Saturday, July 4, 2015

"Obama Plans Broader Use of Clemency to Free Nonviolent Drug Offenders"

The title of this post is the headline of this encouraging lengthy front-page New York Times article. Here are excerpts:

Sometime in the next few weeks, aides expect President Obama to issue orders freeing dozens of federal prisoners locked up on nonviolent drug offenses. With the stroke of his pen, he will probably commute more sentences at one time than any president has in nearly half a century.

The expansive use of his clemency power is part of a broader effort by Mr. Obama to correct what he sees as the excesses of the past, when politicians eager to be tough on crime threw away the key even for minor criminals.  With many Republicans and Democrats now agreeing that the nation went too far, Mr. Obama holds the power to unlock that prison door, especially for young African-­American and Hispanic men disproportionately affected.

But even as he exercises authority more assertively than any of his modern predecessors, Mr. Obama has only begun to tackle the problem he has identified.  In the next weeks, the total number of commutations for Mr. Obama’s presidency may surpass 80, but more than 30,000 federal inmates have come forward in response to his administration’s call for clemency applications.  A cumbersome review process has advanced only a small fraction of them.  And just a small fraction of those have reached the president’s desk for a signature.

“I think they honestly want to address some of the people who have been oversentenced in the last 30 years,” said Julie Stewart, the founder and president of Families Against Mandatory Minimums, a group advocating changes in sentencing. “I’m not sure they envisioned that it would be as complicated as it is, but it has become more complicated, whether it needs to be or not, and that’s what has bogged down the process.”...

“It’s a time when conservatives and liberals and libertarians and lots of different people on the political spectrum” have “come together in order to focus attention on excessive sentences, the costs and the like, and the need to correct some of those excesses,” said Neil Eggleston, the White House counsel who recommends clemency petitions to Mr. Obama.  “So I think the president sees the commutations as a piece of that entire process.”

The challenge has been finding a way to use Mr. Obama’s clemency power in the face of bureaucratic and legal hurdles without making a mistake that would be devastating to the effort’s political viability.  The White House has not forgotten the legacy of Willie Horton, a convicted murderer who raped a woman while furloughed from prison and became a powerful political symbol that helped doom the presidential candidacy of Gov. Michael S. Dukakis of Massachusetts in 1988.

But with time running short in Mr. Obama’s presidency, the White House has pushed the Justice Department to send more applicants more quickly.  Mr. Eggleston told the department not to interpret guidelines too narrowly because it is up to the president to decide, according to officials.  If it seems like a close case, he told the department to send it over.

Deborah Leff, the department’s pardon attorney, has likewise pressed lawyers representing candidates for clemency to hurry up and send more cases her way. “If there is one message I want you to take away today, it’s this: Sooner is better,” she told lawyers in a video seminar obtained by USA Today. “Delaying is not helpful.”...

In his second term, Mr. Obama embarked on an effort to use clemency and has raised his total commutations to 43, a number he may double this month. The initiative was begun last year by James M. Cole, then the deputy attorney general, who set criteria for who might qualify: generally nonviolent inmates who have served more than 10 years in prison, have behaved well while incarcerated and would not have received as lengthy a sentence under today’s revised rules....

Margaret Love, who served as pardon attorney under the first Mr. Bush and Mr. Clinton and now represents prisoners applying for clemency, said the process had become a mess. “It’s really poor management,” she said. “These are people who don’t have any history with sentence reduction. They’ve been putting people in prison all their lives. They don’t know how to get them out.”...

In December, Mr. Obama commuted the sentences of eight drug offenders, and in March he followed up with 22 more.  If he accepts most of the latest applications sent to the White House, some officials said it would probably double that last batch of 22, exceeding the 36 commutations Mr. Clinton issued at one time on his last day in office. Among those Mr. Obama granted clemency in March were eight prisoners serving life sentences for crimes like possession with intent to distribute cocaine, growing more than 1,000 marijuana plants or possession of a firearm by a convicted felon.

Needless to say, I am pleased to hear this report that dozens of additional clemency grants for nonviolent drug offenders may be coming soon from the Obama Administration.  But even if Obama were, after 18 months of lots of big talk about a clemency push, to now commute next week as many as 80 federal drug prisoners, this would still be not be as substantively consequential for the federal prison population as the 400+ drug defendants who will sentenced to lengthy federal prison terms the very same week!  Roughly speaking, in the months since the clemency talk got started, perhaps as many as an additional 35,000 drug offenders (many of whom are nonviolent) have been sentenced to significant federal terms. 

One of many reasons I have been distinctively skeptical and cynical concerning Clemency Project 2014 and related clemency work generated by the Obama Administration's clemency talk was my fear that Prez Obama would lack the courage and desire to commute many thousands of federal sentences. Practically speaking, unless and until the President starts talking about mass commutations, truly significant and consequential sentencing reforms and relief have to come from Congress, the Sentencing Commission or the courts.  (Indeed, rather than worry too much about clemency particulars, I wish the New York Times and all those concerned about mass incarceration in the federal system would focus on the profound impact that the Supreme Court's recent Johnson ruling could have if (and only if) Obama's Department of Justice and the US Sentencing Commission and lower courts apply it broadly and enhance its potential impact.)

July 4, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Celebrating "the blessing of liberty" as the big winner in the SCOTUS Term just completed

Download (2)Lots of folks are already spending lots of time seeking to summarize the Supreme Court Term just ended.  This Washington Post review, headlined "The court’s liberals prevailed in most important cases, but it may not last," provides one example of the left-right SCOTUS political accounting that is common around this time of year. Meanwhile, this NPR segment, headlined "'Fractures' In The Supreme Court Revealed In This Year's Decisions," discusses different divides among the Justices and gives extra attention to the Chief Justice as he wraps up a decade as our nation's top jurist.

For an especially dynamic take on the Term that was, I recommend this Slate SCOTUS Breakfast Table entry by Marty Lederman.  The piece explores the "biggest surprises" of the Term and begins with the observation that the "vast majority of the outcomes were predictable in light of the questions presented [as] at least 95 percent of the justices’ votes conformed to expectations." The piece goes on to explore the ocassional unexpected SCOTUS development and ends with a great account of "the single most surprising and heartening development of the term":

[I]n Davis v. Ayala (a case involving whether it was a harmless error for a trial judge to convene an ex parte “Batson” hearing to assess whether the prosecution’s peremptory challenges to a jury pool were race-based), Kennedy wrote separately to raise an issue that had nothing to do with the question before the court....

