Tuesday, October 21, 2014
"Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases"
The title of this post is the title of this intriguing new empirical study authored by Joanna Shepherd and Michael Kang. Here is the study's summary:
The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.
Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections. Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections. These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights. Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.
This study’s two principal findings:
The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.
Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.
The study is based on the work of a team of independent researchers from the Emory University School of Law. With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013. State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases. These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.
The findings from this study have several important implications. Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves. Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.
Koch Industries give "major grant" to NACDL to help with indigent defense
I noted in this post back in April that the Koch Brothers have a history of supporting criminal justice reform groups and efforts. That interesting story now has another interesting chapter as evidence by this new press release headlined "NACDL Selected to Receive Significant Grant from Koch Industries, Inc. to Address Nation's Profound Indigent Defense Crisis." Here is how the press release gets started:
The National Association of Criminal Defense Lawyers (NACDL), the nation's preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing, has been selected by Koch Industries, Inc. to receive a major grant in support of NACDL's efforts to address the nation's profound indigent defense crisis.
There are two components to this generous and critical initiative:
- Significant expansion of access to training through an ambitious combination of scholarship support for indigent defenders, web-based training via the Internet, and targeted on-site training for indigent defense providers who lack adequate resources to provide comprehensive continuing education for line attorneys and supervisors.
- Examination of state level indigent defense delivery systems in order to ascertain strengths that can be replicated elsewhere as well as weaknesses and the ways in which those can be rectified.
Both components will seek to achieve the goals set forth in the American Bar Association's Ten Principles of a Public Defense Delivery System, which are widely recognized as providing a comprehensive framework for the effective delivery of legal services for the indigent accused.
Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
A high-profile (and high-cost) capital case starts its next big phase as reported in this new AP article headlined "Opening statements expected in Jodi Arias sentencing retrial." Here are the basics:
Jurors in Phoenix will once again be asked to decide whether Jodi Arias should be executed for the gruesome murder of her former boyfriend. Lawyers are expected to make opening statements Tuesday at the sentencing retrial, more than a year after a jury found her guilty of killing Travis Alexander in June 2008. The first jury deadlocked on whether to sentence her to life imprisonment or death.
A new jury that was picked over the past several weeks will be sworn in as the former waitress tries to make another case that her life should be spared. They won't consider whether or not she's guilty -- that's already been decided. The retrial is expected to last into December....
Arias stabbed and slashed Alexander nearly 30 times, slit his throat so deeply she nearly decapitated him and shot him in the forehead. She left his body in his shower where friends found him about five days later at his suburban Phoenix home. She acknowledged she killed Alexander, but claimed it was self-defense after he attacked her. Prosecutors said it was premeditated murder carried out in a jealous rage after the victim wanted to end their affair and planned a trip to Mexico with another woman.
Weeks after Arias was convicted, the jury failed to reach a unanimous decision on her punishment. Her attorneys have since sought, unsuccessfully, to dismiss the death penalty as an option. If another deadlock occurs, the death penalty would automatically be removed as an option, leaving a judge to sentence Arias to one of two options: life in prison or life in prison with the possibility of release after 25 years.
The sentencing retrial will be a mini-trial of sorts to get a fresh jury up to speed on the case. Four hundred people were called as prospective jurors. Many of them were cut after they said they either made up their minds about the case or knew too much to be impartial. Some jurors cited their objection to the death penalty.
At her last trial, she testified for 18 days, describing for jurors an abusive childhood, cheating boyfriends, dead-end jobs, a shocking sexual relationship with Alexander, and her contention that he was physically abusive....
The costs of defending Arias have topped $2.5 million and will mount during a second penalty phase. Prosecutors have declined to provide their costs to try the case.
I am pleased this AP article ends with a discussion of the economic costs of this notable case. Because it is unlikely Arias will ever be executed even if she is sentenced to death, and because imposition of a death sentence will ensure years of state and federal appeals at taxpayer expense, I think prosecutors in this case are likely to do more harm to Arizona taxpayers than to Jodi Arias via this retrial.
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:
The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully. Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....
During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name. He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013. But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.
Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment. He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters. "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration. As a family, we are ready to support and guide Oscar as he serves his sentence."
The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."
The prosecution had asked for a minimum prison sentence of 10 years for Pistorius. After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing. Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....
Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.
She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."
In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."
The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.
In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.
On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.
Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.
The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.
Previous related post:
October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
Monday, October 20, 2014
New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders
I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court. Here is how the Globe article starts:
The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.
Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000. “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.
Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing. His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system. “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.
Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.” That means considering mental health or substance abuse treatment as well as time in prison. Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.
Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse. Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.” She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”
Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said. “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”
The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users. “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said. “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”
Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:
Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities. In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses. I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.
The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences. Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence. For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.
I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years. But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime. And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.
