Sentencing Law and Policy

Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort

Jeannie Suk has this notable New Yorker commentary headlined "The Unintended Consequences Of The Stanford Rape-Case Recall." Here are excerpts:

Federal judges at least have lifetime tenure to insulate them from public pressure.  For the vast majority of state judges in America, who are elected and who must fund-raise and campaign to get and retain their jobs, ignoring public opinion is impossible.  The phenomenon of electing judges strikes many as antithetical to the ideals of an independent judiciary.  Pamela Karlan, a Stanford Law School professor, has suggested that “fear of future electoral retaliation” may cause pernicious judicial bias.  In fact, studies show that the prospect of a reëlection or retention campaign makes judges more punitive toward criminal defendants, and high-court judges more likely to affirm death sentences. Even more troubling, eight states provide a recall process for the public to remove a sitting judge before he or she stands for reëlection or retention.  In California, all that is necessary for a recall election is a petition that follows a certain format and has enough signatures.

We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California.  More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list....

Judge Persky’s explanation of his departure from the state guidelines included the statement that “a prison sentence would have a severe impact” on Turner.  To many, this remark appeared to discount both the harm to the victim and the effects of imprisonment on people who were not formerly élite college students.  Michele Dauber, a Stanford law professor and a family friend of the victim, is leading the campaign to force a recall election to replace Persky, stating, “We need judges who understand violence against women.”...

It is remarkable, to say the least, that sharp disagreement over a particular decision has ballooned into a widespread social movement to oust a judge.  But as the historian Estelle B. Freedman noted in the Times, earlier this week, American feminists have twice succeeded in recalling state judges because of their handling of rape cases: in San Francisco in 1913 and in Madison, Wisconsin, in 1977.  Those recall efforts coincided with the first- and second-wave feminist movements, while the current decade has brought intense student activism and government action to force schools to take campus sexual assault more seriously.  The movement to recall Persky is an expression of outrage, not just about one case but about a broader failure to acknowledge violence against young women and about the class and race privilege afforded to white male defendants.  Turner’s case is extraordinary not only because of the severity of the assault but because it occurred in public and was observed and stopped by two reliable witnesses.  Without the two students who happened upon the crime, it is unlikely that the case would even have made it to the police, given that an estimated two-thirds of sexual assaults go unreported, and that the victim here had no memory of the event.

The petitioners and supporters of the victim have every right and reason to protest the sentence imposed by Persky. And because Persky is elected, and his electorate is empowered to recall him if it is unhappy with his job performance, a recall effort is a reasonable form for their protest to take.  But the fact that it is a valid form of protest does not mean that we should be directing serious concerns about rape into a campaign to fire a judge in retaliation for an overly lenient criminal sentence.  The current recall movement could have the effect of pressuring judges to play it safe by sentencing more harshly — and there is no reason to believe that will be true only in cases with white male rape defendants.

Nonwhite men are more likely than white men to be perceived as violent, predatory, or acting without consent, by complainants, police, prosecutors, witnesses, juries, and judges — particularly if a complainant is white.  That bias translates into inequality at all levels of the criminal system, from reporting and arrest to conviction and sentencing. Of course, that bias is precisely what Turner’s victim’s allies intend to protest with their recall efforts.  But as Paul Butler, a Georgetown law professor, wrote last week, in the Times, that effort could easily lead to harsher sentences all around, even in cases where giving someone a break is the right thing for a judge to do.  “The people who would suffer most from this punitiveness would not be white boys at frat parties,” Butler argued, but rather black and Latino men, who make up a disproportionate sixty per cent of the country’s prisons and jails.

The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society.  It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties. This recall movement could not only influence who is elected to judgeships and the decisions those judges make, it could also spur harsh new legislative measures.  In the midst of our reckoning with decades-long ravages of the war on drugs, are we gearing up to have sexual assault take its place to fulfill our apparent appetite for outrage and punishment?  The existing sex-offender registries, which cause convicted people to be reviled and ostracized long after their penalty, are ready-made to support that turn.

Prior related posts:

• Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
• Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
• NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
• "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
• Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions

New analysis suggests Pennsylvania may have spent more than $1 billion for its (dysfunctional) capital system

This interesting new Reading Eagle article, headlined "Executing Justice: A look at the cost of Pennsylvania's death penalty," seeks to put a price tag on the operation of the death penalty in the Keystone State.  The article starts this way:

Pennsylvania's death penalty system since 1978 has produced three executions at a stunning cost: $272 million each, for a total of $816 million, according to a Reading Eagle analysis.  The revised analysis of the death penalty's cost to taxpayers dwarfs the $350 million total the paper estimated in 2014.

But, this cost appraisal is also conservative, calculating — over nearly four decades — the expense of sentencing inmates to death rather than life in prison. The total tally, at least one researcher said, could easily top $1 billion.

Death penalty critics note that the money — in a time of constricting budgets — drains public coffers and could be spent to fund a wide range of services, including sorely needed road construction or bridge repairs, while supporters doubted the costs could reach $1 billion.

"We're scratching for every dollar that we can right now," said state Sen. Stewart Greenleaf, a Montgomery County Republican and chairman of the Senate Judiciary Committee.  "To continue to spend that kind of money is hard to justify."

"'Loss' Revisited: A Guarded Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline"

The title of this post is the title of this notable new article authored by Frank Bowman now available via SSRN. Here is the abstract:

This article discusses "loss," the concept at the heart of the Federal Sentencing Guidelines section governing economic crimes, Section 2B1.1. It notes the common criticism that "loss" plays too large a role in federal economic crime sentencing, but distinguishes between the sound observation that structural problems in Section 2B1.1 cause loss amount to generate too many "offense levels" and critiques of the core definition of "loss."

The article summarizes previous suggestions made by the author and others to address the arguably disproportionate role played by "loss," but it focuses primarily on the Guidelines' definition of "loss," whether actual or intended. The article defends the fundamental soundness of the existing "loss" definition, but suggests some points on which improvements might be made, particularly to the definition of intended loss.

