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February 1, 2020

Some GOP Senators, fully aware of the mandatory minimum sentence, embrace a form of jury nullification to justify acquittal of Prez Trump

A few month ago in this point, I noted an interesting Second Circuit ruling that precluded a district judge from allowing defense attorneys to argue to jurors that they had nullifcation authority — that is the  power to return a not-guilty verdict in the face of clear guilt because of concerns about the undue sentencing consequences of a guilty verdict.  This ruling came to mind as I read this extended statement from Senator Marco Rubio, which includes these passages:

Voting to find the President guilty would not just be a condemnation of his action. If I vote guilty, I will be voting to remove a President from office for the first time in the 243-year history of our Republic....

That is why six weeks ago I announced that, for me, the question would not just be whether the President’s actions were wrong, but ultimately whether what he did was removable.

The two are not the same.  Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office....

Determining which outcome is in the best interests requires a political judgment — one that takes into account both the severity of the wrongdoing alleged but also the impact removal would have on the nation.

I disagree with the House Managers’ argument that, if we find the allegations they have made are true, failing to remove the President leaves us with no remedy to constrain this or future Presidents.  Congress and the courts have multiple ways by which to constrain the power of the executive.  And ultimately, voters themselves can hold the President accountable in an election, including the one just nine months from now....

I will not vote to remove the President because doing so would inflict extraordinary and potentially irreparable damage to our already divided nation.

This statement by a Senate juror seems to be arguing that, even if President Trump is factually guilty, the mandatory minimum punishment in an impeachment trial of removal is not in the best interest of the country.  Similarly, Senator Lamar Alexander's statement about why he was voting against witnesses seemed to call President Trump's actions inappropriate while suggesting the sanction of removal was not justified for this kind of inappropriate behavior.

I do not mean in any way to fault these Senators' approach to serving as jurors, but rather just seek to highlight in this context the thinking of two fully informed jurors with a concern for proportionate punishment and the broader public interest.  Put another way for sentencing fans, we should be ever mindful of how mandatory minimum sentencing schemes (even one in the US Constitution) will necessarily impact the work of all decision-makers in the administration of justice.  Also, if jury nullification makes sense in the trial of a President, why not for everyone else?

February 1, 2020 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

January 31, 2020

Effective accounting of Miller implementation four years after Montgomery made ruling retroactive

A few days ago marked four years since the US Supreme Court decided Montgomery v. Louisiana, a ruling which made retroactive the Court's prior decision in Miller v. Alabama declaring mandatory LWOP for juvenile murderers unconstitutional.  The folks at The Campaign for the Fair Sentencing of Youth marked the occasion by producing this short effective review of juve homicide sentencing past and present.  Here are some portions of the report:

When the Supreme Court decided Montgomery, over 2,800 individuals in the U.S. were serving life without parole for crimes committed as children — a sentence that the United States alone is known to impose on children. In the four years since Montgomery was decided, the number of individuals serving life without parole for crimes committed as children has been reduced by nearly 75 percent.

Fewer than 100 individuals have been resentenced to life without parole to date, which is less than 5 percent of all individuals whose sentences have been modified to date. And a number of those cases are on appeal.

Since Montgomery, close to 600 individuals have been released from prison who formerly were sentenced to life without parole as children, and that number continues to grow....

Today 22 states and the District of Columbia ban life-without-parole sentences for children, and in at least four additional states, no one is serving life without parole for a crime committed as a child.  Therefore more than half the country has rejected life-without-parole sentences for children in law or in practice....

Over 70 percent of all youth ever sentenced to life without parole are people of color — primarily Black and Latinx.

Strikingly, racial disparities in the imposition of life without parole on children continue to worsen.  The Supreme Court in Miller and Montgomery guaranteed all children an individualized sentencing hearing before life without parole can be imposed.  Yet despite the now-discretionary nature of life without parole, and the Supreme Court’s unequivocal language that the penalty may be imposed only if a child has no capacity for rehabilitation, racial disparities have increased under this new framework.

Of new cases tried since Montgomery, approximately 70 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before Montgomery...

With little guidance from the Supreme Court in Miller and Montgomery on the specifics of the resentencing process, states have varied significantly in the procedural protections afforded.  This patchwork of interpretations raises a high risk that resentencings to life without parole will be arbitrary, based more on the jurisdiction and the idiosyncrasies of individual judges than on whether the individual is capable of positive change.

Some states — including Georgia, Louisiana, Ohio, and Michigan — have continued to sentence children to life without parole in new cases at a rate that far outpaces the rest of the country, and in contravention of the constitutional mandate established in Miller and Montgomery that the sentence be uncommon.

Approximately 1,600 of the individuals whose sentences have been modified following Montgomery will go before a parole board, and the likelihood of release through the parole process varies greatly by state.  For example, Henry Montgomery — who was deemed a model prisoner by the Supreme Court in Montgomery v. Louisiana — has been denied parole twice by the Louisiana parole board.

January 31, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"How America’s prisons and jails perpetuate the opioid epidemic"

The title of this post is the headline of this new Vox piece by German Lopez.  Here are excerpts:

Just Rhode Island and Vermont officially offer all three federally approved opioid addiction medications (buprenorphine, methadone, and naltrexone) to jail and prison inmates.  The 48 other states and the federal government offer them only in limited circumstances or not at all.

The lack of adequate treatment in jails and prisons puts a vulnerable population of around 2.3 million people at risk. About 58 percent of people in state prisons and about 63 percent of those sentenced in jails meet the definition for drug dependence or misuse, compared to 5 percent of the general population, according to a 2017 report from the Bureau of Justice Statistics.