October 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack (0)
SCOTUS order list gets week off to exciting start for criminal justice fans
As reported here and here at SCOTUSblog and here at How Appealing and here at Crime & Consequences, the Supreme Court this morning issued this order list which included one notable GVR and three grants of certiorari. All of this SCOTUS action has a direct or indirect connection to criminal justice issues; these excerpts from Lyle Denniston's SCOTUSblog reporting highlights the basics of the cert grant:
The Supreme Court, taking on an issue that reaches hotels and motels across the nation, agreed on Monday to rule on the power of city governments to require commercial lodgings to open their guest lists to the police. In agreeing to hear a Los Angeles case, the Justices also said they would rule on whether a lawsuit can be filed to use the Fourth Amendment to strike down a police inspection law in its entirety, whatever the factual situation in a given case.
The case of Los Angeles v. Patel was one of three new cases the Justices accepted for review.... Other issues in the newly granted cases focus on whether federal courts have power to order that guns taken from an individual during a drug prosecution should be transferred when the case is over to a neighbor and a friend to whom the owner wanted to sell them (Henderson v. United States), and whether it is unconstitutional for a state court to exclude an accused individual and defense lawyers from a hearing to examine the legality of prosecutors’ exclusion of minority jurors from serving (Chappell v. Ayala).
In addition, the notable GVR involved the application of the Burrage causation issue resolved last SOCTUS Term in a criminal prosecution involving a doctor convicted of four counts of unlawful distribution of a controlled substance leading to death. Justice Alito, joined by Justice Thomas, concurred in a written opinion to make clear that "nothing in today’s order should be understood as suggesting that petitioner is entitled to acquittal."
"Why Did the Supreme Court Sidestep Sentencing Dispute?"
The title of this post is not merely the question I had for a few Justices after the denial of cert last week in Jones v. US (lamented here and here), it is also the headline of this new National Law Journal article about this decision authored by Tony Mauro. Here are excerpts:
The U.S. Supreme Court's refusal to add a Washington drug case to its docket would not ordinarily get much notice. But when the court did just that on Oct. 14, it drew wide criticism for missing an opportunity to resolve a long-running dispute over judicial discretion in sentencing.
The court denied certiorari in Jones v. United States, which asked the court to rule that in deciding on a sentence, federal judges should not be able to take into consideration conduct for which the defendant was acquitted. In the Jones case, the trial judge significantly increased the sentences of three defendants by factoring in drug conspiracy charges that the jury had rejected.
"It is really hard to understand why the court ruled as it did," said University of Illinois College of Law professor Margareth Etienne, a sentencing expert. "It goes against everything the Supreme Court has said for the last 15 years."
Cato Institute senior fellow Ilya Shapiro said, "It's not just high-profile culture-war issues like same-sex marriage and the right to bear arms that the Supreme Court is avoiding like the plague." Shapiro said the court's action was "another opportunity lost by the Court, another responsibility shirked. "The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along. As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling that criticized the "questionable practice" of basing sentences on uncharged or unproven offenses.
An unusual lineup of three justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — took the rare step of dissenting from the denial of review. "This has gone on long enough," Scalia wrote. "The present petition presents the non-hypothetical case the court claimed to have been waiting for."
In the case the court denied, a District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy. Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he "saw clear evidence of a drug conspiracy," and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court....
Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represented the defendants in the petition denied last week, said he was disappointed that the petition fell "one vote short" of being granted certiorari. The fact that conservatives Scalia and Thomas dissented — along with liberal Ginsburg — "ought to be a fire bell in the night" signaling that the issue should be resolved, Leckar said....
The University of Illinois' Etienne speculated that some justices may have felt the facts of the Jones case were "too good" to be a vehicle for making a broad pronouncement on the issue. She explained that Jones involved a judge ignoring an actual acquittal by a jury, whereas a more common scenario is a judge basing an enhanced sentence on conduct that may or may not have been charged or was not part of a plea agreement. Ruling on a case involving an actual acquittal might leave the broader issue unresolved. "It is going to take a while" for the court to revisit the issue, Etienne added. "Until it does, the old adage that one is 'innocent until proven guilty' will continue to have little meaning."
Previous related posts on the Jones case:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
- Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
- Rooting for acquitted conduct petition grant from SCOTUS long conference
- Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case
- Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case
- Refusing to take up acquitted punishment, passive virtues, SCOTUS reputation, and cert-denial-deal speculation
Sunday, October 19, 2014
Judicial misconduct complained against Fifth Circuit Judge Jones based on provocative death penalty speech dismissed
Thanks to recent posts at Hercules and the Umpire and at Crime & Consequences, I see that the judicial misconduct complaint filed against US Circuit Judge Edith Jones of the Fifth Circuit based on a provocative speech she gave concerning the death penalty at a law school. The lengthy dismissal order is available here, and this AP article reviews the basics:
A council of federal judges has dismissed a misconduct complaint against a conservative appellate judge who was alleged to have made racially discriminatory remarks at a lecture on the death penalty.
Judge Edith Jones ... allegedly said at a speech in February 2013 at the University of Pennsylvania law school that certain racial groups like African-Americans and Hispanics are predisposed to crime, and are prone to commit acts of violence and to be involved in more violent and heinous crimes than people of other ethnicities.