The article was solicited as a response to an article by Mr. Daniel Guarnera, published in the same issue of the Missouri Law Review, in which Mr. Guarnera argues for a revision of the definition of intended loss to include unrealized harms as to which the defendant was reckless.

Daughter of mass murder victim explains why she opposes death penaly for Charleston church shooter Dylann Roof

This new Vox commentary authored by Sharon Risher explains a notable person's notable perspective on  forgiveness and the death penalty in a notable capital case. The piece is headlined "My mom was killed in the Charleston shooting. Executing Dylann Roof won’t bring her back." Here are excerpts:

Ethel Lance, my mother, was killed on Wednesday, June 17, 2015, along with my cousins Susie Jackson and Tywanza Sanders, and six other people at Charleston’s Emanuel African Methodist Episcopal Church.  It appears to have been a racially motivated massacre plotted by a 21-year-old white man....

A mere 48 hours after the church shooting, millions of Americans watched my sister, Nadine Collier, stand in front of our mother’s accused killer and forgive him at his bond hearing.  The media ran with the forgiveness narrative, praising the ability of the victims’ families for their graciousness and faith.

I didn’t forgive Dylann Roof. And I still don’t forgive him. After I saw my sister address the nation, I thought, This girl has to be crazy! Who’s going to forgive him so quickly?  I was hurt that people thought Nadine’s views reflected the views of the Lance family and the thoughts of all of the Charleston nine’s loved ones.

Don’t get me wrong. I disagreed with Nadine, but I respected her opinion — she’s my sister, and she has a right to her own emotions and grieving process.  Still, after the shooting, there were several articles that exploited our different ways of grieving.  They pitted us against each other in the midst of a horrific tragedy.

I understand that the people of Charleston, and of America as a whole, latched onto the overwhelming message of forgiveness as a coping mechanism.  But the focus on quick forgiveness and the pivot to remove the Confederate flag from the South Carolina statehouse washed away the severity of the larger issues at hand – that the accused killer, because of his hatred of black people, could be so stirred by white supremacist ideology that he would go into that church to kill my momma and all the others.

The man accused of killing my mother did not show any remorse.  Why should I feel the need to forgive him when he has not asked for forgiveness?  I know God commands us to forgive, but there is no time stamp — forgiveness is a journey that you allow yourself to feel because someone has wronged you....

In the months since the shooting, I received a handwritten letter from Lucia McBath, whose son Jordan Davis was killed in 2012 from gun violence. Lucia sent her condolences and told me to reach out to her if I needed to.  On a whim, I did.  From there, I became involved with gun control advocacy, rallying for national gun control organizations....

Despite the anger I am still coping with from my mother’s death, I don’t believe in the death penalty, even for the man who killed her.  That’s my conviction because of my faith.  I’ve said the same thing all along — I don’t believe as human beings that we should take away someone’s life just because we have the power to do so.

God is the only person, the only being who decides our fate.  Still, I will let the judicial system do what they choose. The Department of Justice announced last month that it will seek the death penalty against the shooter.  Whatever the outcome, I will not protest.

This is how my faith carries me. I don’t walk in fear.  I don’t think about Dylann Roof.  All I want to do is do what God has planned out for me.  If I can stop one person from experiencing the pain myself and my family and all the families experienced post-Charleston, then I have done my part.

"States of Incarceration: The Global Context 2016"

The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. This press release from PPI provides an overview of the context and contents of this report:

How does your state compare to the international community when it comes to the use of incarceration? Not very well, says a new report and infographic by the Prison Policy Initiative.

“When compared against each other, some U.S. states appear to be far more restrained in their use of incarceration than high incarcerators like Louisiana,” said Peter Wagner, Executive Director of the Prison Policy Initiative and co-author of the report. “But all U.S. states are out of step with the rest of the world.”

This report, “States of Incarceration: The Global Context 2016,” updates our 2014 briefing that, for the first time, directly situated individual U.S. states in the global context.

“Massachusetts and Vermont have the lowest incarceration rates in the U.S.,” said Alison Walsh, report co-author and Policy & Communications Associate. “Compared to Louisiana, these states look progressive. But if these states were independent nations, they would rank as the 11th and 12th greatest users of incarceration on the planet, following the United States and a group of nations whose recent history often includes wars, military coups and genocides.”

The report includes an interactive graphic showing the incarceration rates for individual U.S. states and the District of Columbia and all countries with a population of at least 500,000. The report also includes a separate graphic comparing the incarceration rates of the U.S. to several NATO nations. “I hope that this data helps all states prioritize further criminal justice reforms. Lower incarceration rates are not only possible, in the rest of the world they are a reality,” said Wagner.

The report and infographic draw international figures on incarceration from the Institute for Criminal Policy Research’s World Prison Brief and state-level figures from the Bureau of Justice Statistics, the Bureau of Prisons and the U.S. Census Bureau.

The Easthampton, Massachusetts-based Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization is most well known for sparking the movement to end prison gerrymandering and for its big picture data visualization “Mass Incarceration: The Whole Pie.”

Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive

Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), has this notable new Huffington Post commentary headlined "The Least Congress Can Do on Criminal Justice Reform." Here are extended excerpts:

Five and a half years ago, I wrote an op-ed in this space in which I urged Congress to apply retroactively the recently passed Fair Sentencing Act of 2010 (FSA).  The FSA reduced the indefensible disparity between crack and powder cocaine sentences from 100:1 to 18:1.  Every member of the U.S. Senate, including Senator Jeff Sessions (R-AL), supported the FSA because they recognized that there was simply no scientific or public safety rationale for the disparity and yet ample evidence of its racially discriminatory effect.  Yet five and a half years later, Congress still has not approved FSA retroactivity.

