Sentencing Law and Policy

Lots of notable support for work of federal Over-Criminalization Task Force

As detailed at this official website, yesterday the House of Representatives Over-Criminalization Task Force had its second hearing on the topic of "Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law." This report from Main Justice discusses the discussion at the hearing.

Notable, there appears to be a lot of support from a lot of quarters for this Task Force's work, as these pieces reveal:

• From Cato here, "Bipartisanship at Its Finest"

• From the Cleveland Plain Dealer here, "Federal overcriminalization hurts Ohioans: Chad Readler"

• From The Hill here, "Time to rethink harsh drug sentences"

"A Perfect Prosecution: The People of the State of New York v. Dominique Strauss-Kahn"

The title of this post is the title of this interesting new article about a non-prosecution by JaneAnne Murray now available via SSRN.  Here is the abstract:

The presumption of innocence may be the foundational principle of the American criminal justice system, but the presumption of guilt is its operational force. The U.S. Supreme Court acknowledged this reality in two notable criminal law decisions in 2012, Lafler v. Cooper and Missouri v. Frye, when it described the criminal process as “a system of pleas, not a system of trials”.

People v. Strauss-Kahn is an ideal lens through which to examine this process. It is both an excellent example of a transparent and objective invocation of the criminal sanction, and a sharp counterpoint to the vast majority of cases where law enforcement conclusions are trusted and rarely second-guessed. Stage by stage, the Strauss-Kahn case illustrates how to counterbalance the presumption of guilt and give expression to the presumption of innocence in the pretrial period through vigilantly-invoked and enforced due process protections.

Drawing from this examination, the paper will then explore how to approach this model process in the more standard cases, which typically see a fraction of the judicial, law enforcement, and defense resources afforded Dominique Strauss-Kahn. The Strauss-Kahn prosecution offers several insights, three of which will be sketched at the paper’s conclusion: a requirement that prosecutorial decision-making be subject to a reasonable doubt standard; early enforcement of the prosecutor’s obligation to disclose information that is favorable to the accused; and finally, a requirement that a prosecutor explain in writing any decision to dismiss the felony charges in indicted felony cases, so that the factual, legal and policy bases of these decisions (numbering almost one quarter of New York’s superior court felony cases annually) can be aggregated, analyzed and publicized.

Are folks eager to comment on the President's comments on Martin/Zimmerman case?

I have a feeling the answer to the question in the title of this post is yes, and that is why I provide this post and also this link to Politico's list of "Obama's 10 most important lines" in his comments this afternoon. Here are the top three of the top 10 that struck me as most blog-worthy for the SL&P readership:

"The fact that a lot of African-American boys are painted with a broad brush and the excuse is given, well, there are these statistics out there that show that African-American boys are more violent — using that as an excuse to then see sons treated differently causes pain."

"I just ask people to consider if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman, who had followed him in a car, because he felt threatened?"

"At least you ask yourself your own questions about, ‘Am I wringing as much bias out of myself as I can? Am I judging people, as much as I can, based on not the color of their skin but the content of their character?’ That would, I think, be an appropriate exercise in the wake of this tragedy."

And, as I too often fear I need to say on this topic and others, let's try to keep it civil (and relatively novel) in the comments, folks.

ECHR on LWOP: thoughts on Vinter and possible US impact

As noted in this recent blog posting, a landmark ruling from the European Court of Human Rights earlier this month involving UK nationals declared that LWOP sentences without any prospect of release amount to inhuman and degrading treatment of prisoners.  As I mentioned in that post, I know very little about how ECHR rulings can impact domestic laws even in countries that have adopted the applicable convention.  

But as my title for this post hints, I am especially intrigued by what the decision in Case of Vinter and Others v. the United Kingdom (available via this link) could mean for sentencing law and practices in the US.  I suspect the simple answer is just "not much," but I am eager to cover any potential domestic post-Vinter storylines and will be posting soon some thoughts from my of my OSU colleagues on this front. 