This [concurrence] is Kennedy’s pronouncement that he is now prepared to recognize at least some constitutional limits on the horrific practice of extended solitary confinement — after many decades during which the court showed little or no inclination to do anything of the sort.  (Way back in 1890, the court took note of the fact that under the experience of solitary confinement in the 18th century, “a considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”  Yet here we are in 2015, and not much has changed — in large measure because the court has been reluctant to second-guess prison administrators with respect to the practice.)

Kennedy’s Davis concurrence (as well as congressional testimony to similar effect that he gave three months earlier) is an invitation to defense lawyers to bring such constitutional challenges to the court, where they are likely to receive a much more receptive audience than they have in the past.  There are several such cases currently being litigated in the lower courts, including in California and in Arizona.  Perhaps one of them will turn out to be as important, as momentous, next term as King and Obergefell were this term....

This is, I think, by far the most encouraging surprise of the term — the prospect that we might finally bring to an end, or at least materially limit, this barbaric and shameful practice, and thereby come just a bit closer — as the court did this term — to securing the blessings of liberty to ourselves and our posterity.

I share Marty Lederman's perspective that Justice Kennedy's opinion in Davis could and should be the start of something big for further constitutional protection for those subject to the most extreme deprivations of liberty.  More broadly, as I reflect on those cases I am most likely to remember from the Term just concluded — from Obergefell to Johnson to Elonis to Yates (and perhaps even to Glossip) — I cannot help but see liberty as the biggest and most consistent winner.  So, as I finish up this post on the morning of the Fourth of July, I suggest that all devotees of our "nation conceived in liberty" (including Lady Liberty herself) should have an extra wide smile as we watch the rockets red glare tonight.

July 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, July 3, 2015

If you want to go on gorging on Glossip gossip...

here is still more of the copious commentary one can find as the work week closes on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline as with this prior review, sources and authors varied):

July 3, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (2)

New CRS report: "Risk and Needs Assessment in the Criminal Justice System"

A helpful colleague alerted me to this intriguing new Congressional Research Service report concerning risk assessments and other crime-control focused criminal justice reforms. Here is the report's summary:

The number of people incarcerated in the United States has increased significantly over the past three decades from approximately 419,000 inmates in 1983 to approximately 1.5 million inmates in 2013.  Concerns about both the economic and social consequences of the country’s growing reliance on incarceration have led to calls for reforms to the nation’s criminal justice system.

There have been legislative proposals to implement a risk and needs assessment system in federal prisons.  The system would be used to place inmates in rehabilitative programs. Under the proposed system some inmates would be eligible to earn additional time credits for participating in rehabilitative programs that reduce their risk of recidivism.  Such credits would allow inmates to be placed on prerelease custody earlier.  The proposed system would exclude inmates convicted of certain offenses from being eligible to earn additional time credits.

Risk and needs assessment instruments typically consist of a series of items used to collect data on behaviors and attitudes that research indicates are related to the risk of recidivism.  Generally, inmates are classified as being high, moderate, or low risk. Assessment instruments are comprised of static and dynamic risk factors.  Static risk factors do not change, while dynamic risk factors can either change on their own or be changed through an intervention.  In general, research suggests that the most commonly used assessment instruments can, with a moderate level of accuracy, predict who is at risk for violent recidivism.  It also suggests that no single instrument is superior to any other when it comes to predictive validity.

The Risk-Needs-Responsivity (RNR) model has become the dominant paradigm in risk and needs assessment.  The risk principle states that high-risk offenders need to be placed in programs that provide more intensive treatment and services while low-risk offenders should receive minimal or even no intervention.  The need principle states that effective treatment should focus on addressing needs that contribute to criminal behavior.  The responsivity principle states that rehabilitative programming should be delivered in a style and mode that is consistent with the ability and learning style of the offender.

However, the wide-scale adoption of risk and needs assessment in the criminal justice system is not without controversy.  Several critiques have been raised against the use of risk and needs assessment, including that it could have discriminatory effects because some risk factors are correlated with race; that it uses group base rates for recidivism to make determinations about an individual’s propensity for re-offending; and that risk and needs assessment are two distinct procedures and should be conducted separately.

There are several issues policymakers might contemplate should Congress choose to consider legislation to implement a risk and needs assessment system in federal prisons, including the following:

• Should risk and needs assessment be used in federal prisons?

• Should certain inmates be excluded from earning additional time credits?

• Should risk assessment be incorporated into sentencing?

• Should there be a decreased focus on punishing offenders?

July 3, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, July 2, 2015

Making the forceful (and effective) case that modern bail systems operate unconstitutionally

EJUL-slide-3This recent Slate piece, headlined ""Is Bail Unconstitutional?: Our broken system keeps the poor in jail and lets the rich walk free," highlights some impressive efforts by impressive lawyers to litigate strategically modern problems in modern bail structures.  Here are excerpts:

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing.  If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300.  And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.

It was shortly thereafter that Alec Karakatsanis, a civil rights lawyer based in Washington, D.C., who graduated from Harvard Law School in 2008, entered the picture.  Working with a like-minded Alabama attorney named Mitch McGuire, Karakatsanis filed a class-action lawsuit in federal court on behalf of Cooper and others in his position, contending that Dothan’s bail policy, which called on people arrested by local police for misdemeanors and traffic offenses to come up with fixed sums ranging from $300 to $500, was unconstitutional.  Specifically, Karakatsanis and McGuire argued, by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14th Amendment.

Last week, in response to Cooper’s lawsuit, the city of Dothan announced that it had changed its bail policy: Going forward, people awaiting hearings in Dothan Municipal Court will no longer be required to pay bail upfront.  The city will move to an “unsecured bond” system in which defendants only owe money if they don’t appear in court when they’re supposed to.  While the lawsuit against Dothan has not been dropped — Karakatsanis intends to get a court-ordered settlement that will enshrine the new policy and make it semipermanent — it has already resulted in getting Cooper, along with an unknown number of other pre-trial detainees in Dothan, out of jail.

For Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law, Dothan is just one pot on a big stove: Since January, he has filed class-action lawsuits against four other small cities with bail schemes that don’t take into account people’s ability to pay, and he plans to file more.  The suits are the opening moves of an ambitious campaign to abolish, on a national level, the practice of demanding secured money bail (i.e., cash) from pre-trial detainees as a condition of release.  Taken together, they represent the first major effort since the dawn of the mass incarceration era in the 1980s to use the legal system to force reform in this area.  “Nobody should be held in a cage because they’re poor,” Karakatsanis told me. “Detention should be based on objective evidentiary factors, like whether the person is a danger to the community or a flight risk — not how much money’s in their pocket.”...

Karakatsanis is playing a long game, picking off low-hanging fruit in the form of small municipalities that require cash bail for minor violations in an attempt to lay the groundwork for constitutional challenges he hopes to mount later, both in larger cities and at the state level.  The reasons for this are strategic.  For one thing, Karakatsanis’ small victories are useful to other reformers, like Nancy Fishman from the Vera Institute of Justice, who told me that in working with jurisdictions around the country on improving their incarceration policies, she and her colleagues at Vera can point to something like the Velda City settlement as evidence that cash bail regimes really do need to be overhauled. Secondly, bringing cases against cities that require cash bail for all misdemeanors, including very minor ones, highlights the unfairness of the practice....

That doesn’t mean Karakatsanis thinks people who have been charged with serious crimes like rape or murder should be able to walk free just because they haven’t been convicted yet — only that people’s fates should be determined as objectively as possible, based not on how rich or poor they are but on whether or not there’s evidence that says they ought to be detained.  For now Karakatsanis is focused on taking incremental steps.  “I’m looking to find other cities that want to work with us to change their practices without being sued,” he said. “But we’ll continue to bring lawsuits against cities and counties that insist on keeping these blatantly illegal practices alive.”

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Varied perspectives on the varied challenges facing varied victims

I am sometimes inclined to say to my sentencing students that crime victims, especially victims of violent crimes, are often the most important and least understood players in the criminal justice system.  Helpfully, these two new lengthy and very different pieces about different violent crime victims can help enhance our understanding:

From the New York Times here, "Full Toll From Aurora Theater Shooting Goes Untold at Trial"

From Slate here, "He Killed Her Daughter. She Forgave Him. Linda White believes in a form of justice that privileges atonement over punishment. She practices what she preaches."

July 2, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, July 1, 2015

Despite Glossip, hope for judicial abolition of the death penalty endures

This new Slate commentary by Robert J. Smith highlights that, despite the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol, at least some still believe there could soon be five SCOTUS votes to do away with the death penalty altogether. The lengthy piece is headlined "The End of the Death Penalty?: Recent Supreme Court opinions suggest there are five votes to abolish capital punishment." And here is how it starts and ends:

On the surface, the Supreme Court’s opinion in Glossip v. Gross appears to give death penalty proponents something to celebrate.  After all, the court allowed states to continue to use the sedative midazolam as part of a multidrug formula for lethal injections, despite Justice Sonia Sotomayor’s warning that such executions “may well be the chemical equivalent of being burned at the stake.”  But the bitterly divided 5–4 opinion has implications that extend far beyond the narrow question.  This case may become an example of winning a battle while losing the war.

In a dissent, Justices Stephen Breyer and Ruth Bader Ginsburg concluded that it is “highly likely” that the death penalty violates the Eighth Amendment’s prohibition on cruel and unusual punishments.  While acknowledging that the Supreme Court settled the constitutionality of the death penalty 40 years ago, Breyer wrote that the “circumstances and the evidence of the death penalty’s application have changed radically since then.”

They are not the first sitting justices to call capital punishment’s constitutionality into question.  Justices Thurgood Marshall and William Brennan routinely dissented from decisions upholding a death sentence on the grounds that capital punishment is always a cruel and unusual punishment.  Shortly before his retirement, Justice Harry Blackmun famously wrote that he would “no longer tinker with the machinery of death.”  Justice John Paul Stevens similarly concluded that the death penalty is an excessive punishment.

But Glossip feels different. Breyer’s dissent is more of an invitation than a manifesto. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” It also feels different because it is no longer unthinkable that there are five votes for ending the death penalty....

[Justice] Kennedy has embraced a view of societal norms that is much more holistic than a simple exercise that counts state legislative decisions.  For instance, in Graham v. Florida, the case in which the Supreme Court barred sentences of life without parole for nonhomicide juvenile offenders, Kennedy looked beyond the law on the books to see how the law was used in practice.  Even though most states allowed the sentence, Kennedy found that sheer infrequency reflected a consensus against its use, as did the fact that sentences were concentrated in a handful of states.  Most recently, in Hall v. Florida, Kennedy counted Oregon, a state that formally retains capital punishment, “on the abolitionist side of the ledger” because it “suspended the death penalty and executed only two individuals in the past 40 years.”

In Glossip, Breyer fine-tuned Kennedy’s approach, looking not only at how infrequently states resort to the punishment but also at how “the number of active death penalty counties is small and getting smaller.” (It might be particular personalities within counties as much as it is particular counties responsible for most death penalty sentences.)...

After Kennedy’s opinion in Obergefell, the flashlight is shining brightly on Kennedy’s death penalty jurisprudence. His road map for considering the evolution of contemporary societal norms, coupled with Breyer’s invitation to challenge the death penalty in its entirety, plausibly heralds the twilight of the death penalty in America.

In a similar vein, Cassandra Stubbs, director of the ACLU Capital Punishment Project, has this new MSNBC commentary headlined "The death penalty has an innocence problem — and its days are numbered."

July 1, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Want does Johnson mean for the past, present and future of the career offender guidelines?

As first reported in this post, the the Supreme Court late last week in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  In this initial post, I quickly explored Johnson's appliction to those previously sentenced under ACCA, and I will have more to say on that topic in the future.  But in this post, I wanted to flag the possibility that Johnson could impact past, present and future sentencing pursuant to the career offender guideline of the US Sentencing Guidelines.  