There are approximately 4,900 individuals still serving the crack cocaine sentences Congress repudiated when it passed the FSA.  They are the people whose cases we used to illustrate why the law needed to change, yet they did not benefit.  After the FSA passed, the U.S. Sentencing Commission fixed all of the non-mandatory minimum crack sentences by lowering its guidelines consistent with the new law.  But the Commission only has authority to changes its guidelines, not mandatory minimum punishments set by Congress and found in statutes.

Today, legislation to make the FSA retroactive is included in a broader sentencing reform bill, which was introduced by Senator Chuck Grassley (R-IA) and is pending in the Senate....  [T]he U.S. Sentencing Commission, at FAMM’s urging and with FAMM’s support, has done all it can to reduce drug sentences and make those reductions retroactive for tens of thousands of federal prisoners.  Notably, those who received retroactive relief from the Commission have reoffended at a lower rate than those who served their full sentences.

We recognize that bipartisan consensus and compromise are essential to passing criminal justice reform through the Congress. Because of the hard work of key senators and outside advocates from across the ideological spectrum, we believe that Senator Grassley’s bill would receive more than the 60 votes necessary to invoke cloture and would probably receive closer to 70 votes on final passage.  But in an election year, especially a presidential election year, consensus is not enough. The bar is much higher.  Unanimity, not broad consensus, is required. Without unanimity, any reform bills will require floor time and will be subject to hostile amendments that could significantly weaken them.

Unanimity is lacking today because of a number of factors.  A couple of vocal but mistaken members of Congress insist that any drug sentencing reform will endanger the public, an election-year fearmongering tactic that has no basis in fact. There is also strong disagreement about whether to include minimum criminal intent requirements (“mens rea”) in any final reform bill.  House Judiciary Chairman Bob Goodlatte (R-VA) and Senator Orrin Hatch (R-UT) support broad mens rea protection; the White House and most Democrats strongly oppose it.  The congressional calendar presents an equally daunting challenge.  We are in June of an election year.  The Senate only plans to be in session for roughly 40 days between now and the November election....

For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive.  Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice.  The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.

New NIJ research report explores particulars and reasons for unprecedented 2015 increase in US homicides

The National Institute of Justice this week released this important and interesting new report authored by criminologist Richard Rosenfeld titled "Documenting and Explaining the 2015 Homicide Rise: Research Directions." Here is the report's executive summary:

The debate over the size, scope and causes of the homicide increase in 2015 has been largely free of systematic evidence. This paper documents the scale of the homicide increase for a sample of 56 large U.S. cities. It then examines three plausible explanations of the homicide rise: an expansion of urban drug markets fueled by the heroin epidemic, reductions in incarceration resulting in a growing number of released prisoners in the nation’s cities, and a “Ferguson effect” resulting from widely publicized incidents of police use of deadly force against minority citizens. The paper concludes with a call for the more frequent and timely release of crime information to address crime problems as they arise.

The homicide increase in the nation’s large cities was real and nearly unprecedented.  It was also heavily concentrated in a few cities with large African-American populations. Empirical explanations of the homicide increase must await future research based on year-end crime data for 2015.  Several empirical indicators for assessing the explanations under consideration here are discussed.  For example, if the homicide increase resulted from an expansion in urban drug markets, we should observe larger increases in drug-related homicides than those committed under other circumstances.  If returning prisoners fueled the homicide increase, that should be reflected in growing numbers of homicides committed by parolees.

It will be more difficult to empirically evaluate the so-called Ferguson effect on crime increases, depending on the version of this phenomenon under consideration.  The dominant interpretation of the Ferguson effect is that criticism of the police stemming from widely publicized and controversial incidents of the use of force against minority citizens caused the police to disengage from vigorous enforcement activities. Another version of the Ferguson effect, however, switches the focus from changes in police behavior to the longstanding grievances and discontent with policing in AfricanAmerican communities.  In this interpretation, when activated by controversial incidents of police use of force, chronic discontent erupts into violence.

The de-policing interpretation of the Ferguson effect can be evaluated with data on arrests and other forms of self-initiated activity by the police.  De-policing should be reflected in declining arrest rates in cities experiencing homicide increases.  Tracing the pathways from chronic levels of discontent to an escalation in homicide will ultimately require ethnographic studies in minority communities that reveal, for example, whether offenders believe they can engage in crime without fear that residents will contact the police or cooperate in police investigations.  Such studies could also disclose other linkages between discontent, police use of force and criminal violence.

In summary, the following research questions for documenting and explaining the 2015 homicide rise, at a minimum, should be pursued when the requisite data become available:

• How large and widespread was the homicide increase in 2015? Did other crimes also increase?

• What conditions drove the homicide increase? Candidate explanations must account for the timing as well as the magnitude and scope of the increase.

• What role, if any, did the expansion of drug markets play in the 2015 homicide increase? Was there a relative increase in drug arrests and drug-related homicides?

• Did declining imprisonment rates contribute to the 2015 homicide rise? Was the increase greater in cities with more returning prisoners and among parolees?

• What role did the Ferguson effect play in the homicide rise? If de-policing contributed to the increase, arrest rates should have declined in cities experiencing the largest homicide increases. An open question is how to evaluate the role, if any, of community discontent with the police. Ethnographic studies, among other methods, should be high on the list of research approaches to identify the mechanisms linking police legitimacy and escalating levels of violence.

Researchers would have been in a better position to begin addressing the 2015 homicide rise, with evidence rather than speculation, if timely crime data had been available as the increase was occurring. We would have known whether the homicide rise was confined to large cities, whether other crimes were also increasing, and whether arrest rates were falling. The debate over the homicide increase would have been better informed. Technical impediments to the monthly release of crime data no longer exist. A large and worrisome increase in homicide should be the catalyst to finally bring the nation’s crime monitoring system into the 21st century.

"Private Prisons and the Marketplace for Crime"

The title of this post is the title of this notable new paper authored by andré douglas pond cummings and Adam Lamparello now available via SSRN. Here is the abstract:

A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function.  We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes.  We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses.  We stop the current criminalization of immigration in its tracks and block the private prison lobby from influencing legislation in our current immigration policy debates.  We provide prisoners a fair wage for work done in prison, allowing them a re-entry account upon release filled with the money they earned while working in prison.  We provide humane and habitable prison cells populated by one inmate, as saner and safer crime and punishment policies will imprison far fewer American citizens.