Thirteen individuals and public interest groups filed a judicial misconduct complaint against Jones, and Chief Justice John Roberts assigned the case to the appeals court in Washington at the request of the chief appeals judge in New Orleans. The dismissal, which took place in August, was publicly disclosed Wednesday.
In a lengthy inquiry, a three-judge panel of the judicial council was unable to find any recording of Jones' remarks, forcing them to rely on varying recollections of audience members about precisely what Jones said. "It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are `disproportionately' involved in certain crimes and `disproportionately' present in federal prisons," said the panel. "But we must consider Judge Jones' comments in the context of her express clarifications during the question-and-answer period that she did not mean that certain groups are `prone to commit' such crimes," the panel of judges said.
"In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial," said the panel. "They resemble other albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system."
Attorney Maurie Levin, who represents the complainants, said the ruling "essentially credits Judge Jones' stale recollections over the testimony of a lawyer and five law students who set down their recollections not long after the lecture. There is simply no way to understand that as a fair weighing of the evidence." The complainants are appealing to the Committee on Judicial Conduct and Disability of the judicial council.
I especially recommend Judge Richard Kopf's analysis and reactions in his post at Hercules and the Umpire, and I found noteworthy and important these particular reactive insights from Judge Kopf:
The work of the Special Committee and Professor Jeffrey Bellin makes me proud to be a federal judge. The clarity, tone, thoroughness and objectivity which is evident in the Report of the Special Committee is remarkable....
In my opinion, the essential allegations of the complaint lack a credible factual basis. With the aid of Professor Bellin’s searching investigation, the Report of the Special Committee, in restrained terms, explains why that is so.
I fear that complaints like this one will chill, and may even be intended to chill, judicial speech concerning the law, the legal system, and the administration of justice, particularly when the judge does not share the jurisprudential or ideological views of the listeners, and despite the fact that federal judges are expressly encouraged under the Code to speak about the law and how to improve it.
As distinguished from my fears expressed in the preceding paragraph, the Report of the Special Committee does a skillful job of explaining why controversial speech by a federal judge in the context of a talk on the law does not violate the Code.
Prior related posts:
- Complaint filed against notable (notorious?) Fifth Circuit judge based on comments about death penalty
- "A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"
UPDATE: Judge Kopf now has this additional interesting post on this matter titled "On being 'uncomfortable' and 'offended' — the ethics complaint against Judge Jones and the student affiants."
"Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release"
The title of this post is the title of this notable new paper by Michael M. O'Hear. Here is the abstract:
Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior. Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners. Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and rehabilitative progress.
This article explains why and how Wisconsin should reinstitute GCT, drawing on social scientific research on the effects of GCT, public opinion surveys in Wisconsin and across the United States regarding sentencing policy, and an analysis of the GCT laws in place in other jurisdictions. Although the article focuses particularly on Wisconsin’s circumstances, the basic argument for GCT is more generally applicable, and much of the analysis should be of interest to policymakers in other states, too.
Reviewing Alabama's (somewhat successful) use of sentencing guidelines to reduce prison growth
As highlighted in this lengthy local article, headlined "Sentencing reform has slowed, not stopped, inmate growth," sentencing and sentencing reform in Alabama has been a dynamic process that includes sentencing guidelines intended to steer more offenders away from prison. Here are some details:
The state's sentencing structure has a huge impact on the prison population, which is at about 190 percent the capacity it was designed for. A 24-member panel — the Prison Reform Task Force — is working with the Council of State Governments Justice Center to analyze the system and find ways to reduce overcrowding, reduce recidivism and improve public safety.
Andy Barbee, research manager of the CSG's justice center, said Alabama's switch in October 2013 to presumptive guidelines — which judges are required to use unless there's a mitigating or aggravating factor to be considered — has accelerated a downward trend in the number of sentences to prison and the lengths of those sentences. Those guidelines, however, only apply to drug and theft cases.
That trend started in 2006, when voluntary guidelines were made available for judges to use. Judges still had the option to choose existing sentencing laws, but had to acknowledge for the record that voluntary guidelines were considered, Barbee said. The state took those guidelines a step forward when they approved legislation in 2012 that established the presumptive guidelines....
The new guidelines use a point system that weighs factors such as past criminal history and facts of the crime to impose a sentence, said Bennet Wright, executive director of the Alabama Sentencing Commission. The commission is the research arm of the criminal justice system. It's responsible for implementing changes when laws change and making annual recommendations for improvements to the governor, Legislature, chief justice and attorney general.
Wright said the purpose of creating the presumptive guidelines was to provide uniform sentencing practices across Alabama counties, and to make sure the system is fair, effective and encourages community supervision for nonviolent offenders.
But because there are scarce drug rehabilitation and mental health resources and those vary county by county, more structured and uniform assessments of those in the criminal justice system need to be in place to make sure services are effective. "At some point, the state will have to make a bigger investment in community services and supervision programming," Wright said. "Matching offenders with the right services lowers the likelihood that they'll commit more crimes."
