Tuesday, September 30, 2014
What should be made of the tough prosecution/punishment trend for animal abuse?
The question in the title of this post is prompted by this front-page New York Times article headlined "He Kicked a Stray Cat, and Activists Growled." Here are excerpts:
On one side are the activists. Once dismissed as cat ladies or fringe do-gooders, they have come to wield real power through funding, organization and a focus on legal remedies for animal abuse. They have embraced social-media campaigns; offered rewards to potential witnesses to animal abuse; trained prosecutors; and made inroads in pushing law enforcement across the country to arrest, and seek jail time for, animal abusers.
Yet lawyers defending the accused say that punishment can seem disproportionate to the crime when an animal is the victim. They say that putting people in jail can have serious long-term effects, from starting or strengthening gang affiliations, to taking someone away from school or a job to which they may not return. “The nature of the crime should not automatically mandate a jail sentence if a person is found guilty,” said Tina Luongo, acting attorney in charge of the Legal Aid Society’s criminal practice.
At the moment, the activists seem to be winning the fight. The Federal Bureau of Investigation announced this month that it would track animal abuse as a separate crime, rather than lumping it in the “other” category.
In New York City, the Police Department took over responsibility for animal abuse complaints in January, and created an Animal Cruelty Investigation Squad. Arrests for animal abuse increased about 250 percent through September, compared with the same period last year....
Houston’s district attorney said this month that she would seek jail time in animal cruelty cases, and Massachusetts passed a bill increasing maximum prison time for animal abuse cases to seven years from five. In Virginia, after a push from People for the Ethical Treatment of Animals, a man was sentenced in February to a year in jail for starving a pit bull. And in Texas this year, a man received five years after offering to guide a wayward pet donkey home, then dragging the donkey behind his truck. The donkey, which was found in a ditch, survived....
Not long ago, animal cruelty was “considered a side issue, relegated to something a few overpassionate people cared about, basically,” said Assemblywoman Linda B. Rosenthal of the Upper West Side, who has backed several bills strengthening animal cruelty laws. “Now, it’s a mainstream concern.”
And it is one that animal groups are trying to make even more central.... The groups say they have captured law enforcement’s attention in part by emphasizing that animal cruelty can be a “red flag” for future crimes, particularly domestic violence. Prosecutions nationwide are becoming much more frequent, said Sherry Ramsey, the director of animal cruelty prosecutions for the Humane Society of the United States, “and a lot of it’s based on what we know now about the link between animal cruelty and human violence.”
Yet defense groups say animal abuse cases ... should be handled individually, and are not necessarily predictive of worse behavior. “We don’t punish individuals for alleged future misconduct they might at some point in the future engage, but have not,” Theodore Simon, president of the National Association of Criminal Defense Lawyers, said in an email. “To do so would be to punish a person for a ‘crime’ that has not occurred and was not committed.” Defense advocates also say more needs to be done if society wants to tamp down animal abuse.
Ohio AG puts onus on Ohio legislature to reboot state's machinery of death
As reported in this local article, headlined "DeWine: Executions on hold until legislators change law," Ohio's Attorney General has now suggested that the state will not even seek to move forward with executions in 2015 unless and until Ohio's General Assembly passes legislation he thinks is needed to enable a constitutionally sound and effective execution protocol. Here are the details:
Ohio will not resume executions next year unless legislators enact two key changes in state law, Attorney General Mike DeWine said yesterday. “You’re not going to see a death penalty take place until the General Assembly takes action,” DeWine said during a joint meeting with David Pepper, his Democratic opponent in the Nov. 4 election. The session with Gannett newspaper editors in Ohio was streamed live on the Internet.
The execution issues deal with providing anonymity for “compounding pharmacies” and immunity protection for physicians who help the state with legal support for executions, DeWine spokesman Dan Tierney said. Tierney said DeWine thinks two pieces of legislation, not yet final, must be passed in order to meet stipulations set down by U.S. District Judge Gregory Frost. Frost halted all lethal injections in Ohio until early next year because of concerns about the drugs and how they are used.
Convicted killer Ronald Phillips is set to die on Feb. 15, followed by five other executions next year.
Ohio and most other states have exhausted their options for purchasing chemicals used in lethal injections, largely because manufacturers, many of them European, will not sell drugs for executions. States are now turning to compounding pharmacies, which combine materials into compounds on demand for customers. The proposal would allow the pharmacies to do that without being cited as the source, Tierney said.
