Friday, March 22, 2019

California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions

This Los Angeles Times piece, headlined "Gov. Newsom may prohibit new death sentences, setting up possible conflict with Becerra," it appears that the Governor of California may not be content with just delaying all possible executions during his time in office.  Here are some details:

A week after issuing an executive order imposing a blanket moratorium on the execution of California death row inmates, Gov. Gavin Newsom said he is considering a plan to prohibit any new death sentences in local criminal cases.

Newsom’s pronouncement could create conflict with another top Democratic leader, state Atty. Gen. Xavier Becerra, who has supported capital punishment, even though the governor said he wants to work collaboratively with the attorney general.

Newsom reiterated his desire to abolish the death penalty and said he hopes to work with Becerra and others to determine whether, as governor, he can act “on behalf of the people in this state to no longer prosecute death.”

“There is a protocol of death and an administration of death in the state of California, and it consumes the court’s time, it consumes the criminal justice system, it exhausts the soul and the pocketbook,” Newsom said during a conference call with reporters from ethnic news outlets Tuesday. “I would ultimately like to shut down that system of death.”

Though it is not entirely clear how Newsom would carry out such an order, he could either have Becerra direct local district attorneys not to seek the death penalty or order Becerra to not defend appeals. Both approaches would probably face legal challenges....

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Asked whether the attorney general will stop defending death sentences on appeal or direct county prosecutors to stop seeking death sentences, a Becerra spokeswoman said he is reviewing what role his office will play.  “The Department of Justice will work with Governor Newsom and his team as he implements his executive order and will continue to hold criminals accountable,” spokeswoman Bethany Lesser said.

After the Times published this story, Becerra requested an opportunity to clarify his position on the death penalty. In a telephone interview Thursday, he declined to answer if he supported or opposed capital punishment. He said only that, as attorney general, it was his duty to enforce the laws in California, the death penalty among them.  “Where I stand personally on it, I have real reservations about the death penalty. I think there is ample proof that it has not worked the way we would want when it comes to undertaking the most severe form of punishment that’s not reversible,” Becerra said....

The U.S. 9th Circuit Court of Appeals in San Francisco on Monday asked the attorney general’s Department of Justice to indicate whether the governor’s moratorium will affect a death penalty case involving Martin Kipp, who was convicted in the 1983 slaying of Antaya Yvette Howard of Huntington Beach, a former basketball star at Marina High School.  “The Office of the Attorney General is in the process of determining the full effect of the Executive Order on death penalty cases,” the state Department of Justice told the court in a letter.

Even if Becerra disagrees with Newsom, he might not have a choice if the governor decides to force the issue. Because the California Constitution gives the governor “supreme executive power” over the executive branch, Newsom could order Becerra to take action that could suspend all death penalty prosecutions across the state. “In California’s executive branch, the governor has the final word,” said David A. Carrillo, executive director of the California Constitution Center at Berkeley Law.

In 1981, the California Supreme Court ruled that the governor’s constitutional powers give him direct authority over the attorney general. “The constitutional pattern is crystal clear: if a conflict between the Governor and the Attorney General develops over the faithful execution of the laws of this state, the Governor retains the ‘supreme executive power’ to determine the public interest,” the court decision stated....

The constitution also states that the attorney general, as the state’s chief law enforcement officer, has direct supervision over every county district attorney “in all matters pertaining to the duties of their respective offices” — opening up the possibility that he could order locally elected prosecutors to cease seeking the death penalty in murder trials.

Any attempt by the attorney general to dictate how a county district attorney can handle murder prosecutions would almost assuredly be unconstitutional and challenged in court, said Assemblyman Jordan Cunningham (R-Templeton), a former deputy district attorney. District attorneys serve independent of the attorney general, he said. “There’s a lot of D.A.s who I have spoken to, who I know, who aren’t happy with the moratorium that we have now,” Cunningham said. “We don’t live in a system where one person gets elected governor and they get to do what they want by executive fiat.”

Prior related post:

March 22, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Philly DA looking to curtail duration of probation and parole

Many years ago, I heard an academic a lot smarter than me say that the US would never make a serious dent in mass incarceration if and while we still had an even more massive number of persons subject to criminal justice supervision. He suggested that it was unavoidable that some percentage subject to community supervision would end up going back to prison, and so to reduce incarceration levels we had to also reduce supervision levels.

This story is salient this morning because of this notable new press report from Philadelphia headlined "Philly DA Larry Krasner: We took on mass incarceration. Now we’re addressing mass supervision." Here are the basics (with this from the original):

Over his first year in office, Philadelphia District Attorney Larry Krasner rolled out a series of internal policies described as “an effort to end mass incarceration": seeking shorter sentences, diverting low-level offenses from the justice system, and charging crimes at a lower level. 

Now, he’s looking to the next step. “One of our big priorities this year," he said, "is to try to address mass supervision — which, of course, would be both probation and parole.”

Philadelphia counted 42,000 people on county supervision at the end of 2017, or one in 22 adults. Statewide, Pennsylvanians are under correctional control at the second-highest rate in the nation, behind Georgia, and has the highest rate of parolees.

“I think people instinctively believed too much supervision is not enough. But it turns out too much supervision is too much. ... It does tremendous harm, and it costs a fortune,” Krasner said in an interview outlining policies to be announced Thursday. Nationally, about 40 percent of people on probation are reincarcerated, making community supervision a major driver of incarceration. About 40 percent of Philadelphia’s jail population is being held on a detainer for a violation of probation or parole.

His plan? To put his office’s weight behind a push to drastically curtail terms of supervision, which can stretch on for years or even decades, long after prison and jail sentences have been concluded.

Under the new policy, on top of any sentence of incarceration for a felony, assistant district attorneys will seek community supervision terms averaging 18 months, with a ceiling of three years. For misdemeanors, they’ll seek probation or parole terms around six months, not to exceed one year of combined community supervision.

March 22, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Wednesday, March 20, 2019

Post-Johnson litigation creates intricate procedural debates in Eleventh Circuit

Thanks to this post at How Appealing, I just saw that the Eleventh Circuit yesterday needed just one sentence to deny rehearing en banc in US v. St. Hubert, a case concerning vagueness challenges to two federal firearm convictions under 18 U.S.C. § 924(c).  But judges of the court had a lot to say thanks to the enduring constitutional and procedural mess created by the Johnson case and its progeny and their potential impact on federal prisoners serving all sorts of lengthy mandatory minimum sentences. 

The six distinct opinions concurring and dissenting from the en banc denial, which collective run 88 pages, defy easy summary.  But if anyone thinks they are really, really, really interested in post-Johnson litigation and all its echoes and challenges (both substantively and procedurally), the Eleventh Circuit has provided an extra law-nerd slice of March Madness with St. Hubert.

March 20, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Rounding-up some news and commentary as SCOTUS hears argument on latest round of capital insanity

InsanityAlbert Einstein is generally credited with the aphorism that "the definition of insanity is doing the same thing over and over again, but expecting different results." That quote came to mind as I was thinking about the Supreme Court's consideration this morning of a Batson claim in Flowers v. Mississippi. Here is a brief accounting of just some of the backstory of this case (with emphasis added) from this SCOTUSblog post when cert was granted:

[T]he justices will once again review the case of Curtis Flowers, who was sentenced to death for an infamous quadruple murder at a furniture store in Winona, Mississippi.  Flowers was tried six times.  During the first four trials, prosecutor Doug Evans was twice found to have violated the constitutional ban on racial discrimination in selecting jurors: He had struck all 10 of the potential African-American jurors, while he used all of his strikes to remove African Americans from the jury pool in the third and fourth trials.  Flowers’ fifth trial deadlocked, but at his sixth trial, Evans allowed the first African-American juror to be seated but then struck the remaining five African-American jurors. 

Reviewing my blog archives, I noticed that it was nine years ago(!) that I blogged here about a local article and asked "Will sixth time be the charm in capital trial(s) of Curtis Flowers?"

Here are a few up-to-date discussions of and commentary on the case as it now comes before the US Supreme Court on the issue of whether the Mississippi Supreme Court properly applied Batson v. Kentucky in this version of the case:

March 20, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, March 19, 2019

Important new empirical work on expungement realities in Michigan

Via this great new post at the Collateral Consequences Resource Center, I see that Sonja Starr and J.J. Prescott have this great new article titled "Expungement of Criminal Convictions: An Empirical Study."  Here is the article's abstract:

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity.  This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable.  We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients.

We offer three key sets of empirical findings.  First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility.  Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.”  Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population — a finding that defuses a common public-safety objection to expungement laws.  Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.

The CCRC posting about this article highlights that the good news in the form of positive outcomes for those who get records expunged are dimmed by the bad new of low rate of expungement. The CCRC posting goes on:

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.” 

March 19, 2019 in Collateral consequences, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case

I learned last night of a remarkable new four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019) (available for download below).  Chad Marks' case has been followed for years by clemency advocates like Amy Povah, and this CAN-DO profile page has lots of background materials about his case, his requests for clemency, and all the positive work he has done since being sentenced many years ago to 40 mandatory prison years due to extreme recidivist stacking § 924(c) firearm charges. 

As informed readers know, the FIRST STEP Act eliminated the provisions of federal law that had required multiple § 924(c) firearm mandatory-minimum sentences to be stacked to include recidivist 25-year terms.  But it did not make this change retroactively applicable to offenders like Mr. Marks' who were subject to its severe terms in prior years.  This new order by US District Judge David Larimer speaks to this reality, and here is part of what it has to say:

Although the First Step Act and the Guideline changes referenced in it benefit many, it does not appear that Marks would benefit directly because the changes to Section 924(c) do not appear to be retroactive. One option now is for those in the system to say to Mr. Marks, “too bad, the changes don’t apply to you and you must serve the lengthy remainder of your 40-year term, and perhaps die in jail.”

Chad Marks has now filed a pro se motion (Dkt. #491) requesting this Court, in part, to request the United States Attorney for the Western District of New York, James P. Kennedy, Jr., to consent to vacating one of Marks’ Section 924(c) convictions, which would, in effect, remove the draconian, mandatory 25-year consecutive sentence.

Admittedly, this is not a typical request. Marks makes this request, though, relying on several cases from other districts throughout the country where the U.S. Attorney did precisely what Marks seeks here. Marks relies principally on the case of U.S. v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014). That thoughtful opinion is annexed to Marks’ motion as Exhibit A. In the Holloway case, the defendant was convicted of three Section 924(c) violations for three separate car jackings over a two-day period. He received a mandatory sentence of 57 years. In Holloway, District Judge John Gleeson remarked that such a stacking sentence “would be laughable if only there weren’t real people on the receiving end of them.”

Prosecutors spend their days seeking convictions and appropriate sentences. What is sought here is different, but in his decision in Holloway, Judge Gleeson praised the U.S. Attorney for the Eastern District of New York for agreeing to vacate a prior conviction in that particular and unusual case. He noted that prosecutors can and should use their vast power to remedy injustices in an appropriate case.

So, what to do?  Does this defendant, Chad Marks, deserve this remedy? In my more than 30 years as a district court judge, I have never known a prisoner to do more to make changes in his life while incarcerated. Marks’ acts and accomplishments while incarcerated for the last decade are truly extraordinary. Marks has obtained a college degree, participated in about 100 rehabilitative programs, has received numerous awards and citations, is engaged as a GED teacher and has mentored other inmates. Marks has recounted many of these accomplishments in his motion (Dkt. #491, page 7). The record reflects extraordinary accomplishments.

Extraordinary cases require extraordinary care and sometimes extraordinary relief.  I urge all to review Judge Gleeson’s thoughtful decision in the Holloway case. The criminal “justice” system is about justice and fairness ultimately.  Chad Marks was convicted of serious crimes, but I believe that Marks is not a danger and is not now the person convicted of these charges in 2008, which involved a rather small-scale drug case.  All of Marks’ co-defendants have completed their sentences.

I request that the United States Attorney for the Western District of New York, James P. Kennedy, Jr., carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions.  This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of “stacking.”

To facilitate that review, I request that Marks’ appointed counsel, Jillian S. Harrington, Esq. provide a filing listing in detail the many, many accomplishments, awards and other matters involving Marks while he has been incarcerated. In addition, counsel should list the scores of rehabilitative programs that Marks successfully completed.  Marks has described many of his accomplishments in his pending motion, but I leave it to counsel to provide a detailed supplement to assist the U.S. Attorney’s review as well as this Court’s.

Download 3-18-19 LARIMER ORDER

I am so very pleased to see this federal judge enter this formal order urging the US Attorney to vacate a charge in order to do justice in this extraordinary and compelling case.  However, I keep using the term "extraordinary and compelling" in this post because I do not think the federal judge here has to rely on the US Attorney to do justice in this case now that the FIRST STEP Act has changed the process around judicial consideration of sentence modifications under 18 U.S.C. § 3582(C)(1)(A).

As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction." This is what gets described often as the "compassionate release" provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find "extraordinary and compelling reasons warrant such a reduction." As I read this new Marks order, I think Judge Larimer has already essentially made such a finding.

That all said, even though I think Judge Larimer has authority to do justice for Mr. Marks without awaiting action by the local US Attorney, I still think it strategically wise to see the prosecution's involvement in his effort to do justice. With the buy-in by the local prosecutor and vacating of a one of Mr. Marks' 924(c) convictions, there would likely be no appeal and likely no impediment to a Mr. Marks getting released in short order. If Judge Larimer were to act on his own using § 3582(C)(1)(A), however, the feds could possibly appeal and seek to block any early release.

March 19, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 18, 2019

Notable new materials on economic sanctions from The Hamilton Project

The Hamilton Project has assembled some notable new materials under the heading "The Economics of Bail, Fines, and Fees in the U.S. Criminal Justice System."  An event last week on this topic with multiple notable discussants is recorded here, and this one-pager reports on three papers with this introduction to the set:

Monetary sanctions have played a role in the U.S. criminal justice system since its founding, but the way these sanctions — bail, fines, fees, and forfeitures — are used has changed dramatically over time and across jurisdictions, as illustrated in the recent Timbs v. Indiana Supreme Court ruling.  These sanctions have important effects on who is detained and convicted, their subsequent labor market outcomes, and the priorities of law enforcement agencies.  New, rigorous research has provided an opportunity to implement evidence-based reforms: making better use of alternatives to cash bail, adjusting individual sanctions to reflect ability to pay, and breaking the link between sanction revenue and the budgets of law enforcement agencies.

Here are links to these three notable new papers and related materials:

March 18, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (0)

SCOTUS takes up Miller retroactivity, unanimous juries, the insanity defense and criminal preemption in latest order list!