The presumptive guidelines are binding unless a judge decides to downgrade the sentence based on facts, or unless an aggravating factor that might warrant a harsher sentence is proved, Wright said. Barbee said the switch to presumptive guidelines was a bold move in the right direction that took political courage, but the next step is to make sure the structure in place continues to evolve. He said similar changes need to happen with parole.
Although the number of arrests, sentences to prison and lengths of sentence are decreasing, the prison population is still on the rise. However, the presumptive guidelines are projected to slow the tremendous growth that the prison population would have seen otherwise, Wright said. "The presumptive guidelines are not going to drastically lower the prison population," Wright said. "It would be a modest reduction at best, but more than likely, it would result in a stabilization. The point is, if you didn't have them, the prison population would just grow, grow, grow."
Much of the current prison population was punished under a set of laws that provided more serious punishments to a larger class of offenses, Barbee said. "Simply waiting on the guidelines to have an effect won't get the system where it wants to be until many years out," Barbee said. "Therefore it's critical, if the state wants to have a near-term impact on the crisis level of overcrowding, it looks beyond sentencing."
Barbee said there are some caveats with the state's sentencing guidelines. Burglary is considered a violent crime, regardless of whether anyone else was involved during the burglary.... He also said Alabama has one of the lowest felony theft thresholds in the country at $500. The threshold was recently raised from $250, he said, and most states are at about $1,000 or $2,000.
The fact that the state's laws don't consider weight or amount when it comes to drug crimes also makes it more likely that punishment might not match the crime. He said any amount of drug possession other than marijuana — whether it's one pill or a pound of cocaine — is a felony.
Saturday, October 18, 2014
Reviewing concerns about the efficacy and fairness of sex offender registried
AlJazeera America has this lengthy new piece about sex offender registries headlined "Sex-offender laws are ineffective and unfair, critics say: Experts say public registries don't reduce assault — and sex offenders are increasingly challenging the rules in court." Here are excerpts:
Few groups are as widely despised as sex offenders. Activities prosecuted as sex offenses vary by state, but can include public urination, consensual sex between teenagers, streaking, prostitution, downloading child pornography and rape. In some states, law-enforcement officials distribute flyers to notify neighbors of registrants’ convictions. Some registrants are prohibited from using the Internet. In 2010, the U.S. Supreme Court ruled that indefinite detention at psychiatric hospitals — or “civil commitment” — of sex offenders is constitutional.
The first law requiring sex offenders to register publicly and for life was passed in California in 1947 and targeted gay men, according to Andrew Extein, executive director of the Center for Sexual Justice. But many of today’s laws have their origins in the late 1970s, when feminists and social conservatives worked together to publicize high-profile “stranger danger” attacks on children, says Roger Lancaster, anthropology professor at George Mason University and author of “Sex Panic and the Punitive State.”
Beginning in the mid-1990s, several laws went into effect that changed how sex-offense cases were prosecuted. In 1994, states were required to create databases of sex offenders. Two years later, Megan’s Law, named for a 7-year-old in New Jersey who was brutally raped and murdered by a neighbor with two previous sex convictions, allowed states to make those registries public. States passed their own versions of the law; in some cases, they required that neighbors be notified of paroled offenders’ previous convictions. Later laws moved those sex-offender databases online, created a national registry, required lifetime registration of people 14 years old and up and imposed harsh mandatory minimum sentences for crimes involving children.
But almost 20 years after the passage of Megan’s Law, criminologists and judges, along with a burgeoning movement of sex-offender registrants and their families, are challenging not only the constitutionality of the laws but their effectiveness in reducing sexual assault. In January, a California court ruled in favor of a paroled sex offender who had argued that city and county “child-safety zone” ordinances prohibiting people in the registry from using parks, beaches and similar recreation areas were an unconstitutional form of banishment. In April, the state Supreme Court upheld the ruling by declining to review it.
Thirty-three states have opted out of at least some aspects of the law that brings registries online. Many, like New York, take issue with the 2006 federal law that requires states to list every person convicted of a sex offense on a public registry. Some, like Maryland, are considering removing the names of people who committed less serious offenses.
Critics say the registries’ emphasis on public tracking of sex offenders after their release from prison does not make people safer. Ninety-five percent of those arrested for sexual offenses have no prior convictions. Recidivism rates are low: A study conducted by the Canadian government looked at data from 10 studies on sex-offender recidivism in Canada, the United Kingdom, Wales and the United States and found that “after 15 years, 73% of sexual offenders had not been charged with, or convicted of, another sexual offence.”
In most sex-abuse cases — 93 percent, according to a Department of Justice report — the child knows the perpetrator. Nearly half of abusers are family or extended-family members. A 2008 American Psychological Association report concurs: “Despite the public perception that sex offenders are strangers stalking playgrounds and other areas where children congregate, the majority of offenses occur in the victim’s home or the home of a friend, neighbor, or relative.”
A 2008 Justice Department study examined recidivism among sex offenders before and after the law requiring community notification. “Megan’s Law showed no demonstrable effect in reducing sexual re-offenses,” it concluded.