At their core, private prisons reflect a continuation of policies that have tainted the criminal justice system with perceptions of arbitrariness, unfairness, and injustice.  As this article has shown, the continued proliferation of private prisons does not save taxpayers money, increase prison safety, or elevate the conditions of the prison environment. Conversely, they do the opposite.  Inmates are being physically abused, denied medical care, and forced to endure inhumane living conditions, as corporations like CCA and GEO Group realize higher profits from a marketplace in which prisoners are in high demand.  Indeed, CCA is a textbook example of the grave injustices that can occur when profit maximization clashes with human dignity.  The time has arrived for private prisons to be eliminated and for legislators and courts to realize that this experiment is one that has failed.  Until that time comes, Congress should implement purpose-driven reforms to ensure that private prisons can no longer be institutions where inmates have rights but no remedies.

Delaware Supreme Court struggles to tame the post-Hurst hydra

As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases. This local article reports on the Delaware Supreme Court arguments yesterday trying to sort out the constitutionality of the state's death penalty law in the wake of Hurst.  Here are excerpts:

After two sides argued their cases Wednesday morning, justices on Delaware’s highest court departed to consider the constitutionality of the most severe punishment of all – death.

The Delaware Supreme Court is weighing the merits of a judge’s role in capital punishment sentencing and how it relates to the right to a jury trial. “We understand how important this is (to all you),” said Chief Justice Leo E. Strine Jr. before exiting the packed courtroom with his four Supreme Court colleagues.

The issue arose after the U.S. Supreme Court determined in January that Florida’s death penalty statute was unconstitutional and that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” After the ruling, all death penalty trials in Delaware were stopped until more clarity was brought to the state’s process and how it relates to the constitution.

According to the Supreme Court in an order, there are over two dozen capital cases pending in Superior Court, four scheduled for trial, in less than 120 days.

Questions to the court were raised in the currently pending murder case of Benjamin Rauf. On Wednesday, attorneys presented their beliefs before the court in a scheduled 60-minute session, at times engaging in question and answer discussions with the justices.

Since a jury decides whether a case is death penalty eligible in Delaware, the state maintains that constitutional requirements are currently met. Deputy Attorney General Sean Lugg argued for the state on Wednesday. Mr. Lugg said Delaware’s sentencing scheme, which was revised in 2002 in response to a previous U.S. Supreme Court ruling, meets all of the elements outlined by the Supreme Court in the Florida decision, according to the Associated Press. “The fundamental right to a jury is provided by the Delaware statute,” he said....

In Delaware, judges have the final say on whether a death sentence is ordered; a jury must find at least one statutory aggravating factor unanimously and beyond a reasonable doubt to make a defendant death penalty eligible. In Florida, judges had the responsibility to find any “aggravating factors” that qualify it for possible capital punishment sentencing.

Assistant Public Defender Santino Ceccotti argued for the appellant. “The Sixth Amendment requires not a judge, but a jury, to find each fact,” he said.

Prior related post:

• Post-Hurst hydra develops new heads in Delaware as all capital cases get halted
• Updating Delaware's struggles with the post-Hurst hydra

Split Second Circuit panel reverses (on procedural grounds, sort of) 60-year sentence for production and possession of child porn

A few helpful readers helped make sure I did not fail to note the interesting split Second Circuit panel decision handed down yesterday in US v. Brown, No. 13‐1706 (2d Cir. June 14, 2016) (available here).  Here area key passages from the majority opinion authored by Judge Pooler explaining its (procedural?) basis for reversal of a 60-year prison term (with most cites omitted) for the production of child pornography:

At sentencing, the district court noted “the trauma to these three children,” the fact that “three children” would have to “worry for the rest of their li[v]e[s]” about the photographs, and that Brown “destroyed the lives of three specific children.” App’x at 100‐01.  The district court’s explanation suggests that the 2 individual harm suffered by each of Brown’s three victims played a critical role in the district court’s decision to impose three consecutive 20‐year sentences.  But the sentencing transcript also suggests that the district court may have misunderstood the nature of that harm as to Brown’s third victim.  Three times the court emphasized the mental anguish that “three specific children” would suffer as a result of Brown’s abuse. App’x at 100‐01. Brown’s third victim, however, has “no knowledge of having been victimized by Brown.” PSR ¶ 35. Her mother declined to submit a victim impact statement specifically because her daughter “was unaware of the abuse” and had experienced “no negative impact.” PSR ¶ 51.  To be sure, the district court was entitled to punish Brown for that abuse regardless of whether the victim was aware of it.  But given the district court’s repeated emphasis on the fact that Brown had destroyed the lives of “three specific children,” we conclude that it is appropriate to remand for resentencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.

It is possible that, on remand, the district court will reimpose the same 60‐year sentence that it imposed at the original sentencing. Although we express no definitive view on the substantive reasonableness of that sentence at this time, we respectfully suggest that the district court consider whether an effective life sentence is warranted in this case. We understand and emphatically endorse the need to condemn Brown’s crimes in the strongest of terms.

But the Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)....

The sentencing transcript suggests that the district court may have seen no moral difference between Brown and a defendant who murders or violently rapes children, stating that Brown’s crime was “as serious a crime as federal judges confront,” App’x at 101, that Brown was “the worst kind of dangerous sex offender,” App’x at 102, and that he was “exactly like” sex offenders who rape and torture children, App’x at 100.  Punishing Brown as harshly as a murderer arguably frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior.”...

Finally, to the extent that the district court believed it necessary to incapacitate Brown for the rest of his life because of the danger he poses to the public, we note that defendants such as Brown are generally less likely to reoffend as they get older.