Before getting into implications, though, I thought it worthwhile to reprint this effective summary of the Vinter ruling from the heart of a brief concurring opinion by Judge Power-Forde:

[W]hat tipped the balance for me in voting with the majority was the Court’s confirmation, in this judgment, that Article 3 encompasses what might be described as “the right to hope”.  It goes no further than that.  The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change.  Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope.  To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.

In addition to capturing what seems to me to be the essence of the lengthy opinions in Vinter, I think this sentiment indirectly reflects what has been moving the US Supreme Court in its recent Graham and Miller Eighth Amendment rulings.  Do other agree?  And do others expect, as I do, that Vinter is very likely to be cited a fair amount in the briefing (and perhaps even in some opinions) the next time SCOTUS takes up some follow-up issues raised in Graham and Miller?

Recent related post:

• European Court of Human Rights finds UK use of LWOP sentences violated human rights convention

Local judge gives poll worker five-year prison term for voter fraud

A colleague alerted me to this notable sentencing story from the Cincinnati area about a woman who received what seems to be a quite severe sentence for voter fraud.  The piece is headlined "Illegal voter gets 5-year prison term," and here are the details:

Calling her a common criminal who abused her authority as a poll worker by violating the principle of “one person, one vote,” a judge sent Melowese Richardson to prison Wednesday for five years following her illegal voting conviction.

“This is not a little thing. It’s not a minor thing. This is what our country’s based on – free elections,” Hamilton County Common Pleas Court Judge Robert Ruehlman told Richardson.

In a case watched around the country, Richardson was a Hamilton County poll worker from 1998 until her arrest earlier this year when she was charged with eight counts of illegal voting. In May, she accepted a plea deal and was convicted of four counts in exchange for the other four being dismissed.

She was convicted of voting twice in the 2012 election and voting three times – in 2008, 2011 and 2012 – for her sister, Montez Richardson, who has been in a coma since 2003.... Richardson told the judge she was bothered that Amy Searcy, the Board of Elections director, had criticized her moments before the sentencing....

The conservative, outspoken judge responded with scathing comments, blasting Richardson for suggesting she was being prosecuted because she was a black Democrat helping a black Democratic presidential candidate. “It has nothing to do with race. It has nothing to do with politics. It has nothing to do with disrespecting you. You did this to yourself,” Ruehlman told her.

“You’re very selfish, self-centered. I really believe President Obama, if he were asked about this today, he would be appalled. He would not want anybody to cheat to get elected.”

Ruehlman noted that two others convicted of illegal voting before Richardson got much lighter sentences but stressed their cases were different. The judge noted Richardson deserved a prison sentence, which was one year less than the maximum possible, because she has a lengthy criminal record, schemed repeatedly over five years to cast several illegal votes and used her training and expertise as a poll worker to try to evade detection.

“‘I’m Melowese Richardson. I can take the law into my own hands,’” the judge said, mocking what he believes is Richardson’s attitude.

Richardson previously was convicted of threatening to kill a witness in a criminal case against her brother, of stealing, of drunken driving and of beating someone in a bar fight.

Anything short of a prison sentence, Assistant Prosecutor Bill Anderson told the judge, would be an attack on the voting system. As a poll worker, “her job is actually to protect the integrity and sanctity of the voting system,” Anderson said. “(She) is an ideologue who was hell bent on stuffing the ballot box with as many Obama votes as possible.”

Bill Gallagher, Richardson’s lawyer, suspected she would be sent to prison but was surprised by the sentence. “I thought prison was a real possibility because of her record of 25 years ago,” Gallagher said. “I don’t think that the length of it was any where near what we expected.”

"U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors"

The title of this post is the headline of this Washington Post article, which gets started this way:

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.   It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions.  Those questions will be explored as the review continues.

The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty.  Some opponents have long held that the execution of a person confirmed to be innocent would crystallize doubts about capital punishment.  But if DNA or other testing confirms all convictions, it would strengthen proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer.  The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined.  The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.

At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes. Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification.  However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.

The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.

Whatever the findings of the review, the initiative is pushing state and local labs to take similar measures.  For instance, the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases, in a state that has executed more defendants than any other since 1982.

Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.