Says a 2009 report by Princeton University and the Brookings Institution: “None of these high-profile strategies has been built on empirical evaluation, and virtually all have gone to national scale without research or even much pilot testing.”
What registration laws do is make it nearly impossible for those listed to find or keep jobs and housing, advocates say. Residency restrictions in California have created a housing crisis for convicted sex offenders. According to the California Sex Offender Management Board, the number of homeless registrants has increased 217 percent, to 6,500, over the past eight years....
Supporters of registering and limiting the movement of paroled sex offenders, including Tony Rackauckas, one of the first district attorneys in California to support countywide child-safety zones, however, are not persuaded by these arguments and say the registries do prevent attacks. “We’re not going to know how many kids were not molested or groomed for later sexual contact as a result of this law,” he told The New York Times.
With DAG James Cole also stepping down, new appointments will remark DOJ
As detailed in this Los Angeles Times article, "Deputy Attorney General James M. Cole said in an interview Thursday that, like his boss, he will soon leave the Justice Department." Here is more about the emptiness at DOJ and DAG Cole's work and legacy:
The coming departure of Cole, who for four years has been the day-to-day boss of the department, adds to a growing leadership vacuum at the federal government’s top law enforcement agency. Atty. Gen. Eric H. Holder, Jr. announced last month that he would leave as soon as a successor is confirmed, though the Obama administration has so far not announced a replacement.
At least half a dozen other top positions at Justice, including the associate attorney general, the No. 3 job, are currently filled with acting appointees.
Cole said he was particularly proud of his efforts to take a softer federal approach to enforcement of federal marijuana laws, a project to encourage nonviolent prisoners serving long drug sentences to apply for a presidential commutation, and prosecution of Credit Suisse bank and individual Swiss bankers for helping U.S. citizens evade taxes.
He has also been closely involved in Holder’s “smart on crime” initiative to reduce the prison population and the large proportion of African Americans in federal prisons.
Cole said he expected to leave in early January, after someone has been chosen to take his place, on a permanent or acting basis.
Friday, October 17, 2014
"Cities Look for Ways to Get Free of Empty Jails"
The title of this post is the headline of this intriguing Wall Street Journal piece from earlier this week, which carried the subheading "Drop in Crime and Lighter Sentences Swell the Number of Jails for Sale." Here are excerpts:
After rising rapidly for decades, the number of people behind bars peaked in 2009 and has been mostly falling ever since. Inmates at federal and state prisons stood at 1.57 million in 2013, down 2.7% from a peak of 1.62 million in 2009, according to the Bureau of Justice Statistics.
In some states, the decline has been more pronounced, including New York, which saw an 8.8% decline in federal and state inmates, and California, which saw a 20.6% drop. The inmate population in city and county jails has also fallen, even as some states have shifted prisoners to those facilities....
The incarceration rate is declining largely because crime has fallen significantly in the past generation. In addition, many states have relaxed harsh sentencing laws passed during the tough-on-crime 1980s and 1990s, and have backed rehabilitation programs, resulting in fewer low-level offenders being locked up. States from Michigan to New Jersey have changed parole processes, leading more prisoners to leave earlier. On a federal level, the Justice Department under Attorney General Eric Holder has pushed to reduce sentences for nonviolent drug offenders.
While the reduction in crime and incarceration has many social benefits, municipalities are having a tough time finding new uses for prisons. Old office buildings can be converted to apartment buildings or hotels. Outdated government buildings can be used for retail or as schools. Even some prisons, mainly those with historic architecture and located in city centers, have been converted in recent years to hotels, including Boston’s Charles Street Jail, which is now known as the Liberty Hotel.
But most prisons are drab structures located in rural areas, offering few opportunities for reuse. The result is that the number of prison properties on the market is rising. New York state has closed 17 prisons and juvenile-justice facilities since 2011, following the rollback of the 1970s-era Rockefeller drug laws, which mandated lengthy sentences for low-level offenders.
So far, the state has found buyers for 10 of them, at prices that range from less than $250,000 to about $8 million for a facility in Staten Island, often a fraction of what they cost to build. It hopes to sell most of the remainder.
In Texas, where more nonviolent offenders are being put in rehabilitation programs, the state has closed three prisons since 2011. Among them is a 1,060-bed facility called the Central Unit that the city of Sugar Land is seeking to buy from the state and convert to an aviation-focused business park, given its proximity to an airport.
ProPublica urges next AG to "Fix Presidential Pardons"
The title of this post is drawn from the headline of this strong new piece from the Editor-in-Chief of ProPublica. The full headline and subheadline provides the basics: "For the Next Attorney General, a Modest Suggestion: Fix Presidential Pardons; More than two years ago, a ProPublica series showed that white applicants were far more likely to receive clemency than comparable applicants who were black. Since then, the government has spent hundreds of thousands of dollars on a study, but the pardons system remains unchanged." And here are a few excerpts from a piece that is styled as an open letter to the next Attorney General:
Dear Possible Attorney General Nominees (You Know Who You Are),...