Judge Droney authored a lengthy dissent, which gets started this way:

The majority simply disagrees with the length of the imprisonment imposed upon the defendant by the district court, yet it cloaks that disagreement as procedural error.    There was no procedural error, and the sentence was well within the discretion of the district court.  It was also appropriate.  The defendant sexually abused at least three very young girls, recorded that abuse, installed secret cameras in public areas where children changed clothes, and possessed over 25,000 images of child pornography on his computers, including many scenes of bestiality and sadistic treatment.    No doubt this was a lengthy sentence, but it was warranted.   

I dissent.  The district judge committed no error whatsoever— procedural or substantive. 

"The Antidemocratic Sixth Amendment"

The title of this post is the title of this intringuing new article about the right to counsel authored by Janet Moore and now available via SSRN. Here is the abstract:

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers.  These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel.  This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent.

The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute.  The Article’s new theoretical framework exposes the “no-choice” stance as an antidemocratic concentration of judicial power, which blocks pressure from poor people to strengthen the right to counsel.  Finally, the Article addresses practical objections to an equal right of attorney choice with innovative strategies that promote meaningful choice for all defendants.

If you are eager to take a peek behind this blog...

you can and should thank Scott Greenfield, the defense attorney behind the terrific Simple Justice blog, for kindly inviting me to be subject to this "cross" at Mimesis Law.  Scott asked me 10 series of questions about my personal and professional history, and as a teaser I will reprint here the first and last sent of Scott's "crossing" inquiries:

Q. You graduated Princeton in 1990 with a degree in philosophy.  Why philosophy?  Was this about a liberal arts foundation for the future, or was there a plan to be the Nietzsche of Jersey?  How did that prepare you for the rigors of law school and, later, the practice of law?  Were there any alternatives coming out of Princeton other than law for your future?...

Q. Having written the hornbook on sentencing law, getting your second endowed chair professorship, and being the acknowledged sentencing scholar on the internets, what’s next for you?  Are you a professor for life?  Dean someday? What about a seat next to Judge Calabresi? What’s the next step for Doug Berman?  And will SL&P last forever?

If you are curious at all about how I responded to these queries and eight more sets of terrific questions in between, please do check out CROSS: Douglas Berman, The Final Sentence

Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions

I am generally somewhat hesitant about lambasting a judge's sentencing decision when I have only limited information about the case, and I often wonder whether others' quick to critcize a particular decision have reviewed all the key evidence before going on the attack.  Relatedly, I am uniquely interested in the views and criticisms of a sentening decision lodged by anyone who was intimately involved in the case, and thus I find distinctly noteworthy this new report about new criticisms of the controversial Brock Turner sentencing.  The article is headlined "Juror slams judge in Stanford rape case, calls sentence 'a mockery' amid recall push," and here is how it gets started:    

The judge who sentenced Stanford University swimmer Brock Turner to six months in jail for sexual assault is continuing to face criticism for his decision. The effort to recall Santa Clara County Superior Court Judge Aaron Persky has gained steam, with several political groups vowing to raise money for the campaign.  Two veteran Democratic political consultants, Joe Trippi and John Shallman, decided Thursday to join the effort to force a recall election.

Then, one of the jurors who convicted Turner of sexual assault wrote a letter to Persky. The juror wrote of being “absolutely shocked and appalled” at the sentence.

“After the guilty verdict I expected that this case would serve as a very strong deterrent to on-campus assaults, but with the ridiculously lenient sentence that Brock Turner received, I am afraid that it makes a mockery of the whole trial and the ability of the justice system to protect victims of assault and rape,” the juror wrote to Persky.  “Clearly there are few to no consequences for a rapist even if they are caught in the act of assaulting a defenseless, unconscious person,” the juror wrote in the letter, which was obtained by the Palo Alto Weekly [available here].

Prior related posts:

• Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
• Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
• NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
• "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"

"Substantive and Procedural Silence"

The title of this post is the title of this intriguing new paper authored by Erin Sheley now available via SSRN. Here is the abstract:

Perceptions of the procedural fairness of the criminal justice system turn on whether it gives individuals and communities a “voice,” or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases.  Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim’s silence and the defendant’s across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive purposes of punishment, particularly in a world where punishment so frequently turns on the outcome of plea negotiations.

Such an effort requires us to recognize a distinction between procedural silence, which is grounded in the individual rights of each party, and what should be understood as substantive silence, which can form part of both the definition of criminal conduct on the front end and, on the back end, of the judgment and sentence in a particular case.  This article has two purposes.  One, it provides the first full taxonomy of the role of silence in the criminal law and identifies the key interactions between procedural and substantive silence.  And, two, it offers normative suggestions — particularly to prosecutors — for managing silence in a way that will better achieve justice in light of the cumulative relationship between substance and procedure.

Split en banc Ninth Circuit tries its level best to sort through what Freeman means for crack guideline retroactivity eligibility

This Courthouse News Service article, headlined "Ninth Circuit Tackles Sentencing Disparities," does a nice job explaining the context and particulars of the ruling on a Ninth Circuit en banc court yesterday in US v. Davis, No. 13-301335 (9th Cir. June 13, 2016) (available here). Here are snippets from the press reporting:

Davis pleaded guilty to distributing at least 170.5 grams of crack cocaine in 2005. U.S. District Judge Ronald Leighton, a George W. Bush appointee, sentenced Davis on the higher end of the 188- to 235-month federal guidelines range a year later.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity ratios between crack and powder cocaine down to 18-to-1. The U.S. Sentencing Commission passed an amendment the following year that would allow more than 12,000 drug offenders — 85 percent of whom were black — to apply for retroactive relief. But prosecutors claimed that Davis waived his right to contest his sentence when he signed his plea agreement back in 2005.

After losing two rounds of appeals, Davis notched a small courtroom victory that may help hundreds who received disproportionate sentences. In addressing Davis's case, the San Francisco-based Ninth Circuit Court of Appeals tried to settle a controversy that has raged since the Supreme Court's uncertain conclusion five years ago in Freeman v. United States, which did not clearly define whether defendants could be eligible for retroactively reduced sentences if they pleaded guilty under guidelines that were subsequently reduced.