With a new execution date set, must the Supreme Court now take up the Hill case from Georgia?

The question in the title of this post is prompted in part by this local news that "State officials have rescheduled the execution of Georgia death row inmate Warren Lee Hill for Friday," and this interesting commentary up at MSNBC by LawProf Stephen Vladick, which makes these points about the case:

Hill is not an innocent man. His capital sentence arises from his 1990 killing of a fellow prisoner while serving a life sentence for the murder of his girlfriend. In a country in which 32 states (and the federal government) still allow capital punishment, Hill might seem an unlikely candidate to become anything other than a statistic....

But if Hill’s execution is eventually carried out, it will set a very dangerous precedent — even for those who are not generally opposed to capital punishment. Hill is, by all accounts, mentally retarded (the pejorative term still in vogue in legal analysis). The Supreme Court held more than a decade ago that the execution of such defendants is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — because “there is a serious question as to whether either justification that [the Court has] recognized as a basis for the death penalty applies to mentally retarded offenders,” and because “[m]entally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.”...

The reasons why Hill is nevertheless facing lethal injection have been well-documented. Part of it is because Georgia makes it harder to prove mental retardation than any other state in the country (although Hill even meets Georgia’s “beyond a reasonable doubt” standard). Part of it is because the government mental health professionals who examined Hill changed their mind — and their diagnosis — about Hill’s mental capacity only after initially declaring him eligible for capital punishment. (They now agree that he should not be executed.)

Part of it is also because of the various procedural obstacles that Georgia law, federal law, and the Supreme Court have imposed in cases like Hill’s, where defendants aren’t able to raise a meritorious constitutional claim until after they’ve exhausted their direct appeal and their first round of post-conviction review. (In an amicus brief I co-authored, a group of habeas corpus experts explained why the Supreme Court nevertheless has the power to grant relief in Hill’s case, should it desire to do so.)...

Hill’s case is ultimately a test of a proposition far more fundamental than what is typically at stake in capital cases: Can the Constitution abide the execution of a prisoner, who the state’s own experts agree is categorically ineligible for the death penalty, entirely because of procedural flaws in his claims?  The Supreme Court has never held that the answer is yes, and has hinted rather strongly to the contrary in the context of “actual innocence” cases — including as recently as two months ago.

The time for hinting is running out — for Hill, for the Court, and for the country.

New report suggests ways to eliminate criminal justice racial and ethnic disparities

The National Association of Criminal Defense Lawyers has this new press release reporting on a notable new report about American criminal justice systems.   Here is how the press release starts (with a link to the report):

Issued today, a groundbreaking report on a matter of immense public importance — Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System — is a critically important and inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them.

This conference report prepared by Consultant Tanya E. Coke is based upon a multi-day, open and frank discussion among a distinguished group of criminal justice experts — prosecutors, judges, defense attorneys, scholars, community leaders, and formerly incarcerated advocates.  This three-day convening was held October 17-19, 2012, at the New York County Lawyers’ Association’s historic Home of Law and was co-sponsored by the following organizations: the Association of Prosecuting Attorneys, the Brennan Center for Justice at New York University School of Law, the Foundation for Criminal Justice, the National Association of Criminal Defense Lawyers, the Center for NuLeadership on Urban Solutions, and the New York County Lawyers’ Association.

The conference was designed not only to acknowledge that racial and ethnic disparities exist in the system, but to examine best practices around the country that address and seek to remedy those disparities.  This report summarizes the candid, sometimes painful panel discussions, and identifies the panoply of remedies that may advance the goal of eliminating the disparate racial and ethnic impact from America’s criminal justice system. More than 2.2 million people are behind bars in America — an absolute and per capita figure that exceeds any other nation on earth. According to the latest available data, nearly 60% of those incarcerated people are Blacks and Latinos, more than double the percentage of these groups in the general population.  And a staggering 65 million adults in the United States — approximately one in four — now have a criminal record, and all of the debilitating consequences of such a record.

As set forth in detail in the report, what lies behind these shocking figures is a system in which racial and ethnic minorities are disproportionately represented as defendants and incarcerated persons.  The report explains the factors that have led to this outcome and, while the conference focused on the criminal justice system in New York City, the recommendations put forward by the participants have broad implications for reform nationally.