Pepper spokesman Peter Koltak said Pepper agrees that Ohio’s death penalty should be “free from constitutional concerns.” He said, “Future legislation on Ohio’s death penalty should be given thorough and thoughtful consideration.”
Making the full case for Mitt Romney, drug czar
Regular readers may recall this post from a few months ago in which I highlighted the brilliant and provocative commentary by Mark Osler headlined "Mitt Romney for drug czar." Now I can post Mark's fuller explication of the ideas that lead to the notion of Drug Czar Romney as they appear in this article now available on SSRN headlined "1986: AIDS, Crack, and C. Everett Koop." Here is the abstract:
In 1986, Ronald Reagan’s America confronted twin public health crises: AIDS and crack. There were striking similarities between the two, in that both developed quietly before public alarms were raised; both were identified with traditionally oppressed groups; both spread in a similar pattern; and both created fear in the American public. Where they differed, though, was in the reaction. After initial missteps, AIDS was approached through problem-solving doctors and researchers rather than quarantine. In contrast, crack was confronted with a heavy retributive hand. AIDS was transformed to a chronic, treatable illness. In contrast, crack not only continued to plague communities, but the use of mass incarceration created new problems.
Four striking personalities shaped these differing outcomes. With AIDS, the chief strategist was the remarkable C. Everett Koop, and the public face was a young boy named Ryan White. For crack, a chief strategist was the vituperative William Bennett, and the public face was basketball player Len Bias. The latter pair drove the fight against crack towards disaster, while the former created a more humane world.
This article argues that it is not too late to learn the lessons of 1986 and take a better approach towards narcotics, and that this approach might best be led by someone who understands the driving force behind drugs (the profit motive) the way that Koop understood the driving force behind AIDS (a virus). In our present era, that person may be someone who straddles business and politics, such as former presidential candidate Mitt Romney.
Reviewing how death is different (but still being used) in Japan
This new piece from The Economist, headlined "The death penalty in Japan: Hanging tough," discusses the on-going debate over capital punishment in the Land of the Rising Sun. Here are excerpts:
It is one of the anomalies of Japan’s approach to the death penalty that a stricken conscience can bring the system grinding to a halt. At least two Japanese justice ministers have refused to sign execution orders, most recently Seiken Sugiura, a devout Buddhist who oversaw a 15-month moratorium from 2005 to 2006. But Japan’s new justice minister, Midori Matsushima, seems unburdened by such doubts.
Ms Matsushima, who took office this month, has swatted away demands to review the system. Japan is one of 22 nations and the only developed country — apart from America, where it is falling out of favour — that retains capital punishment. “I don’t think it deserves any immediate reform,” she said last week: in her view the gallows are needed “to punish certain very serious crimes”.
Calls for a review have grown since the release earlier this year of Iwao Hakamada, a 78-year-old who spent 45 years of his life in a toilet-sized cell awaiting execution. A Japanese court said the police evidence that put him behind bars in 1966 was probably fabricated. Mr Hakamada, dubbed the world’s longest-serving death-row prisoner, is awaiting a fresh verdict later this year. Prosecutors have lodged an appeal against his retrial.
Opponents are hoping that the state’s stubborn fight to wheel another elderly man back to the gallows (he is severely ill and suffers from advanced dementia) may trigger debate and a backlash. But critics face an uphill struggle. Japan’s media largely steers clear of the topic. Ms Matsushima points to public support of over 85% on carefully-worded surveys put out by the cabinet: respondents reply to whether execution is “unavoidable if the circumstance demands it”.
Mr Hakamada would not be the first elderly or infirm inmate to be hanged in Japan. On Christmas day in 2006, Fujinami Yoshio, aged 75, was brought to the gallows in the Tokyo Detention Centre in a wheelchair. Even the openly abolitionist Keiko Chiba, who was justice minister from 2009 to 2010, failed to make a dent in the system. In July 2010 she signed and attended two executions in a bid, she said, to start a public discussion that quickly petered out.
"A Plea for Funds: Using Padilla, Lafler, and Frye to Increase Public Defender Resources"
The title of this post is the title of this notable new paper by Vida Johnson available via SSRN. Here is the abstract:
In the same way that the Court revolutionized the criminal justice world with its ruling in Gideon, Padilla, Lafler, and Frye might also radically change the criminal justice landscape. This Article will attempt to answer the following question: if there is a solution for the ever-growing case load of the public defender and the crisis of indigent defense, can Padilla, Lafler, and Frye be a significant part of the solution?
