instances of ineffective assistance of counsel, too many instances where you think, 'Was this lawyer crazy?' "  She recounted a case from last term in which a lawyer advised his client to reject a plea deal with a seven-year prison term and go to trial.  The lawyer said prosecutors could not prove a charge of intent to murder because the victim had been shot below the waist.  The defendant was convicted and sentenced to 30 years in prison.

Justice Kagan was part of the 5-4 decision in the defendant's favor.  And that split illustrates why there is little hope for leadership to emanate from the United States Supreme Court on reinvigorating the right to counsel.  Leadership to make change must be driven by state leaders.  Leadership to make change must be driven by state Supreme Court justices and judges at every other level.  Bar leaders and ordinary citizens must speak out for fairness.

Every day in thousands of courtrooms across the nation, from trial courts that handle felony cases to limited jurisdiction justice of the peace courts, the right to counsel is violated.  Judges conduct hearings in which people accused of crimes and children accused of delinquency appear without lawyers.  Some are middle class and therefore not eligible for appointed lawyers.  Many plead guilty without lawyers.  Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before.  They are afraid and intimidated by the courts.  Innocent people plead guilty to get out of jail. Too many plead guilty with no idea that there are collateral consequences that could change their lives.

Recent related posts:

March 25, 2013 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5) | TrackBack

"Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness"

The title of this post is the title of this significant new article by E. Lea Johnston, which is now available via SSRN. Here is the abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms.

The Article then explores the significance of this differential impact for sentencing within a retributive framework.  It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence.  It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing.

In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

March 25, 2013 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

New report assails Massachusetts sentencing and corrections policies and practices

CostofPrisonJPGThumb.ashxThis lengthy article from the Boston Globe discusses a big new forthcoming report highlighing failings in the sentencing and punishment systems in Massachusetts.  The article is headlined "Report slams state for lack of corrections reform: Crime down, prison costs up as study urges shorter sentences, focus on parole," and it gets started this way:

Despite steeply declining violent crime rates, the percentage of Massachusetts residents behind bars has tripled since the early 1980s, as the Commonwealth has clung to tough-on-crime laws that many other states have abandoned as ineffective, according to a study being released this week.

The 40-page report — endorsed by a coalition of prominent former prosecutors, defense attorneys, and justice officials — slams the state for focusing too much on prolonged incarceration, through measures such as mandatory minimum sentences, and for paying too little attention to successfully integrating prisoners back into society.

This is not just a social justice issue, the coalition argues, but a serious budgetary problem. The report estimated that policies that have led to more Draconian sentences and fewer paroles have extended prison stays by a third since 1990, costing the state an extra $150 million a year.

“It’s an odd set of numbers: crime going down while prison populations are still going up,” said Greg Torres, president of MassINC, the nonpartisan research group that commissioned the study. “What the report shows is that it’s a problem with the corrections systems front and back doors — sentencing and release.”

The study says Massachusetts, with its rising prison population, is heading in the opposite direction of several more traditionally law-and-order states — many of which have changed sentencing requirements, closed prisons, and cut costs. While other states have seen drops in incarceration in conjunction with falling crime rates, Massachusetts has seen the opposite.

In addition to the longer prison stays, Torres said, a reduction in post-release supervision has left Massachusetts with a recidivism rate higher than many other states, which in turn has sent more offenders back to prison. New data in the report show that six of every 10 inmates released from state and county prisons commit new crimes within six years. If the recidivism rate was cut by 5 percent, the report says, Massachusetts could cut $150 million from its more than $1 billion corrections budget.

Released in partnership with the newly formed grouping of law-enforcement officials, which is called Criminal Justice Reform Coalition, and Community Resources for Justice, a social justice nonprofit group, the report issues include a moratorium on the expansion of state prisons, reexamining sentencing guidelines, and expanding prerelease programs. “In the last 10 years we’ve learned a lot about what doesn’t work,” said John Larivee, chief executive of Community Resources for Justice and coauthor of the report.

One key to changing the state’s corrections system, the report’s authors stress, is building bipartisan consensus so neither side can later be accused of being soft on crime. “There’s more bipartisan common ground than you might expect,” said Wayne Budd, a Republican who is one of the reform coalition’s three co-chairmen.

In addition to Budd, the coalition is led by Kevin M. Burke, former state secretary of public safety, and Max D. Stern, president of the Massachusetts Association of Criminal Defense Lawyers.

UPDATE:  The full 40-page report, which is titled "Crime, Cost, and Consequences: Is it Time to Get Smart on Crime?," is now available via this link.

March 25, 2013 in Data on sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (7) | TrackBack

March 24, 2013

Should sex offender have to pay an annual fee for their monitoring?

The question in the title of this post is prompted by this new article from Michigan, headlined "ACLU, other groups object to Michigan bill pushing annual sex offender fee."  Here is how it starts:

A bill to require the more than 40,000 people on Michigan's sex offender registry to pay an annual fee is igniting a debate over who should bear the costs for operating and maintaining the state's system used to track offenders.

Registered sex offenders already are required to pay a one-time $50 fee, but some lawmakers want to charge them $50 every year to cover the $600,000 a year cost to operate the database. The state says the move could bring in about $540,000 more in revenue each year.

Sex offenders "put themselves onto this registry by their actions," said Republican Sen. Rick Jones of Grand Ledge, who is sponsoring the legislation that is headed to the Senate floor, but not yet scheduled for a vote. "Therefore, they need to pay a fee to maintain it."

But opponents, which include the American Civil Liberties Union, say it's merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.

March 24, 2013 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (46) | TrackBack

Notable headlines provide signs of the marijuana times

Though I remain on the road (for both work and play), Google news helps me make sure I do not miss too many notable news stories.  And this trio of marijuana headlines caught my eye in the last few days:

March 24, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (2) | TrackBack