"Former Federal Prosecutors Endorse Safety Valve: Support Grows for Mandatory Minimum Sentencing Reform"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums. Here are excerpts:

A group of more than 50 former federal prosecutors and judges today sent a letter to Capitol Hill endorsing the Justice Safety Valve Act of 2013, legislation that authorizes judges to depart from a mandatory minimum sentence in cases where the minimum is not necessary to protect public safety and would be unjust given the facts and circumstances of the crime and defendant. Senators Rand Paul (R-KY) and Patrick Leahy (D-VT) introduced the Justice Safety Valve Act (S. 619) in the U.S. Senate, and Representatives Bobby Scott (D-VA) and Thomas Massie (R-KY) introduced the companion bill (H.R. 1695) in the U.S. House.

“The men and women who endorsed the bill today helped to make our country safer by prosecuting and sentencing dangerous criminals,” said FAMM President Julie Stewart. “They know that to improve public safety we must focus our scarce anti-crime resources on violent and repeat offenders.”

In their letters [available here and here] addressed to the Justice Safety Valve Act sponsors in the Senate and House, the former prosecutors and judges wrote:

As Congress looks for ways to improve upon recent gains in public safety, we believe that the reform in S. 619 would prove very valuable. … Under your legislation, dangerous criminals will continue to receive lengthy prison sentences.  For lower-level offenders facing a mandatory minimum sentence, however, courts will be given the power to impose a shorter sentence.  For example, a nonviolent drug seller facing a 10-year mandatory minimum might instead receive a sentence of seven or eight years if a court determines, after considering all the relevant facts, that the ten-year sentence is inappropriate and would punish the street seller more harshly than his more culpable codefendants.  In drug cases, for example, a court might determine that a shorter prison term combined with mandatory drug treatment would be more likely to prevent an individual from re-offending. …

We also support your bill because we believe that the money wasted on keeping nonviolent and nonthreatening offenders locked behind bars for years longer than necessary could be better spent on anti-crime programs that actually will enhance public safety.  This is especially true in the current budget climate.  We think public safety will be improved if limited government resources are targeted on prosecuting and incarcerating violent and repeat criminals.

Some recent and older related posts:

• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
• "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support"
• NY Times editorial page gets on-board with Justice Safety Valve Act
• An argument that the "Leahy/Paul bill is a disaster" from Bill Otis

Notable comments on self-defense laws by Attorney General Eric Holder

Attorney General Eric Holder spoke at great length today about the Zimmerman case in this speech to the NAACP National Convention.  Here is the heart of an interesting legal discussion about self-defense laws that most caught my attention as a criminal law professor who will be teaching a group of brand new new law students about these topics only a few months from now:

Separate and apart from the case that has drawn the nation’s attention, it’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods. These laws try to fix something that was never broken. There has always been a legal defense for using deadly force if — and the “if” is important — no safe retreat is available.

But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely.  By allowing and perhaps encouraging violent situations to escalate in public, such laws undermine public safety.  The list of resulting tragedies is long and — unfortunately — has victimized too many who are innocent. It is our collective obligation — we must stand our ground — to ensure that our laws reduce violence, and take a hard look at laws that contribute to more violence than they prevent.

We must also seek a dialogue on attitudes about violence and disparities that are too commonly swept under the rug — by honoring the finest traditions established by generations of NAACP leaders and other nonviolent advocates throughout history; and by paying tribute to the young man who lost his life here last year — and so many others whose futures have been cut short in other incidents of gun violence that pass, too often unnoticed, in our streets: by engaging with one another in a way that is at once peaceful, inclusive, respectful — and strong.

As we move forward together, I want to assure you that the Department will continue to act in a manner that is consistent with the facts and the law.  We are committed to doing everything possible to ensure that — in every case, in every circumstance, and in every community — justice must be done.

Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?