Yet a 2017 study by Johns Hopkins researchers found that less than 5 percent of people who were referred to opioid use disorder treatment through the justice system received methadone or buprenorphine, compared to nearly 41 percent of people referred through other sources.

The result is likely more overdoses and deaths.  A 2007 study in The New England Journal of Medicine found ex-inmates’ risk of a fatal overdose is 129 times as high as it is for the general population during the two weeks after release.  Other studies have backed up the finding that recently released inmates are at particular risk of overdose. In Rhode Island, a preliminary research letter in 2018 found that the state’s program offering medications for opioid addiction was followed by a more than 60 percent drop in overdose deaths among recently released inmates.

But many local and state lawmakers and jail and prison officials remain skeptical. Some of that skepticism is driven by stigma: the view that addiction is a moral failing, not a medical condition, so public resources shouldn’t go to treating it. Stigma toward medications for addiction — like the myth that medications are simply “replacing one drug with another” — is especially prominent. And there are funding and logistical concerns with better addiction treatment programs in jails and prisons, although Rhode Island and Vermont show those issues can be overcome.

“We have a population that’s incredibly vulnerable,” Sarah Wakeman, medical director at the Massachusetts General Hospital Substance Use Disorder Initiative, previously told me. “It’s really inexcusable that we don’t make this available for people who are at such risk of death.”

January 31, 2020 in Prisons and prisoners | Permalink | Comments (0)

January 30, 2020

Rehearing petition (and guest post) in Mississippi Supreme Court case upholding 12-year prison term for mere possession of cell phone in jail

6a00d83451574769e2022ad3762ba2200c-320wiIn this post earlier this month, I noted a disheartening ruling by the Mississippi Supreme Court upholding 12-year prison term for mere possession of cell phone in jail.  Will Bardwell, an attorney in the Mississippi office of the Southern Poverty Law Center, last week sent me a copy of a motion for rehearing that he helped file in the case (which can be accessed below).  I asked Will if he might want to do a guest posting to go along with my posting of the motion, and here is what he sent my way:

On its edges, sentencing law can be a bit of a technical thicket — difficult to navigate for laymen, or even for practitioners who don’t often work in that field. But at its heart, sentencing law — and the constitutional demands under which it exists – embodies our society’s sense of fairness. Above all else, sentencing demands that punishment must fit the crime.

It is not news that a consensus has developed among Americans that our criminal justice system’s priorities must be recalibrated. Nor is it news that our laws have failed to keep pace with that consensus. Unfortunately, though, the human toll of that failure does continue to make news.

In early January, the Mississippi Supreme Court added another ignominious chapter to that story when it affirmed the 12-year prison sentence of my client, Willie Nash.  In 2017, Willie was arrested for a misdemeanor in Newton County, Mississippi. The county jail’s policy is to strip-search all arrestees, but when Willie arrived, the jail violated that policy — so the cell phone that a search would have uncovered remained with Willie.  Willie never lied about the phone or made any effort to conceal it.  And guards might never have discovered the phone if Willie had not offered it up and provided the passcode to unlock it.

For this, Willie was convicted of taking a cell phone into a jail — and sentenced to an astonishing 12 years in prison.  No fewer than 36 states punish cell phone possession in a correctional facility with no more than five years in prison.  If anyone in American history has ever gotten 12 years for doing what Willie did, then my partners and I at the Southern Poverty Law Center are unaware of it. 

When Willie’s sentencing judge announced that decision, he pointed to Willie’s two prior burglary convictions some two decades earlier and explained that, if prosecutors had indicted Willie as a habitual offender, then Willie could have received 15 years — “so I want you to consider yourself fortunate,” the judge said.

It is no exaggeration to say that the Mississippi Supreme Court’s affirmance of that sentence shocked the world: the decision made headlines as far as way as New Zealand. And you don’t need a law degree to be as alarmed by the Mississippi Supreme Court’s reasoning as by its result.

Like Willie’s sentencing court, the Mississippi Supreme Court rested its decision heavily on Willie’s prior convictions. It pointed out the sentencing judge’s reliance on “evidence of Nash’s criminal history;” and it distinguished authority favorable to Willie by explaining that “Nash’s prior felony convictions subjected him to fifteen years’ imprisonment, to be served day for day, had the State charged him as a habitual offender.”

Like Willie’s sentencing judge, the Mississippi Supreme Court seems to think that Willie should consider himself lucky. But I’ve been in a room with Willie. I’ve looked into his tired eyes, heard his quiet voice, and seen how his oversized prison uniform hangs over his thin, slumping frame.

Willie doesn’t feel lucky.  And the many Mississippians that I’ve spoken to, from the widest imaginable political perspectives, don’t think Willie is lucky.

In fairness, the Mississippi Supreme Court must view Willie’s case through a different lens than most people.  For most of us, the shock to our consciences has been enough for us to know that Willie’s punishment does not fit his actions. For the Mississippi Supreme Court, though, that question has been complicated by the United States Supreme Court’s contorted precedent concerning the Eighth Amendment’s proportionality requirement.

That the Eighth Amendment requires proportionality is no longer up for debate.  Aside from its existence, though, the Court’s decisions over the past 40 years have left nearly every other detail of the proportionality requirement unsettled.  Seemingly irreconcilable decisions have been left unreconciled, and ambiguities have been left unclarified. In recent years, the Court has seemed content to keep its silence on the issue, perhaps hoping that lower courts will clarify what it has muddled.

But the outcome in lower courts has been predictably chaotic.  These unanswered questions are not merely fodder for academic debate.  There are human beings languishing in prison because of this case law jumble. Willie is one of them.