More than two years ago, ProPublica reporters Dafna Linzer and Jennifer LaFleur revealed that white applicants were nearly four times as likely to receive a presidential pardon as were comparable African Americans. The story appeared on the front page of The Washington Post, our publishing partner. I know, I know, this seems improbable but LaFleur spent many months doing a statistical analysis that eliminated every other factor we could imagine that might explain this disparity. We sent our findings and methodology to several leading experts in the field. All agreed that race was the only factor driving the vast difference. We published our methodology and you can read it here. Linzer's reporting on the pardons process suggested that it was far more subjective than you might have thought. We wrote about how race creeps into decision-making even when no one is overtly biased. It's worth a look.
Given the starkness of these findings, we at ProPublica thought, naively, that your predecessor and his boss would move immediately to address this problem. As I'm sure you're aware, a president's authority to grant pardons is one of the only unchecked powers in our constitutional system of checks and balances. When it comes to pardons, President Obama can do whatever he wants.
We were told by several political insiders that the pardon stories did not prompt reform because of their timing. They appeared in late 2011, just as the president was gearing up for what was expected to be a bruising campaign for a second term. It was not considered the politically ideal moment for the nation's first African-American president to make the justice system fairer for people of color. And so the government did what it so often does in such circumstances: It commissioned a study to see if our findings were correct....
If history is any guide, you'll be getting a tsunami of pardon requests in the last months of the administration. It might be nice to have come up with some serious reforms by then to fix a process that is so demonstrably flawed. There are lots of ideas about what could done, from setting up an independent pardons commission to taking the pardons office out of the Justice Department.
Good luck with the confirmation hearings. And remember, two years can fly by a lot quicker than you'd ever imagine....
Stephen Engelberg/Editor in Chief, ProPublica
Thursday, October 16, 2014
"Is Hillary Clinton ready for marijuana's 2016 push?"
The title of this post is the headline of this notable and lengthy new CNN article. Here are excerpts:
When Hillary Clinton graduated from Wellesley College in 1969 -- where the future first lady and Secretary of State says she did not try marijuana -- only 12% of Americans wanted to legalize the drug. In 45 years, however, the tide has changed for legalization: 58% of Americans now want to make consumption legal, two states (Colorado and Washington) already have and two more states (Oregon and Alaska) could join them by the end of the year.
Despite their growth in approval, many activists see 2014 as a smaller, but important, step to their end goal. It is 2016, when voters will also have to decide who they want in the White House, that marijuana activists feel could be the real tipping point for their movement.
"There will certainly be even more on the ballot in 2016," said Tamar Todd, director of marijuana law and policy and the Drug Policy Alliance. "More voters coming to the polls means more support for marijuana reform and in presidential election years, more voters turn out."
Demographics and money are also an important consideration. Big donors who are ready to fund pro-legalization efforts are more loose with their money in presidential years, according to activists, while Democrats and young people are more likely to turn out. This means legalization activists will be better funded to reach the nearly 70% of 18 to 29 year old Americans who support legalization.
On paper, activists feel their plan will work. But it is one yet to be decided factor -- who Democrats will nominate for president in 2016 -- that could throw a wrench into their push. Clinton is the prohibitive favorite for the Democrats' nomination, but to many in the marijuana legalization community, she is not the best messenger for their cause.
"She is so politically pragmatic," said Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws. "If she has to find herself running against a conservative Republican in 2016, I am fearful, from my own view here, that she is going to tack more to the middle. And the middle in this issue tends to tack more to the conservative side."...
Clinton has moved towards pro-legalization, though. Earlier this year, during a town hall with CNN, she told Christiane Amanpour that she wants to "wait and see" how legalization goes in the states before making a national decision. At the same event, she cast some doubt on medical marijuana by questioning the amount of research done into the issue.
Later in the year, Clinton labeled marijuana a "gateway drug" where there "can't be a total absence of law enforcement."
"I'm a big believer in acquiring evidence, and I think we should see what kind of results we get, both from medical marijuana and from recreational marijuana before we make any far-reaching conclusions," Clinton told KPCC in July. "We need more studies. We need more evidence. And then we can proceed."
This is more open, however, than in 2008 when Clinton was outright against decriminalization, a step that is less aggressive than legalization. Despite warming on the issue, Clinton's position is concerning to activists like St. Pierre because he feels they are far from solid. "If reforms keep picking up... the winds in our sails are clear," he said. "But if we lose one of more or all of those elections this year, cautious people around her could make the argument that this thing has peaked and you now have to get on the other side of it."
Cross-posted at Marijuana Law, Policy & Reform
Author John Grisham says "we've gone nuts with this incarceration" of child porn downloaders
One of my (many) wonderful students alerted me to this notable UK press piece reporting on an interview with famous law author John Grisham who had some interesting (and likely-to-be-controversial) comments about tough sentencing for those who download child porn. The article is headlined "John Grisham: men who watch child porn are not all paedophiles," and here are excerpts:
America is wrongly jailing far too many people for viewing child pornography, the best-selling legal novelist John Grisham has told The Telegraph in a wide-ranging attack on the US judicial system and the country's sky-high prison rates. Mr Grisham, 59, argued America's judges had "gone crazy" over the past 30 years, locking up far too many people, from white collar criminals like the businesswoman Martha Stewart, to black teenagers on minor drugs charges and — he added — those who had viewed child porn online.