The possible impact of Johnson on guideline sentencing arises because the key phrase declared unconstitutionally vague in Johnson — the phrase which defines predicate offenses to include any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" — is also used in the definition of a career offender predicate under USSG 4B1.1 and 4B1.2.  And, critically, many more federal defendants get sentenced pursuant to the career offender guidelines than pursuant to ACCA.  Indeed, according to Sentencing Commission data, it appears as many as four times more defendants on average each year (roughly 2,200 as opposed to 550) are subject to the career offender guideline than are subject ot ACCA.  

But, importantly, even though the career offender guideline uses the same phrasing as the ACCA statute as the basis of a big sentencing enhancement, this part of the guideline is not necessarily going to be deemed unconstitutionally vague in all cases because lower courts have suggested traditional vagueness doctrines simply do not apply to guidelines in the same way the apply to statutes.  Morevoer, the arguments against applying vagueness doctrines to the application of the federal sentencing guidelines would seem to be even stronger in a post-Booker world in which the guidelines are only advisory.

Moreover, even if the Johnson ruling and vagueness doctrines apply to the federal sentencing guidelines, defendants sentenced in the past under the career offender guideline may be able to get (or even seek) any sentencing relief comparable to ACCA-sentenced defendants.  As noted in prior posts, ACCA's application is such a big deal because it changes a 10-year statutory max sentencing term into a 15-year statutory minimum.  In contrast, the career offender guideline only changes a calculated guideline range within an otherwise applicable statutory range.  That difference certainly means that the best a career offender defendant can hope to get from Johnson is a chance at resentencing, not an automatically lower sentence.

Beyond the interesting and intricate question about Johnson's impact on past career offender sentences, I also think the present and future of this guideline's application remains uncertain.  Given that vagueness doctrine might not apply to the guideline, perhaps district judges could (and even should) still keep applying as it did in the past the phrasing found problematic in Johnson.  Or perhaps district judges ought to now just adopt the approach to the probelmtic clause that was advocated by Justice Alito in dissent in Johnson (discussed in this post).  Or perhaps the US Sentencing Commission needs to use its emergency amendment authority ASAP to just delete or revise the phrase that Johnson addressed because, if it does not, it is near certain different courts nationwide will take different approaches to how to implement the guideline now in light of Johnson.

In sum: Johnson + career offender guideline = lots and lots of uncertainty and interpretive headaches.

Some prior posts on Johnson and its possible impact:

July 1, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

"Anti-Death Penalty Activists Are Winning The Fundraising Battle In Nebraska"

The title of this post is the headline of this intriguing new BuzzFeed piece providing a "follow-the-money" update on who is really concerned about reversing or preserving the repeal of the death penalty in Nebraska.  Here are excerpts: 

After the Nebraska legislature successfully abolished the death penalty in the state, an expensive battle has begun to bring it back.  But so far, the side against the death penalty is winning the fundraising battle.  The money is all about the potential for a statewide vote on the death penalty.

In May, the state’s conservative legislature narrowly overruled Republican Gov. Pete Rickett’s veto of the measure that abolished the death penalty. Ricketts vowed there would be a referendum to give voters the option to bring it back.  Nebraskans for the Death Penalty will need to collect 57,000 signatures by August to get the vote on the ballot.  If they can manage to collect 114,000 signatures, the death penalty will remain on the books until voters weigh in.

The group estimates that it would need to spend about $900,000 to do so....  [So far] Nebraskans for the Death Penalty raised $259,744 — and more than 75% of that came from the governor’s family. Ricketts and his father, the founder of TD Ameritrade, have given $200,000 to the group.  Another $10,000 was given to the pro-death penalty organization by an Omaha police union.

Nebraskans for the Death Penalty has spent almost all of the money it has currently raised in starting the signature collecting process.  The group has $26,000 in cash remaining, but has $25,000 in unpaid legal and consulting bills.

On the other side, Nebraskans for Public Safety (an anti-death penalty group) has not yet filed its full campaign finance report as of Tuesday evening.  But the group has disclosed receiving a $400,000 contribution from a progressive organization called Proteus Action League.  The group is a 501c(4), meaning it does not disclose its donors. This isn’t the first time Proteus Action League has spent money against the death penalty — the group spent more than $3.4 million on anti-death penalty efforts in 2012, according to an IRS filing.

The anti-death penalty group Nebraskans for Public Safety, which is affiliated with Nebraskans for Alternatives to the Death Penalty and the American Civil Liberties Union of Nebraska, has spent some of the money on television ads urging voters to not sign the petition.

Regardless of the outcome, Ricketts believes he will still be able to carry out the executions of the 10 men on death row.  In pursuit of that, his Department of Correctional Services has spent more than $50,000 on execution drugs from a seller based in India.

July 1, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Reviewing the energies and intricacies involved in Clemency Project 2014

Download (1)The July 2015 issue of the ABA Journal has this very lengthy new piece reporting on the work of Clemency Project 2014.  The piece, headlined "Clemency Project 2014 is out to help prisoners doing excessive time due to inflexible sentencing," and here are excerpts:

[L]ast year, the Department of Justice announced an extraordinary project that could provide relief to ... perhaps thousands of [federal prisonsers]. In January 2014, the department announced a plan to shorten thousands of long sentences handed down for nonviolent drug crimes, using President Barack Obama's clemency power.

It's a radical departure from the way modern presidents have used clemency. Rather than correcting injustices here and there, the project seeks to systematically reduce sentences handed down during an era of inflexible sentencing.

Equally extraordinary was the Justice Department's call for help from the private bar. Because an influx of pro se petitions could overwhelm Justice's small Office of the Pardon Attorney, the DOJ asked private attorneys to volunteer their help.

Enter Clemency Project 2014. About 1,500 volunteer attorneys have come forward to help eligible prisoners submit the best possible clemency petitions. This small volunteer army is being led by five groups of criminal justice stakeholders: the American Bar Association's Criminal Justice Section, the American Civil Liberties Union, Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, and a group of federal defenders—the heads of the 84 offices of federal public or community defenders.

"It is unprecedented, it is important — and the chance of a lifetime for a defense attorney to be able to walk someone out the prison doors this way," says Donna Lee Elm, the federal defender for the Middle District of Florida and part of the CP14 management.