In particular, one unanswered question lies at the heart of Willie’s case: the Mississippi courts’ use of his prior convictions to justify his sentence.  Despite his two burglary convictions nearly 20 years ago, Willie was not charged as a habitual offender.  Mississippi’s courts relied on those convictions anyway -- and urged him to “consider yourself fortunate.”

But none of the United States Supreme Court’s proportionality decisions hold that prior convictions contribute to a crime’s gravity when the defendant was not charged as a recidivist.  In Ewing v. California, the Court insisted that “weighing the gravity of Ewing’s offense” required it to “place on the scales not only his current felony, but also his long history of felony recidivism.” But Ewing had been sentenced under California’s “three strikes” law. Likewise, the defendants in Rummel v. Estelle and Lockyer v. Andrade – both of whose challenges to their life sentences failed – were sentenced under habitual offender statutes.

But Willie wasn’t charged as a habitual offender. And if Mississippi courts wanted to sentence him like a habitual offender, then prosecutors should have charged him as a habitual offender.  But they didn’t.

Not surprisingly, lower courts have taken this unworked detail in different directions.  In 2016, for example, the South Dakota Supreme Court held that “[f]or purposes of challenging the constitutionality of a sentence in a noncapital case, it appears that a defendant’s criminal history is only relevant when the sentence is enhanced under recidivism statutes.”  That court is not alone in its view. Obviously, Willie’s case illustrates that the Mississippi Supreme Court has reached the opposite result; neither is it alone.

I’m hopeful that the Mississippi Supreme Court will correct the injustice of Willie’s case [based on the rehearing motion below] without the need to petition the United States Supreme Court.  Willie’s case certainly does not rely on novel legal theories; even under the proportionality requirement’s framework as unsettled as it is, Willie’s sentence is grossly disproportionate.  If, instead of taking a cell phone into jail, Willie instead had committed second-degree arson or poisoned someone in an effort to kill them, Mississippi law would have imposed a shorter sentence than the one he is serving today.  A 12-year sentence for something so much more innocuous simply doesn’t pass the straight-face test.

But even if the Mississippi Supreme Court reconsiders Willie’s case, our society’s sense of basic fairness cries out for the United States Supreme Court to begin cleaning up the mess that its predecessors have made of the proportionality doctrine.  The cost of that confusion is human lives like Willie’s.  And that cost is growing.

Download Nash v State - Motion for Rehearing (filed)

Prior related post:

January 30, 2020 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Reflecting on the meaning of "life" after Graham and Miller

Eli Hager has an extended new piece (at The Marshall Project and Slate) concerning the legal churn over the application of Miller and Graham.  The full headline of this piece highlights its themes: "What’s the Meaning of “Life” When Sentencing Kids?: The Supreme Court ended automatic life without parole for children. What replaces it remains unclear." I recommend the full piece and here are excerpts: 

How long a sentence would the judge have to hand down for it to feel essentially the same as being sent to prison for life?

States have been wrestling with this question over the past decade in the wake of multiple U.S. Supreme Court rulings that automatically sentencing juveniles to life in prison without the possibility of parole is unconstitutional, because kids have a unique ability to grow and change and therefore deserve a second chance down the road. That forced courts and legislatures to consider what number of years to hand down instead to the more than 2,000 current prisoners nationwide who were originally sentenced as juveniles to mandatory life without parole....

[Certain] states have determined that locking up a juvenile for 25 years is tantamount to a life sentence. Some have put the number at 40 years. But one Louisiana court ruled that even a 70-year sentence is not equivalent to life in prison. Another in Florida said that having a possible parole date in the year 2352—more than three centuries from now—is still less than an automatic lifetime behind bars.

“It really is a philosophical question,” said Marsha Levick, chief legal officer at the Juvenile Law Center, an advocacy group. “These are children who entered prison before having finished high school, who never got a chance to achieve maturity, to have relationships, have a family, a career. Does releasing them at 70 or 80 or 90 years old, when they are geriatric, really give them that second chance at an actual life?”...

It’s hard to estimate how many juveniles are serving long sentences equivalent to life. In most states, no agency is mandated to count how many kids are sent away until they will likely die, though youth advocates in Louisiana, for example, estimate there are more than 200 in that state’s penitentiaries alone.Pennsylvania has made perhaps the most concerted effort to get a large number of prisoners originally sentenced to automatic life without parole re-sentenced and then sent home, following the Supreme Court’s reasoning. More than 200 former juvenile lifers there have been let out in recent years, most to the Philadelphia area.

January 30, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

January 29, 2020

Georgia completes second execution in US in 2020

As reported in this local article, "Georgia has executed Donnie Lance for the 1997 murders of his ex-wife and her boyfriend in Jackson County." Here are some more details about the crime and prelude to the second execution completed in the United States in the year 2020:

Lance, 65, who was sentenced to death in 1999, was given a lethal injection of pentobarbital at the Georgia Diagnostic and Classification Prison in Jackson. He declined to make a final statement, to hear a final prayer.  He’d already spent the day praying with family, including his adult kids, who had tried to stop the state from executing for the deaths of their mother, Joy Lance, 39, and her boyfriend, Dwight “Butch” Wood Jr., 33....

The U.S. Supreme Court denied Lance’s final appeals at roughly 8:15 p.m., clearing the way for his execution. The high court, in two separate orders, declined to hear Lance’s requests that it halt his execution on grounds of alleged prosecution misconduct and lower-court rulings that denied his request for DNA testing....