The Supreme Court is back in action this morning and today's order lists includes a list of four cases in which certioriari is granted.  Four criminal grants would enough to warm a chilly morning for me, but all four cases involve fairly "big ticket" concerns.  With the help of SCOTUSblog, here is the list of granted cases: 

Mathena v. Malvo18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding — in direct conflict with Virginia’s highest court and other courts — that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

 

Ramos v. Louisiana18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

 

Kahler v. Kansas18-6135

IssueWhether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

 

Kansas v. Garcia, 17-834

Issue: Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications.

With so many Graham and Miller follow-up cases in the pipeline, I am not especially thrilled to see the Justices now decide to take up the Malvo case involving a government appeal of a (high-profile) defendant's win on a Miller retroactivity issues. Still, in the wake of the interesting mess that was Montgomery (see my little commentary, "Montgomery's Messy Trifecta), and the addition of two new Justices since then, I am grateful that these enduringly important issues are getting any at all.

Meanwhile, as the Malvo case might only cover a little issue, Ramos, Kahler and Garcia all cover big issues on a big canvas (though the result in Ramos seems easy to predict).  And, as always, I welcome reader input on what to expect or look forward to in these arenas.

March 18, 2019 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, March 17, 2019

Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act

In this post last month, which was titled "Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?," I speculated about the possible impact of a key change of the FIRST STEP Act allowing federal courts to directly reduce sentenced under compassionate release statutory provisions.  Excitingly, in recent days I have seen two article reporting on encouraging action in this arena:

From the Houston Chronicle, "‘Pill mill’ doctor among first released under law for dying prisoners"

From NPR, "Seriously Ill Federal Prisoners Freed As Compassionate Release Law Takes Effect"

Here is an excerpt from this latter piece:

FAMM's Facebook group has been sharing information about how to prepare petitions for release. And the group's lawyers are doing what they can to support families seeking help, too.

"Now, thanks to the First Step Act, when I hear from someone struggling with the compassionate release process, I don't have to say, 'I'm sorry,' " FAMM general counsel Mary Price told NPR.  "Instead, I can say, 'Let me see if I can find you a lawyer.' "

Price said the new possibilities opened up by the law have changed her work. "It is the most amazing feeling to work with the many lawyers who are filing and beginning to win compassionate release motions for prisoners who I know would never have made it to court, were it up to the BOP."

A few prior related posts:

March 17, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, March 14, 2019

"The Source of the Stink: A Private Delegation Framework for Recidivism Risk Assessment"

The title of this post is the title of this recent paper authored by Andrea Nishi now available via SSRN. Here is its abstract:

This paper explores the use of privately developed risk assessment algorithms in criminal sentencing, arguing that these tools are developed in a way that hinders the enforcement of constitutional protections and gives private algorithm developers undue influence in sentencing determinations.  Using the private delegation doctrine, which limits Congress's ability to delegate to private actors, the paper aims to strengthen the state statutory frameworks that govern the use of these tools to restore accountability to the sentencing process.

March 14, 2019 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Tuesday, March 12, 2019

"Prosecutors and Frequent Utilizers: How Can Prosecutors Better Address the Needs of People Who Frequently Interact with the Criminal Justice and Other Social Systems?"

The title of this post is the title of this new publication from the John Jay College of Criminal Justice's Institute for Innovation in Prosecution emerging from its series on Reimagining the Role of the Prosecutor in the Community. This paper is authored by John Choi, Bob Gualtieri, Jeremy Travis, and Allison Goldberg, and here is part of the start of this document:

Criminal justice involvement is often the culmination of unmet needs, according to an increasing body of research, testimony, and other evidence.  For many individuals who are arrested and charged, a combination of challenges — including mental illness, substance use, poverty, and trauma — can lead to frequent stays in the local jail, emergency room, and homeless shelter.  But very few of these stays lead to adequate care or address long-term needs.  Rather, social systems — criminal justice, health, and housing, for example  — traditionally exist in silos and operate on an “event-by-event basis,” with little coordination between them about how to address the overlapping populations they serve.  For those who cycle between these systems, often referred to as “frequent utilizers,” these stays offer few off-ramps from the criminal justice system or long-term resources.

For jurisdictions, this results in an ineffective use of public funds and an inadequate response to the needs of frequent utilizers and their communities.  While practitioners, policymakers, academics, and people directly impacted have described this cycle for years, innovations in data and technology offer new avenues to better understand and address the needs of those who frequently interact with the criminal justice and other social systems.  Through collaboration between criminal justice stakeholders, service providers, community organizations, and researchers, jurisdictions across the country are harnessing the power of data to develop new strategies to combat this cycle, invest in long-term solutions, and better meet the needs of frequent utilizers and their communities....

This paper grapples with how prosecutors can develop and implement responses that better meet the needs of frequent utilizers in ways that are also consistent with the prosecutor’s broader responsibilities.

March 12, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Making progressive (but not political) case that the FIRST STEP Act "does much harm"

Marie Gottschalk has this new Jacobin commentary assailing the FIRST STEP Act under the headlined "Did You Really Think Trump Was Going to Help End the Carceral State?".  The piece reiterates at length a variety of the criticisms from the left waged against the risk assessment tools in FIRST STEP while its fate was being debated in Congress. I recommend the whole piece, and here is how it starts and some excerpts:

With much fanfare, President Donald Trump signed the First Step Act into law in December. New Jersey senator and presidential candidate Cory Booker hailed the legislation as a milestone that marked a “meaningful break from decades of failed policies that led to mass incarceration.” Other supporters were more measured, characterizing it as a modest first step to keep the momentum going for criminal justice reform.

But the greatest sins of the First Step Act are not its modesty. The legislation nicks the edges of the carceral state while bolstering disturbing trends in criminal justice reform. CNN commentator Van Jones has claimed that the First Step Act is a “rare clean bill” that “does no harm.” Jones is wrong — it does much harm.

Grounding penal policy in the best evidence-based research is a mantra in criminal justice reform. Yet key provisions of the First Step Act are at odds with leading research on how to enhance public safety while minimizing social and economic costs and maintaining a fair criminal justice system that treats everyone — including people who are imprisoned — with dignity....

Van Jones’s claim that the First Step Act paves the way for federal prisons to “rehabilitate and heal — not just punish” rings hollow. The legislation authorizes miniscule funding for its ambitious aims. It designates $75 million annually for the next five years to develop and implement the new risk and needs assessment system for each person in the federal prison system. In doing so, the measure diverts “limited resources for programming by requiring a complex risk assessment process that would primarily benefit people deemed at a low or minimal risk of recidivating,” according to the Sentencing Project, which ultimately gave its qualified support to the First Step Act....

The fundamental problem is not that people in prison do not want to participate in programs but rather the critical shortage of those programs, let alone quality programs. Currently, 16,000 people are on the wait list for the BOP’s literacy program.

The federal prison system is currently in crisis due to overcrowding and staff cutbacks that the First Step Act will not alleviate. Many federal facilities are operating way above capacity. Nurses, counselors, and even cooks have been drafted to serve as temporary correctional officers because of severe staffing shortages. Last year a bipartisan group of legislators charged the Bureau of Prisons and the Trump administration with ignoring calls in Congress not to eliminate thousands of jobs in the federal prison system.

It is impossible to run effective prison programs when people are locked down in their cells due to staffing shortages, teachers and counselors are filling in for correctional officers, and assaults and violence are on the rise, as has been the case in the federal prisons.

Concerns about the under-funding and under-staffing of federal prisons are well founded, and the headline of this new Marshall Project report does not provide a basis for any new optimism: "First Step Act Comes Up Short in Trump’s 2020 Budget: Supporters worry because law seeks $75 million a year for five years, but president’s plan lists $14 million." But I always find these kinds of criticisms of modest improvements in criminal justice systems quite politically tone deaf given how politicians on both sides of the aisle have shown so little interest in pursuing any reforms at all until fairly recently.

This author rightly notes that "many federal facilities are operating way above capacity," but she leaves out that the federal prison population is lower now than any year while Prez Obama was in office. If Prez Obama was unwilling or unable to pursue all the big changes that progressives would like to see, there need to be even more of a political sea change to make big reforms viable.  Notably, some of the 2020 candidates are talking big about criminal justice reform on the campaign trail (most notable Cory Booker), and it is seems to me that they have the space to advocate more boldly only because the FIRST STEP Act is law and not just a bill awaiting a vote.

Ultimately, this piece serves as yet another reminder that how the FIRST STEP Act is implemented and what follows legislatively and politically will ultimately define whether this first step really is more harmful than helpful.  I am still in the optimistic camp on this front, but this commentary provides the best argument for pessimism.

March 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Sunday, March 10, 2019

Kansas doctor gets federal LWOP sentence for abusive opioid prescribing

In the wake of Paul Manafort's sentencing, lots of folks are complaining about privileged white defendants getting a different kind of justice than others.  But this federal sentencing story from Kansas, headlined "Wichita doctor who sold pain-med prescriptions for cash sentenced to life in prison," reveals that, in some cases, even some privileged white defendant will be subject to the most severe sentences possible. Here are the details:

A Wichita doctor who illegally distributed addictive prescription drugs has been sentenced to life in federal prison.

Judge J. Thomas Marten said it is “quite clear” that Dr. Steven R. Henson, 57, wrote multiple prescriptions without a legitimate medical purpose and “abused his position of trust as a licensed physician.”

“I have sentenced people to life before,” Marten said in court Friday. “They were people who took guns and shot people.”

The investigation began after a pharmacist raised concerns that a doctor was over-prescribing controlled pain medications. One man died from an overdose after getting a prescription from the doctor.

“I want this case to send a message to physicians and the health care community,” U.S. Attorney Stephen McAllister said in a statement. “Unlawfully distributing opioids and other controlled substances is a federal crime that could end a medical career and send an offender to prison. We are dealing with an epidemic. Nationwide, more than 70,000 Americans died in 2017 from drug overdoses. That is more than all the American casualties during the war in Vietnam.”

Nicholas “Nick” McGovern died in July 2015 after overdosing on a mix of alprazolam and methadone prescribed to him by Henson. It was the count relating to McGovern’s death on which Henson was sentenced to life in prison....

Defense attorney Michael Thompson contended during sentencing that Henson wasn’t writing the prescriptions “to make easy money on the side” because he didn’t need to. He said that the doctor “tried to do what he thought was best for his patients.”

“I only had one goal in life as a physician,” Henson said, “and that was to take excellent care of patients and to increase their functionality,” adding that he tried to serve the under-served in the community and worldwide through mission trips.

But the judge cited Henson’s own testimony during the trial that he raised his fee from $50 to $300 to help pay rent on his medical office.

Federal investigators discovered that Henson would give pain-med prescriptions to patients for $300 in cash at a time, with few questions asked. The investigation began in 2014 with a pharmacist’s concern that a doctor was over-prescribing controlled medications. Prosecutors said Henson falsified patient records during the federal investigation in addition to obstructing investigators....

Henson was found guilty in October of two counts of conspiracy to distribute prescription drugs outside the course of medical practice; 13 counts of unlawfully distributing oxycodone; unlawfully distributing oxycodone, methadone and alprazolam; unlawfully distributing methadone and alprazolam, the use of which resulted in the death of a victim; presenting false patient records to investigators; obstruction of justice; and six counts of money laundering....

Defense attorneys asked for a 20-year prison sentence, saying that Henson led a “model life” outside of this case. “Maybe he wasn’t the best physician,” his attorney said. “He made some very serious mistakes. He wrote these prescriptions not out of greed, malice or ill intent. He was trying to help his patients. That was his goal.”

The judge said he had only met three or four people who he thought were “filled with evil and beyond redemption.”

“In some respects, what I’ve seen from you is worse, in that you don’t seem to understand,” Marten said. “I really don’t think that you get it. I think that in some respects you were numb to what you were doing over time. ... I just wonder if your practices have had any impact on you. It seems as if you’re still thinking, ‘Why am I here, what did I do wrong?’”

Just based on this news report, I think this case could probably sustain a whole book highlighting how this sentencing intersects with our modern opioid and overdose crisis and the broader debates over mass incarceration and equity and the trial penalty in sentencing.

March 10, 2019 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Wednesday, March 06, 2019

Norfolk prosecutor appealing to Virginia Supreme Court after circuit judges denied effort to dismiss marijuana cases on appeal

In this post a few weeks ago, I report on an interesting tussle over low-level marijuana prosecutions in Norfolk, Virginia under the post title "Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?".  What gives this story a bit of a "man-bites-dog" quality is the fact that a local prosecutor is seeking to dismiss a bunch of marijuana possession cases, but the local judges are refusing to do so.  Consequently, we get this week's fighting news under the headline "Norfolk's top prosecutor says he's taking fight over pot cases to state Supreme Court":

The city’s chief prosecutor said he will ask the state Supreme Court to force local judges into dismissing misdemeanor marijuana cases, effectively de-criminalizing the drug in Norfolk.  Commonwealth’s Attorney Greg Underwood on Friday sent a letter to the chief judge of the city’s highest court [available here], letting him and the seven other Circuit Court judges know that Underwood would appeal their collective decision to deny motions prosecutors have made over the past two months to abandon those cases.

Two months ago, Underwood announced he would undertake several efforts to achieve what he called criminal justice reform, including no longer prosecuting misdemeanor marijuana appeals.  But since then, at least four judges have denied prosecutors’ requests to dismiss marijuana charges. The tug-of-war adds to the confusion about whether it’s OK to have a small amount of weed in the city.  Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them.

Both Underwood and the judges believe the other side is violating the state constitution’s division of powers, which mandates that “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others.”

Several, including Judge Mary Jane Hall, have said they believe the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws.  In turn, Underwood said the judges are preventing him from exercising the executive power voters gave him when they elected him the city’s top prosecutor.  Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources....

Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, Underwood has said.  In 2016 and 2017, more than 1,560 people in Norfolk were charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi said during a hearing last month. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black.

This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

The judge, Hall, admitted Fatehi made an “extremely compelling case” with his statistics on racial disparities, but said he should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said.  “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Until there’s a resolution, Underwood said in his letter, prosecutors will not handle misdemeanor marijuana appeals when simple possession is the only charge. Instead, the arresting officers will testify against the defendant without the guidance of a prosecutor — akin to the way traffic cases are heard.  This is a common practice in the lower District Court and something the Circuit Court judges have suggested. But circumventing the commonwealth’s attorney’s role in the long term would keep marijuana possession cases alive in Norfolk, thwarting Underwood’s criminal justice reform.