Clemency cases move slowly; FAMM says an answer typically takes from two to seven years. But CP14 doesn't have that much time. Because the project relies on Obama's power to grant clemency — and there's no guarantee his successor will embrace the project — all decisions have to be made before January 2017.

That stress was increased last July when one fertile source of volunteers was cut off. A memo from the Administrative Office of the U.S. Courts forbade federal public defenders from actively representing CP14 clients, though they may still do administrative work. And although there is increasing bipartisan support for sentencing reform, CP14 has drawn criticism from both the right and the left. Among other complaints, critics say the federal government shouldn't allow nongovernmental groups to be so heavily involved in making policy....

CP14 relies on the constitutional power to grant clemency — pardons, sentence commutations and other actions that ease the consequences of a conviction. Though Obama's past statements have suggested he's concerned about unduly harsh drug sentences, he's made little use of his clemency powers. That's the case in general for presidents serving from 1980 onward....

Submissions come after a lengthy review process. Normally, clemency seekers submit their petitions directly to the [Office of the Pardon Attorney] OPA (either pro se or by using one of the few lawyers who specialize in clemency). An OPA lawyer then scrutinizes the petition closely, typically calling the prosecutor's office and judge involved in the original case for an opinion. Once that work is done, the deputy attorney general (currently Sally Quillian Yates) examines it and sends it to the White House with the office's recommendations.

Though petitioners are still free to take that direct route, those going through CP14 get additional review. For those without [any] close relationship to a former attorney, the process started with a survey sent out last year by the Bureau of Prisons, asking whether the prisoner meets the DOJ's clemency criteria. As of early June, CP14 had received more than 30,000 of them. Any volunteer attorney who has completed CP14's training — a six-hour online course — may take up one of those surveys. Volunteers dig through old documents to investigate whether the prisoner really meets the criteria, then create an executive summary. That goes to a screening committee, whose job is to thoroughly double-check whether the case meets the DOJ's criteria.

If the case gets through that round, it goes to a CP14 steering committee, which is responsible for ensuring that each of the project's five partner organizations is comfortable signing off on the case. That's a lot of layers of approval, but Felman says organizers felt each was necessary because they all have different functions. If the case is approved, the volunteer attorney drafts the actual petition. The petition goes to the Office of the Pardon Attorney with a cover letter from CP14, saying the project organizers believe this prisoner meets the criteria. From there, it's out of CP14's hands.

"I'm not saying that that [letter] gives that petition any special weight over there," Felman explained at the midyear meeting. "Our hope is it gives them a little more confidence. But there's no question that they will put it through their regular, routine process."

If the OPA approves a case, it goes to the Office of the White House Counsel. From there, Felman says, CP14 doesn't know what happens. Several emails to the White House press office were unreturned. Clemency Project 2014 petitions began going to the OPA at the end of 2014. In March, the president issued the first four commutations with project involvement, as part of a group of 22 commutations. Though it's hard for CP14 to predict what the president might do, Felman says he's been told the White House would like to start approving cases on a quarterly or even rolling basis. He notes that the March commutations were issued at the end of the year's first quarter and says he would not be surprised to see more issued at the end of the second quarter. This would be another departure from modern presidents' standard practice of granting clemency at Christmas or the end of their terms.

Even when petitions are approved, it's not clear whether clemency recipients will be able to go home right away. No government representative has commented on the issue, but Felman says CP14 has assumed the president will shorten sentences to what they would have been if handed out today. But the March commutations didn't follow that formula; all but one recipient were slated for release at the same time, in July....

[T]he loss of the defenders exacerbated another problem: insufficient volunteers. The project has quite a lot already — about 1,500 as of early June — and is recruiting from large law firms and law school clinics. But with roughly 30,000 prisoner surveys to review — and the end of President Obama's term looming — CP14 needs more.

Another problem, which is endemic to old cases, involves getting the paperwork. Because the Justice Department requires petitioners to have served at least 10 years in prison, the cases are at least that old. That makes it tough to establish a prisoner's eligibility, especially if no former attorney can forward the case file. Many of the cases require an in-person trip to a courthouse because older documents are not on PACER. Even tougher to get are the presentence investigative reports, or PSRs, which are usually sealed. Felman said at the midyear meeting that a handful of judges have denied requests to unseal them; and in one case, a prosecutor opposed it....

[C]ritics of CP14 aren't just law-and-order advocates. In fact, the project has been criticized by some of the most ardent supporters of clemency. On the political right, one critic has been Iowa Republican Sen. Charles Grassley.... Another conservative organization, the watchdog group Judicial Watch, has sued the DOJ under the Freedom of Information Act in an effort to get records of its communications with CP14 partner organizations. Judicial Watch president Tom Fitton says this is a rule of law issue. "There's this effort to abuse the clemency power of the president, to bypass Congress' sentencing laws," he claims. "The whole project by itself is an affront to the idea that the clemency power of the president is exercised on a case-by-case basis."...

Law professors Mark Osler of the University of St. Thomas (who runs a commutation clinic) and Rachel Barkow of New York University ... argued in a November Washington Post op-ed that the clemency process has far too many layers of bureaucracy and creates a conflict of interest because the Justice Department reviews convictions won by its own prosecutors. They called for a stand-alone, bipartisan agency like those used for clemency in many states.

Other critics from the left contend that the DOJ criteria leave too many prisoners out—particularly those who meet all criteria except the 10-year requirement. Felman says CP14 organizers pushed back a little on this issue, but to no avail.

Lots of prior related posts about Clemency Project 2014:

July 1, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 30, 2015

Might Pope Francis shame Prez Obama into doing more about mass incarceration?

The question in the title of this post is a bit of a riff off of this notable new commentary from Philadelphia magazine, headlined "Will the Pope Shame City Hall Into Fixing Its Atrocious Prison Problem?".  Here are excerpts:

The Cool Pope is visiting Philadelphia’s Curran-Fromhold Correctional Facility during his trip to the city this fall, the Vatican announced Tuesday.  

When Pope Francis tours the jail, he’ll find a prison system that has been sued over its crammed conditions almost non-stop for the past 45 years.  In fact, a judge ordered the city to build CFCF in the nineties in order to alleviate overcrowding.  Today, the city's prison system houses nearly 8,200 inmates — about 1,700 more than it was built to hold. At CFCF, 400 to 500 prisoners live in "triple cells," which are jam-packed, three-man cells that are intended to hold only one or two people.  