Lance’s attorneys have also argued that the jury that convicted him and sentenced him to death should have known he had brain damage and an IQ that makes him borderline intellectually disabled.  Lance has maintained his innocence, and his grown children have spent months unsuccessfully calling for DNA testing on case evidence to confirm whether he killed their mother....

In January 2019, the U.S. Supreme Court declined to hear Lance’s appeal, which included information about his trial attorney’s failure to submit any mitigating evidence in the sentencing phase of the trial. Justice Sonia Sotomayor dissented, saying Lance’s lawyer should have presented evidence of his client’s cognitive impairments. Justices Ruth Bader Ginsburg and Elena Kagan joined in the dissent.Sotomayor said multiple experts had testified in a previous hearing that Lance, a former race car driver, had frontal lobe damage. (The frontal lobe of the brain controls myriad cognitive processes, including memory, reasoning and language.) Sotomayor said the experts also agreed that Lance’s IQ was borderline for intellectual disability.... Tammy Dearing [Wood’s sister] said she sympathizes with the Lance children, but their father made his bed. “We as taxpayers have supported this man for too long,” she said. “There’s so many things we missed out on as a family. I watched Butch’s kids grow up without a dad.”

January 29, 2020 in Death Penalty Reforms | Permalink | Comments (0)

"The Criminal Class and the Right to Be Subjected to Unreasonable Searches and Seizures"

The title of this post is the title of this new paper now available on SSRN authored by Matthew Greife and Ryan Hull. Here is its abstract:

People that are on parole have been lumped into what is called the criminal class by the courts.  Being in the criminal class has many consequences.  One such consequence is the loss of individual Fourth Amendment rights to be free from unreasonable searches and seizures.  While on parole an individual and their property can be searched with only reasonable suspicion rather than probable cause.  The justification for a lower standard is that those in the criminal class pose a greater threat to the community and are in need of greater control because of their propensity to commit crimes at higher rates than the average citizen.  However, these beliefs may be founded on misinterpretations of data and inaccurate cultural beliefs.  In this article we investigate the “social threat” presumption courts relied upon to lessen parolees Fourth Amendment protections.  Specifically, we interview parolees in Colorado to understand why they violate their parole terms and are re-incarcerated.  Generally, we find that the presumptions about parolees posing a greater threat to society than the average citizen is unsupportable and therefore unconstitutional.

January 29, 2020 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Dispensary owner gets (within-guideline?!) federal prison term of 15+ years for marijuana sales that could be legal under most state laws

The headlined of this local article from Michigan, "Michigan medical marijuana seller gets prison: ‘Federal law has not changed,’ judge says," does not fully capture all the notable elements of a federal sentencing for marijuana sales yesterday.  Here are the details via the press article:

The former owner of medical-marijuana dispensaries in several Michigan cities was sentenced Tuesday, Jan. 28, to nearly 16 years in federal prison.  Danny Trevino, 47, of Lansing, who had Hydroworld dispensaries in Grand Rapids, Flint, Jackson, Lansing and elsewhere, had avoided state criminal and civil penalties over the years but was convicted of multiple federal charges.

“States are changing marijuana laws across the country, certainly that’s true, but federal law has not changed,” U.S. District Judge Paul Maloney said.

Trevino sought the statutory minimum sentence of five years in prison. Maloney instead sentenced Trevino to 15 years, eight months in prison - at the low end of advisory sentencing guidelines, which ranged from 188 to 235 months.

The sentence upset several family members and pro-marijuana activists who attended the sentencing in Grand Rapids. “What you saw is a travesty,” Detroit resident Richard Clement said. His shirt read: “#GETNORML,” “#WARONDRUGS” and “CANNACURES.”

He said it was difficult to reconcile what he called a harsh sentence in a state where marijuana is legal. He and others think Trevino was targeted because he is Hispanic. “This was totally racist,” a woman said, leaving the courthouse. “None of the (other dispensaries) ever get raided.” She was with Trevino’s family but refused to give her name....

Trevino, who has operated dispensaries since 2010, was convicted in an August jury trial of 10 felony charges, including conspiracy to manufacture, distribute and possess marijuana and maintaining a drug-involved premises. He was not allowed to use the state’s medical-marijuana law as a defense to the federal charges.

Nonetheless, the government said, he acted outside of the boundaries of the state medical-marijuana law. Defense attorney Nicholas Bostic called that a “fallacy.” He said that Trevino was successful in challenging state complaints after he had been arrested and the subject of several search warrants. He was arrested in April 2014 in Grand Rapids for delivery or manufacture of marijuana and maintaining a drug house but charges were dropped a month later, court records showed.

He fought forfeitures of funds seized by police that were ultimately returned by state courts. Trevino’s businesses were raided 16 times between 2010 and 2016, the government said. He provided the state with store records and tax records that showed his businesses brought in nearly $3 million.

“He thought he was legal,” Bostic told the judge. He said his client, whose previous drug convictions prevented him from being a caregiver, oversaw the operation. He said that every single sale of medical marijuana at his businesses would have been legal under laws in 33 states and the District of Columbia that allow medical or recreational marijuana. Trevino earlier told MLive: "How could I not have been in compliance if I was acquitted and found not guilty. We were winning and they didn’t charge us, so we kept going.”

Assistant U.S. Attorney Daniel McGraw said Trevino knew he acted illegally under federal law. He called Trevino “defiant, unrepentant and undeterred from committing the current federal crimes.” After federal investigators used a search warrant at one of his locations in 2016, Trevino posted on Facebook: “I guess Hydroworld is illegal. Lol OK.”