This Article will proceed by examining whether these three opinions create a bar too high for most public defender offices to meet. It also seeks to suggest the kinds of changes needed for public defender offices to meet these basic requirements. To do so, I will begin in Part II by discussing guilty pleas in general. I will then describe the legal landscape prior to Padilla, Lafler, and Frye in Part III, and discuss the three cases themselves and their ramifications in Part IV. In Part V, I will then introduce the requirements for effective assistance of counsel, and describe the best practices for public defenders to use during plea bargaining. In Part VI, I will discuss the problem of the overburdened public defender office. Finally, in Part VII, I will conclude by addressing how overburdened public defender offices might employ these cases to help ease their case loads.
Monday, September 29, 2014
Notable new AG Holder memorandum on charging policies and plea negotiations
I learned over the weekend that last week Attorney General Eric Holder issued a short memo to DOJ lawyers to provide "Guidance Regarding § 851 Enhancements in Plea Negotiations." This full one-page memo, which is dated September 24, 2014, can be downloaded below. Here are its most notable sentences, with my emphasis added:
The Department provided more specific guidance for charging mandatory minimums and recidivist enhancements in drug cases in the August 12, 2013, "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." That memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions," and sets forth factors that prosecutors should consider in making that determination. Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. Prosecutors are encouraged to make the§ 851 determination at the time the case is charged, or as soon as possible thereafter. An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty. This is consistent with long-standing Department policy that "[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct." "Department Policy on Charging and Sentencing," May 19, 2010.
While the fact that a defendant may or may not exercise his right to a jury trial should ordinarily not govern the determination of whether to file or forego an § 851 enhancement, certain circumstances -- such as new information about the defendant, a reassessment of the strength of the government's case, or recognition of cooperation -- may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea. A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.
I am inclined to speculate that AG Holder felt a need to issue this short memo in part because of reports that some US Attorneys may have had a "practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea."
District Court embraces as-applied Second Amendment limit on federal felon-in-possession prohibtion
As long-time readers know, ever since the Supreme Court's Second Amendment Heller ruling, I have long thought federal criminal law's threat of severe sentences on any and all felons in possession of any and all firearms is constitutionally questionable. Now, thanks to this post by Eugene at The Volokh Conspiracy, I see that one federal district court has finally held that there are as-applied Second Amendment problems with the federal felon-in-possession criminal statute.
The notable Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014) (available here). Interestingly (and perhaps not surprisingly), Binderup is a civil rights suit brought by a relatively sympathetic individual with a minor criminal past, not a case involving a federal criminal defendant claiming the Second Amendment precludes his prosecution. And here are excerpts from the start and end of the lengthy opinion:
As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011)....
Because plaintiff’s statutory claim fails, I reach his alternative constitutional claim asserted in Count Two. For the reasons expressed above, I conclude that plaintiff has demonstrated that, despite his prior criminal conviction which brings him within scope of § 922(g)(1)’s firearm prohibition, he poses no greater risk of future violent conduct than the average law-abiding citizen.
Therefore, application of § 922(g)(1) to him violates the Second Amendment to the United States Constitution under the framework set for the by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). Accordingly, plaintiff is, and defendants are not, entitled to summary judgment on plaintiff’s as-applied constitutional challenge asserted in Count Two of the Complaint.
It now will be real interesting to see if the feds will appeal this ruling to the Third Circuit or instead just leave it be.
Rooting for acquitted conduct petition grant from SCOTUS long conference
Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.
Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest. Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)
Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background. Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:
Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution. When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge. When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury. Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong. Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge. Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....
The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence. Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence. By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.
Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury. It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury. But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.
Previous related posts on this case and acquitted conduct sentencing enhancements:
- 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
- Strong commentary on acquitted conduct sentencing
- Sincere questions about acquitted conduct sentencing
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
September 29, 2014 in Advisory Sentencing Guidelines, Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack (0)
"Mitigating Foul Blows"
The title of this post is the title of this intriguing new paper by Mary Bowman available via SSRN. Here is the abstract:
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.