Prior related post:

March 6, 2019 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable Eighth Circuit panel ruling finds due process right of confrontation violated in revocation of supervised release

I am expecting (and hoping) that the Supreme Court thought its pending Haymond case (basics here and here) will soon be adding to the constitutional procedural protections of federal defendants when facing significant punishment based on allegations they have violated their supervised release.  A helpful reader made sure I did not miss, while we await the Supreme Court's further guidance, a notable panel opinion from the Eighth Circuit in US v. Sutton, No. 17-3195 (8th Cir. March 5, 2019) (available here). Here is how the panel opinion in Sutton gets started and a key substantive passage:

Craig Sutton appeals the revocation of his supervised release based on the allegation that he committed assault in June 2016.  At the final revocation hearing, the government introduced videos and transcripts of police interrogations of three witnesses who had a connection to the assault.  None of the three witnesses appeared at the hearing to provide live testimony, and Sutton objected that introduction of their interrogations deprived himof his right to confrontation. The district court overruled his objection. Relying almost exclusively on the interrogations, the district court concluded that Sutton more likely than not committed the assault and revoked his supervised release. We conclude that admission of the interrogations was erroneous and accordingly reverse....

A revocation hearing is not a criminal trial, and a defendant on supervised release is not entitled to the full panoply of protections afforded by the rules of evidence. Morrissey v. Brewer, 408 U.S. 471, 480 (1972); United States v. Black Bear, 542 F.3d 249, 253, 255 (8th Cir. 2008).  Federal Rule of Criminal Procedure 32.1(b)(2)(C) nonetheless gives a defendant the opportunity to “question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.”  See Morrissey, 408 U.S. at 488–89 (“[T]he minimum requirements of due process . . . include . . . the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).”).  This rule requires the court to balance the defendant’s due process right to confront and cross-examine witnesses during such proceedings “against the grounds asserted by the government for not requiring confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986).

Under Bell, the court must evaluate two factors to determine if good cause justifies limiting the defendant’s confrontation rights in a particular case.  First, “the court should assess the explanation the government offers of why confrontation is undesirable or impractical,” such as when “live testimony would pose a danger of physical harm to a government informant.” Id. at 643.  Second, the government must establish “the reliability of the evidence which the government offers in place of live testimony.” Id. To demonstrate good cause, the government must prove both factors; only if it shows “that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable” will good cause exist. United States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994) (quoting Bell, 785 F.2d at 643).

Applying the Bell factors to the testimony of the three witnesses at issue in this case, we conclude that the government failed to meet its burden on either factor and that Sutton was entitled to confrontation.

As the panel explains in a footnote, according the the Eighth Circuit, "because 'a revocation of supervised release is not part of a criminal prosecution,' the right to confrontation afforded at such hearings comes from due process.  United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008)."  This point and the Sutton case more generally serves as a useful reminder of how impactful, doctrinally and practically, the Supreme Court's Haymond case could prove to be.

March 6, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, March 05, 2019

"The Case for a Trial Fee: What Money Can Buy in Criminal Process"

The title of this post is the title of this interesting new article by Darryl Brown now available via SSRN. Here is its abstract:

Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty” — harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement.  States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights.  Additionally, defendants can pay for optional advantages.  Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide.  Paying bail yields pretrial liberty.  Diversion programs, for a fee, can supplant ordinary prosecution.  Some defendants can choose their sentence — a fine or jail.  But these opportunities are not available to all; their costs need not match one’s ability to pay.

To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee.  Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas.  In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain.  The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth.  Yet the trial fee also promises positive effects.  It would reduce prosecutors’ most-criticized bargaining tactics — excessively harsh trial penalties — without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes.  And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place

March 5, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Georgia Supreme Court unanimously declares state's approach to lifetime GPS monitoring for sex offenders violates Fourth Amendment

The Supreme Court of Georgia issued a notable unanimous opinion yesterday in Park v. Georgia, No. S18A1211 (Ga. March 4, 2019) (available here), declaring unconstitutional the state's lifetime GPS monitoring requirement for certain sex offenders. The opinion for the court authored by Chief Justice Melton starts this way:

We granted an interlocutory appeal in this case to address Joseph Park’s facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator – but who is no longer in State custody or on probation or parole – wear and pay for an electronic monitoring device linked to a global positioning satellite system (“GPS monitoring device”) that allows the State to monitor that individual’s location “for the remainder of his or her natural life.” Id. at (e). For the reasons that follow, we conclude that OCGA § 42-1-14(e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the extent that it does so.

Notably, a concurring opinion by Justice Blackwell seems interested in helping the state legislature find a work around to this ruling. His opinion starts this way:

The General Assembly has determined as a matter of public policy that requiring some sexual offenders to wear electronic monitoring devices linked to a global positioning satellite system promotes public safety, and it enacted OCGA § 42-1-14(e) to put that policy into practice. The Court today decides that subsection (e) is unconstitutional, and I concur fully in that decision, which is driven largely by our obligation to faithfully apply the principles of law set forth by the United States Supreme Court in Grady v. North Carolina, ___ U.S. ___ (135 SCt 1368, 191 LE2d 459) (2015).  I write separately, however, to emphasize that our decision today does not foreclose other means by which the General Assembly might put the same policy into practice.

Our decision rests in significant part on the fact that subsection (e) requires some sexual offenders to submit to electronic monitoring even after they have completed the service of their sentences.  But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.

March 5, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge denies request by Philly DA to vacate state death sentence

As reported in this local article, headlined "Judge denies Krasner office’s request to vacate death penalty in 1984 double murder," an effort by the current Philadelphia District Attorney to undo some work by prior DAs hit a federal snag. Here are the interesting details:

A federal judge on Monday denied a request by the Philadelphia District Attorney’s Office to vacate the death penalty for a Philadelphia man convicted of the 1984 strangulation and drowning deaths of a prominent pastor’s son and daughter-in-law in their East Mount Airy home.

U.S. District Judge Mitchell Goldberg wrote that for three decades, the DA’s Office had “consistently and zealously opposed” inmate Robert Wharton’s efforts to overturn his conviction and death sentence. Early last month, the office informed the judge it would no longer fight the appeal. Max Cooper Kaufman, supervisor of the federal litigation unit under District Attorney Larry Krasner, wrote that the decision came after the office reexamined the case and communicated with the victims’ family.

In his written opinion, Goldberg described the deaths of Bradley Hart, 26, and his wife, Ferne, 31, as “particularly horrific” and noted the DA’s Office didn’t explain the reason behind what he called "this complete reversal of course.” He ordered both parties to submit briefs explaining their positions.

Krasner, a former criminal defense lawyer who took office last year, campaigned on a platform of never seeking the death penalty. His spokesperson, Ben Waxman, said by email Monday that the office had no comment on Goldberg’s ruling “except to say that we are reviewing the opinion and considering next steps in the case." The Federal Community Defender Office, which is representing Wharton, did not immediately respond to a request for comment.

Wharton’s co-defendant, Eric Mason, was sentenced to life in prison. Both men, construction workers from Germantown, were 20 at the time of the murders. Now 56, Wharton is on death row at the State Correctional Institution-Phoenix in Montgomery County.

According to evidence in the case, on the night of Jan. 30, 1984, Wharton and Mason went to the Harts’ home, tied up the couple, and separated them. Wharton choked Ferne Hart with a necktie and drowned her in a bathtub. Mason denied killing anyone, but was accused by Wharton of killing Bradley Hart by forcing his face in water and strangling him with an electrical cord....

In April 1992, the Pennsylvania Supreme Court partially granted Wharton’s appeal, ordering a new sentencing hearing. That December, a second Philadelphia jury reimposed the double-death sentence for Wharton. In December 2002, then-Gov. Mark Schweiker signed his death warrant, but the execution was stayed after Wharton appealed to federal court.

Goldberg in 2012 denied his petition, but an appellate court sent it back to the district judge on just one claim — whether his lawyer was ineffective for failing to tell the jury about Wharton’s adjustment to prison. That was the claim the District Attorney’s Office last month said it would not fight. The DA’s Office also asked the judge to grant summary relief by taking the death penalty off the table and said that if the judge did so, prosecutors wouldn’t seek a new death sentence in state court.

Krasner has received pushback by the judiciary in at least one other case in which his office tried to throw out a death sentence. In October, Pennsylvania Supreme Court Justice Christine Donohue wrote in a majority opinion that a jury had approved the death penalty for Lavar Brown, and the DA’s Office couldn’t change that result “based upon the differing views of the current office holder.”

Pennsylvania’s death penalty has been used just three times since it was reinstated by the state in 1978. Gov. Tom Wolf imposed a moratorium on its use in 2015. Wolf’s spokesperson said Monday that the governor believes the moratorium should continue in light of a June 2018 report by a bipartisan legislative task force and advisory committee, which found various problems concerning the death penalty.

Because I have not yet had time to find Judge Goldberg's opinion, I am disinclined to comment on the specifics yet. But the case presents a fascinating set of issues concerning finality, prosecutorial discretion and the interplay of federal and state authority over capital prosecutions. And, as it always the case when I learn about long-running capital cases, I cannot help but wonder what litigation over the death penalty has cost (and will continue to cost) state and federal taxpayers here.

March 5, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 04, 2019

Third Circuit panel rules sex offenders subject to registration laws in Pennsylvania are "in custody" for habeas purposes

Last week, a unanimous panel of the Third Circuit issued what seems to be a groundbreaking ruling about habeas jurisdiction. In Piasecki v. Court of Common Pleas, No. 16-4175 (3d Cir. Feb 27, 2019) (available here), the Third Circuit distinguished a variety of contrary rulings from other circuits to hold that a registered sex offender in Pennsylvania is “in custody” for purposes of having jurisdiction to bring a habeas corpus challenge. Here is how the opinion starts and ends:

We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction.  We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.  Accordingly, we will reverse the District Court and remand for further proceedings.....

The writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”  The scope of the writ has grown in accordance with its purpose — to protect individuals against the erosion of their right to be free from wrongful restraints upon their liberty.  SORNA’s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally.  The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction.  For all of the reasons set forth above, the order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

March 4, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Saturday, March 02, 2019

"Mitigations: The Forgotten Side of the Proportionality Principle"

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

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment.  Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment.  Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the resistance and subversion that is provoked by perceived violations of blameworthiness proportionality.

Such a principle has been commonly used as the basis for criticizing improper aggravations, such as the doctrines of felony murder and “three strikes,” but the principle also logically requires recognizing a full range of deserved mitigations, not as a matter of grace or forgiveness but as a matter of entitlement.  And given ordinary people’s nuanced judgments about blameworthiness proportionality, maintaining moral credibility with the community requires that the criminal law adopt an equally nuanced system of mitigations.

Such a nuanced system ideally would include reform of a wide variety of current law doctrines as well as, especially in the absence of such specific reforms, adoption of a general mitigation provision that aims for blameworthiness proportionality in all cases.  Such a general mitigation ought not be limited to cases of “heat of passion” or limited to cases of murder, as today’s liability rules commonly provide.  It ought to be available whenever the offense circumstances and the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness, as long as giving the mitigation does not specially undermine community norms.

March 2, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, February 28, 2019

Texas completes execution of triple killer ... and his family gets arrested

This local article, headlined "Texas death row inmate's son arrested for outburst during father's execution," reports on an execution and its remarkable aftermath. Here are details:

Billie Wayne Coble's son pounded on the execution chamber windows, cursing and shouting "no" as he watched his father die. It was just after 6:20 p.m., and the 70-year-old triple killer was about to become the oldest Texan executed in the modern era of capital punishment.

The aging Vietnam veteran who murdered his in-laws in an apparent rash of vengeance offered a only a short final statement before he was pronounced dead, according to the Texas Department of Criminal Justice. "That will be five dollars," he said. "I love you, I love you, and I love you."...

But as soon as he finished speaking, the witness room erupted into chaos.  Gordon Coble started banging on the glass, and his son Dalton joined in the furor.  Both men — along with another relative — were removed from the room before the execution ended, and the two ended the night in the Walker County Jail, facing resisting arrest charges....

It was a dramatic and unexpected end to a decades-long saga. Back in the summer of 1989, Coble was distraught over the disintegration of his third marriage when he kidnapped his estranged wife and killed her parents and brother before attempting to kill himself.

But the Waco man, now 70, had no priors and, as he racked up years of good behavior in prison, his attorneys argued that a pair of experts for the state got it wrong at trial when they offered testimony claiming he'd be a future danger even behind bars....

This year, Coble's lawyer filed a plea for clemency.  "He is now 70 years old, in poor health, and has an almost blemish-free prison record for the past 30 years," attorney Richard Ellis wrote.  "His execution would serve no valid purpose."

The Texas Board of Pardons and Paroles turned his request down on Tuesday, leaving him with a final appeal in front of the U.S. Supreme Court.  In that claim, Coble's attorney argued that the Waco man's trial attorneys shouldn't have admitted his guilt because Coble asked them not to.  Last year, the same concern came up in a Louisiana case — and the high court sided with the condemned prisoner.  In Coble's case they did not....

Coble was the second man executed in Texas in 2019. There are five more executions on the calendar, including a June death date for Harris County killer Dexter Johnson.

February 28, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Clemency as the Soul of the Constitution"

The title of this post is the title of this notable new article authored by Mark Osler in the latest issues of the Journal of Law & Politics.  Here is part of the piece's introduction:

In this essay, I will not call for the abolition or restriction of the Pardon Power, even as we struggle with the seeming unfairness of some recent grants of clemency.  Instead, I argue that we must embrace what the Pardon Power is, and recognize the true nature of this tool of mercy.  We don’t need to drive a stake through its heart.  Rather, it requires a more consistent and committed public attention than we have given it, which among other things should include a discussion of its use by those who seek the office of president.

Section II below will offer an overview of the more striking employments of the Pardon Power, with a focus on its uses and abuses by more recent presidents.  The controversial aspects of clemency often precisely track the controversial aspects of a president’s personality; that is one reason that we see a discontinuity not only in whether clemency is used or not, but in the way that its use reflects different values in different administrations.

Section III will then look backward at the Constitution’s soul and its roots.  Clemency drew on English precedents, but its core idea of mercy was woven into the culture of the time.  For example, it is a primary theme in Shakespeare’s The Tempest — and George Washington went to see The Tempest during the Constitutional Convention.   At that Constitutional Convention, the Pardon Clause was actively debated, and its final form survived a direct challenge that proposed the power be shared with the legislature.

Finally, Section IV will consider the arguments for and against maintaining the Pardon Power as an unalloyed tool of the president. In the end, the use of clemency has been a net good, in that the positive uses have outweighed the controversies.  The institution continues to connect us to the core value of mercy, maintains the intent of the Framers, and gives hope to those who are incarcerated.  This section closes by considering what we can do when we are dismayed by the exercise of clemency, as will happen when an action follows a conscience not our own.