"We have prisons now filled with guys my age. Sixty-year-old white men in prison who've never harmed anybody, would never touch a child," he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week. "But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn."
The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a "good buddy from law school" who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing. "His drinking was out of control, and he went to a website. It was labelled 'sixteen year old wannabee hookers or something like that'. And it said '16-year-old girls'. So he went there. Downloaded some stuff — it was 16 year old girls who looked 30.
"He shouldn't ’a done it. It was stupid, but it wasn't 10-year-old boys. He didn't touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people — sex offenders — and he went to prison for three years."
"There's so many of them now. There's so many 'sex offenders' — that's what they're called — that they put them in the same prison. Like they're a bunch of perverts, or something; thousands of ’em. We've gone nuts with this incarceration," he added in his loft-office in Charlottesville, Virginia.
Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise. "I have no sympathy for real paedophiles,” he said, "God, please lock those people up. But so many of these guys do not deserve harsh prison sentences, and that's what they're getting," adding sentencing disparities between blacks and whites was likely to be the subject of his next book.
There are currently some 2.2m people in jail in the US — or more than 750 per 100,000 population — which makes the US by far the heaviest user of prison sentences in the world. By contrast, Britain imprisons just 154 per 100,000 population. However Mr Grisham’s remarks are likely to anger child-rights campaigners that over the past decade have successfully lobbied the US Congress to demand tougher sentences for those who access child pornography online.
Since 2004 average sentences for those who possess — but do not produce — child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission. However the issue of sex-offender sentencing has sparked some debate in the US legal community after it emerged that in some cases those who viewed child porn online were at risk of receiving harsher sentences than those who committed physical acts against children.
A provocative article in the libertarian magazine Reason headlined "Looking v Touching" argued last February that something was "seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children". And in January this year the US Supreme Court was unable to resolve a debate over whether a man who viewed images of a child rape should be as liable to pay the same financial compensation to the victim as the original perpetrator of the crime.
UPDATE: As I expected, John Grisham's child porn sentencing comments has stirred controversy and he has already issued a formal apology. This CNN story provides the basics of the early aftermath:
Those comments and the nature in which Grisham discussed the very serious issue of child pornography incited a flood of hurt, disappointed and angry reactions from fans.
"The day that you came out in an interview and said that watchers of child porn get too stiff of a penalty for it (you said 10 years was too much) makes you someone that I cannot support nor no longer want to read," a reader named Kendra Benefield Lausman shared on Grisham's Facebook page; another posted that she's taken her entire Grisham library to her "burn barrel" with the intent to set the books on fire.
"How do you think child porn is made?" a poster named John Kelly asked on Grisham's page. "Someone is still getting hurt you imbecile. I'm sad to say that I will never purchase, nor consume, one of your books ever again. I am disgusted."
After the uproar began, Grisham issued an apology.
"Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography -- online or otherwise -- should be punished to the fullest extent of the law," the author said in a statement. "My comments made two days ago during an interview with the British newspaper The Telegraph were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable. I regret having made these comments, and apologize to all."
That may not be enough for some of his former followers. "You clearly said in the interview that people (like your drunk friend) who look at child porn don't deserve severe punishment," Facebook user Raylene Jolly Wheeler posted in response to Grisham. "Not sure how you can backtrack that statement."
"Risk and Needs Assessment: Constitutional and Ethical Challenges"
The title of this post is the title of this timely and notable new paper by Melissa Hamilton recently posted on SSRN. Here is the abstract:
Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement. The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs. Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised.
Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics. The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law. In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment.
The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate. Any option comes with significant consequences. Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices. Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.
October 16, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5) | TrackBack (0)
Wednesday, October 15, 2014
Will Eric Holder still be Attorney General well into 2015?
The question in the title of this post is prompted by this recent press report that "President Obama plans to wait on nominating a new attorney general to replace Eric Holder until shortly after the November election." Here is more on the slow pace of Holder's departure from the Office of Attorney General:
A source close to the process on Tuesday confirmed to Fox News that the president plans to wait until after the Nov. 4 midterm elections. The source said the administration considers the appointment to be serious and wants to wait so the nomination doesn’t get mired in election-year politics. Democrats reportedly had asked the president to hold off until after Nov. 4.
But some Senate Republicans wanted Obama to wait until the new Senate is seated in January to name his pick to succeed Holder. By naming a nominee shortly after the election yet before the new year, the White House would be putting his or her confirmation in the hands of some lawmakers who are not returning in 2015 -- and thus no longer accountable to voters. Further, the White House would be handing the nomination to a Democrat-controlled Senate, despite the possibility that control of the Senate could flip to Republicans in January.