Although five justices agreed that the appellant in that case should receive reconsideration of his sentence, only four concurred on the lead opinion. Four judges dissented, and Justice Sonia Sotomayor wrote a special concurrence. This left lower courts to puzzle over whether Sotomayor had broken the tie. "To say that Freeman divided the court would be an understatement," U.S. Circuit Judge Richard Paez wrote for a divided 11-judge panel in Monday's majority opinion. "Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor's concurrence."...

Davis has received a fresh opportunity to reduce his sentence, but this does not guarantee that the district judge will grant him relief. Jones Day attorney Nathaniel Garrett, who represents Davis, said in a phone interview that his client's recommended sentence under the federal guidelines should drop dramatically when it returns to the lower court. Garrett noted sentencing guidelines without the 100-to-1 crack-to-powder disparity would range between 78 and 97 months in prison, and Davis already has served 143 months behind bars.

The U.S. Sentencing Commission noted two years ago that at least 71 applications for sentence reductions have been denied because of plea agreements like the one Davis signed, but Garrett believes his client's case would open the way for others to find relief. "What we don't know is how many individuals are in prison who haven't applied because the courts told them that they can't," he said.

Nancy Talner, a senior staff attorney for the American Civil Liberties Union's Washington state affiliate, said in a phone interview that the opinion underscores "how unfair the old crack-cocaine sentencing was."...

In a concurring opinion, U.S. Circuit Judge Morgan Christen agreed that Davis deserved the opportunity to reduce his sentence, but quibbled about how courts should interpret plurality decisions with no clear victors. The majority opinion leaves the possibility open to take dissenting opinions into account, but Christen thought that this could sow more confusion.

"This is not to say that dissents serve no purpose," Christen wrote. "They can and should be read to provide context and a deeper understanding of the court's decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision."

Dissenting Judge Carlos Bea would have rejected Davis's effort entirely. "The district court correctly determined that it lacked jurisdiction to resentence Davis, and the panel should affirm on that basis," he wrote.

Defense attorney Garrett predicted, however, that the majority's "reasoned and thoughtful and thorough" opinion would serve as a guide for other circuit judges who have struggled to interpret the Supreme Court's plurality decisions.

Notable South Carolina affinities and disaffinities for capital prosecution of Charleston mass murderer Dylann Roof

This recent local article out of South Carolina provides an interesting review of interesting survey data about opinion on the high-profile capital prosecution(s) of a local mass murderer.  The article is headlined "Most SC blacks say Dylann Roof should get life without parole," and here are excerpts:

A majority of black South Carolinians say Dylann Roof should be sentenced to life without parole — not death — if he is found guilty of murdering nine African-American members of Charleston’s Emanuel AME Church. But most white South Carolinians say Roof should be sentenced to death if he is found guilty, according to a University of South Carolina poll.

Roof faces federal and state charges in connection with the Charleston massacre. Both federal and state prosecutors have said they will seek the death penalty. The difference of opinion over Roof reflects historically differing attitudes toward the death penalty between black and white South Carolinians, according to the USC poll, released Saturday.

The poll — on race relations a year after the Emanuel Nine massacre — also found stark differences in how South Carolina’s white and African-American residents view the criminal justice system.

The poll found:

▪ A majority of black South Carolinians — 64.7 percent — said Roof should be sentenced to life without parole if found guilty.

▪ Just three in 10 African Americans — 30.9 percent — said Roof should be sentenced to death. Another 4.4 percent said they didn’t know what the punishment should be, according to the poll, which surveyed 800 random S.C. adults.

▪ The majority of whites — 64.6 percent — think Roof should be sentenced to death.

▪ Only 29.9 percent of whites think Roof should be sentenced to life without parole; 5.6 percent of those surveyed said they didn’t know.

The question of whether to seek the death penalty against Roof divides the families of those slain in Charleston. Some family members oppose the death penalty. Others say it would be justice. The findings of the USC poll reflect most black South Carolinians’ consistent opposition to the death penalty and most whites’ consistent support for it, said Monique Lyle, a USC political scientist who co-conducted the poll with USC’s Bob Oldendick.

The majority of black South Carolinians — 64.9 percent — oppose the death penalty, according to the poll. The majority of white South Carolinians — 69.4 percent — favor it. The African-American community’s opposition to the death penalty reflects its history with the criminal-justice system, said Kylon Middleton, senior pastor of Charleston’s Mount Zion AME Church.

“Most black people would not want someone to be executed because” so many African Americans have been executed, said Middleton, a longtime friend to Clementa Pinckney, the Emanuel pastor and state senator who was among the nine slain. “We have been brutalized in this country, therefore, we can empathize with anyone … who would receive ultimate judgment,” Middleton said, citing America’s history of slavery.

Beyond that history, African Americans also tend to be extremely religious, said state Rep. Todd Rutherford, D-Richland, noting the Bible commands: Thou shall not kill. In addition, a life sentence without parole now means that a defendant will spend life in prison. “That seems to be sufficient for most African Americans as punishment,” even in the case of Roof, Rutherford said, an attorney. The African-American community also believes in a rehabilitative and repentant society, said state Sen. Gerald Malloy, D-Darlington, who declined to discuss Roof specifically. (Malloy, an attorney, represents the family of Sen. Pinckney.)

African Americans also have concerns about the fairness of the justice system, said Todd Shaw, a USC professor of political science and African-American studies. “I don’t think there would be an exception for someone such as Dylann Roof,” Shaw said, adding some African Americans feel “bringing about his death will not bring about justice.”

A few prior related posts:

• Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
• Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
• South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
• Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
• Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
• "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
• Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof

"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"

The title of this post is the title of this notable new paper authored by Meghan Ryan now available via SSRN. Here is the abstract:

The U.S. punishment system is in turmoil.  We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions.  Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented.  The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.

