January 14, 2013
An early report on Alleyne argument over Apprendi's reachAs previewed here, today was a big day for the Sixth Amendment before the Supreme Court. Hard-core sentencing fans have to be interested in the Alleyne case concerning the right to a jury determination of facts that trigger the application of mandatory minimum sentencing terms. Lyle Denniston has this SCOTUSblog recap of today's argument in Alleyne, which gets started this way:
After taking an obligatory look at whether the Supreme Court should feel bound by its past precedents, the Justices on Monday moved into an issue clearly of more interest to them: what do they need to do to protect the role of juries in laying the groundwork for criminal sentences? This inquiry turned into a combative discussion of just what the Court meant in 2000 in giving jurors a much-enhanced role when their verdicts trigger the fixing of sentences — the historic decision in Apprendi v. New Jersey.
The Justices who were opposed to expanding Apprendi argued that it dealt singularly with curbing judges who decide to impose a sentence beyond the top limit set by the legislature, while the Justices who seemed ready to push Apprendi a bit further contended that it should mean that increasing a convicted individual’s potential sentence should depend upon what the jury found, not the judge. There did not seem to be a middle ground. The two lawyers arguing the case were just as far apart.
As long-time readers should know, I keep trying to push a distinction between offense facts and offender facts as kind of a middle-ground position on Apprendi's reach, and that idea finds expression in an amicus brief I helped put together in Alleyne (discussed here). Sadly, based on this early account of today's argument in Alleyne, it would appear that yet another group of inside-the-beltway folks are more interested in sticking to their polarizing positions than in coming up with middle-ground solutions to important problems.
I suspect I will have more to say about Alleyne after I get a chance to read the oral argument transcript, which is now available at this link.
Recent prior posts on Alleyne case:
- SCOTUS grants cert to reconsider Harris
- NYCDL amicus brief in Alleyne with an offense/offender kicker
- Is Alleyne a stare decisis sleeper about "super-duper precedents"?
- Will 2013 finally bring the demise of Harris via the Alleyne case?
- Great weekend reading for Sixth Amendment fans
SCOTUS, by denying cert, ends Rhode Island's fight to prevent federal capital prosecutionThere was a notable death penalty decision of sorts in this morning's Supreme Court list of certiorari denials. As reported in this AP piece, the Justices this morning "said it won't stop the federal government from detaining and prosecuting a Rhode Island inmate who faces the possibility of execution, despite arguments that doing so violates the rights of a state without the death penalty." Here is more from the AP report:
Pleau is currently awaiting trial in federal court in the killing of a gas station manager who was shot as he approached a Woonsocket bank to deposit money. If convicted, he could be sentenced to death.
Pleau, 35, initially had been in state custody. After federal prosecutors charged him, Gov. Lincoln Chafee refused to turn him over, citing the state's rejection of capital punishment.
But an appeals court ruled last year the state must surrender Pleau to federal officials, despite the state's insistence that the federal government is violating a legal agreement that authorizes the state to deny a request to transfer a prisoner.
A series of prior posts below provides a lot more background concerning this interesting case (including in the last post my prediction that the "Justices may be disinclined to get into this notable fight" that got all the way to an en banc First Circuit ruling):
- To resist capital prosecution, RI's Gov refusing to turn murderer over to feds
- Debate continues over whether RI will turn murderer over to feds
- Split First Circuit says state can refuse to turn over murderer to feds for capital prosecution
- First Circuit to review en banc RI Governor's refusal to let feds have murderer for capital prosecution
- En banc First Circuit says RI must turn over murderer to the feds for capital prosecution
Are there constitutional limits on severe mandatory federal punishments for those complying with state marijuana laws?The question in the title of this post is prompted by this interesting lengthy article in today's New York Times. The piece is headlined "In California, It’s U.S. vs. State Over Marijuana," and here are excerpts from the start and end of the article:
As the question in the title of this post hints, I strongly believe there are some unique (and uniquely important) constitutional arguments based in the Eighth Amendment (and perhaps also the Fifth Amendment) to preclude extreme application of extreme mandatory minimum federal sentencing terms to persons in full compliance with state medical marijuana laws.
Matthew R. Davies graduated from college with a master’s degree in business and a taste for enterprise, working in real estate, restaurants and mobile home parks before seizing on what he saw as uncharted territory with a vast potential for profits — medical marijuana.
He brought graduate-level business skills to a world decidedly operating in the shadows. He hired accountants, compliance lawyers, managers, a staff of 75 and a payroll firm. He paid California sales tax and filed for state and local business permits.
But in a case that highlights the growing clash between the federal government and those states that have legalized marijuana for medical or recreational use, the United States Justice Department indicted Mr. Davies six months ago on charges of cultivating marijuana, after raiding two dispensaries and a warehouse filled with nearly 2,000 marijuana plants.
The United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee, wants Mr. Davies to agree to a plea that includes a mandatory minimum of five years in prison, calling the case a straightforward prosecution of “one of the most significant commercial marijuana traffickers to be prosecuted in this district.”
At the center of this federal-state collision is a round-faced 34-year-old father of two young girls. Displaying a sheaf of legal documents, Mr. Davies, who has no criminal record, insisted in an interview that he had meticulously followed California law in setting up a business in 2009 that generated $8 million in annual revenues. By all appearances, Mr. Davies’ dispensaries operated as openly as the local Krispy Kreme, albeit on decidedly more tremulous legal ground.