Sen. Ted Cruz, R-Texas, has warned that confirming Holder’s successor before a new Congress is sworn in “would be an abuse of power that should not be countenanced."...
White House Press Secretary Josh Earnest, asked about the timing, said Tuesday that it will take a "little bit of time" to choose the right nominee for the job. But he urged the Senate to "act quickly and in a bipartisan fashion to confirm that person."
The lame duck timetable covers just seven legislative calendar weeks, not accounting time off for holiday recesses. But the White House has pointed out there is precedent for such a move. The day after the 2006 midterm, President George W. Bush nominated Robert Gates as secretary of defense and he was confirmed in less than a month with bipartisan support.
A few recent related posts:
- Eric Holder resigning Attorney General position ... next up?
- Could (and should) AG Eric Holder be even bolder on sentencing and drug war reform as a lame duck?
- Criticizing the tenure of AG Eric Holder based on the death penalty as a human rights issue
"Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"
The title of this post is the title of this notable new paper by Brandon Buskey and Daniel Korobkin now available via SSRN. Here is the abstract:
This Article proposes a framework establishing that the United States Supreme Court’s decision in Miller v. Alabama, which forbids states from automatically sentencing juveniles to life imprisonment without any meaningful opportunity for release, must apply retroactively to hundreds of juveniles whose convictions and life sentences were already final at the time of the decision. Such a framework is timely and critical. Although the lower state and federal courts are almost evenly divided on the question, the Supreme Court has yet to settle the divide.
The Article reviews how, absent guidance from the Supreme Court, a host of states, led recently by Michigan, have invoked the Miller majority’s statement that it was merely requiring states to follow a "certain process" before sentencing a juvenile to life imprisonment without parole. By this reasoning, Miller is not retroactive under the Supreme Court’s federal retroactivity doctrine established by Teague v. Lane. The Court has always applied new substantive rules retroactively under Teague, while it has never done so for a new procedural rule.
The Article rejects this "process" language as a basis for resolving whether Miller is retroactivity. It concludes that Miller in fact has little to do with process and is instead primarily concerned with sentencing outcomes for youth. In striking down mandatory life without parole for juveniles, Miller adapted the individualized sentencing requirement from Woodson v. North Carolina, which invalidated the mandatory death penalty. This individualized sentencing requirement obligates states to always offer juveniles a sentencing outcome carrying the possibility of release and to consider the essential, mitigating fact of youth before imposing an irrevocable life sentence. These obligations are inherently substantive. By contrast, Miller’s alleged procedural component is undefined and collateral to its substantive altering of juvenile sentencing. Miller therefore announces a substantive rule that must apply retroactively.
Tuesday, October 14, 2014
AG Eric Holder officially says federal prosecutors should no longer require defendants to "waive their right to bring future claims of ineffective assistance of counsel"
I have long thought it both bad policy and ethically suspect to expect or require criminal defendants to waive future rights (as opposed to current rights) in a plea agreement. Consequently, I am very pleased to see this new press release coming the the US Department of Justice, titled "Attorney General Holder Announces New Policy to Enhance Justice Department's Commitment to Support Defendants' Right to Counsel." Here are the details (with my emphasis added):
Attorney General Eric Holder, along with Deputy Attorney General James M. Cole, announced today that the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel. The new policy bolsters the department’s commitment to ensuring that individuals are ably represented as they face criminal charges and marks the Attorney General’s latest step to reform the criminal justice system.
“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” said Attorney General Holder. “Under this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime. I am confident in the ability of our outstanding prosecutors to ably and successfully perform their duties without the use of these waivers, as the vast majority of them already do. Moving forward, I am certain that this more consistent policy will help to bring our system of justice closer in line with our most fundamental values and highest ideals.”...
Deputy Attorney General Cole unveiled the new policy through a memorandum to all federal prosecutors and through a conference call today. Prior to today’s action, 35 of the department’s 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel. While the department believes such waivers are legal and ethical, the new policy will create a uniform policy for all U.S. Attorneys to follow.
The memo directs federal prosecutors to no longer ask defendants to waive future claims of ineffective assistance of counsel in plea agreements. It also instructs prosecutors to decline to enforce waivers that have already been signed in cases where defense counsel provided ineffective assistance resulting in prejudice or where the defendant’s ineffective assistance claim raises a serious issue that a court should resolve.
As noted in this prior post, a few months ago the the Supreme Court of Kentucky unanimously rejected a challenge by the federal government to Kentucky Bar Association Ethics Opinion stating that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct. Thus, I think DOJ is still on shaky ground when it asserts a belief that such waivers "are legal and ethical," but this suspect view becomes a lot less worrisome if the feds no longer plan to use such waivers nand also will not seek to have them enforced.
Kudos to AG Holder and others in DOJ for making the sounder ethical and policy approach to this significant matter now official DOJ policy. And, notably, those who regard national consistency in federal sentencing policy and practice to be important should also welcome this universal policy decision coming from Main Justice.
UPDATE: The one-page memo referenced in this press release can be downloaded here: Download DOJ Policy on Waivers of Claims of IAC