Will city officials allow the Pope to see the prison's lackluster conditions?  Will he pop into a triple cell?  Or will his impending visit pressure the city to finally get its stuffed jails under control?

We asked Mark McDonald, a spokesman for Mayor Michael Nutter, if there are plans to change the setup of CFCF or move inmates to other jails in the city's system during the Pope's visit.  "There are no plans to change the 'setup' at the prison.  The Pope will see the facility as it is.  He will visit with a group of inmates and also speak to a group of staffers," he said, adding, "No, inmates will not be moved from CFCF."

There's a good chance that this might light a fire under the city to cut down on the prison population, though.  Throughout Nutter's tenure, the city has taken several steps to reduce the number of inmates in the city's jails — and, at times, has been very successful.  In early 2011, the prison system's population fell to 7,700, a recent low. Still, it has never reached that magic number — 6,500, which is the maximum number of inmates that the system was constructed to hold — under Nutter.

The prison population has often fallen under Nutter shortly after the city has been sued due to overcrowding.  Likewise, it has risen after such lawsuits were put on hold.... Won't the upcoming visit by Pope Francis — and all of the international media attention that will come with it — give the city an even bigger incentive to cut down on overcrowding?...

It's also noteworthy that Pope Francis is touring CFCF, which opened in 1995 and is one of the city's newest prison facilities, as opposed to, say, the House of Correction, which is nearly 150 years old and lacks air conditioning.

My post title and question is actually prompted by the fact that I could not remember the last time Prez Obama (or, for that matter, any sitting or former Prez) ever visited a US prison.  Notably, as this article reports, Prez Obama did visit in 2013 the South African prison cell which long housed Nelson Mandela. 

As a general matter, I wonder if any Presidential historians can help me figure out if or how many sitting or former Presidents have ever made an official visit to a US prison or jail facility.  In the meantime, I will here call it notable and telling, and ultimately shameful, that modern mass incarceration in the United States apparently is more of a Papal than a Presidential concern.

June 30, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

If you are eager to gorge on Glossip gossip...

here is just a smidgen of some of the copious commentary one can find before the ink is really dry on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline, sources and authors varied):

June 30, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0)

Virginia Gov creates commission to study bringing back parole in state sentencing scheme

DownloadI have long thought and feared that the broad move in the 1980s and 1990s to abolish parole in the federal sentencing system and in many state systems was a significant (and rarely recognized) contributor to modern mass incarceration problems.  Consequently, I am intrigued and pleased to see this recent press report headlined "McAuliffe creates commission to study bringing parole back to Virginia." Here are the details of what is afoot in Virginia, as well as some highlights of the enduring political issues and debates that surround parole abolition and reforms:

Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country.... McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.

“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”

The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign. It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s....

Carl Wicklund, the executive director of the American Probation and Parole Association, said research suggests that the laws of the 1990s were not necessarily effective, and politicians from both parties are embracing change. Parole gives inmates motivation to better themselves in hopes they could be let out early, he said. “People are starting to look at that, how do you incentivize people when they’re in prison to actually start to get their act together?” Wicklund said.

But others say that crime declined in Virginia in the two decades since parole was abolished and that the prisons are not overflowing with nonviolent first-time offenders. “I want to ask them which murderer, rapist or armed robber they want to get out of jail,” said former Virginia attorney general Jerry Kilgore (R), a lawyer in private practice who was Allen’s secretary of public safety. “Under the old system, murderers were serving a fourth to a third of their time.”

C. Todd Gilbert (R-Shenandoah), a former prosecutor, said Virginia tends to lock up what he called “the right people”: violent offenders, repeat offenders, chronic probation violators and drug dealers. “Why the governor would want to tinker with undoing a good thing is beyond me,” he said. “It’s pure politics. I’m sure he’s getting a tremendous amount of pressure from the base of his party to tear down the criminal justice system. Criminal apologists would love nothing more than to have no one serve any time for practically anything.”

In the interview with WTOP (103.5 FM), McAuliffe said it is his job to protect citizens, but also safeguard taxpayer dollars. The state houses 30,369 inmates at a cost of $27,462 per year per inmate and a total of $833 million annually, he said. Inmates must serve at least 85 percent of their sentences before they can be released for good behavior. “The question now, 20 years later, is has it made us safer or have we spent a lot of money and we haven’t done what we need to do for rehabilitation?” he said.

Former Virginia attorney general Mark L. Earley Sr. — a Republican whom Allen once portrayed as an ally in abolishing parole — will chair the commission with McAuliffe’s secretary of public safety, Brian Moran, and his secretary of the commonwealth, Levar Stoney. The Commission on Parole Review must complete a final report by Dec. 4. “I want everybody just to relax here. We’re not saying let everybody out. We’re not doing that. We’re going to do a comprehensive study,” McAuliffe said.

The effects of parole abolition were also the subject of a study by the Senate Finance Committee released in November, which deemed the policy change a success. “Virginia has the third-lowest rate of violent crime and the second-lowest recidivism in the nation,” the 74-page report concluded. “Sentencing reform is working as intended.”

But the American Civil Liberties Union of Virginia said there is little evidence that parole abolition has made Virginians safer. In fact, the state’s incarceration rate has increased and crime rate has declined at a slower rate than states that have reduced their incarceration levels, the group said. “By removing the opportunity for parole, the commonwealth has also compounded the disproportionate impact that our criminal justice system has on people of color,” said ACLU executive director Claire Guthrie Gastañaga.

Democrats generally praised McAuliffe for revisiting the policy. “It’s an issue of public safety and our commitment to rehabilitation, are we actually doing that in Virginia?” said Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic caucus. Virginia House Minority Leader David J. Toscano (D-Charlottesville) said the commission could recommend relaxing parole for some offenders, but not others. “I don’t believe the governor has any interest in encouraging any policy that’s going to release hardened criminals in advance of their sentence being served,” he said.