The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means.  This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices.  Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand.  This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.

For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment.  While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender.  For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed.  Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.

Notable new commentary at The Federalist talks through conservative support and opposition to federl statutory sentencing reform

Rachel Lu, a senior contributor at The Federalist, has this interesting new commentary under this lengthy headline: "We Need Sentencing Reform And This Bill Is A Good Start: The past two decades have seen ramped-up sentences for drug criminals, which have cost us billions in taxpayer money, while yielding few benefits. Let’s take this opportunity to do better." The piece usefully goes beyond the usual superficial advocacy for federal sentencing reform and digs into the debate within conservative circles about whether to support or oppose the SRCA. I recommend the piece in full, and here excerpts (with links from the original):

What’s really going on with the federal Sentencing Reform and Corrections Act? This bipartisan legislation has been in the news lately, prompting a strange and confusing exchange between conservatives who support justice reform (notably Vikrant Reddy and myself) and critics of the movement (Sean Kennedy and Jeffrey Anderson)....

Donald Trump has been comparatively quiet thus far on the crime issue. That may reflect the fact that some of his likely vice presidential candidates (most notably Newt Gingrich and Nathan Deal) have already established themselves in the pro-reform camp. Nevertheless, this initiative could still fall prey to the dreary realities of partisan base-beating. That would be sad to see, especially since justice reform is almost the only bipartisan issue we’ve got left in these bitter times.

Of course, for some that is itself a strong motive to kill the bill. They hardly even pretend to know or care about the content of the legislation itself.  Consider Jeffrey H. Anderson’s “What, are we the sort of people who work with Democrats?” rebuttal to my last essay for an example of this thinking....

[P]risons are beneficial primarily insofar as they keep dangerous people off the streets. That’s a huge benefit with respect to murderous psychopaths. Yet if we’re talking about minor, subsidiary figures in the drug trade, we should recognize they are easily replaced. Hitting small-time distributors or smugglers with decades-long sentences will not solve our drug problem.

Even recognizing those principles, it’s always best to be cautious about public safety. The Sentencing and Corrections Act is cautious. We certainly won’t be seeing the immediate release of thousands of drug criminals. Rather, the bill takes modest steps to soften some of the more drastic measures in federal drug laws.  Sean Kennedy’s recent missive cautioned against “rushing” conservative justice reform, but looking at the bill currently in front of us, I’m truly at a loss to imagine what might satisfy him if this does not....

If you’re unsure whom to trust in the justice-reform debate, consider this. Reform-minded conservatives have ideas, an agenda, and recent legislative accomplishments to their names. They’ve been elbow-deep in the relevant policy issues for many years now. By contrast, their critics can’t even seem to agree on the most fundamental point: is over-incarceration is actually a problem in America?

In many ways it’s unsurprising that this would be a fuzzy point for critics. Mass incarceration was the rock against which tough-on-crime finally foundered. For decades, conservatives called for tough, consistent sanctions as a response to rising crime and disorder. This approach did yield some benefits: crime fell through the ’80s and ’90s.

As prison populations exploded, however, the price tag likewise grew steeper, and the social effects of imprisoning about 1 percent of our population became ever harder to ignore. Crowded prisons are bad for any number of reasons. They’re miserable and unsafe (for guards as well as inmates), and they do a poor job of rehabilitating offenders.

Eventually, it became clear to policy-savvy conservatives that they needed a more multifaceted approach to crime control. Red states have been leading the way for years now in using data-driven methods to reduce incarceration without sacrificing public safety. Many of the same people and organizations have helped to craft and promote federal sentencing reform, eventually giving rise to the Sentencing Reform and Corrections Act.

As policy, it’s been an impressive effort. Politically, it requires a paradigm shift that some haven’t yet made. As the data pile up indicating that prudent reform is possible, William Otis has gone on defending large-scale incarceration, regularly repeating his maxim that a nation is judged not by its incarceration rate, but by its crime rate. That no-limit position is too drastic for most, so we see figures like Kennedy and Anderson taking softer but more confusing stances, vacillating between tough-on-crime rhetoric and vague complaints that the legislation in front of us is too quick, too drastic or too bipartisan.

Kennedy warns us, in the spirit of Otis’ critique, that the real problem with our society is the number of criminals, not the number of inmates. Then he goes on to imply that state-level justice reform has been healthy but that the federal bill somehow goes too far. (How? Why? What provisions would he change?)

Anderson implies that federal sentencing reform represents an irresponsible lapse of conservative principles, but then later concedes that some reform may be good, on the condition that we scrap the present bill and replace it with exclusively Republican-authored legislation. (Why would we do that when reform-interested conservatives have been involved in writing and promoting this bill?)

It’s hard to have a serious debate when critics are bringing so little to the table.  Through promoting successful state-level reforms, conservative justice reformers have demonstrated that they are prudent, cautious, and highly attentive to data.  Unless critics can offer something more substantive than dated political platitudes, we should trust that this statute is moving us a step in the right direction.

Intriguing Ninth Circuit ruling about restitution and forfeiture and the Excessive Fines Clause

The Ninth Circuit handed down an interesting new opinion dealing with various challenges to various financial sanctions in US v. Beecroft, No. 12-10175 (9th Cir. June 13, 2016) (available here). Here are snippets from the start and heart of the extended ruling:

Following her convictions for participating in an extensive mortgage-fraud conspiracy, a defendant was ordered to pay more than $2 million in restitution and to forfeit more than $100 million. We must decide whether either amount was erroneously calculated or unconstitutionally excessive....

As noted, Beecroft has not demonstrated error in the district court’s calculation of the amount of losses suffered by the banks injured by Beecroft’s actions. Without error in the loss calculation, Beecroft cannot show that requiring her to pay that amount back to the victims was somehow excessive or grossly disproportional to her crimes, which caused the loss in the first place. And we reiterate that Beecroft was not ordered to pay anything approaching the full amount of the banks’ losses. Uncontroverted evidence was presented to the district court showing that the scheme in which Beecroft participated caused losses in excess of $50 million; requiring her to pay slightly more than $2 million of that back is not an unconstitutional and excessive punishment....