“To be looking at 15 years of our life, you couldn’t pay me enough to give that up,” Mr. Davies said at the dining room table in his two-story home along the San Joaquin River Delta, referring to the amount of time he could potentially serve in prison. “If I had believed for a minute this would happen, I would never have gotten into this.
“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”
His lawyers appealed this month to Attorney General Eric H. Holder Jr. to halt what they suggested was a prosecution at odds with Justice Department policies to avoid prosecutions of medical marijuana users and with President Obama’s statement that the government has “bigger fish to fry” than recreational marijuana users. “Does this mean that the federal government will be prosecuting individuals throughout California, Washington, Colorado and elsewhere who comply with state law permitting marijuana use, or is the Davies case merely a rogue prosecutor out of step with administration and department policy?” asked Elliot R. Peters, one of his lawyers.
“This is not a case of an illicit drug ring under the guise of medical marijuana,” Mr. Peters wrote. “Here, marijuana was provided to qualified adult patients with a medical recommendation from a licensed physician. Records were kept, proceeds were tracked, payroll and sales taxes were duly paid.” Mr. Holder’s aides declined to comment, referring a reporter to a letter from Mr. Wagner to Mr. Davies’s lawyers in which he disputed the depiction of the defendant as anything other than a major-league drug trafficker.
“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” the letter said. Mr. Wagner said that prosecuting such people “remains a core priority of the department.”
The case illustrates the struggle states and the federal government are now facing as they seek to deal with the changing contours of marijuana laws and public attitudes toward the drug. Colorado and Washington legalized marijuana for recreational use last year, and are among the 18 states, and the District of Columbia, that currently allow its medical use.
Two of Mr. Davies’s co-defendants are pleading guilty, agreeing to five-year minimum terms, to avoid stiffer sentences. Mr. Davies, while saying he did not “want to be a martyr,” decided to challenge the indictment with a combination of legal and public-relations measures, setting up a Web site devoted to his case and hiring Chris Lehane, a hard-hitting political consultant and former senior aide in Bill Clinton’s White House....
This is as much a legal clash as a cultural clash. Recreational marijuana use is common across this state, and without the legal stigma attached to it in much of the country. The federal government is viewed as a distant force.
“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”
In a variety of punishment contexts, the Supreme Court has frequently used the Eighth Amendment to prevent one uniquely harsh jurisdiction from imposing a uniquely harsh punishment to certain offenders. In the marijuana setting, it is federal sentencing law being used to impose or threaten a mandatory sentence on defendants who, in probably every state in the United States, would have been legal or subject to a minor non-incarcerative criminal punishment or, at most, a short period of imprisonment. As long as the Eighth Amendment is understood to preclude some extreme outlier punishments, I think there must be some limit on how extreme a sentence the feds can threaten against a medical marijuana provider who is genuinely seeking to comply with applicable state laws.
Some other very recent coverage of this notable case from other media include:
- From The Atlantic here, "The High Cost of Shutting Down One Medical Marijuana Operation"
- From The Huffinton Post here, "Matthew Davies' Wife Asks Obama To End Family's 'Nightmare,' Drop Medical Marijuana Case"
- From Reason.com here, "Who Will Be the Last Baby Girl to Go Fatherless in the Feds' War on State-Legal Marijuana?"
January 13, 2013
"How sentencing reform is saving SC taxpayers money"The title of this post is the headline of this lengthy local article which is, I think, a telling sign of the modern sentencing times. The sub-headline of the article is "Fewer offenders are in jail, more on probation," and the main headline emphasizes savings for taxpayers rather than threats to public safety. It is truly a brave new sentencing reform world, and this article gets started this way:
In 2010 – with the state Department of Corrections running a $27 million deficit – South Carolina projected its prison population would swell by 3,200 inmates by 2014, costing taxpayers $175 million to make room for those inmates and $66 million a year to take care of them.
Instead, the number of inmates imprisoned has dropped by more than 2,700, and the Corrections Department has closed two prisons. And taxpayers saved $3 million in 2012 alone.
The reason, officials say, is sentencing reform -- a sweeping 2010 bill that radically changed how South Carolina treats its criminals. Written by a Democratic state senator and signed by a Republican governor, the law strengthened penalties for violent crimes while offering alternative sentences for nonviolent crimes. Passage of the law put South Carolina “at the forefront of states advancing research-driven criminal justice polices,” according to the Pew Center on the States.
“You see a lot of legislation that’s passed that seems to be tough on crime,” said state Sen. Gerald Malloy, D-Darlington, author of the sentencing reform. “We had to get smart on crime.”
But one state department’s budget blessing is another agency’s fiscal burden. While the prison population is falling, the number of South Carolinians on probation is soaring. Agents at the state Department of Probation, Parole and Pardon services now are supervising 1,409 more offenders than they were two years ago. Each probation agent supervises an average of 97 cases, far above the national average of 50 cases.
To help, Gov. Nikki Haley wants to give the agency $1.2 million in additional money next year to hire 25 new probation agents. It is part of the probation department’s three-year plan to hire 156 new agents to bring the average caseload down to 80 cases per agent.
State lawmakers have $263 million in “new” money – money that should recur in future budget years – to spend in the 2013-14 budget. But nearly all of that will be gobbled up by the state’s Medicaid health insurance program for the poor and disabled, and increases in the cost of state employees’ health insurance.
More money for probation services must be a priority, some state officials say. They say the state is just beginning to see the benefits of sentencing reform. Probation, Parole and Pardon Services plays a crucial role in making the reforms work, they add, and not funding it could set the reforms back.