Sunday, September 28, 2014
Another round of highlights from Marijuana Law, Policy and Reform
It seems like a good time to do another round up of notable bew posts from Marijuana Law, Policy and Reform, so here goes:
Saturday, September 27, 2014
Arizona poised to take second (costly) run at death sentence for Jodi Arias
As reported in this AP article, headlined "Life or Death? Arias Set for Sentencing Retrial," prosecutors in Arizona are about to take another run at convincing a jury that murderer Jodi Arias should be condemned to die for her crime. Here are the basics:
Jodi Arias' guilt has been determined. The only thing that remains is whether she dies for killing her ex-boyfriend. More than six years after his death, and more than a year after being convicted of murder, a second penalty phase to determine her punishment gets underway Monday with jury selection.
Arias acknowledged that she killed Travis Alexander in 2008 at his suburban Phoenix home but claimed it was self-defense. He suffered nearly 30 knife wounds, had his throat slit and was shot in the head. Prosecutors argued it was premeditated murder carried out in a jealous rage when Alexander wanted to end their affair.
The 34-year-old former waitress was found guilty last year, but jurors couldn't agree on a sentence. While Arias' murder conviction stands, prosecutors are putting on the second penalty phase with a new jury in another effort to secure the death penalty.
If the new jury fails to reach a unanimous decision, the judge will then sentence Arias to spend the rest of her life behind bars or to be eligible for release after 25 years. At least 300 prospective jurors will be called in the effort to seat an impartial panel, not an easy task in the case that has attracted so much attention....
One key difference in the second penalty phase is that there will be no live television coverage. Judge Sherry Stephens ruled that video cameras can record the proceedings, but nothing can be broadcast until after the verdict. Arias' five-month trial began in January 2013 and was broadcast live, providing endless cable TV and tabloid fodder, including a recorded phone sex call between Arias and the victim, nude photos, bloody crime-scene pictures and a defendant who described her life story in intimate detail over 18 days on the witness stand.
Arias' attorneys claimed the televised spectacle led to threats against one of her lawyers and defense witnesses who opted not to testify. Citing Arias' right to a fair trial, Stephens is erring on the side of caution this time around.
The retrial is expected to last until mid-December.
In this prior post, it was reported way back in January that "Jodi Arias' legal bills have topped $2 million." If this new penalty trial really extends a coupld of months, I suspect the tab for Arizona taxpayers will surely be nearly another million, and the imposition of a death sentence would also ensure many years of expensive appeals. Especially given the relatively low odds that Arias will actually ever be executed, I cannot help but wonder if all these Arizona taxpayer millions might have been better spent on a more productive cause.
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
Teacher resentenced to 10 years in notorious Montana rape case
As reported in this AP piece, a "Montana teacher was sentenced Friday to 10 years in prison in a notorious student rape case that dragged on for years and led to the censure of a judge who partially blamed the victim." Here is more about the latest (and last?) development in a long-run controversy:
Stacey Dean Rambold, 55, was resentenced by a new judge exactly a year after he completed an initial one-month prison term for the crime. Rambold appeared to grimace as Friday’s sentence was read by Judge Randal Spaulding. He then was handcuffed and led away by deputies, pausing briefly to exchange words with family as he exited the courtroom.
Rambold pleaded guilty last year to a single count of sexual intercourse without consent in the 2007 rape of 14-year-old Cherice Moralez, a freshman in his Billings Senior High School business class. She committed suicide in 2010.
Rambold’s attorney had argued for a two-year sentence, pointing out that the defendant had no prior criminal record, underwent sex offender treatment and was considered by the state as a low risk to reoffend.
Spaulding indicated that the nature of the crime outweighed those factors. “I considered your abuse and exploitation of your position of trust as a teacher, and specifically Cherice’s teacher,” Spaulding told the defendant.
The state Supreme Court in April overturned Rambold’s initial sentence, citing in part comments from Judge G. Todd Baugh, who suggested the victim shared responsibility. Baugh was censured and suspended for 31 days. He’s stepping down when his terms ends in January....
Rambold broke down crying during a brief statement to the court. He said he was sorry for his actions and had worked hard to make himself a better person. In a recent letter to the court, he lamented the international publicity the case attracted. “No one can really appreciate and understand what it feels like to have so many people actually hate you and be disgusted by you,” Rambold wrote. “I do not mention this for the sake of sympathy, but it has been hard.”...