February 28, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, February 27, 2019

SCOTUS, ruling 6-3, refuses to let appeal waivers impact ineffectiveness claims when attorney improperly fails to appeal

The Supreme Court this morning handed down an opinion in Garza v. Idaho, No. 17-1026 (S. Ct. Feb. 27, 2019) (available here), a case concerning the distinctive Sixth Amendment jurisprudence addressing whether defense counsel has been constitutionally deficient when failing to appeal upon a defendant's instructions.  The ruling in the case is 6-3, with Justice Sotomayor delivering the opinion of the Court, which was joined by the Chief Justice as well as Justices Ginsburg, Breyer, Kagan and Kavanaugh.  Here is how the opinion gets started:

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), this Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” Id., at 484. This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver” — that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.

Justice Thomas filed a dissenting opinion, which Justices Gorsuch joined in full and Justice Alito joined in part. (The last part of the dissent reviews originalist approaches to the Sixth Amendment, and only Justice Gorsuch joined that part). The dissent starts this way:

Petitioner Gilberto Garza avoided a potential life sentence by negotiating with the State of Idaho for reduced charges and a 10-year sentence. In exchange, Garza waived several constitutional and statutory rights, including “his right to appeal.” App. to Pet. for Cert. 44a, 49a.  Despite this express waiver, Garza asked his attorney to challenge on appeal the very sentence for which he had bargained.  Garza’s counsel quite reasonably declined to file an appeal for that purpose, recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain. Yet, the majority finds Garza’s counsel constitutionally ineffective, holding that an attorney’s performance is per se deficient and per se prejudicial any time the attorney declines a criminal defendant’s request to appeal an issue that the defendant has waived.  In effect, this results in a “defendant-always-wins” rule that has no basis in Roe v. Flores-Ortega, 528 U.S. 470 (2000), or our other ineffective-assistance precedents, and certainly no basis in the original meaning of the Sixth Amendment. I respectfully dissent.

February 27, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

SCOTUS, ruling 5-3, clarifies execution competency standards and remands in Madison v. Alabama

The Supreme Court this morning handed down an opinion in Madison v. Alabama, 17-7505 (S. Ct. Feb. 27, 2019) (available here), a case concerning the distinctive Eighth Amendment jurisprudence addressing whether a defendant is competent to be executed.  The ruling in the case is 5-3, as Justice Kavanaugh had not yet joined the Court at the time the case was argued.  Justice Kagan delivered the opinion of the Court, which was joined by the Chief Justice as well as Justices Ginsburg, Breyer and Sotomayor.  Here is how the opinion gets started:

The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief.  We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court.  First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime?  We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions?  We (and, now, the parties) think so, because either condition may — or, then again, may not — impede the requisite comprehension of his punishment.  The only issue left, on which the parties still disagree, is what those rulings mean for Madison’s own execution.  We direct that issue to the state court for further consideration in light of this opinion.

Justice Alito filed a dissenting opinion, which Justices Thomas and Gorsuch joined, and starts with these pointed passages:

What the Court has done in this case makes a mockery of our Rules.

Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitutional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional.

After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim.  See Brief for Petitioner 16.

This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition — not even a hint. Nor is this question fairly included within those on which the Court granted review.  On the contrary, it is an entirely discrete and independent question.

Counsel’s tactics flagrantly flouted our Rules.  Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”).  Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted.  See, e.g., Visa, Inc. v. Osborn, 580 U.S. ___ (2016); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015). We should do that here.

Instead, the majority rewards counsel’s trick.  It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief.  But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that petitioner claims it took.

As all Court watchers know, "death is different" not only for Eighth Amendment jurisprudence but also for how the Justices approach these cases procedurally. I suspect Justice Alito is not surprised that some fellow Justices are approaching a capital case in a unique way, but I wonder if he is surprised that the Chief Justice provides the key swing vote for the defendant here.

February 27, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

"Failure should not be an option: Grading the parole systems of all 50 states"

The title of this post is the title of this new report from the Prison Policy Initiative.  Here is how this report gets started:

From arrest to sentencing, the process of sending someone to prison in America is full of rules and standards meant to guarantee fairness and predictability.  An incredible amount of attention is given to the process, and rightly so.  But in sharp contrast, the processes for releasing people from prison are relatively ignored by the public and by the law.  State paroling systems vary so much that it is almost impossible to compare them.

Sixteen states have abolished discretionary parole, and the remaining states range from a system of presumptive parole — where when certain conditions are met, release on parole is guaranteed — to having policies and practices that make earning release almost impossible.

Parole systems should give every incarcerated person ample opportunity to earn release and have a fair, transparent process for deciding whether to grant it.  A growing number of organizations and academics have called for states to adopt policies that would ensure consistency and fairness in how they identify who should receive parole, when those individuals should be reviewed and released, and what parole conditions should be attached to those individuals.  In this report, I take the best of those suggestions, assign them point values, and grade the parole systems of each state.

Sadly, most states show lots of room for improvement.  Only one state gets a B, five states get Cs, seven states get Ds, and the rest either get an F for having few of the elements of a fair and equitable parole system or a zero — for having passed laws to eliminate the option of release on parole.

February 27, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, February 26, 2019

Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations

Though I have not yet had time to read the full transcript of oral argument in United States v. Haymond, which is now available here, reading Amy Howe's argument analysis at SCOTUSblog suggests the tea-leaves are easy to read after the oral argument. The posting is titled "Court poised to rule for challenger in dispute over constitutionality of sex-offender law," and here are snippets:

This morning the Supreme Court heard oral argument in a dispute over the constitutionality of a federal law that requires convicted sex offenders to return to prison for at least five years – and possibly for the rest of their lives – if a judge finds that they have committed certain crimes. The defendant in the case, an Oklahoma man who served time for possessing child pornography and was then sent back to prison after he violated the terms of his supervised release, argues that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt. Today the justices seemed overwhelmingly likely to agree with him, even if it was not entirely clear how they will remedy the constitutional violation....

Eric Feigin, an assistant to the U.S. solicitor general, defended the law on behalf of the federal government. But he was quickly interrupted by a skeptical Justice Sonia Sotomayor, who asked him whether there was any other area of the law in which the United States allows a defendant to be sent to prison based on the preponderance-of-the-evidence standard.

Feigin responded that both parole and probation operate in a similar way, but Sotomayor dismissed that analogy as comparing “apples and oranges.” With parole, she stressed, the state gives a benefit by cutting a sentence short. Where do we allow more prison time based on the preponderance of the evidence, she repeated?

Justice Brett Kavanaugh echoed Sotomayor’s thinking toward the end of Feigin’s initial stint at the lectern. When the government revokes an inmate’s parole, Kavanaugh suggested, it is simply denying a benefit. But when the government revokes an individual’s supervised release, he continued, that’s more like a penalty: The government is “adding a chunk of time on.”

Several justices also questioned the government’s contention that a jury was not required to find the facts leading to the conclusion that Haymond had violated the terms of his supervised release and the imposition of the new five-year sentence....

Only Justice Samuel Alito seemed to be squarely on the government’s side, warning that a ruling for Haymond could potentially “bring down the entire supervised release system.” As a result, much of the second half of the oral argument focused less on whether the law was unconstitutional and more on what should happen next.

I am not surprised, but I am still pleased, to learn that there may now be eight Justices prepared to extended Apprendi/Blakely rights to supervised release revocation. Now we wiat to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).

Some prior related posts:

February 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New letter urges Prez Trump "to make lasting reforms to the clemency process by removing its administration from the Department of Justice"

A number of notable folks signed on to this new letter urging Prez Trump to make changes to the federal clemency process.  Here are excerpts from the letter:

Last year, you achieved a historic accomplishment when you signed the First Step Act into law.  This new law will reduce the imposition of unjust sentences for thousands of Americans, allowing people who make a mistake the opportunity to make amends and turn their lives around.

The law primarily addresses future sentencing, however, and does little to correct the unjust nature of past sentences that have left many behind bars for far longer than their crimes warranted.  But you can deliver justice for those Americans by making full use of the pardon power for as many deserving individuals as possible and by reforming the structure of the federal clemency process to improve presidential exercise of this important constitutional authority.

During the last administration, former law enforcement officials and criminal justice reform advocates urged President Barack Obama to use his pardon power aggressively.  While President Obama's clemency initiative did lead to hundreds of deserving individuals receiving commutations, he left thousands more behind when he left office.  When President Obama’s term expired, approximately 9,400 clemency petitions remained pending.  Thousands of other individuals saw their petitions denied, despite many of them meeting most or all of the conditions the Obama administration laid out for clemency eligibility.  Furthermore, his administration never even fully considered granting sweeping clemency to broad categories of people who also deserved clemency but may not have known how to obtain an attorney or petition for relief....

[W]e urge you to make lasting reforms to the clemency process by removing its administration from the Department of Justice.  The Constitution grants the clemency power solely to the president.  There is no constitutional or legal requirement that it be overseen by DOJ.  While DOJ should be able to comment on clemency petitions, there is an obvious conflict of interest when the same agency responsible for prosecuting individuals is asked to supervise their petitions for clemency.  By changing the management of the clemency process, you could improve a process not only for your time in office, but also for your successors.  President Obama failed to fix the clemency process and instead opted to for an ad hoc approach, leaving behind thousands of people who otherwise met the stated criteria.  You can succeed where he did not and leave a lasting legacy in this area.

February 26, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Paul Manafort's sentencing memorandum in DC makes pitch for a sentence "significantly below" ten years

As reported in this Politico piece, counsel for "Paul Manafort, the former Trump campaign chairman, pleaded on Monday for a federal judge to spare their 69-year-old client from a sentence that would essentially send him to prison for the rest of his life."  Here is more about the latest sentencing filing:

In a 47-page filing, Manafort’s attorneys described a client who has been “personally, professionally, and financially” broken by special counsel Robert Mueller’s Russia investigation and who deserves a sentence “significantly” below the statutory maximum of 10 years he faces after pleading guilty in Washington to a pair of conspiracy charges.

“Mr. Manafort has been personally and financially devestated [sic] as a result of his conduct and the forfeiture he has agreed to,” his lawyers wrote. “There is no reason to believe that a sentence of years in prison is necessary to prevent him from committing further crimes.”

Manafort’s lawyers added that he “poses no risk to the public, which itself has certainly been generally deterred from engaging in similar conduct based on the widespread negative publicity this case has garnered, as well as his incarceration in solitary confinement.”

Two federal judges are scheduled to sentence Manafort twice next month over criminal charges brought by Mueller’s office, including tax and bank fraud, as well as witness tampering and unregistered lobbying for a foreign government. U.S. District Court Judge T.S. Ellis III is scheduled first in Virginia, on March 8, and U.S. District Court Judge Amy Berman Jackson in Washington goes second, on March 13.

The memo that Manafort’s attorneys submitted Monday aims to rebut Saturday’s filing from Mueller, who told Jackson that the longtime Republican operative “repeatedly and brazenly violated the law” for more than a decade and should be considered for a total sentence in the roughly 17-to-22-year range by stacking her sentence on top of the one Ellis issues.

The full filing is available at this link, and here is an excerpt from its introduction:

Mr. Manafort, who over the decades has served four U.S. presidents and has no prior criminal history, is presented to this Court by the government as a hardened criminal who “brazenly” violated the law and deserves no mercy.  But this case is not about murder, drug cartels, organized crime, the Madoff Ponzi scheme or the collapse of Enron.  Rather, at its core, the charges against the defendant stem from one operable set of facts: Mr. Manafort made a substantial amount of income working as a political consultant in Ukraine, he failed to report to the government the source and total amount of income he made from those activities, and he attempted to conceal his actions from the authorities. He has accepted full responsibility by pleading guilty to this conduct....

Mr. Manafort has been punished substantially, including the forfeiture of most of his assets. In light of his age and health concerns, a significant additional period of incarceration will likely amount to a life sentence for a first time offender.

Some prior related posts:

February 26, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Monday, February 25, 2019

Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?

Tomorrow the Supreme Court has a day of sentencing arguments scheduled, as the Justices will from counsel in United States v. Haymond and Mont v. United States.  Here are the questions presented and argument previews via SCOTUSblog:

United States v. Haymond Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

Mont v. United States Issue: Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

For hard-core sentencing fans, the Haymond case could be the sleeper of the Term because a major ruling on constitutionally required procedures for revocation of supervised release could have profound implications not only for the federal system, but also potentially for some state systems. 

I doubt that oral argument will provide any big indication of just how big a ruling Haymond could produce, but I will be particular eager to see what the newer Justices might have to say about the kind of judicial factfinding that landed Andre Haymond back in prison for a (mandatory) five years after a judge found by only a "preponderance of the evidence" that he had violated the terms of his supervised release.  I think serious originalists should be troubled by the kinds of procedures used to deprive Haymond of his liberty, but the modern tradition of lax procedures at the "back-end" of sentencing systems is considerable.  I am hoping a number of Justices might take big swings with their questions in Haymond, but lately I am thinking I should not be expecting too much from the Justices.

Some prior related posts:

February 25, 2019 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences?

Intrepid readers may realize that I have paid close attention to a case out of the First Circuit, US v. Rivera–Ruperto, because I thought it involved extraordinarily facts that made for a compelling Cruel and Unusual Punishments argument if that clause was to function as even the most minimal check on the imposition of extreme prison sentences on adult offenders.  But, frustratingly, today's Supreme Court order list has under a long list of cert denials "18-5384  Rivera-Ruperto, Wendell v. United States."  Grrrr.

Of course, I was not the only one who thought this was was exceptional: as noted here, the entire First Circuit issued a remarkable opinion last year while denying en banc review (available here) in which Judge Barron spoke for all his colleagues in urging the Justices to take up the Rivera-Ruperto to reconsider its Eighth Amendment jurisprudence.  I was sincerely hoping that this unusual statement from an entire circuit might at least get Rivera-Ruperto a single relist from the Supreme Court or maybe just a short statement from some Justices about the issue.  A single relist or a statement about a denial of cert would suggest that there was at least a single Justice who might think that a toothless Eighth Amendment is a problem in an era of mass incarceration.  (Tellingly, the legal press and criminal justice twitterverse has also entirely ignored this case, confirming my fears that one need to be a murderer on death row before just about anyone gets interested in an Eighth Amendment claim.)