The question in the title of this post was my first thought after seeing this post by Nate Silver at his 538 blog headlined "Senate Control in 2014 Increasingly Looks Like a Tossup." I am not counting any Senate chickens at least until this time next summer, but I also do not think it is crazy for folks who favor significant federal sentencing reforms to actually believe such reforms might actually become more politically viable if the Senate were to change political hands while Barack Obama is still the President.

A lot would depend, of course, on the circumstances and results of the 2014 election cycle and especially on who would play leadership roles in a GOP-led Senate. But if, for example, Senator Rand Paul and other libertarian-leaning Senator were to become chairs of key Senate Judiciary subcommittees, I think the odds of significant federal criminal justice reforms getting through Congress might actually go up.

I fear that some commentors will ask what I am smoking when raising this notion, and I do fear that this post may be just some serious wishful thinking on my part. But, hey, if folks are going to start predicting election outcomes for 2014, why not have some fun speculating on what those outcomes could mean for sentencing law and policy?

Some recent and older related posts:

• When and how will state GOP leaders start cutting expensive criminal justice programming? (post from Nov 2010 right after elections predicting new Republican Govs would have to lead some reform efforts)
• Examining the politics of crime and punishment in modern gubernatorial settings
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
• "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
• Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Another notable GOP member of Congress advocating for federal sentencing reform
• "As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"

Lethal injection litigation stops Georgia execution efforts in notable Hill case

As reported in this Reuters article, yesterday condemned Georgia murderer Warren Hill "won a temporary reprieve just three hours before his scheduled execution by a judge who cited concerns over the state's new law governing lethal injections."  Here are the details along with some reasons why this case has been noteworthy in the past:

Warren Lee Hill, 53, had been sentenced to die by lethal injection at 7 p.m. But Fulton County Superior Court Judge Gail Tusan stayed the execution until at least Thursday so she could hear more arguments from Hill's lawyers who say the new law is unconstitutional because it shrouds in secrecy a drug used to execute Georgia citizens.

The law, which prohibits the release of information about the lethal drug's manufacturer, was passed in March after the state's cache of the sedative drug expired and national and international pressure made it more difficult for states to obtain it for executions, according to Hill's attorneys. Hill was set to be executed using a dose of pentobarbital provided to the state by an unnamed manufacturer.

Hill killed a fellow prisoner, Joseph Handspike, in August 1990 by beating him to death. Hill was already serving a life sentence for the 1986 shooting death of his 18-year-old girlfriend, Myra Wright.

In addition to the injection issue, Hill's attorneys argue that he should not be executed under Georgia's law that bans capital punishment for mentally disabled inmates. State prosecutors say that early examinations showed that Hill has the capacity to understand his execution and argue that it should move forward.

According to court records, Hill scored 69 on one intelligence test and in the 70s on other examinations. Mental disability is generally defined as having a score of 70 or below on intelligence tests, Hill's attorneys said.

In February, Hill's lawyers filed affidavits in a Georgia court by three doctors who found Hill competent 13 years ago but who now believe he is mentally disabled. In the affidavits, one doctor called the earlier evaluation for the state "extremely and unusually rushed" while another said his opinions were "unreliable because of my lack of experience at the time." A third doctor cited "advances in the understanding of mental retardation" since 2000.

However, in court documents, the state of Georgia said the three state doctors reviewed "extensive materials" before concluding in 2000 that Hill was not mentally disabled, and were thoroughly cross-examined by Hill's attorneys at the time. The doctors noted in 2000 that Hill had been a recruiter for the U.S. Navy, budgeted his money and was a "father figure" for his siblings, the state said in court documents.

In 1988, Georgia became the first U.S. state to enact a law banning the execution of mentally disabled defendants. But according to death penalty experts, Georgia has perhaps the toughest standard in the nation for defining mental disability, requiring proof "beyond a reasonable doubt." Last week, an Atlanta-based non-profit group, All About Developmental Disabilities, called for Georgia to change its death penalty law to lower the standard for proving mental disability.

When are very long juvenile sentences really LWOP sentences under the Eighth Amendment?