McGraw said Trevino acted as though marijuana – legalized in 2018 for recreational use in Michigan – was always legal. Trevino was “told time and time again that it was illegal and your honor, he simply didn’t care. He didn’t care. He kept operating," the prosecutor said.

The judge said his concern was Trevino’s conduct under federal law. “I fully recognize that the landscape has changed in many states in this country,” Maloney said. “The fact is, marijuana is a Schedule 1 controlled substance.” He noted that Congress has eliminated the mandatory minimum prison sentence for crack cocaine but has not acted on marijuana.

He said Trevino “had to know he was on the radar screens of federal authorities.” The judge ordered Trevino to serve four years on supervised release once his prison term ends. He also fined Trevino $11,000.

Without seeing more materials from this case, I am adverse to making too many quick judgments about this outcome. But nearly 16 years for quasi-legal marijuana sales seems pretty severe absent a lot more aggravating facts.  This article suggests that the defendant here was a "problem child" under Michigan state law, and so I suppose I can understand why the feds went after him and why the judge decided he merited a significant sentence. But if the defendant possibly believed that he was complying with state law, it seems misguided to sentence him pursuant to federal sentencing guidelines that are based around the “heartland” of a fully illicit drug dealer.

January 29, 2020 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (3)

January 28, 2020

Contesting LWOP in Louisiana for selling a joint thanks to a a "quad bill" and the trial penalty

I just came across this press piece, headlined "Louisiana Supreme Court to review life sentence over $30 marijuana sale at Tulane hearing," on a notable extreme state sentencing case just argued before a state high court. The details are as troubling as headline:

The weight of marijuana in a typical joint is what Derek Harris handed an undercover agent who knocked on his door in Abbeville in 2008.  Harris, a military veteran, handed the agent .69 grams of the drug and pocketed $30 in return.  Four years later, a judge found Harris guilty of marijuana distribution, a Vermilion Parish prosecutor invoked the state’s habitual-offender law, and the judge sentenced Harris to life in prison with no chance at parole as a four-time loser.

Harris’ prior convictions dated back to 1991, 17 years before that minor pot bust, and a conviction for dealing cocaine, according to court filings. He was convicted of simple robbery in 1993 and again in 1994. Three years before the ill-fated marijuana sale, in 2005, Harris was convicted again, on a charge of theft under $500.

If the life sentence seemed to some to be excessive — though 15th Judicial District Judge Durwood Conque claimed he had no choice after prosecutors unleashed a “quad bill” on Harris — his trial attorney skipped some key legal steps to seek a lower one and keep the issue alive for an appeal [and] the Louisiana Supreme Court hear[d] oral arguments over whether it's too late for Harris to claim his lawyer botched his sentencing....

Harris’ attorneys are asking the Supreme Court to upend a 24-year-old decision in which the high court ruled that a challenge to a sentence as being excessive can’t be raised after a defendant’s direct appeals have run out. Harris’ attorneys with the New Orleans-based Promise of Justice Initiative argue that he should be allowed to go back and prove his attorney failed him, in spite of that blanket rule.

District Attorney Keith Stutes’ office argues that the Supreme Court has been clear, and that Harris’ attorneys are barking up the wrong legal tree. Conque, the trial judge, told Harris at his initial sentencing that he didn’t think a 30-year maximum sentence was warranted. Instead, he handed Harris 15 years. But after prosecutors invoked the habitual-offender law, Conque said his hands were tied....

It appears prosecutors initially offered Harris a seven-year sentence, but he wanted three years, and the offers got worse for him from there. Harris has claimed he never got the offer. Stutes' office argues that the number doesn't matter, in the end. Any number would have netted life for Harris under the habitual-offender law, and a decision on whether to invoke that is left solely to the prosecutor's discretion.

Prosecutors outside of the New Orleans area rarely wheel out the habitual-offender law to jack up a prison sentence, state data collected by the Pew Charitable Trusts show. But when they do, it is often to follow through on a pre-trial threat aimed at pushing a defendant to take a guilty plea rather than go to trial.

One of three state 3rd Circuit Court of Appeal jurists on a panel that earlier rejected Harris’ appeal offered a blistering dissent. Judge Sylvia Cooks cited Harris’ service as a veteran of Operation Desert Storm and his drug addiction while calling his life sentence “shocking to my conscience.”  The state’s high court has set a high bar in deciding when a sentence is unconstitutionally severe. It reserves those decisions for punishment that “shocks the conscience“ amounting to “nothing more than the purposeful imposition of pain and suffering grossly disproportionate to the severity of the crime.”

In one notable case, the high court refused to lower a 13-year sentence handed to Bernard Noble, a New Orleans man caught with the equivalent of a few joints of marijuana. The court found that Noble’s case wasn’t shocking enough to overrule the Legislature’s tough sentencing laws at the time. Harris’ sentence, though, means he'll die in prison.

I find it so sad that even with all the positive sentencing reform momentum in recent years, there are still so many of these extreme sentencing stories of LWOP for the most minor of marijuana offenses or, as noted here, 12 years for harmlessly having a cell phone when booked into jail. As I said before, I fear it is still way too routine for way too many judges and prosecutors to be comfortable with sending people off to live in cages for years and decades without deep reflection on just what these sentences really mean for the defendant and what they say about American as a nation. Sigh.

January 28, 2020 in Examples of "over-punishment", Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs"

The title of this post is the title of this new paper authored by Beth Colgan and Nicholas McLean now available via SSRN.  Here is its abstract:

In the wake of the Supreme Court’s decision in Timbs v. Indiana — which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines” — it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine.  The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families — in particular, the infliction of financial hardship — when assessing the severity of a forfeiture in the proportionality review context.  In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.