I still want to hope that maybe a district court or the First Circuit could find a way to do better in this case when Wendell Rivera-Ruperto eventually brings a 2255 claim (which could now juice an Eighth Amendment argument, as I suggested here, on the fact that the FIRST STEP Act has changed the federal law that lead to his 130 years of mandatory-minimum prison time).  But even if Rivera-Ruperto is able to get some relief eventually, I am still this morning left deeply troubled by the notion that not a single Justice seems to be at all concerned about modern Eighth Amendment jurisprudence relating to extreme non-capital sentences.  Sigh. 

A few prior related posts:

February 25, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, February 24, 2019

After special favors and CVRA violation, what should happen to Jeffrey Epstein and his problem prosecutors?

The Miami Herald has done extraordinary work looking behind Jeffrey Epstein too-sweet deal, and it reports effectively here on the significant federal court ruling last week that prompts the question in the title of this post.  Here are the details:

Federal prosecutors, under former Miami U.S. Attorney Alex Acosta, broke the law when they concealed a plea agreement from more than 30 underage victims who had been sexually abused by wealthy New York hedge fund manager Jeffrey Epstein, a federal judge ruled Thursday [available here].

While the decision marks a victory for crime victims, the federal judge, Kenneth A. Marra, stopped short of overturning Epstein’s plea deal, or issuing an order resolving the case.  He instead gave federal prosecutors 15 days to confer with Epstein’s victims and their attorneys to come up with a settlement. The victims did not seek money or damages as part of the suit.

It’s not clear whether the victims, now in their late 20s and early 30s, can, as part of the settlement, demand that the government prosecute Epstein. But others are calling on the Justice Department to take a new look at the case in the wake of the judge’s ruling.

"As a legal matter, the non-prosecution agreement entered into by the U.S. Attorney’s Office in the Southern District of Florida does not bind other U.S. Attorneys in other districts. They are free, if they conclude it is appropriate to do so, to bring criminal actions against Mr. Epstein and his co-conspirators," said lawyer David Boies, representing two of Epstein’s victims who claim they were trafficked by Epstein in New York and other areas of the country.

Earlier this month, the Department of Justice announced it was opening a probe of the case in response to calls from three dozen members of Congress. Nebraska Sen. Ben Sasse, the Republican chairman of the Senate Judiciary Oversight Subcommittee, on Thursday asked the DOJ to re-open Epstein’s plea deal. "The fact that it’s taken this long to get this far is heartbreaking and infuriating," said Sasse. "The Department of Justice should use this opportunity to reopen its non-prosecution agreement so that Epstein and anyone else who abused these children are held accountable."...

Brad Edwards, who represents Courtney Wild — Jane Doe No. 1 in the case — said he was elated at the judge’s ruling, but admitted he is troubled that it took 11 years to litigate. He blamed federal prosecutors for needlessly dragging it out when they could have remedied their error after it was brought to their attention in 2008. "The government aligned themselves with Epstein, working against his victims, for 11 years,’’ Edwards said. "Yes, this is a huge victory, but to make his victims suffer for 11 years, this should not have happened. Instead of admitting what they did, and doing the right thing, they spent 11 years fighting these girls."

Marra, in a 33-page opinion, said prosecutors not only violated the Crime Victims’ Rights Act by not informing the victims, they also misled the girls into believing that the FBI’s sex trafficking case against Epstein was still ongoing — when in fact, prosecutors had secretly closed it after sealing the plea bargain from the public record.

The decision follows a three-part series published by the Miami Herald in November, "Perversion of Justice," which detailed how federal prosecutors collaborated with Epstein’s lawyers to arrange the deal, then hid it from his victims and the public so that no one would know the full scope of Epstein’s crimes and who else was involved.

The 66-year-old mogul lured scores of teenage girls from troubled homes — some as young as 13 — as part of a cult-like scheme to sexually abuse them by offering them money to give him massages and promising some of them he would send them to college or help them find careers. Future president Donald Trump, former president Bill Clinton, lawyer Alan Dershowitz, Prince Andrew and other world leaders, scientists and academics were friends with Epstein, who also owns a vast home in Manhattan, a private jet, and an island in the U.S. Virgin Islands, where he now lives....

Instead of prosecuting Epstein under federal sex trafficking laws, Acosta allowed Epstein to quietly plead guilty in state court to two prostitution charges and he served just 13 months in the Palm Beach County jail. His accomplices, some of whom have never been identified, were not charged.

Epstein’s victims were not told the case was closed until it was too late for them to appear at his sentencing and possibly upend the deal. Two of them filed a lawsuit in the U.S. District Court for the Southern District of Florida in 2008, claiming that prosecutors violated the Crime Victims’ Rights Act, which grants victims of federal crimes a series of rights, including the ability to confer with prosecutors about a possible plea deal....

Acosta, who was nominated as labor secretary in 2017, issued a written statement through a spokesman: “For more than a decade, the actions of the U.S. Attorney’s Office for the Southern District of Florida in this case have been defended by the Department of Justice in litigation across three administrations and several attorneys general. The office’s decisions were approved by departmental leadership and followed departmental procedures. This matter remains in litigation and, thus, for any further comment we refer you to the Department of Justice.”

Michelle Licata, who was molested by Epstein when she was 14, said the judge’s decision was "a step for justice." But she still questions why federal authorities have failed to open a new case against Epstein, given that more victims and evidence has come to light in recent years. "They should see if they can prosecute him for something. I mean, really prosecute him — instead of giving him 13 months where he was allowed to come and go as he pleased. I just want to see him face some consequences for what he did."

Francey Hakes, a former federal prosecutor, said the Crime Victims’ Rights Act doesn’t spell out any punishment for violating its terms, so it would set a precedent to re-open Epstein’s agreement. "Epstein will surely argue he complied with the agreement, relied upon it, and plead guilty under it so it can’t be overturned in fairness to him," she said. "I will be very interested to see what the parties say the remedy for the violation should be. Ultimately, it is simply shocking the Government went to the lengths they did to keep the victims in the dark in order to make a serious predator’s high priced defense team happy. Justice should not, and does not, look like this."

This commentary by two former federal prosecutors asserts that there should be lots of consequences from the new ruling in this matter:

Outside of the Justice Department, it also seems untenable for Acosta to be allowed to remain in his position as head of the Department of Labor — a federal agency with significant role to play in combating and prosecuting human trafficking cases and protecting the rights of minors. He should be fired or resign.

Most significantly, Epstein and anyone else involved in this crime need to be held fully accountable and the rights of the victims fully vindicated. Judge Marra has already ruled that the CVRA authorizes “the rescission or ‘reopening’ of a prosecutorial agreement, including a non-prosecution agreement, reached in violation of a prosecutor’s conferral obligations under the statute.” Judge Marra seems to be suggesting that Epstein’s agreement be voided and the federal investigation reopened. (Sen. Ben Sasse, R-Neb., has called for DOJ to do just that.)

It is always tricky to Monday morning quarterback another prosecutor’s decision: There are often facts and circumstances known only to the prosecutors that factor into whether to proceed with charges, take a case to trial or even enter into an NPA. However, given the many deficiencies in the NPA — most notably the systematic exclusion of victims from the resolution of this case, DOJ should reopen the investigation, and assign it to another U.S. attorney’s office or an arm of the DOJ.

The only way to preserve the integrity of this case is for a clean set of eyes to review the facts and ensure that justice is done.

UPDATE: For some additional commentary on this case and the latest CVRA opinion, check out Paul Cassell's posting at The Volokh Conspiracy, "Prosecutors Violated the Rights of Jeffrey Epstein's Victims" and Kent Scheidegger's posting at Crime and Consequences, "The Crime Victims Rights Act and the Epstein Case."

February 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Another reminder that substantive reasonableness review has very little bite

A helpful reader made sure I saw a notable little federal sentencing ruling handed down by an Eighth Circuit panel in US v. Johnson, No. 17-2572 (8th Cir. Feb 22, 2019) (available here). The start of the main opinion sets out the basics for the reasonableness review discussion that follows:

Michael Johnson pleaded guilty in 2016 to possession with intent to distribute cocaine base.  Police arrested Johnson after a traffic stop and found him in possession of two baggies that contained rocks of crack cocaine.  A search of Johnson’s pocket discovered 22.9 grams of cocaine base and $895 in cash.

At sentencing, the district court calculated an advisory guideline range of 57 to 71 months’ imprisonment, but concluded that several factors justified an upward variance from the advisory range and imposed a sentence of 204 months.

The panel ultimately rejects the defendant's various claims that his sentence is unreasonable, but Judge Grasz write separately to lament the conclusion.  Here are excerpts from a short opinion worth reading in full:

While I believe the sentence here was excessive, I cannot conclude it is reversible error under the standard of review mandated by Supreme Court precedent.  This precedent makes the substantive reasonableness of a sentence nearly unassailable on appeal and renders the role of this court in that regard somewhat akin to a rubber stamp in all but the rarest cases....

So, what is left for appellate courts to review in terms of substantive reasonableness in sentencing when they cannot meaningfully police compliance with the Guidelines? Of course, sentences must still comply with the sentencing factors in 18 U.S.C. § 3553(a), but these “sentencing factors . . . are so broad that they impose few real restraints on sentencing judges.” Gall, 552 U.S. at 63 (Alito, J., dissenting).  Thus, appellate review of substantive reasonableness is usually an exercise in futility.

There is no doubt that maximizing sentencing court discretion has its benefits.  See, e.g.,Kimbrough, 552 U.S. at 101–05 (allowing sentencing courts to depart based on a disagreement with the Guidelines’ unjustified disparity in treatment of powder and crack cocaine).  But the downside, in other contexts, is the resulting disparities and inconsistencies in sentencing. In the Sentencing Reform Act, Congress sought to reduce sentencing disparities by placing some limitations on the discretion of sentencing courts by means of the mandatory Guidelines.  However, “[i]t is unrealistic to think [the goal of reducing sentencing disparities] can be achieved over the long term if sentencing judges need only give lipservice to the Guidelines.” Gall, 552 U.S. at 63 (Alito, J., dissenting).  In reality, the result of Gall and Kimbrough is that “district judges have regained most of the unconstrained discretion that Congress eliminated in 1984.” Feemster, 572 F.3d at 470 (Colloton, J., concurring).

February 24, 2019 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, February 20, 2019

"Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail"

The title of this post is the title of this notable new research from Aurelie Ouss and Megan Stevenson now available via SSRN.  Here is the abstract:

Recent criminal justice reform efforts have focused on electing progressive prosecutors to implement change, such as the reduction of cash bail as a requirement for pretrial release.  However, critics worry that removing cash bail will decrease accountability and increase failure-to-appear in court.

We test this by looking at the effects of the No-Cash-Bail reform policy initiated by Philadelphia’s recently elected District Attorney, Larry Krasner.  Under this policy, the DA’s office stopped requesting cash bail for defendants charged with a large variety of different offenses, both misdemeanor and felony.  This policy led to an immediate 23% increase (12 percentage points) in the fraction of eligible defendants released with no monetary or other conditions (ROR), and a 22% (5 percentage points) decrease in the fraction of defendants who spent at least one night in jail, but no detectable difference for longer jail stays.  The main effect of this policy was therefore to reduce the use of collateral to incentivize court appearance.

In spite of this large decrease in the fraction of defendants having monetary incentives to show up to court, we detect no change in failure-to-appear in court or in recidivism, suggesting that reductions in the use of monetary bail can be made without significant adverse consequences.  These results also demonstrate the role of prosecutors in determining outcomes over which they have no direct authority, such as setting bail.

February 20, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (0)

Supreme Court rules unanimously in Timbs that Excessive Fines Clause of Eighth Amendment applies to the states (and says little else)

The Supreme Court this morning made quick work of the contention by the state of Indiana in Timbs v. Indiana, No. 17-1091 (S. Ct. Feb 20, 2019) (available here), that it is not bound by the Excessive Fines Clause of the Eighth Amendment.  In a short unanimous ruling authored by Justice Ginsburg explains why "the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming."  Here is a key passage from the start of he Timbs opinion:

The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?  Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminallaw-enforcement authority.  This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted).  The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.

Notably, the Court in Timbs does not address the subsequent issue of whether seizure of Tyson Timbs' Land Rover SUV Timbs constituted an excessive fine (as lower courts in Indiana had found). The Supreme Court was just content to resolve this incorporation issue.

Notably, Justice Gorsuch issued a concurring opinion and Justice Clarence Thomas issued an opinion concurring in the judgment in Timbs, and they are both writing separately to engage the issue of just how the Excessive Fines Clause should be incorporated against the states.  Justice Thomas makes, through an extended opinion, this fundamental incorporation point that he has raised before: "Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with 'process,' I would hold that the right to be free from excessive fines is one of the 'privileges or immunities of citizens of the United States' protected by the Fourteenth Amendment."  Justice Gorsuch engages in a short opinion stating "As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. " 

February 20, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

New Ohio Gov puts halt to all executions until Ohio develops new execution method

As reported in this local article, headlined "Gov. Mike DeWine freezes all Ohio executions while new method developed," the Buckeye state is yet again in a capital holding pattern because it governor is troubled by the state's current execution method. Here are the details:

Gov. Mike DeWine said Tuesday that there will be no more executions in Ohio until a new method of carrying them out can be developed and deemed constitutional by the courts.

“As long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio,” DeWine told reporters at an Associated Press forum in Columbus. “That would not be right, at least in my opinion.”

Pressed on whether he personally supports the death penalty, DeWine paused. Seeming to choose his words carefully, he then said he was a sponsor of Ohio’s current capital punishment law, which took effect in 1981. “It is the law of the state of Ohio. And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty. But I’m not going to go further down that path any more today,” he said.

DeWine, a Republican, ordered a review of Ohio’s death penalty protocols last month after a federal magistrate judge wrote that Ohio’s method of carrying out executions would subject a condemned Ohio prisoner to “severe pain and needless suffering.” Judge Michael Merz wrote Ohio could proceed with the execution, since the inmate, Warren Henness, did not produce an alternative that is ”available,” “feasible,” and can be “readily implemented,” required under a 2015 United States Supreme Court ruling that upheld lethal injection.

DeWine delayed Henness’ execution from Feb. 13 to Sept. 12 while the review was underway. But on Tuesday, he declined to place a timetable on how long it might take for a new execution method to be developed, for it to be legally challenged and then found constitutional by the courts. “I’ve dealt with the court system a long time, and I think it’s whenever you think you can figure out how fast or slow something’s going to take, you’re wrong,” he said....

Ohio’s method of execution is to inject the condemned with a combination of three drugs: midazolam (as a sedative), a paralytic drug, and potassium chloride to stop their heart. Death penalty opponents have challenged similar methods in other states, saying they are unconstitutional because they cause cruel and unusual punishment.