But Republicans denounced any effort to roll back one of the landmark reforms of Allen’s governorship. Del. Robert B. Bell (R-Albemarle), a criminal lawyer and former prosecutor who is planning to run for attorney general in 2017, said changing the state’s policy “would be an enormous step back for public safety in Virginia” and would create a “backdoor out of prison” after jurors, detectives and victims have left the courtroom.

House Speaker William J. Howell (R-Stafford) said he agreed that the current system has served the commonwealth well and has become a national model. “While there are always improvements to be made, the notion that Virginia needs wholesale criminal justice reform seems to be more about politics than policy,” he said.

Parole abolition was popular in Virginia when Allen pushed for it, said Chris LaCivita, a Republican strategist who worked on Allen’s 1993 campaign. Allen won the governor’s office that year by an 18-point margin on the promise to abolish parole, and the General Assembly, then controlled by Democrats, passed it his first year in office, he said. “When Allen abolished parole in 1994, it was for violent offenders,” LaCivita said. “And the primary reason was because so many of those who were convicted of violent crimes were only serving a part of their sentence.”

As of 2000, 16 states had done away with discretionary release on parole, and four other states had gotten rid of the practice for certain crimes, according to the Bureau of Justice Statistics. Experts said few, if any, states seem to have reversed course. If Virginia were to do so completely, it might be the first, said Keith Hardison, the chief administrative officer of Association of Paroling Authorities International, which represents parole board staffers. “It’s not unexpected, because it seems like a logical extension of some of the changing, perhaps backing off somewhat of the ‘get tough’ era, and the ‘nothing works’ era,” he said.

Arlington Commonwealth’s Attorney Theo Stamos (D) said it “makes abundant sense” to revisit the policy but noted that she did not feel abolishing parole was a mistake. Crime has dwindled in Virginia since parole was abolished, and while she said there might not be a causation, it was a factor to be considered. “It’s a function of a lot of things, but clearly, the bad folks who are in for a long time . . . for the time that they’re in for, they’re not committing crimes on the street,” she said. Stamos noted that no matter what the commission finds, it would be up to the Republican-controlled General Assembly to restore parole — an unlikely outcome.

June 30, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term.  That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Some prior posts on Johnson and its possible impact:

June 30, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, June 29, 2015

"A Place to Call Home: Courts are reconsidering residency restrictions for sex offender"

The title of this post is the headline of this notable article from the July 2015 issue of the ABA Journal.  Here are excerpts:

[T]he California Supreme Court struck down the blanket application of [the state's] Jessica’s Law in March’s In re Taylor (PDF).  The justices noted that parole officers may impose residency restrictions on a case-by-case basis.  But they unanimously agreed that universal application of the law violates offenders’ constitutional rights — and doesn’t keep children safe.

The law “has hampered efforts to monitor, supervise and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators,” now-retired Justice Marvin Baxter wrote.  Though the decision applied only to parolees in San Diego County, the California Department of Corrections and Rehabilitation soon extended it to parolees statewide. CDCR spokesman Luis Patino says the state attorney general’s office believes courts would apply Taylor to every county.

California is not the only such state.  Later in March, a Michigan federal court struck down application of that state’s “geographic exclusion zones” to six plaintiffs, saying the law is unconstitutionally vague.  And in February, the New York Court of Appeals ruled that all local sex offender residency laws are pre-empted by state law, which does not include residency restrictions.

Courts weren’t always so friendly to these challenges. The highest court to rule on residency restrictions, the 8th U.S. Circuit Court of Appeals at St. Louis, ruled in 2005’s Doe v. Miller (PDF) that Iowa’s residency restrictions did not violate offenders’ constitutional rights.  That’s an important case, says professor Wayne Logan of Florida State University College of Law.  Most courts considering federal challenges on the issue have followed it.

But there are signs that things are changing.  Responding to compelling personal stories and mounting evidence that residency restrictions don’t work — and might even hurt public safety — courts are casting a more critical eye on these laws.  “There’s a public appetite for [sex offender laws], but there’s no evidentiary support that either registries or exclusion zones work,” says Miriam Aukerman, a lawyer for the American Civil Liberties Union of Michigan who represented the plaintiffs in the Michigan case. “And as a result, you’re seeing judges starting to rethink this.”

The facts of Taylor point to one of the biggest criticisms of residency restrictions: They often eliminate so much housing that they force ex-offenders into homelessness.  A 2011 report from the California Sex Offender Management Board expressly noted that “nearly 32 percent of sex offenders on parole are homeless due to Jessica’s Law.”...

And perhaps most damning, Levenson says the consensus among social science researchers is that residency laws don’t reduce recidivism. “We know from decades of research that most child sex abuse victims are well-known to their perpetrators,” she says. “So a person’s residential proximity … is really irrelevant.”

June 29, 2015 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Providing great reading (and little else of consequences), concurring and dissenting Justices use Glossip to debate death penalty's constitutionality

As noted in this prior post, states eager to move forward with challenged execution protocols got a big win on the merits from the Supreme Court this morning in Glossip v. Gross.  And while the substantive ruling from the Court will be of considerable consequence for states eager to move forward with scheduled executions, commentators (and law professors and death-penalty advocates) will likely take more note of the back-and-forth between Justice Breyer and Justices Scalia and Thomas in their separate Glossip opinion.  

Justice Breyer uses Glossip as an occassion to write a 40-page dissenting opinion (with Justice Ginsburg along for the ride) explaining why he now believes "it highly likely that the death penalty violates the Eighth Amendment" and that "the Court should call for full briefing on the basic question." Unsurprisingly, this disquisition prompts both Justice Scalia and Justice Thomas to author separate (and much shorter) concurring opinions seeking to explain why they think Justice Breyer's constitutional views are all washed up.

The work of these Justices debating the constitutionality of capital punishment as a categorical matter makes for great fun for those who enjoy constitutional debate as blood-sport (and for those eager to read the latest, strongests (policy) arguments against the modern death penalty). But the fact that seven current Justices apparently do not question the death penalty's essential constitutionality, including the five youngest Justices, suggests to me that abolitionists still have a lot more work to do before they can reasonable hope to see a majority of Justices find compelling a categorical constitutional ruling against capital punishment in all cases.