The question in the title of this post, which has been lurking in lower courts for years since the Supreme Court's landmark Graham ruling in 2010, is now before the Florida Supreme Court in a set of cases.  This recent South Florida Sun Sentinel article, headlined "Lengthy prison sentences for juveniles under scrutiny," discusses the issue effectively. (Hat tip: How Appealing.)  Here are excerpts:

The 2007 gang rape of a mother and torture of her son by as many as 10 masked assailants at a West Palm Beach public housing complex resulted in four convictions two years later.  But the horrific Dunbar Village case still continues through the Florida court system, as justices reconsider the rules on the sentencing of juveniles for serious crimes.

Jakaris Taylor, initially given a life term, and later 60 years in prison, for the attack committed when he was 15, now has a chance of winning his freedom well before a target release at age 66 through gain time.  The 4th District Court of Appeal, while affirming Taylor's conviction and sentence, this month asked the Florida Supreme Court to decide the constitutionality of such lengthy sentences for teenage defendants on non-murder raps.

But it turns out the state's highest court already plans to explore similar issues in the case of a Jacksonville man sentenced to 70 years for committing attempted murder when he was 14.  The Supreme Court has scheduled Sept. 17 oral arguments in the case of Shimeeka Daquiel Gridine v. Florida.

The outcome ultimately could shorten the prison terms for numerous young felons from across the state, including Taylor, said Gerard F. Glynn, who formerly led Barry University's Juvenile Justice Center. "The U.S. Supreme Court made it clear that sentencing of children is different, and long sentences that are equivalent to life require constitutional scrutiny," said Glynn, an Orlando-based attorney who has long advocated for juvenile sentence reforms.  "At some point, a multiple-year sentence is a life sentence."...

The Graham ruling led to reduced sentences for dozens of Florida inmates convicted of violent crimes, including rape, kidnapping and armed robbery.   But the U.S. Supreme Court did not specify an appropriate length of time for such sentences, apparently prompting the state appellate court questions in the Gridine and Taylor cases, among others.

In 2011, a Palm Beach County Circuit Court judge reduced life terms to 60-year terms for Nathan Walker Jr. and Taylor, who were 16 and 15 when they participated in the brutal Dunbar attack of the 35-year-old woman and her 12-year-old son.  A jury had convicted them of multiple charges, including kidnapping and sexual battery.

Walker's appeal is pending.  But in its Taylor opinion, the 4th District Court of Appeal questioned whether the Graham ruling applies "to lengthy term-of-years sentences that amount to de facto life sentences."

"If so, at what point does a term-of-years sentence become a de facto life sentence?" the appellate court asked.

Bernard Fernandez, the attorney who fought Taylor's appeal, says the 60-year sentence for his client is unconstitutional under Graham because it has all the force of a life sentence. Parole is not available in Florida's criminal justice system.  "Isn't it tantamount to a life spent in prison?" Fernandez asked.

Moreover, Fernandez argues that Taylor, who is now 21, "cannot be expected to survive until his possible release at age 66, much less age 75."  In an appellate court brief, Fernandez cited a 2010 report from the Centers for Disease Control concerning life expectancy for black males.  The report found that in 2006, then 14-year-olds like Taylor would live only another 50 years.  This clearly violates the Supreme Court's intention for juvenile defendants to gain release from prison based on "demonstrated maturity and rehabilitation," Fernandez argued.

But Assistant Attorney General Celia A. Terenzio, in a response, wrote Taylor's 60-year sentence didn't violate the Supreme Court decision simply because it's not a life term. The state also contends Taylor would be released "well before his life expectancy age of 71 years."

State prosecutors, in asking for the sentence to be upheld, also argued Taylor was a willing perpetrator who stuck around during the entire nearly three-hour attack.  "Whatever mitigating factors must be considered regarding the shortcomings of adolescence and how those should impact a juvenile's culpability, the facts of this case do not support any finding that such mitigation was at play in Appellant's participation in these thirteen horrific and sadistic crimes," Terenzio wrote.