In his January opinion, Mertz, the federal magistrate judge, agreed with arguments made by Henness’s lawyers, writing that “it is certain or very likely” that the state’s prescribed dose of midazolam “cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride” or the “severe pain and needless suffering that is certain or very likely to be caused by the pulmonary edema which is very likely to be caused directly by the midazolam.”

DeWine’s review marks the second time in five years Ohio has searched for a new method of execution. The state changed the drugs it uses for lethal injection after the January 2014 execution of Dennis B. McGuire took more than 25 minutes.

Ohio had some two dozen execution dates scheduled over the next four years, but I think they are all now functionally on hold pending development of a new execution method. And, reading between the lines, I get the sense that Governor DeWine would be just fine if the state official did not try all that hard to devise a new execution method anytime soon.

A few (of many) prior recent related posts:

February 20, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 19, 2019

SCOTUS via 6-3 vote rules Texas yet again misapplied its Eighth Amendment jurisprudence prohibiting the execution of those with intellectual disability

In the middle of this lengthy new SCOTUS order list, which has lots of cert denials and individual opinions about cert denials, is one notable Supreme Court opinion on the merits in Moore v. Texas, No. 18–443 (S. Ct. Feb. 19, 2019). The start and last substantive paragraph of the 10-page per curiam opinion for the Court provides the basics:

In 2015, the Texas Court of Criminal Appeals held that petitioner, Bobby James Moore, did not have intellectual disability and consequently was eligible for the death penalty.  Ex parte Moore, 470 S.W.3d 481, 527–528 (Ex parte Moore I).  We previously considered the lawfulness of that determination, vacated the appeals court’s decision, and remanded the case for further consideration of the issue.  Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18).  The appeals court subsequently reconsidered the matter but reached the same conclusion.  Ex parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II).  We again review its decision, and we reverse its determination....

We conclude that the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.  And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court.  We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.

Chief Justice Roberts has this one-paragraph concurrence in the case:

When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U.S. 304 (2002), lacked clarity.  Moore v. Texas, 581 U.S. ___, ___–___ (2017) (slip op., at 10–11).  It still does.  But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here.  On remand, the court repeated the same errors that this Court previously condemned — if not quite in haec verba, certainly in substance.  The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits.  That did not pass muster under this Court’s analysis last time.  It still doesn’t.  For those reasons, I join the Court’s opinion reversing the judgment below.

Justice Alito, joined by Justices Thomas and Gorsuch, pens a three-page dissent with concludes this way:

The Court’s foray into factfinding is an unsound departure from our usual practice.  The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore.  I would deny the petition for a writ of certiorari.  I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question.  I therefore respectfully dissent.

There is a whole lot here to notice, but I think especially important and notable is the fact that the newest Justice, Justice Kavanaugh, is with the majority of the Court and not the dissenters here. Because of the Chief Justice's vote, Justice Kavanaugh is not technically a swing vote in this capital case.  But his vote still reveals that, unlike Justices Alito and Thomas (and even seemingly Justice Gorsuch), Justice Kavanaugh may be more inclined to scrutinize state capital practices than certain of his conservative colleagues.

February 19, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, February 18, 2019

"A World of Steel-Eyed Death': An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty"

The title of this post is the title of this new article now available via SSRN authored by Michael Perlin, Talia Roitberg Harmon and Sarah Chatt. Here is its abstract:

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process — in many ways, the most scandalous — is the inadequacy of counsel so often provided to defendants facing execution.  By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients.  This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation.  Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled — either by serious mental illness or by intellectual disability.  Some of the decisions in these cases — rejecting Strickland-based appeals — have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has — prior to this article — undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities.  We do this here.  In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland).  As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way.  First, we discuss the background of the development of counsel adequacy in death penalty cases.  Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear — on the surface — to bolster it in this context.  We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning.  Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.”  Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

February 18, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?

In this post on Friday, I mentioned that I consider the statutory changes to the so-called compassionate release provisions in federal law to the "sleeper provisions" of the FIRST STEP Act.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now," reviews some basics of the changes made by the FIRST STEP Act, and on page 3 one finds this account of what I think is a very big deal:  "The most significant change to compassionate release is that the Act provides prisoners the power to file a motion for compassionate release if they can demonstrate they have tried and failed to convince the BOP to do so for them.  Before passage of the First Step Act a denial by the BOP was not appealable."  In other words, courts rather than the BOP are now ultimately to decide who may merit a reduced "term of imprisonment" under 18 USC 3582(c)(1)(A)(i).

To focus on the statutory language, prior to the FIRST STEP Act, a federal judge under 3582(c)(1)(A)(i) needed to first receive a "motion of the Director of the Bureau of Prisons" in order to have authority to "reduce the term of imprisonment [based on] extraordinary and compelling reasons [that] warrant such a reduction."  The BOP was notoriously stingy about filing such motions (with only about .01% of inmates benefiting), and the program was, in the words of the Justice Department's Inspector General, "poorly managed and implemented inconsistently."  Now persons in federal prisons still need to request the support of BOP for such a motion, but courts can now consider a sentence reduction "upon motion of the defendant" based on a claim that "extraordinary and compelling reasons warrant such a reduction" if BOP refuses move the court or 30 days after making the request.  Importantly, the US Sentencing Commission has set forth a (reasonably expansive) policy statement concerning criteria for compassionate release via USSG 1B1.13, but it will now be fundamentally the province of the federal courts to develop jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).

I plan to do a series of posts explaining why I think a number of different criteria ought to meet the (textually vague) requirements of "extraordinary and compelling reasons."  For this first post in this series, I will focus on suggestions by the Justice Department's Inspector General when he testified on this issue back in 2016 before the US Sentencing Commission.  Specifically, in testimony to the USSC, IG Michael Horowitz suggested that BOP make inmates eligible for consideration for compassionate release starting at age 50.  According to the latest BOP data, there are currently nearly 35,000 persons in federal prison aged 51 or older.  Of course, the IG did not call for early release of all post-50 prisoners, but he did urge:  "Within that larger pool of eligible aging inmates, we believe the BOP could further identify more aging inmates whose offenses, criminal histories, conduct in prison, and release plans make them suitable candidates for compassionate release, resulting in reduced overcrowding and cost savings to the Justice Department and the BOP."  As explained above, it would seem that it is now appropriate for the courts, and not just BOP, to take an active and ongoing role in deciding who among the 35,000 are "suitable candidates for compassionate release."

Importantly, ill prisoners as well as elderly prisoners should be ready candidates for compassionate release (and these two groups surely overlap).  The latest BOP data here on medical placement shows that more than 5000 federal prisoners are in "care level" 3 or 4 facilities, and "Care Level 4 facilities are reserved for inmates who require daily nursing care or therapy."  As the IG explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps "reduce overcrowding in the federal prison system" and can "result in cost savings for the BOP" and in turn the federal taxpayer.

Even if we imagine only 10 percent of elderly and ill federal inmates are "suitable candidates for compassionate release," we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.  I fear, because these provisions are unfamiliar, that courts may not start making robust use of compassionate release right away.  But I hope they will, and I especially hope that federal prisoners and their advocates will press this important new frontier for federal sentencing improvements. 

A few prior related posts:

February 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, February 17, 2019

"Paul Manafort should not be sentenced to 20 years in prison"

The title of this post is the headline of this new Hill commentary authored by David Oscar Markus. Here are excerpts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.

Make no mistake, the sentencing range is that high only because Manafort had the audacity to make the government actually prove its case at a trial. Does going to trial warrant a sentence 15 years longer than his co-defendant, Rick Gates? Rick Gates hasn’t been sentenced yet, but his sentencing range is around 5 years. And he will most likely get a sentence much lower than that because of his cooperation. His lawyers will certainly ask for probation as have numerous other cooperators in the Special Counsel’s cases.

Some will respond that Gates should get less time than Manafort because he is less culpable and decided to cooperate. That’s of course true. But that doesn’t mean that Manafort should get 20 years simply because he had the temerity to go to trial.

The truth is that being less culpable becomes a minor factor when the trial penalty comes into play. There are many examples of the least culpable defendant getting the highest sentence solely because of the trial penalty. One such victim of the trial penalty was James Olis, a securities fraud defendant who worked at Dynegy Corporation in Houston, Texas. Olis was sentenced to 24 years in prison after trial, while his boss who testified against him received about a year.

Before trial, Olis had been offered 6 months in exchange for pleading guilty and cooperating. Olis’ lawyer, David Gerger, predicted: “If there’s a 20-year penalty for going to trial, then innocent as well as guilty people will simply decide they have to give up their right to a trial.” He was right. The case was ultimately reversed, and Olis was resentenced to 6 years. Until the reversal, prosecutors in Houston expressly mentioned Olis to any fraud defendant who wouldn’t plead. The line went something like this: “You can plead or risk ending up like Olis.”  Prosecutors in every district have their own “Olis line.”

Some prior related posts:

February 17, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?

The question in the title of this post is prompted by an interesting on-going story out of Norfolk, Virginia which I have blogged about over here at my marijuana blog.  This recent local article reports on these particulars:

The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court.

On Tuesday, prosecutors under Commonwealth’s Attorney Greg Underwood went to court for at least the third time to try to drop or dismiss misdemeanor marijuana charges. Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, he’s said.

For the third time, a judge rebuffed them, and told prosecutors she’s not alone, but joined by her seven colleagues. “We are of one mind on this,” Circuit Judge Mary Jane Hall said.

The decisions adds to the confusion about whether it’s OK to have a small amount of weed in the city. Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them....

Underwood’s change on marijuana possession is part of his larger effort to bring what he calls criminal justice reform to Norfolk. In a Jan. 3 letter to judges, the police chief and other public safety officials, he announced he would support ending cash bail in many cases and seeking more equal sentences between prostitutes and their clients.

In 2016 and 2017, more than 1,560 people have been charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi told the judge in court Tuesday. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black. This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

On Tuesday, Hall denied Fatehi’s motion to dismiss charges against Zemont Vaughan. The 24-year-old Norfolk man, who is black, had been convicted in a lower court in October, but on Tuesday, he went to the higher Circuit Court to appeal that conviction.

Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them. Not this time.

Hall told Fatehi she and the other seven judges think the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws. The judge said Fatehi made an “extremely compelling case” with his statistics on racial disparities, but should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Fatehi countered: Underwood is exercising the executive power voters gave him when they elected him the city’s top prosecutor. Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources. In contrast to the misdemeanor possession charges, Underwood’s lawyers will keep prosecuting people accused of trafficking or dealing marijuana. “This is an exercise of our discretion,” Fatehi said.

Fatehi said Underwood is thinking about asking the state Supreme Court to reverse the judges’ decisions, adding that he’s “very close” to making a decision.

It seems like an indisputable given that a judge cannot legally make a prosecutor bring a charge.  But once a charge has been brought, and perhaps especially once a conviction has been obtained, I can envision plausible bases for wanting to preserve some formal judicial authority to refuse to allow charges to be dropped or dismissed in some extreme circumstance.  For example, refusing dismissal could seem justified if a judge had a reasonable basis to believe that the prosecutor had been bribed to dismiss certain charges or if a judge concluded that dismissals were driven by some kind of unconstitutional motive.  The judges here are arguably asserting that these dismissals are constitutionally suspect, but that seems like a stretch on these facts. (Indeed, I wonder if Commonwealth’s Attorney Underwood might try to defend his dismissals by saying he is worried about constitutional infirmities concerning who gets arrested and charged by police for marijuana offenses.  Surely a prosecutor must have broad authority to seek dismissal of charges that he believes may be infected with constitutional problems.)

Whatever one thinks of the legal basis for judges refusing dismissals here, I also wonder how this will continue to play out practically.  Will judges in this jurisdiction seek to appoint another prosecutor to pursue charges that the local prosecutor seeks dismissed?  Do they have authority to do so and is there any other way for these cases to proceed absent such an appointment? If and when these cases are on appeal, might the defendants seek amicus support from Commonwealth’s Attorney Greg Underwood or at least a formal statement from him saying he believes the cases should no longer proceed?

February 17, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"On probation until 2053? Sentencing disparities, lack of guidelines get long look at Minnesota Legislature"

The title of this post is the headline of this interesting newspaper article from the North Star State focusing on a part of modern sentencing systems that merit a lot more attention than it usually gets.  Here is how the piece gets started:

Since getting clean, Jennifer Schroeder went on to manage the sober living house that nurtured her after a year in jail.  She became the first in her family to graduate from college and, as an addiction counselor, now helps others struggling with the same demons she had to overcome.

Yet Schroeder’s own past will loom large into her 70s.  The 36-year-old St. Paul resident is on probation until 2053 after being caught with 21 grams of meth during a traffic stop one summer in Wright County.  “It’s hard to transform yourself into a new person when you are still labeled as your old self,” Schroeder said.

The same crime would net a fraction of that sentence in Minneapolis or Duluth, a chasm that underscores the disparate nature of punishment in a state with one of the nation’s highest rates of probation but with no clear guidelines for judges to rely on.

With the backing from top officials at the Department of Corrections, state lawmakers from both parties are now pushing new measures to cap probation sentences in Minnesota at five years.  They are also calling on the state’s Sentencing Guidelines Commission to start issuing recommendations for probation like it has for prison sentencing for nearly 30 years. “We are failing the basic test that those convicted of the same crime should receive similar punishment,” said Rep. Jamie Long, D-Minneapolis, who is sponsoring both bills.

Support for changing the state’s probation laws mirrors the national conversation surrounding criminal justice reform, like the recent First Step Act that focused on federal prison sentencing and earned broad bipartisan support. Those testifying at the State Capitol this week included local representatives from both the liberal American Civil Liberties Union and the conservative Americans for Prosperity.

February 17, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, February 16, 2019

Round three of sentencing in high-profile New Jersey deadly drunk driving case still provides no closure

Last year, I flagged in this post the notable appellate ups and downs surrounding the sentencing and resentencing of actress Amy Locane following her conviction for killing a 60-year-old woman in a 2010 car crash while driving with a blood-alcohol way over the legal limit.  This local media piece reports on the latest sentencing in the case under the headline "‘Melrose Place’ actress sentenced again for fatal drunk driving crash, but free pending another appeal," and the story seems to just get sadder (and less certain) for everyone at each additional legal proceeding.  Here are some details:

For the second time, actress Amy Locane was sentenced to prison for a 2010 drunk driving accident that killed a 60-year-old woman.  How much time she’ll actually serve behind bars, though, is unclear.