During last year’s sentencing, Baugh suggested Moralez had as much control over her rape as the defendant and said she “appeared older than her chronological age.” He gave Rambold a 15-year term with all but one month suspended. That triggered an appeal from the office of Attorney General Tim Fox, and ultimately resulted in the case being reassigned to Spaulding.
Prior related posts:
- "Protesters Demand Montana Judge Resign Over Rape Sentencing"
- New hearing ordered by Montana judge in case involving controversial 30-day child rape sentence
- Legal twists and turns continue in controversial rape sentencing case from Montana
- Montana Supreme Court orders resentencing in controversial rape case
Friday, September 26, 2014
Could (and should) AG Eric Holder be even bolder on sentencing and drug war reform as a lame duck?
Not suprisingly, the early conversations after Attorney General Eric Holder's resignation announcement yesterday (discussed here) concerns who President Obama will nominate for the position and and when the Senate will consider that nomination. But, because AG Holder indicated he would stay on the job until his replacement is confirmed, and because it is certainly possible that the confirmation process could take a number of months, it is certainly possible that Holder could still need to do some significant work before he turns over the keys to his office. And, as the question in the title of this post suggests, one might wonder if AG Holder might see his new lame duck status as providing him with even more freedom to push even more aggressively on various sentencing and drug war reforms he has championed in his tenure (especially over the last year or so).
Though I seriously doubt AG Holder could or should seek now to push through any major formal DOJ policy initiatives as he heads out the door, he certain can use his office and its bully pulpit to continue to talk up his views about the need for federal criminal justice reforms. Indeed, as highlighted by this new Huffington Post piece, headlined "Eric Holder Signals Support For Marijuana Reform Just As He's Heading Out The Door," Holder may now already feel a bit more free to talk about reforming federal marijuana laws.
I am especially interested to see if AG Holder might have some more to say about DOJ's clemency efforts on his way out the door. Needed reforms on executive clemency have been widely discussed by various DOJ officials throughout 2014, and yet there has still been a paucity of real consequential action by the President in this arena. I hope AG Holder might really try to prod Prez Obama to get moving on this front on his way out the door.
"Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard"
The title of this post is the title of this new paper by Adam Lamparello now available on SSRN. Here is the abstract:
Welcome: We’re Glad Georgia is On Your Mind.
Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.
Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled. In 1986, Georgia became the first state to ban executions of the intellectually disabled. It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.
Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed. Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed. The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.
Thursday, September 25, 2014
Louisiana legislative commission looking closely at capital case costs
As this local article reports, the "Louisiana Legislature is looking into the cost associated with carrying out the death penalty in the state." Here is how:
State Sen. JP Morrell, D-New Orleans, is heading up a new Capital Punishment Fiscal Impact Commission. The group's first meeting was Wednesday morning. Louisiana doesn't have a well-researched estimate of how much it is spending on capital punishment trials and execution, according to Morrell. The commission's goal is to get an idea of what the overall price tag is for executions in the state.
The death penalty might be more expensive than the general public realizes. Inmates on death row are segregated from the main prison population and receive specialized care. Capital murder trials can also be much more expensive than regular murder cases.
Members of the commission include lawmakers, prosecutors, public defenders, law enforcement, an auditor and staff members from nonprofit organizations. The group has been broken down into three subcommittees -- prosecution expenses, defense expenses and general Department of Corrections expenses. The subcommittees will meet approximately once per month. The overall commission will meet once per quarter, according to Morrell. The group has to conclude its work by the end of 2015.
Louisiana's House Appropriations Committee experienced some sticker shock related to the death penalty last spring during the legislative session. The state's public defender told lawmakers he expected to spend $479,000 on legal work related to the murder of a Louisiana State Penitentiary guard. Louisiana has already spent $10 million on court proceedings for the defendants, known as the Angola 5.
Eric Holder resigning Attorney General position ... next up?
As this Politico article reports, "Attorney General Eric Holder will announce Thursday his plans to leave his post at the Justice Department once a successor is confirmed." Here is more about this breaking news:
Holder has been in the job for nearly six years, since the start of the Obama administration, and would be the third longest-serving attorney general if he is still in the position in December.
President Barack Obama will announce the personnel change at the White House at 4:30 p.m. Officials have not yet said whether the president will announce a nominee for the job at that time.