January 28, 2020 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

More on the need for more robust SCOTUS criminal defense representation

I noted in this post a few weeks ago this notable new article authored by Daniel Epps and William Ortman titled "The Defender General."  Adam Liptak of the New York Times has clearly read the piece, as he has this new article discussing its proporal under the headline "A Proposal to Offset Prosecutors’ Power: The ‘Defender General’."  Here are excerpts:

Justice Elena Kagan calls it her hobbyhorse. Justice Sonia Sotomayor says it is a kind of malpractice.  Criminal defense lawyers, they say, often fail to put aside ambition and vanity when their cases reach the Supreme Court. These lawyers, the justices say, should step aside and let Supreme Court specialists handle the arguments. “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants,” Justice Elena Kagan said at a Justice Department event in 2014.

Studies have demonstrated that members of the elite Supreme Court bar who appear often before the justices win their cases at a substantially higher rate than novices do.  But persuading trial lawyers to cede a once-in-a-lifetime turn at the Supreme Court lectern to a fancy appellate lawyer is easier said than done.  “A lot of these cases, they’re pretty hard to win anyway. And what we see is that people are being represented by whoever the trial counsel was for a particular defendant,” Justice Kagan said in 2014. “And appellate advocacy is hard, and it takes a lot of skill and a lot of experience.”

Trial lawyers should put their clients’ interests first, Justice Sonia Sotomayor told Reuters in 2014. “I think it’s malpractice for any lawyer who thinks, ‘This is my one shot before the Supreme Court, and I have to take it,’” she said.

Making sure criminal defendants have consistently able lawyers at the Supreme Court would be a start.  But a new article published in the University of Pennsylvania Law Review by Professors Daniel Epps of Washington University in St. Louis and William Ortman of Wayne State University says more is needed.....  The problem, they say, is structural. Prosecutors can choose which cases to appeal, with an eye toward shaping the law rather than preserving every conviction.  Criminal lawyers, however skilled, must defend their individual clients.

The article, “The Defender General,” proposes the creation of a new office to counterbalance that of the solicitor general, the Justice Department official who represents the federal government in the Supreme Court. The solicitor general’s office is particularly skilled at making strategic litigation choices, and it plays a role in about three-quarters of criminal cases heard by the court.

In federal cases, the solicitor general represents the prosecution.  In state cases, it very often files briefs supporting the prosecution and is granted separate argument time to make its points.  In all, the solicitor general’s office has sided against criminal defendants more than 95 percent of the time.  The defender general’s office envisioned by the article would sometimes represent individual criminal defendants or file supporting briefs on their behalf.  More important, it would represent the interests of criminal defendants generally, even when they diverged from the interests of the particular defendant in the case....

The proposed defender general’s office is more thought experiment than realistic prospect.  But it sheds light on an authentic engine of imbalance in the criminal justice system.  The article builds on earlier work.  A 2016 article in the Minnesota Law Review by Andrew Manuel Crespo, a law professor at Harvard, proposed a partial fix. It urged the justices to appoint expert lawyers to argue as friends of the court alongside the defendants’ own lawyers. Along the same lines, Senator Cory Booker, Democrat of New Jersey, has proposed creating a Defender Office for Supreme Court Advocacy to represent criminal defendants and file supporting briefs.

Another factor may tilt the playing field against criminal defendants: Since the retirement of Justice Thurgood Marshall in 1991, the Supreme Court has not included any justices who have spent significant time working as criminal defense lawyers before ascending to the bench.

By contrast, eight of the nine members of the current court have worked in prosecutors’ offices. Six of them served in the Justice Department. Justice Clarence Thomas was an assistant attorney general of Missouri; Justice Sotomayor was an assistant district attorney in Manhattan; and Justice Brett M. Kavanaugh worked for Ken Starr, the independent counsel who investigated President Bill Clinton. The court could use some diversity in this area, Justice Sotomayor said in 2016 at Brooklyn Law School: “There is no criminal defense lawyer on the court.”

Some prior related posts:

January 28, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

January 27, 2020

"(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin'"

The title of this post is the title of this notable new piece now available via SSRN authored by Judith Resnik. Here is its abstract:

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states.  The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.”  Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment.  In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment.  I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance.  I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent anti-ruination principle that all branches of government need to implement.

January 27, 2020 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sixth Circuit panel declares one-day prison sentence (plus 10 years on supervised release) for large child porn possession substantively unreasonable

In a series of rulings in recent years, most notably United States v. Bistline, the Sixth Circuit has found sentences for child porn possession that lacked some significant prison time to be unreasonable.  Another such ruling was handed down this past on Friday in United States v. Demma, No. 18-4143 (6th Cir. Jan 24, 2020) (available here).  The 15-page panel ruling, authored by Judge Gilman, gets started this way: "This is yet another case raising the issue of whether a one-day sentence for a defendant convicted of possessing child pornography is reasonable. For the reasons set forth below, we determine that it is not."  The full opinion is worth a read, and here are some key passages:

At the sentencing hearing, the district court focused almost entirely on Demma’s individual characteristics in deciding not to impose a term of incarceration. It relied, in particular, on the testimony of Dr. Peterson and Dr. Tennenbaum, both of whom opined that Demma’s use of child pornography was directly caused by his service in the military and his resulting PTSD.

To be sure, the district court did not err by recognizing Demma’s military service and PTSD diagnosis under § 3553(a)(1) as considerations relevant to his sentence.  See United States v. Reilly, 662 F.3d 754, 760 (6th Cir. 2011) (explaining that the defendant’s military service and lack of criminal history were “permissible considerations in the ‘variance’ determination under 18 U.S.C. § 3553(a)”).  But the court in the present case gave these considerations unreasonable weight in deciding to vary downwards to an essentially noncustodial sentence....