The former Hopewell Township resident who once appeared on Melrose Place was sentenced to five years in prison by Somerset County Superior Court Judge Kevin Shanahan Friday afternoon, nearly nine years after the fatal crash.  The judge said if he were imposing the original sentence, he would have sentenced Locane to six years.

Family members of her victim, Helene Seeman, smiled while walking out of court, but left the Somerset County Courthouse in Somerville without giving a statement to media.

James Wronko, Locane’s lawyer, said it was “an extremely thoughtful decision in all respect,” but will appeal on double jeopardy grounds, which was one of his main arguments why the actress shouldn’t return to prison.

Somerset County Assistant Prosecutor Matt Murphy requested a nine-year sentence from Shanahan, who said he was basing it on “the crime, not the criminal.”  Locane was originally convicted of vehicular homicide and assault by auto, which carries up to 15 years in prison, for the death of Helene Seeman and critical injuries to her husband, Fred Seeman.

Fred Seeman and his son, Ford Seeman, both gave emotional testimony, filled with tears, tissues and aggravation. “My mother should still be here, but she’s not because Amy Locane is a horrible human being driven by ego and pride,” he said, reading the notes off his phone while wiping his tears, at times his voice breaking.

Locane whispered “that’s not true” several times under her breath during Ford Seeman’s testimony, which including him saying Locane has made herself a victim and will not accept responsibility. He also lambasted Judge Robert Reed’s initial, lenient sentence, calling it a “mockery of the justice process” and referred to Locane’s request for a short sentence to care for her two young children, who she called collateral damage as “pathetic.”...

Locane stood to speak after the Seemans concluded their testimony. Ford Seeman left the room. “There is not a day that has gone by that I have no thought of the pain that my actions caused the Seeman family and of course Helene Seeman,” the 47-year-old said. “I made a mistake. I have done everything that I can do to not be that person who does what I did nine years ago.”

She also noted she regularly speaks at schools about the dangers of drinking and driving, and is committed to sobriety through Alcoholics Anonymous.

The actress, who appeared in the movie “Cry-Baby” with Johnny Depp, and other Hollywood pictures, was driving home from a party on June 27, 2010 when she crash into the Seemans, who were turning into their driveway. Locane’s blood alcohol content was three times the legal limit.

He first sentence, three years in prison handed down by Judge Robert Reed in February 2013, drew immediate criticism for its apparent lenience. She served two-and-a-half-years at Edna Mahan Correctional Facility in Clinton Township and was paroled in June 2015. It’s unclear if Locane will receive credit now for the time she was incarcerated.

In 2016, an appeals court ruled the sentence was not harsh enough. Locane returned to court for a second sentencing in January 2017, where Judge Reed said he erred in not sentencing her to six more months. However, he declined to give Locane more prison time.

In March 2018, an appellate court ruled again the sentence was “a hair’s breath away from illegal." The decision criticized Reed’s lack of explanation for the sentence, and asked another judge to decide her Locane’s fate at a third re-sentencing.

Fred Seeman cried and yelled during his testimony. He argued a light sentence would not deter New Jerseyans from drinking and driving, and the trauma still affects his youngest son, who saw his mother dead on their front lawn. “I cry at night, for my son Curtis who is not with us today. It hurts me and pains me,” said the 69-year-old, who suffered broken ribs and a collapsed lung in the crash, and has a hole in his diaphragm as a result of blunt force trauma from the accident....

Locane will serve 85 percent of her new sentence under the No Early Release Act and was released on her own recognizance pending an appeal.

In 2017, the Seemans were awarded a $4.8 million dollar settlement in a civil lawsuit. Locane paid $1.5 million, while Rachel and Carlos Sagebien — hosts of the party where Locane left drunk — paid $3.3 million.

Prior related post:

February 16, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 15, 2019

Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act

Though the (clumsy) increase in good-time credits has received considerable attention since the passage of the FIRST STEP Act (see prior posts here and here and here and here), I find the change to the administration of so-called compassionate release rules to be among the most fascinating elements of the new legislation.  If legislative enactments can have "sleeper provisions," I would call the compassionate release changes the sleeper provisions of FIRST STEP.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now,"  reviews some basics of the changes made by the FIRST STEP Act for those eager for a short accounting of before and after.

Today's New York Times covers this issue through one particular sad story under the headline "A New Law Made Him a ‘Free Man on Paper,’ but He Died Behind Bars." This article is worth reading in full, and here are excerpts:

At a federal courthouse in Tennessee, a judge signed an order allowing an ailing inmate to go home. But he died in a prison hospice before he heard the news.

At his wife’s home in Indiana, as she was getting a wheelchair, bedpans and other medical equipment ready for his arrival, the phone rang. “It was the chaplain,” said the wife, Marie Dianne Cheatham. “He said, ‘I’m sorry to have to tell you.’ And my heart fell through the floor. I knew what he was going to say.”

For years, terminally ill federal prisoners like Ms. Cheatham’s husband, Steve, have in theory had the option of what is called compassionate release. But in practice, the Bureau of Prisons would often decline to grant it, allowing hundreds of petitioners to die in custody. One of the provisions of the new criminal justice law, signed by President Trump on Dec. 21, sought to change that, giving inmates the ability to appeal directly to the courts.

Mr. Cheatham, 59, did just that, filing a petition last month so that he could leave prison in North Carolina and go home to die. He became one of the first to be granted release under the new law. But then came the harsh truth that made so many families pin their hopes on the law’s passage in the first place: Days and even hours can mean the difference between dying at home or behind bars.

Created in the 1980s, compassionate release allowed the Bureau of Prisons to recommend that certain inmates who no longer posed a threat be sent home, usually when nearing death. But even as more and more Americans grew old and frail in federal penitentiaries, a multilayered bureaucracy meant that relatively few got out.

A 2013 report by a watchdog agency found that the compassionate release system was cumbersome, poorly managed and impossible to fully track. An analysis of federal data by The New York Times and The Marshall Project found that 266 inmates who had applied between 2013 and 2017 had died, either after being denied or while still waiting for a decision. During the same period the bureau approved only 6 percent of applications.  Many state penal systems, which house the majority of American inmates, have their own medical release programs with similar problems.

“It is a system that is sorely needing compassion,” said Mary Price, the general counsel for Families Against Mandatory Minimums, which advocates criminal justice reform....  The law’s passage has caused a scramble to use the new appeal process for compassionate release, said Ms. Price, whose organization has worked to arrange lawyers for some of those inmates. “There’s a road map now for this, and a way home for people that we’ve never seen before,” Ms. Price said.

Before the First Step Act passed, Ms. Cheatham followed its fortunes closely, hoping it could lead to a shortened sentence for her husband, whose health was deteriorating. Last fall, he was diagnosed with advanced-stage cancer and told he had only a few months to live. In mid-December, he applied for compassionate release, Ms. Cheatham said.

The new law requires that prisoners be told within 72 hours of a terminal diagnosis that they may apply for compassionate release, and that the Bureau of Prisons aid those who wish to apply but cannot do so on their own.  After a few weeks, Ms. Cheatham had heard nothing back.  The Bureau of Prisons declined to answer most questions about Mr. Cheatham’s case, but did say that it had not received his application for compassionate release until Jan. 11.  According to the judge’s order, the request was filed on Dec. 13.

A senator’s office said the government shutdown would make it difficult for them to provide immediate help.  Finally, she called a federal public defender in Tennessee, where her husband had been sentenced, who told her about the new process allowing an appeal after 30 days.  Within a few days, on Jan. 25, they filed a preliminary motion for immediate release.

It was to be a homecoming to a home Steve Cheatham had never seen.  The Cheathams had met and married after he was already in prison, serving a nearly 16-year sentence for a series of bank robberies in 2006.  According to an F.B.I. agent’s account, Mr. Cheatham passed notes to tellers at three banks in Tennessee, making off with about $13,000. The agent made no mention of any weapon....

On Jan. 30, the formal request for compassionate release was filed, and the next day, a judge signed the order to send Mr. Cheatham home.  Ms. Cheatham got the news shortly after 1 p.m.  “My heart just was so full of joy,” she said.  “I called everybody I could think of to tell them,” including the prison chaplain, whom she asked to deliver the good news to her husband.

Later that afternoon, the chaplain called back. Mr. Cheatham had died before he could tell him about the judge’s order.  Ms. Cheatham was devastated, but expressed her hope that on some level, Mr. Cheatham may have sensed the news.  “At least,” she wrote to a supporter, “he died a free man on paper.”

Some of many prior related posts:

February 15, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Federal judge rejects Sayfullo Saipov's efforts to block capital prosecution based on Prez Trump's tweets

As reported in this New York Times piece, headlined "Trump’s Tweets Do Not Bar Prosecutors From Seeking Death in Terror Case, Judge Rules," a federal judge yesterday issued a notable ruling in a high-profile capital case. Here are the details:

When President Trump said on Twitter that an Uzbek man charged with using a pickup truck to kill eight people “SHOULD GET DEATH PENALTY,” the man’s lawyers asked a judge to bar prosecutors from seeking execution, saying the decision had become too politicized.  But a federal judge in Manhattan ruled on Thursday that prosecutors could seek capital punishment despite the president’s comments.

Defense lawyers had argued the president’s tweet and other statements he made on Twitter had put political pressure on the attorney general at the time, Jeff Sessions, to seek a death sentence.  The lawyers pointed to public reports that Mr. Trump was considering firing the attorney general for not following his wishes, and said Mr. Sessions would not be able to make an impartial decision.

In his ruling, Judge Vernon S. Broderick wrote that Mr. Trump’s statements advocating for the death penalty “were perhaps ill-advised given the pendency of this case.”  Still, the judge said the argument that Mr. Sessions was improperly motivated to seek execution was “pure speculation made without a scintilla of direct factual support.”  The judge said that without more evidence he could not interfere with “the attorney general’s presumptive authority to make charging decisions.”

In September, Mr. Sessions went ahead and directed prosecutors to seek the death penalty for the defendant, Sayfullo Saipov, 31, if he is convicted at trial, even though Judge Broderick had not yet ruled on the motion concerning the president’s tweets.  Six weeks later, Mr. Trump fired Mr. Sessions. 

Mr. Saipov is accused of driving the truck down a crowded bike path along the Hudson River on Oct. 31, 2017, and, after smashing into a school bus, jumping out and running down the highway, shouting “God is great” in Arabic.  He was taken into custody after being shot by a police officer.  He has pleaded not guilty to eight capital counts of murder and other charges, and is scheduled for trial in October.

Judge Broderick wrote that Mr. Saipov had “offered no evidence that the president’s remarks impacted the attorney general’s decision-making process in any way.”  To the contrary, the judge said, Mr. Sessions had “categorically renounced other provocative remarks made by the president” and had vowed that the Justice Department would “not be improperly influenced by political considerations.”

Prior related posts:

February 15, 2019 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, February 13, 2019

Paul Manafort facing potentially longer sentence after judge concludes he failed to comply with plea deal

As reported in this new Politco piece, a "federal judge ruled partly in favor of special counsel Robert Mueller on Wednesday that Paul Manafort violated the terms of his guilty plea by lying to federal prosecutors and a grand jury." Here is more and why this is ultimately a sentencing story:

The decision by U.S. District Court Judge Amy Berman Jackson confirms some of Mueller’s latest set of charges against the former Donald Trump campaign chairman that he lied during guilty-plea-stipulated cooperation sessions about his contacts with Konstantin Kilimnik, a longtime aide alleged to have ties to Russian intelligence.  Jackson, however, ruled that Mueller had “failed to establish by a preponderance of the evidence” that Manafort intentionally made a false statement about his contacts with the Trump administration.

The judge’s four-page ruling against Manafort [which is available here] means the 69-year old political operative will likely get an even stiffer penalty at his March 13 sentencing hearing in Washington, D.C., federal court.  She said Mueller was “no longer bound by its obligations under the plea agreement” terms he’d reached with Manafort in September, including the special counsel’s pledge to support a less-stringent sentence.

Manafort had previously been on track to get a 10-year cap on his prison sentence in his D.C. case under the terms of the original plea deal he struck with Mueller, which limited the charges he faced to conspiracy against the U.S. and conspiracy to obstruct justice while dropping foreign-lobbying and money-laundering charges.

The plea agreement had also called for Manafort to serve time concurrently from his D.C. case with any sentence he gets from his convictions in Alexandria, Va., on charges of bank and tax fraud.  But with Jackson’s order on Wednesday, Mueller is now free to recommend that Manafort serve his sentences consecutively.

Both Jackson and U.S. District Court Judge T.S. Ellis III, who presided in Manafort’s trial in Virginia and had postponed sentencing until the dispute over the lying charges was resolved, will have the final say in the decision on whether he serves back-to-back or simultaneous sentences.

Some prior related posts:

February 13, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Detailed memo maps out arguments and urges litigation for immediate good-time credit under FIRST STEP Act

A helpful reader alerted me to this notable new memorandum from the office of the Federal Public Defender for the District of Oregon titled "Delayed Implementation Of The First Step Act’s Good Time Credit Fix Violates The Rules Of Statutory Construction And Due Process Of Law." The memo is authored by Stephen Sady and Elizabeth Daily, and here is how it gets started:

With a single exception to date, thousands of federal prisoners who expected immediate release based on the First Step Act’s congressional clarification of the good time credit statute have been required to remain in custody beyond completion of their sentences, with many more scheduled to similarly serve unnecessary incarceration over the next six months.  The good time fix requires that prisoners showing exemplary compliance with institutional rules receive the full statutory 54 days of good time credits, rather than the 47 days presently provided, for each year of their term of imprisonment.  The Bureau of Prisons has continued to provide only 47 days of credit, claiming that a delayed effective date prevents it from implementing the good time fix until it develops an unrelated risk and needs assessment system. The Bureau should be following the rules of statutory construction, as guided by the Constitution, to immediately put into effect the only congressionally-approved manner of calculating good time credits.  The Executive Branch has the power -- and in good conscience the obligation -- to correct the wasteful and inhumane over-incarceration of prisoners who have reached their lawful sentence expiration date.

Rather than wait for the Executive Branch to do the right thing, prisoners’ representatives should litigate for immediate relief on their clients’ behalf from the Judicial Branch.  This article provides the legal grounds for relief in several parts. In Section A, we describe the history of the Bureau’s denial of the full good time credits intended by Congress and the First Step Act’s fix, which clarifies the correct 54-day calculation.  In Section B, we review the rules of statutory construction that call for immediate implementation of provisions, like the good time fix, that clarify congressional intent.  The second half of Section B specifically addresses the serious due process and equal protection problems avoided by immediate implementation of the good time fix.  In Section C, we outline the paths to expedited relief for the current federal prisoners suffering irreparable harm with each passing day.  The last sections address the need for counsel and include a description of the release of Mark Walker 60 days prior to his projected release date, as the first federal prisoner to receive the full 54 days of good time credit he earned under the statute.