The $107 million Beecroft was ordered to forfeit for the conspiracy (Count 1) stands apart. As with the other counts of conviction, for Count 1 Beecroft could be fined no more than $1 million (with a Guidelines range beginning as low as $20,000). In other words, for Count 1, Beecroft was ordered to forfeit a sum more than 100 times greater than the maximum fine allowable and more than 5,000 times greater than the lower-end of the Guidelines range. Even accounting for the fact that Beecroft faced potentially significant prison time as well, see Mackby, 339 F.3d at 1018, this is a tremendous disconnect between the forfeiture amount and Beecroft’s legally available fine. Indeed, such a disconnect stands out even among forfeiture orders which have previously been held grossly disproportional....

The government cites no case upholding a forfeiture order with a disparity similar to the one here, and it has not attempted to argue that the $107 million otherwise corresponds to injuries sustained by the government or the banks....

We have little doubt that the Eighth Amendment allows Beecroft to be ordered to forfeit a substantial sum of money for her participation in such an extensive and damaging conspiracy. But difficulty remains with the exceptional amount of forfeiture the court did impose. Without even an argument supporting the propriety of the $107 million forfeiture, we have no choice but to conclude that an order which so vastly outpaces the otherwise available penalties for Beecroft’s criminal activity runs afoul of the Excessive Fines Clause. Even on plain-error review, we must vacate the forfeiture order with respect to Count 1 and remand to the district court for reconsideration of that amount in light of the Eighth Amendment’s Excessive Fines Clause.

SCOTUS finds no Sixth Amendment problems with reliance on uncounseled tribal conviction

The Supreme Court gave federal prosecutors a unanimous win this morning through its opinion in US v. Bryant, No.15-420 (S. Ct. June 13, 2016) (available here). The opinion by Justice Ginsburg for the Court gets started this way:

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders.  Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.”  See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings.

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.  Scott v. Illinois, 440 U. S. 367, 373–374 (1979).  But the Sixth Amendment does not apply to tribal-court proceedings.  See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337 (2008).  The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U. S. C. §1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed.  §1302(c)(2).  Bryant’s tribal-court convictions, it is undisputed, were valid when entered.  This case presents the question whether those convictions, though uncounseled, rank as predicate offenses within the compass of §117(a).  Our answer is yes.  Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a §117(a) prosecution.  That proceeding generates no Sixth Amendment defect where none previously existed.

After most deadly mass shooting in US history, sadness and frustration and realism

The tragic news today from Orlando, which is already being identified as the worst mass shooting in US history, is not a sentencing story because the shooter apparently was killed by the police while on the scene of his horrible crimes.  But, I feel compelled to blog about this horrific crime in order to express my deep sadness.  I also have to express my frustration that, no matter what I or others have to say, the circumstances of this horrific crime will likely engender political and social discussions that may just deepen divisions among Americans who cannot help but want to "do something" and yet rightly struggle to figure out just what can be done about man's inhumanity to man.

Now a murderer, Oscar Pistorius facing resentencing

This new AP article, headlined "A Glance at Oscar Pistorius's ReSentencing, Now for Murder," details the high-profile resentencing scheduled for this coming week in South Africa. Here are excerpts:

Oscar Pistorius is going back to jail. The only question now is for how long? It could be 15 years. The double­amputee Olympic runner's sentencing hearing opens Monday after he was convicted of murder by South Africa's Supreme Court of Appeal for shooting girlfriend Reeva Steenkamp.

It'll be the second time Pistorius has been sentenced for the killing following an appeal by prosecutors. The three-­year legal saga that began with the fatal gunshots in the pre­dawn hours of Valentine's Day 2013 now appears to be near its end....

Pistorius was initially convicted of the lesser charge of culpable homicide, or manslaughter, at his 2014 trial for shooting Steenkamp through a closed toilet door in his home. He testified he mistook the model and reality TV celebrity for a nighttime intruder hiding in a bathroom, and shot with his 9mm pistol in self­defense fearing an attack. The trial judge accepted part of Pistorius' story, and he was given a five­year jail sentence based on the judge's ruling that he acted recklessly, but didn't mean to kill. After serving a year in jail, Pistorius was released on parole in line with South African procedure and has been living under house arrest at his uncle's mansion since October last year.

But following Pistorius' manslaughter verdict, prosecutors appealed to the Supreme Court, saying that the former star athlete, a multiple Paralympic champion, should have been found guilty of murder. They argued that Pistorius intended to kill someone — even if he didn't know it was Steenkamp in the toilet cubicle — when he shot four times through the door with no justification.

In December, a panel of Supreme Court judges agreed with prosecutors, overturned Pistorius' manslaughter conviction, and raised it to a more serious murder conviction. Pistorius must now be sentenced for murder. Supreme Court Justice Lorimer Leach said: "The accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent."...

15 years in prison [is] the minimum sentence for murder in South Africa, which no longer has the death penalty. Legal experts say a judge can reduce that sentence in some circumstances, and that Pistorius' disability and the fact that he is a first-­time offender could be taken into account. He has also already served a year in prison. Pistorius will return to the same courthouse in Pretoria where his dramatic seven­month murder trial played out in 2014 to be sentenced again.

The hearing has been scheduled to last a week and Pistorius' punishment will again be decided by Judge Thokozile Masipa, who acquitted him of murder at his trial but had her decision overturned by the Supreme Court....

After his conviction was changed to murder by the Supreme Court last year, Pistorius appealed to South Africa's highest court, the Constitutional Court, to review his case. The Constitutional Court dismissed that appeal in March and Pistorius now has no chance of escaping the murder conviction.

Prior related posts:

• "Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"
• Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
• Prosecutors in South Africa indicate they plan to appeal Pistorius outcome