Moreover, in focusing on the role of Demma’s military service as purportedly causing his crimes, the district court cast Demma more as the victim than the perpetrator, stating that Demma’s crimes were “the result of his voluntary service to his community and his country” and “an unintended consequence” of his decision to serve in the Army.  This court has explained, however, that “[k]nowing possession of child pornography . . . is not a crime that happens to a defendant.”  Bistline I, 665 F.3d 758, 765 (6th Cir. 2012)....

Our overall conclusion is that, based on the totality of the circumstances, the district court weighed some factors under § 3553(a) too heavily and gave insufficient weight to others in determining Demma’s sentence.  This is not to say that some other defendant possessing far fewer and less offensive images over a much shorter period of time might justify such an extreme downward variance, but that is not Demma’s case.  As this court noted in United States v. Elmore, 743 F.3d 1068 (6th Cir. 2014), a United States Sentencing Commission report states that “fully 96.6 percent of first-time child-pornography-possession convictions led to at least some prison time.” Id. at 1076 (emphasis in original).  We find no basis in the record for Demma to not become part of this overwhelming statistic.  

January 27, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

SCOTUS dismisses Walker ACCA case after death of petitioner (and after robust amicus efforts)

As noted in this post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  Even more than the average ACCA case, the Walker case caught my attention because it involved an elderly man, James Walker, who received 15 years in prison under ACCA based on his possession of 13 bullets that he had found while cleaning a house.

Though the cert grant in Walker involved ACCA statutory interpretation concerning predicate prior offenses, I have long been troubled by any application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  (Indeed, long-time readers may recall I helped file an amicus brief in the Sixth Circuit and another amicus brief in support of a cert petition in a similar case, US v. Young, a few years ago.)  After seeing the cert grant in Walker, I reached out to some law professor colleagues and we filed earlier this month this SCOTUS amicus brief in US v. Walker, and here is part of the brief's Summary of Argument:

This Court’s interpretation of the reach of the Armed Career Criminal Act (ACCA), if properly informed by constitutional principles, must avoid application to Petitioner of the ACCA’s fifteen-year mandatory minimum prison term based on his possession of thirteen bullets in violation of 18 U.S.C. § 922(g)(1).  Because mere possession of ammunition is the most passive of crimes — in fact, most States do not even criminalize this behavior and it almost never results in severe punishment — a mandatory fifteen-year prison term is arguably disproportionately harsh.  That Petitioner possessed a small amount of ammunition, that he lacked any vicious or menacing mens rea, and that his prior convictions are decades old serve as additional factors suggesting that a mandatory minimum fifteen-year federal sentence for Petitioner’s offense is constitutionally suspect under any and all jurisprudential approaches to the Eighth Amendment.

As this Court has explained, the “canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009)....  Given extensive litigation over what predicate offenses qualify for ACCA’s enhanced penalties, there is little question that this Court confronts ambiguous statutory language in this case.  In turn, because any sound approach to the Eighth Amendment suggests serious constitutional doubts about the application of a fifteen-year mandatory sentence for “one of the most passive felonies a person could commit.”  Solem v. Helm, 463 U.S. 277, 296 (1983), the canon of constitutional avoidance provides support for the narrower interpretation of ACCA advanced by Petitioner.  Further, the absence of a modern Court application of the Eighth Amendment to a federal non-capital adult sentence suggests that this constitutional right is precisely the kind of constitutional norm that cautions judicial restraint when interpreting an ambiguous statute.

As this case highlights, broad interpretations of ACCA present a heightened risk of constitutionally questionable mandatory minimum sentences.  This Court should limit that risk by adopting the ACCA interpretation put forward by the Petitioner.

Notably, though I believe our amicus brief was the only one to raise Eighth Amendment issues, another half dozen amicus briefs were filed earlier this month supporting the petitioner.

But, sadly, petitioner's counsel filed this notice last week reporting that James Walker passed away on January 22, 2020.  In accord with its practice, the Supreme Court via this morning's order list, dismissed the writ of certiorari in this case.  I suspect that SCOTUS will before too long take up a replacement case to address the ACCA statutory issue, though I sincerely hope there are not a lot of other cases in the pipeline that also involve application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  If there are, I surely will continue to complain about this extreme sentencing provision.

January 27, 2020 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

January 26, 2020

"The Cruelty of Supermax Detention and the Case for a Hard-Time Sentencing Discount: A Pragmatic Solution to a Moral Shortcoming Which Is Otherwise Unlikely to Be Fixed"

The title of this post is the title of this new paper authored by Mirko Bagaric and Jen Svilar now available via SSRN.  Here is its abstract:

We should send offenders to prison as punishment, not for punishment.  This principle is currently being violated in relation to approximately 60,000 offenders who are caged in ‘supermax’ prison conditions in the United States.  Many of these prisoners spend up to 23 years in a small cell with no contact with any person.  The conditions are traumatic. Emerging evidence demonstrates that these conditions cause considerable psychological and physical harm to prisoners.  Understandably, there are growing calls to abolish confinement of this nature.  However, there are no signs that abolition of supermax conditions will occur soon.  Despite this, it is incontestable that the deprivation experienced by prisoners can vary considerably, depending on the strictness of the prison regime in which the prisoner is confined.  Prisoners subjected to supermax conditions suffer considerably more than those in conventional prison conditions.