June 29, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

SCOTUS rules 5-4 against capital defendant's challenge to execution protocol in Glossip v. Gross

The Supreme Court handed down this morning the last big opinion of likely interest to sentencing fans via Glossip v. Gross, No. 14-7599 (S. Ct. June 29, 2015) (available here).  Here is how Justice Alito's opinion for the Court gets started:

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U.S.C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain.  They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain.  After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective.  The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.

For two independent reasons, we also affirm.  First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims.  See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion).  Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

Based on a too-quick read, the majority opinion seems like a big win for states seeking to move forward even with new and questionable execution methods. I doubt Glossip will halt all the lower-court litigation on state execution protocols, but it certainly should provide lower court judges a much clearer standard and basis for rejecting Eighth Amendment claims in this setting.

June 29, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Two distinct SCOTUS dissents from the denial of cert in capital federal habeas cases

Though a forthcoming opinion from the Supreme Court in Glossip v. Gross concerning executions methods is likely to highlight the Justices' distinct views on capital punishment, another example of this reality appears in this morning's SCOTUS order list.  At the end, one can find two lengthy dissents from the denial of cert: one, authored by Justice Thomas (and joined by Justice Alito), laments the Court's failure to take up a case from the Fourth Circuit that required further review of a North Carolina death sentence; the other, authored by Justice Sotomayor (and joined by Justices Ginsburg and Kagan), laments the Court's failure to take up a case from the Fifth Circuit that upheld a Mississippi death sentence.

Based on a quick read of both opinions, I must say I am generally content that the full Court did not bother to take up these cases as a prelude to seemingly inevitable 5-4 split capital decisions.  More generally, with so many interesting and important non-capital criminal law and procedure issues churning in lower courts, I hope the majority of Justices persistently resist what I see as a too-common tendency to get too-deeply engaged in what too often ends up as one-case-only, deeply-divided capital case error-correction (as I think we saw this term in Brumfield v. Cain and Davis v. Ayala).  

June 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Prison Abolition and Grounded Justice"

The title of this post is the title of this newly published article by Allegra McLeod. Here is the abstract:

This Article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste.  Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address — interpersonal violence, addiction, mental illness, and sexual abuse, among others.  Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law — principally deterrence, incapacitation, rehabilitation, and retributive justice — might be pursued by means entirely apart from criminal law enforcement.  Abandoning prison-backed punishment and punitive policing remains generally unfathomable.

This Article argues that the general reluctance to engage seriously an abolitionist framework represents a failure of moral, legal, and political imagination.  If abolition is understood to entail simply the immediate tearing down of all prison walls, then it is easy to dismiss abolition as unthinkable.  But if abolition consists instead of an aspirational ethic and a framework of gradual decarceration, which entails a positive substitution of other regulatory forms for criminal regulation, then the inattention to abolition in criminal law scholarship and reformist discourse comes into focus as a more troubling absence. Although violent crime prevention and proportional punishment of wrongdoing purportedly justify imprisonment, this Article illuminates how the ends of criminal law might be accomplished in large measure through institutions aside from criminal law administration.

More specifically, this Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare.  This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and “greening” urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement.  By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.

June 29, 2015 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA

This past weekend afforded me the opportunity read more closely the various opinions in the big SCOTUS constitutional sentencing ruling in Johnson v. US striking down a provision of the Armed Career Criminal Act (ACCA) as unconstitutionally vague.  Looking forward, it will be interesting to see how many federal prisoners will claim Johnson demands they receive a lower sentence and also to see how various lower courts sort through such claims.  (I flagged some post-Johnson litigation issues in this prior post, and I will say more on this front in future posts.)  Here I want to look back a bit to explain why I think Justice Alito was unable to get a single colleague to support his suggested ACCA jurisprudence revision to preserve the sentencing provision stuck down in Johnson.

The Court is Johnson finds so much uncertainty in the ACCA residual clause because it "requires a court to picture the kind of conduct that the crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury."  The Court stressed that it "is one thing [and presumably constitutional] to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction."  I think the Johnson majority is basically right on this front, especially seeing how lower courts have struggled greatly mapping various offenses abstractly onto ACCA's residual clause.

But Justice Alito has a readily response: noting ACCA "makes no reference to 'an idealized ordinary case of the crime," he contends the "residual clause can [and should] be interpreted to refer to 'real-world conduct'."  In other words, Justice Alito has a solution to the interpretive problems lamented by the majority: rather than looking at prior convictions in the abstract, sentencing courts could and should engaging in a "conduct-specific inquiry" to assess whether a prior offense presented a "serious potential risk of physical injury."

But while sounding like a viable and reasonable solution, I suspect Justice Alito's suggestion was rejected by all the other Justices because they could see many real-world challenges posed by a "conduct-specific inquiry" in this ACCA setting.  For starters, if a factual inquiry determined ACCA predicates, sentencing courts would have to conduct mini-trials to look at all the real-world conduct behind (long-ago) priors. The mini-trials of priors would implicate an array of complex Fifth and Sixth Amendment procedure issues --- e.g., what would be the burden of proof for the judge (or jury)? would the defense be able to call witnesses and assert confrontation rights?  what review standard applies for the (factual/legal?) determination of "serious potential risk"?

Moveover, with each ACCA case hinging on factual rulings about "real-world conduct," there could be no firm ACCA precedents: even after one court decided defendant Al's real-world drunk driving or flight from the police triggered ACCA, defendant Bert could and would still litigate the same issue in the next case based on his own distinct "real-world conduct."  Even in cases that facially should be easy ACCA calls, the prosecution or the defense might try to argue unique "real-world" conduct made, say, an offense of littering especially risky or an offense of sexual imposition especially safe.

Finally, Justice Alito's own concluding approach to Johnson's case itself reveals how ipse dixit the analysis of "real-world conduct" would still be under ACCA.  Obviously eager to trump up the seriousness of Johnson's shotgun possession offense, Justice Alito asserts "drugs and guns are never a safe combination" and posits that "collateral damage" and "carnage" were real possibilities.  But he seems to be making suppositions as a means to an end no more firm or determinate than considering shotgun possession in the abstract.

In short, I suspect Justice Alito was unable to convince any of his colleagues to embrace his "real-world conduct" approach to ACCA because they understood that this approach would likely create more real-world problems than it would solve.

Some prior posts on Johnson and its possible impact:

June 29, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)