"Marathon bomb suspect asks judge for addition to death-penalty team"

The title of this post is this local report on what would appear to be a sensible and shrwed move by the defense team in the Boston boming case.  Here is how the article starts:

Accused Boston Marathon bomber Dzhokhar Tsarnaev wants to add another taxpayer-financed death-penalty specialist to his legal team — this time, a veteran attorney who helped spare a plane hijacker and a former member of al-Qaeda from execution.

In court papers filed today, Tsarnaev, through his lawyers, repeats an earlier request to appoint David Bruck, a Virginia lawyer whose past clients include Zayd Safarini, serving life for his role in the 1986 hijacking of Pan Am Flight 73 in Karachi, Pakistan; and Mohamed Rashed Daoud al-Owhali, one of four men serving life for the 1998 bombing of the United States embassy in Nairobi.

Tsarnaev’s legal team already includes Judy Clarke, who helped negotiate life sentences for Unabomber Ted Kaczynski and Olympic bomber Eric Rudolph.

“If this case did not present ‘exceptional circumstances’ justifying appointment of an additioanl lawyer learned in the law applicable to capital cases ... no case would,” Clarke wrote in her motion. “Media reports have described the global scope of the investigation, involving hundreds of agents and witness interviews. Counsel expect that the amount of discovery that this investigation will produce will be truly massive. Thus even were this not a potentially capital case, the magnitude of the task confronting Mr. Tsarnaev’s attorneys would be daunting.”

Tsarnaev, 19, pleaded not guilty in federal court last week to 30 charges, 17 of which carry the death penalty. His legal team tried to add Bruck to its ranks back in April. At that time, a judge denied the request but promised to review it after his indictment.

European Court of Human Rights finds UK use of LWOP sentences violated human rights convention

As reported in this piece from The Guardian, last week brought a landmark ruling from the European Court of Human Rights.  The article's headlined provide the basics: "Whole-life jail terms without review breach human rights — European court; Three murderers, including Jeremy Bamber, have right to review of sentence, but ECHR judgment doesn't make release imminent."   Here is more about the ruling and early reaction thereto:

Whole-life jail sentences without any prospect of release amount to inhuman and degrading treatment of prisoners, the European court of human rights has ruled. The landmark judgment will set the ECHR on a fresh collision course with the UK government but does not mean that any of the applicants — the convicted murderers Jeremy Bamber, Peter Moore and Douglas Vinter — are likely to be released soon.

In its decision, the Strasbourg court said there had been a violation of article 3 of the European convention on human rights, which prohibits inhuman and degrading treatment. The judgment said: "For a life sentence to remain compatible with article 3 there had to be both a possibility of release and a possibility of review."

The court emphasised, however, that "the finding of a violation in the applicants' cases should not be understood as giving them any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue."

The appeal was brought by Vinter, who murdered a colleague in 1996 and after being released stabbed his wife in 2008; Bamber, now 51, who killed his parents, his sister Sheila Cafell and her two young children in 1985; and Moore, who killed four gay men for his sexual gratification in 1995.

The judges in the grand chamber at Strasbourg, the appeal court above the ECHR, found by a majority of 16 to one that there had been a violation of human rights....

Their decision means that the government will now be under pressure to introduce a formal review of whole-life sentences after 25 years. The current law governing release of life prisoners in England and Wales was unclear, the judges said. Those on a whole-life term can be freed only by the justice secretary, who can give discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated....

In its judgment, the grand chamber said: "The need for independent judges to determine whether a whole-life order may be imposed is quite separate from the need for such whole-life orders to be reviewed at a later stage so as to ensure that they remain justified on legitimate penological grounds."...

The new British judge on the court, Paul Mahoney, pointed out in his comments that the UK government was "of course free to choose the means whereby they will fulfil their international treaty obligation" to abide by the judgment....

During the original hearing in Strasbourg, Pete Weatherby QC, who represented the three claimants, told the court: "The imposition of a whole-life sentence crushes human dignity from the outset, as it removes any chance and therefore any hope of release in the future.  The individual is left in a position of hopelessness whereby he cannot progress whatever occurs."