Obama and Holder developed a close working and personal relationship over the course of the administration, putting the attorney general on stronger footing as he faced a wide range of criticism from Congress and the public, and as even some of the president’s aides privately urged for a change in leadership at the Justice Department. Holder also is close with Obama senior adviser Valerie Jarrett.
Holder’s departure has long been speculated, and he has discussed his plans with the president “on multiple occasions in recent months,” a Justice Department official said. He finalized his plans in an hourlong conversation at the White House residence over Labor Day weekend, potentially giving the White House close to a month to decide on a nominee for the position.
One much talked-about contender, Massachusetts Gov. Deval Patrick, is scheduled to travel to Washington on Thursday for pre-planned Friday events with the Congressional Black Caucus, his office said.... Two others believed to be on the short list for the job are Solicitor General Donald Verrilli and Preet Bharara, U.S. attorney for the Southern District of New York.
This USA Today article, headlined "After Eric Holder: Potential attorney general choices," provides this longer list of potential AG nominees in addition to Governor Patrick:
Janet Napolitano: The former Homeland Security secretary and governor was Arizona's attorney general from 1999 to 2002. She currently serves as president of the University of California system.
Kathryn Ruemmler: She departed as White House counsel last year. Obama told the New York Times that he deeply valued Ruemmler for "her smarts, her judgment and her wit." She worked for the White House since the start of Obama's tenure, starting as principal associate deputy attorney general — the third-ranking position at the Justice Department.
Robert Mueller: The respected lawyer and specialist in white-collar crime became FBI director a week before the 9/11 terrorist attacks. Mueller went on to serve both George W. Bush and Obama. Currently in private law practice, Mueller was recently tapped to lead the NFL's investigation into the Ray Rice domestic violence incident.
Kamala Harris: The attorney general of California is often touted as as a potential candidate for governor or U.S. Senate. She was the first woman elected as district attorney in San Francisco and first elected to her current position in 2010.
I have no insider knowledge and no real sense of who might be especially good at a job likely to be especially difficult over the next few years. But I think I am pulling for Kamala Harris (because I would like to see a woman of color in this job) and Preet Bharara (because I was a summer associate with him at a big NY firm more than two decades ago).
"Does Immigration Enforcement Reduce Crime? Evidence from 'Secure Communities'"
The title of this post is the title of this new empirical paper by Thomas Miles and Adam Cox now available via SSRN. Here is the abstract:
Does immigration enforcement actually reduce crime? Surprisingly, little evidence exists either way — despite the fact that deporting noncitizens who commit crimes has been a central feature of American immigration law since the early twentieth century. We capitalize on a natural policy experiment to address the question and, in the process, provide the first empirical analysis of the most important deportation initiative to be rolled out in decades. The policy initiative we study is “Secure Communities,” a program designed to enable the federal government to check the immigration status of every person arrested for a crime by local police. Before this program, the government checked the immigration status of only a small fraction of arrestees. Since its launch, the program has led to over a quarter of a million detentions.
We exploit the slow rollout of the program across more than 3,000 U.S. counties to obtain differences-in-differences estimates of the impact of Secure Communities on local crime rates. We also use rich data on the number of immigrants detained under the program in each county and month — data obtained from the federal government through extensive FOIA requests — to estimate the elasticity of crime with respect to incapacitated immigrants. Our results show that Secure Communities led to no meaningful reductions in the FBI index crime rate. Nor has it reduced rates of violent crime — homicide, rape, robbery, or aggravated assault. This evidence shows that the program has not served its central objective of making communities safer.
Wednesday, September 24, 2014
Interesting response from Heritage folks interested in AG Holder's recent sentencing comments
In response to yesterday's posting about Attorney General Eric Holder's big speech at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to Reduce Mass Incarceration," I received (and got authorization to reprint here) the following interesting and amusing e-mail from Paul Larkin, who is the Senior Legal Research Fellow at The Heritage Foundation's Center for Legal & Judicial Studies:
Professor Berman: In AG Holder's speech yesterday, I found interesting the fact that he quoted from an article that Evan Burnick and I wrote for Heritage earlier this year, entitled “Reconsidering Mandatory Minimum Sentences: The Arguments For and Against Potential Reforms,” Heritage Legal Memorandum No. 114 (Feb. 10, 2014), available at this link. You blogged about it a while ago. (Thank you.) Many people at Heritage were quite surprised that AG Holder quoted from a Heritage paper, but I think that it is rewarding to see that DOJ officials read it.