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February 13, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Illinois prosecutors appealing 81-month sentence given to former Chicago cop Jason Van Dyke for murder of Laquan McDonald

In the federal system, sentencing appeals brought by prosecutors are relatively rare but not always exceptional.  My sense is that prosecutorial appeals of sentences are even rarer in most state systems, and a state sentencing appeal brought this week by Illinois prosecutors comes in a case that is exceptional for all sort of reasons.  This extended Chicago Tribune article, headlined "Attorney general, special prosecutor challenge Jason Van Dyke’s sentence in petition to state Supreme Court," provides lots of background details and here are excerpts:

Special prosecutors and the Illinois attorney general’s office want the state’s highest court to order a resentencing for Jason Van Dyke, a move that if granted could result in a much harsher prison term for the former Chicago police officer convicted in the slaying of 17-year-old Laquan McDonald.

Their petition, filed Monday, does not explicitly target the length of the 6¾-year sentence, which many activists criticized as lenient.  But Kane County State’s Attorney Joseph McMahon, appointed to handle the Van Dyke case, and Attorney General Kwame Raoul argue that Judge Vincent Gaughan sentenced Van Dyke under improper legal guidelines, and note that a significantly longer sentence would be justifiable under state law.

“I recognize that a trial judge’s discretion in sentencing is to be given great deference,” Raoul said at a news conference Monday. “However, it is in the interest of justice that we do all within our power to make sure that such exercise in discretion be applied consistent with the mandates of law, no matter who the defendant and no matter who the victim.”

In response, Van Dyke’s attorneys said the prosecutors’ motivations were plainly political. “This case has come to represent all the wrongs, perceived wrongs, of the Chicago Police Department, and it’s fallen upon Jason Van Dyke as a person,” attorney Jennifer Blagg said. “So what he represents politically is why this is happening.”...

Van Dyke, 40, was convicted last year of one count of second-degree murder and 16 counts of aggravated battery in the 2014 on-duty shooting of McDonald.  He was sentenced last month to 6¾ years in prison.  Gaughan sentenced Van Dyke only on the second-degree murder conviction, ruling that it was the more serious offense and that the aggravated battery counts should “merge” into it for purposes of sentencing....

But the prosecutors’ petition argues that Illinois law actually makes aggravated battery with a firearm the more serious offense, and therefore the state Supreme Court should order Gaughan to resentence the ex-patrol officer on those convictions instead.  The court should also direct Gaughan to determine which of the 16 gunshot wounds caused “severe bodily injury” and sentence him to consecutive prison terms for those counts, they state.

Prosecutors have argued that at least two of the wounds caused that kind of injury, which, the petition contends, would mean Van Dyke would face a minimum sentence of 18 years: six years for each of those two wounds, plus six more years for the other 14 counts.  An aggravated battery with a firearm conviction carries a sentence of six to 30 years in prison.  The range for second-degree murder is four to 20 years, but a judge can impose probation instead.

If the state Supreme Court chooses to consider the petition, there are a few potential outcomes, said longtime criminal defense attorney Mark Lyon.  “They will either have to say, ‘Judge Gaughan, you have to resentence this person,’ or they have to say (they) were wrong in the case where they said second-degree murder was always less serious than aggravated battery with a firearm,” Lyon said, referring to a previous ruling.

The court potentially could also order Gaughan to resentence Van Dyke on the aggravated battery but not make him rule on which of the 16 shots caused “severe bodily injury,” Lyon said, which would open the door for Gaughan to impose a prison term the same as the previous sentence, or slightly shorter.

But even in that scenario, Van Dyke would serve slightly more prison time.  Inmates convicted of aggravated battery with a firearm must serve at least 85 percent of their sentences — far higher than the 50 percent required by a second-degree murder conviction.  “It’s quite unlikely that Mr. Van Dyke comes out of this without some kind of upward modification of his sentence,” Lyon said. “How much, who knows.”

Van Dyke’s attorneys plan to file an objection to the prosecutors’ motion. The Supreme Court is not obligated to accept the prosecutors’ petition at all, and there is no time frame in which it must make a decision.

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February 13, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Unlocking the Black Box: How the Prosecutorial Transparency Act Will Empower Communities and Help End Mass Incarceration"

The title of this post is the the title of this notable new ACLU report.  Here is how the ACLU website describes the report's interests and approach:

Prosecutors’ offices are often black boxes.  There is little publicly available information about prosecutors’ policies and practices.  Trying to obtain private information from their offices is often difficult and time-consuming.  This lack of information makes it virtually impossible to hold prosecutors accountable for what they are doing — and what they are doing makes a difference in mass incarceration and with racial disparities.  What’s needed is comprehensive and mandatory transparency from all prosecutors. 

The solution is statewide legislation that sets minimum transparency standards for elected prosecutors, ensuring that they collect and make public data and policies so they are available to the communities that they serve.  The “Prosecutor Transparency Act” outlined in our new report creates a framework for how state legislators can hold their prosecutors accountable.

February 13, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, February 12, 2019

Student SCOTUS preview part two: noticing the parole push in United States v. Haymond

6a00d83451574769e2022ad3c272a1200b-320wiI noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also obviously found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  Oral argument is scheduled for two weeks from now, and a SCOTUSblog page on Haymond has links to all the briefing.

As reported in this prior post, I have a great student, Jim McGibbon, who is now in the midst of drafting a series of preview posts on the \Haymond case.  Following up on this introductory post, here is his second post inspired by the briefing in the case:

In 2010, Andre Haymond was convicted of possessing child pornography and sentenced to thirty-eight months of prison and ten years of supervised release.  In 2015, two years into his supervised release, Haymond's probation officers conducted a surprise search of his apartment and seized a password-protected cellphone.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release.  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond's supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  On appeal, the Tenth Circuit held that § 3583(k) was unconstitutional in part because it unlawfully imposes heightened punishment using a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne.  And though parole was abolished in the federal system 35 years ago, its history and procedures lurk as this case now comes before the Supreme Court.

The Supreme Court in Morrissey v. Brewer stated that "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation." Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  Commenting on the nature of revocation, the Supreme Court theorized that "[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Id.  Regarding the right to due process, the Court held that "[w]hether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.'" Id. at 481.

Morrissey is still good law, as is Gagnon v. Scarpelli, 411 U.S. 778 (1973), which ruled similarly with respect to constitutionally required procedures for revoking probation.  Predictably then, the government briefing in US v. Haymond relies heavily on these cases, as Morrissey is mentioned 21 times and Gagnon is mentioned 14 times in its main brief. Concomitantly, the government’s brief cites to "parole" a whopping 60 times in hopes that the current Court finds that a person on supervised release is afforded only the same procedural protections as a parolee or a probationer as the Burger Court found in Morrissey and Gagnon.  As the government would have it, Morrissey and Gagnon control because Andre Haymond while on supervised release has "only "conditional liberty" and "individuals in respondent’s position are differently situated from those who can claim the full extent of the constitutional protections against a deprivation of their absolute liberty."  Brief of US at 38.  In contrast, Haymond's brief contains only five references to Morrissey.  He argues, unsurprisingly, Morrissey does not apply. 

There are reasons to believe the Court will not automatically find that the procedural protections due a person on supervised release are in lock step with the procedural protection due a person on parole.  Morrissey can be distinguished due to differences between the realities of traditional parole release and parole revocation and the realities of federal supervised release and its revocation.  As Haymond's brief stresses, in this case Congress through section 3583(k) required a new five-year mandatory prison sentence upon a particular finding as the basis for supervised release revocation.  Traditional parole processes included considerable discretion, and "parole revocation penalties could not exceed reimprisonment for the remainder of the original sentence."  Brief for Respondent at 26.  Moreover, continues Haymond, supervised release is not a form of "conditional liberty” because any “defendant who began a term of supervised release completed his term of imprisonment and there was no pending term that he could resume serving (as in the case of parole) or being serving (as in the case of probation)." Brief for Respondent at 27-28.

This case could be decided on whether the discretionary parole system of the past and the mandatory supervised release system of the present are similar enough to apply Morrissey v. Brewer in Haymond's case.  However, if the Court extends Morrissey v. Brewer to be applicable to the revocation of supervised release, then Haymond was not due "the full panoply of rights" and the application of § 3583(k) is probably constitutional — although the Court could still then find that the § 3583(k)'s distinctive mandatory five-year prison sentence is a "grievous loss" for a defendant that justifies greater procedural protections under the Due Process Clause of Fifth Amendment.  Or, if the Court declines to extend Morrissey v. Brewer to the revocation of supervised release, then perhaps the Court will look to the Sixth Amendment to find that jury trial rights are implicated and applicable under the Apprendi and Blakely and Alleyne line of cases.

This case is of interest not only because of its substantive issues, but also because it will present the first major opportunity for new Justices Gorsuch and Kavanaugh to weigh in on Apprendi and its progeny.  Justice Gorsuch replaced an Apprendi progenitor in Justice Scalia, while Justice Kavanaugh replaced an Apprendi objector in Justice Kennedy.  The next post will explore what they and other Justices might have to say in this case.

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February 12, 2019 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz

CNN has this notable new article headlined "This is where Parkland shooter Nikolas Cruz's death penalty case stands a year later," and here are excerpts:

A year after Nikolas Cruz massacred 17 people and injured 17 others at his former high school in Florida, the question is not whether he's guilty -- he's confessed on video.  It's does he live or die?  His defense team has offered a guilty plea in exchange for life in prison without the possibility of parole -- but only if prosecutors take the death penalty off the table. Prosecutors have rejected the plea, meaning a lengthy trial is all but inevitable.

If the case goes to trial, Cruz will join a short list of mass shooters who've faced their victims in court.  Of the 10 deadliest shootings in recent US history, Cruz is the only one who was captured alive.

The case is on what's described as the "pretrial discovery" stage, says Broward Public Defender Howard Finkelstein, whose office is representing Cruz.  He says the case is a long way from trial. In this stage, Cruz's attorneys have been deposing dozens of witnesses to give oral statements under oath.

Such sessions happen behind closed doors and are only attended by attorneys, the court reporter and the victims' advocate, says Richard Hornsby, a criminal defense lawyer in Florida who is not involved in the case.  Depositions are conducted in person by prosecutors and defense attorneys, and the defendant is not allowed to be present, he adds.

"It is common for victims/accusers to be deposed. However, from a strategic standpoint, I could not imagine the defense attorneys deposing the survivors in this case without a good reason," Hornsby says.  The Broward County Clerk of Court's website lists deposition notices for mostly law enforcement witnesses.

It's the beginning of a long, arduous process.  A death penalty case can take years to go to trial.... The process involves painstakingly combing through graphic details of the shooting in court. No detail is too small, including the gunshots, autopsies and the killer's words.  "However, with the judge pushing the case hard and the passage of Marsy's Law last fall, I would not be surprised if this case makes it to trial early next fall," Hornsby says.  Marsy's Law expanded the rights of victims of crimes, including giving them the right to have a voice in prosecution issues.

Broward state prosecutors have not revealed much in recent months.  But in the past, they've rejected the defense's offer of a guilty plea in exchange for a life sentence, paving the way for a lengthy trial. While the prosecution did not respond to CNN's request for comments for this article, Michael Satz, Broward County's prosecutor, has previously said this is "certainly the type of case the death penalty was designed for."  Assistant State Attorney Shari Tate has said Florida will not allow Cruz to "choose his own punishment for the murder of 17 people."

Cruz's defense team has made it clear it's not looking forward to a death penalty trial. That's why Finkelstein is offering his client's guilty plea in exchange for 34 life sentences without parole.  That would take the death penalty trial off the table and spare the victims from reliving the nightmare during testimony, he says.

That would end the extensive legal process he says could last decades if there's an appeal. In some cases, death penalty trials are followed by lengthy appeals in which survivors return to court to face the killer all over again.  "A plea to 34 consecutive life sentences ends not only the above immediately but means no appeals," Finkelstein says. "We still stand ready to plead guilty to 34 consecutive life sentences."

Some Marjory Stoneman Douglas students are conflicted on the possibility of a death penalty trial.  Student leader Emma Gonzalez describes Cruz's potential death penalty trial as a "good" thing.  Another student, Cameron Kasky, has said he wants him to "rot forever" in prison instead.

Andrew Pollack, whose daughter, Meadow, was one of the people killed, has said he does not plan to attend any death trial hearings. "I don't want to go through some lengthy trial that's going to be brutal. I want him to sit in a cell and rot for the rest of his life," Pollack says.

In high-profile cases such as the Parkland shooting, there are no shortages of challenges for everyone involved.  Even finding a jury will be an ordeal, Hornsby says.... "You will have to find people who say they could be fair and impartial to the defendant given what they know about the Parkland murders," he says. "Good luck."

Florida's death penalty law requires the jury's decision to be unanimous. If one of the 12 jurors dissents, the defendant must be sentenced to life without parole.

There are so many interesting and sad elements to this story. For starters, the possibility of the death penalty has, in one sense, already done a lot of work in this case, as it is surely driving the defense to offer to plead guilty to 34 consecutive life sentences.  But because prosecutors, likely influenced in part by the wishes of some victims, are eager to secure a death sentence, there will be lots and lots of process (and expense) in the months and years ahead.  I hope that the victims of the shooting and victims' families can find some comfort in the long capital trial process, but even if they do they also have to be prepared for years (likely decades) of an appeals process.  (Recall, as noted in this recent post, that we are approaching the six-year anniversary of the Boston Marathon bombing and the capital case still is not close to being fully briefed in the First Circuit.)  

With a focus on the victims, I find it especially interesting that activist Emma Gonzalez is apparently supportive of the decision to pursue capital charges against Cruz.  My general perception is that many progressives and many young people tend to be strong opponents of the death penalty, and so I would be inclined to guess that most of the Parkland students will be disinclined to support efforts to send Cruz to death row.  But, as is often the case, victims are a diverse and sometimes unpredictable bunch.  And with Marsy's Law newly on the books in Florida, their roles will be one to watch closely in the months and years ahead as well.

Finally, at the risk of seeming crass, I hope someone is keeping track of what this prosecution is costing the taxpayers of the state of Florida.  As regular readers know, I think the extraordinary expense of many capital cases can often serves as one of the strongest arguments against the death penalty as it rarely seems the penalty's (debatable) benefits measure up to its (reasonably clear) economic costs.   

Prior related posts:

February 12, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)