Commenting on the decision, Rebecca Niblock, a criminal law solicitor at Kingsley Napley LLP, said: "No doubt there will be renewed calls to pull out of the European convention on human rights and repeal the Human Rights Act.  Yet Theresa May would do well to keep a sense of proportion: a right to have the sentence reviewed is quite different from a right to be released, and the number of prisoners affected is tiny — 49."

"England and Wales lag behind other European countries in the use of the whole-life sentence — the only other EU country which uses it is Holland.  The repeated calls to withdraw from the European convention carry a huge risk of undermining the UK's reputation abroad.  There is only so much the UK can say to other countries about their human rights records when they show disdain for judgments which go against them at Strasbourg."

I am unsure about how ECHR rulings impact domestic laws and procedures either in the nation brought before the ECHR or other nations who have adopted the applicable convention.   But I am sure, as evidenced by local press stories and commentaries here and here and elsewhere, that this ruling is not being celebrated within the UK.  Further, because the decision in Case of Vinter and Others v. the United Kingdom  (available via this link) is long and full of nuance, its actual impact may end up somewhat more muted than might be predicted or feared.

That all said, this ruling to me serves as another important reminder that lots of judges when given an opportunity to consider human rights rather than just politics ultimately conclude that a true LWOP sentence is a horrific punishment even for the most horrific of crimes.  The US Supreme Court rulings in Graham and Miller, though far more limited and far more divided that this ECHR ruling in Vinter, are in the same vein.  And I suspect over time other courts in various other settings will come to similar rulings about true LWOP sentences.

Though he was found not guilty by the jury, are sentencing stories in the Zimmerman prosecution and verdict?

The question in the title of my post is my effort to provide a (final?) place for discussion of the high-profile state acquittal in Florida which a jury handed down late last night.  I suspect lots of folks are eager to talk about the substance of the prosecution and verdict, but I want to stress (and praise) the procedures in this post.  

I find quite notable and important the seemingly wide-spread acceptance by so many of the jury-based decision-making process and the use of a beyond a reasonable doubt standard of proof at Zimmerman's criminal trial.  And, as regular readers might guess, I wish to tie this reality back to my perception of the profound and enduring wisdom to be found in the Apprendi and Blakely line of cases (as for the Booker remedy, er... not so much).

Though perhaps we will see some future criticisms of the trial procedures in the Zimmerman case, my observation of early media and public reactions suggests a general acceptance of the process even among those who might profoundly disapprove of the outcome.  Indeed, I will be quite surprised if anyone — even those most bothered by the jury acquittal here such as the Martin family — will respond to the acquittal outcome by arguing that the result shows we should have professional judges rather than lay jurors resolving these kinds of cases or by advocating the use of a lesser proof standard than guilt beyond a reasonable doubt for criminal trials.  I surmise that this reality highlights just how deeply all Americans believe adjudication by lay jurors using a high standard or proof is fundamental to a fair and  criminal justice system.

And yet in sentencing in hundreds of courtrooms nationwide every day, once a guilty verdict has be entered by plea or conviction on any count, we still have what Judge Gerry Lynch once astutely called "our administrative system of criminal justice."  A lone state employee in the form of a judge uses informal and often hurried and cursory procedures to decide whether a convicted defendant will get a lenient of harsh sentence.  And the underlying facts in the Graham case (which made it to the Supreme Court for other issues) showed starkly how some judicial bureaucrats may often respond much too leniently at first and then much too harshly thereafter when administrating sentencing justice.

I do not mean this post to be a formal pitch for jury sentencing in all cases or an effort to assail the challenging and couragous decisions that federal and state sentencing judges must make every day.  Rather, I just want to highlight my belief that the apparent acceptance of the Zimmerman verdict even by those who dislike the outcome is a sign of the procedural wisdom of the Constitution's embrace of a unique and uniquely valuable set of procedures — procedures that cases like Apprendi and Blakely (and now Southern Union and Allenye) wisely seek to extend to even more and more criminal justice adjudications.

Prior posts on Zimmerman prosecution:

• Zimmerman charged with second-degree murder in Florida shooting of Trayvon Martin (from April 2012)
• With all evidence now in, are there any (sentencing?) lessons in the Zimmerman prosecution? (from a few days ago)