I do have one question, however: Do you know what the temperature was in hell yesterday?
Recent related posts:
- Brennan Center event on "Shifting Law Enforcement Goals to Reduce Mass Incarceration"
- Highlights from AG Holder's big speech today at the Brennan Center for Justice
- Brennan Center urges new orientation in "Federal Prosecution for the 21st Century"
Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
The question in the title of this post is prompted by this lengthy new FoxNews piece headlined "California voters weigh 'radical' changes to justice system as prisons fill up." Here are excerpts:
Voters this fall, however, could approve big -- and some say "dangerous" -- changes to the state’s sentencing system, aimed in part at easing the overcrowding. On the state ballot is a proposal that would dramatically change how the state treats certain “nonserious, nonviolent” drug and property crimes, by downgrading them from felonies to misdemeanors.
The measure, known as Prop 47, also would allow those currently serving time for such offenses to apply for a reduced sentence, as long as they have no prior convictions for more serious crimes like murder, attempted murder or sexual offenses.
Businessman B. Wayne Hughes Jr., who has donated hundreds of thousands of dollars to push the ballot measure, told FoxNews.com the changes would affect Californians who are “over-incarcerated and over-unpunished.”
“I saw Prop 47 as common-sense reform,” Hughes said. “I don’t see it as a radical reform.”
However, the measure is being slammed as dangerous by members of California’s law enforcement, including San Diego Police Chief Shelley Zimmerman. Zimmerman told FoxNews.com “virtually the entire law enforcement community opposes Prop 47.”
“It will require the release of thousands of dangerous inmates,” she said.
The proposition would reduce penalties for an array of crimes that can be prosecuted as either felonies or misdemeanors in California. This includes everything from drug possession to check fraud to petty theft to forgery. Prop 47 would, generally, treat all these as misdemeanors, in turn reducing average jail sentences. According to a state estimate, there are approximately 40,000 people convicted each year in California who would be affected by the measure.
“[Prop 47] allows the criminal justice system to focus in on more serious crimes,” Hughes said.
According to an analysis by the California Budget Project, state and local governments would save hundreds of millions of dollars every year. The measure dictates the savings be split among three different areas, with 65 percent going to mental health and drug treatment programs, 25 percent going to K-12 school programs and 10 percent going to victim services. The measure’s supporters say it also would help reduce California’s prison-overcrowding problem, an issue that has dogged the state for years.
The analysis by the California Budget Project found that the California prison population would “likely" decline if Prop 47 were implemented. “If Proposition 47 reduced the prison population by just 2,300 individuals – through re-sentencing and/or reduced new admissions – the state could meet the court-ordered population threshold via the measure alone,” the analysis said.
However, Zimmerman argued that the proposition would only shift the burden from the state prisons to local law enforcement and communities. “[Prop 47 is] not a sustainable or responsible way to reduce California’s prison population,” she said.
The California Police Chiefs Association also has come out hard against the proposition. “Proposition 47 is a dangerous and radical package of ill-conceived policies wrapped in a poorly drafted initiative which will endanger Californians,” the association said....
Former Republican congressional candidate Weston Wamp agreed, saying Prop 47 "might not be perfect, but it’s a breath of fresh air to talk about an issue where there can be some agreement." Wamp said if passed, he believes Prop 47 could have a positive effect on the nationwide prison reform movement. "I think it’s realistic if you give people who are not violent criminals, if you give them an opportunity not to just stay behind bars but to make their lives better, you may see over a longer period of time is lower rates in recidivism and a better chance at taking care of the problems and paying the bills," he said.
For now, it seems like the proposition’s supporters are connecting with voters. An August poll by the Field Research Corporation found that 57 percent of Californians were in favor of the measure, 24 percent were opposed and 19 percent were undecided.
Prior related post:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
"Why Are So Many People Getting Sentenced to Death in Houston?"
The title of this post is the headline of this new article in The National Journal. It gets started this way:
Just 10 U.S. counties — roughly 0.3 percent of the nation's total — account for more than a quarter of all the American executions that have been carried out since 1976.
Texas's Harris County, which includes Houston, is far and away the leader in executions during that period. That district has handed out 122 death sentences that were carried to completion, more than double the next highest. Harris County alone is responsible for more executions than any state besides Texas.
Dallas County, which includes the Dallas-Fort Worth area, comes in second at 53.