In this Article, we make recommendations regarding the manner in which prison conditions should impact the length of a prison term.  We suggest that for most prisoners, every day spent in supermax conditions should result in two days’ credit towards the expiration of the prison term.  Hard-time credits are justified by the principle of proportionality, which stipulates that the seriousness of the crime should be matched by the hardship of the penalty.  The main cohort of prisoners that should not be eligible for hard time credits are serious sexual and violent offenders who are at risk of re-offending, as determined by the application of a risk assessment instrument.  Infringement of the proportionality principle is justified in these circumstances because of the more pressing need to pursue the ultimate aim of sentencing: community protection.

Providing hard-time credits for most prisoners who are forced to endure supermax conditions will not overcome the ethical problems associated with this form of detention — which are especially acute given that African American and Hispanic inmates are disproportionality subjected to supermax confinement.  However, the reform proposed in this Article will provide a pragmatic solution to a considerable failing in our sentencing and prison systems and operate to make authorities less inclined to subject prisoners to cruel conditions in a manner that does not compromise community safety.

January 26, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Different type of drug dealers get lengthy (though still way-below-guideline) sentences for RICO conspiracy to push opiods

There are nearly 400 drug dealers sentenced in federal courts every single week in the US, but a number of notable defendants were sentenced last week for their role in a somewhat different kind of drug conspiracy.  This Forbes article provides the basic details:

John Kapoor, the 76-year old billionaire founder of Insys Therapeutics, has been sentenced to 66-months in prison for orchestrating a system of bribery and kickbacks to physicians across the US in exchange for prescribing and over prescribing large amounts of the powerful fentanyl spray, Subsys, to patients with little to no need of the drug. Kapoor is the first ever CEO of a drug company to be convicted by the federal government in their fight to combat the opioid crisis.

Kapoor’s sentence was handed down by U.S. District Judge Allison Burroughs in a Boston federal court on Thursday January 23rd.... It is the lengthiest prison sentence imposed on any of the seven former Insys executives who were found guilty of racketeering charges in May of 2019. In addition to Kapoor’s 66-month sentence he was sentenced to three years of supervised release and a $250,000 fine.

Similar sentences have been handed down in recent days to Kapoor’s seven co-conspirators.  Michael Gurry, Insys' former vice president, along with Richard Simon, Insys’ national director of sales, each received 33-months in prison; Michael Babich, Insys’ former CEO,was sentenced to 30-months; Joseph Rowan, the company's regional sales director, received 27 months; Alec Burlakoff, the former vice president of sales, was sentenced to 26 months Thursday; and Sunrise Lee, the former regional sales director, to a year and a day in prison....

The landmark case has been notable on two major fronts, the first being big pharma’s hand in the perpetuation and exacerbation of the opioid epidemic in the US and second, Insys’ systematic defrauding of the American healthcare system. From 2012 and 2015, Insys allegedly paid physicians to prescribe Subsys to patient and then went on to lie to insurance companies and defraud hundreds of thousands of dollars from Medicare from physician to physician to ensure that the expensive fentanyl-based painkiller would be covered....

Kapoor’s five and a half year sentence is considerably less than the 15-year prison sentence that was being sought by prosecutors who asserted that Kapoor was the ‘fulcrum’ of the racketeering scheme and was the only defendant who could not have been replaced by another conspirator.  Federal prosecutors wrote in a sentencing memo, "He was the principal leader, who personally approved, and thereafter enforced, the corrupt strategies employed throughout the conspiracy," continuing, "This crime would not have happened, could not have happened, without John Kapoor. It was, in almost every way, Kapoor’s crime."

Kapoor and his four co-defendants were faced with seven victims and family members of victims whose gave emotional statements about how their lives had been destroyed by Insys’ actions.  “By the grace of God, I am here to speak for all of us including the ones who lives you took,” said victim Paul Lara, who says he still suffers from being prescribed a drug that was never meant for him. Subsys, the powerful fentanyl spray is intended for terminal cancer patients to ease the pain during end of life care....

"Today's convictions mark the first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids," U.S. Attorney Andrew E. Lelling said in a statement.  "Just as we would street-level drug dealers, we will hold pharmaceutical executives responsible for fueling the opioid epidemic by recklessly and illegally distributing these drugs, especially while conspiring to commit racketeering along the way." Lelling continued,  "This is a landmark prosecution that vindicated the public's interest in staunching the flow of opioids into our homes and streets."

Though Kapoor will now have to be in federal prison until he is in his 80s and might not live out the term, this CBS News article reports that victims are not content with the sentences imposed. The piece is headlined "Pharmaceutical executives 'got away with murder,' says mom of woman who died of an overdose," and here is an excerpt:

The prison sentence given to the pharmaceutical executive who helped fuel the opioid crisis "wasn't fair," the mother of a woman who died of an overdose said.  Deb Fuller was at the Boston courthouse Thursday, where Insys Therapeutics founder John Kapoor was sentenced to five and a half years for his role in bribing doctors to prescribe the powerful painkiller Subsys.  "I don't think it was fair. It wasn't fair to all the victims," Fuller told CBS News consumer investigative correspondent Anna Werner....

Former Insys Therapeutics Vice President of Sales Alec Burlakoff, who was featured in a video of company employees rapping about increasing sales, also was sentenced.  He got a shorter term of 26 months in prison, reflecting the fact that he cooperated with prosecutors.  Outside the courthouse, when asked if there was anything he would say to families of people who overdosed on Subsys, he said, "I'm sorry, very sorry."

Four other executives received sentences ranging from a year and a day to 33 months, not long enough for many families. "They all got away with murder because that's exactly what they did because it's more than Sarah that died from it," Fuller said.

January 26, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)