As reported in this new USA Today article, the "sentencing hearing for convicted killer Jodi Arias ground to a halt Monday when her lawyers refused to call any witnesses and a judge refused their requests for a mistrial and to withdraw from the case." Here is more:

Judge Sherry Stephens stopped proceedings and released the jury for the day, telling them to return Tuesday morning. Defense attorney Kirk Nurmi later said he will allow Arias to speak to the jury Tuesday.

Nurmi clashed with Stephens over a motion he filed seeking a mistrial in the sentencing hearing. Nurmi said a witness who was supposed to testify regarding Arias' character had been threatened and was refusing to testify. Patricia Womack has been receiving "threats on her life if she were to testify on Ms. Arias' behalf," Nurmi wrote in the mistrial motion.

But Stephens refused his motion, saying she could not determine why Womack would not testify because she was not present in the courtroom. Nurmi and co-counsel Jennifer Willmott then asked to drop out of the case. Stephens again refused.

Nurmi then refused to present any witnesses, and Stephens called for the recess. Nurmi later said Arias will speak Tuesday. Also previously scheduled to testify on Arias' behalf was a former boyfriend of Arias'.

Arias, 32, was found guilty May 8 of first-degree murder for the 2008 slaying of Travis Alexander, 30, who was found dead in his suburban Mesa, Ariz., home. He had been shot in the head and stabbed nearly 30 times, and his throat was slit. Arias said she killed Alexander, her secret lover, in self-defense; the jury thought otherwise.

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Travis Alexander's brother and sister as they described how his killing has torn their lives apart.

Now the jury is to consider mitigating factors — evidence about Arias' character and background that may sway them not to impose a death sentence. Stephens instructed jurors that they could consider a handful of factors when deciding what sentence to impose, including Arias' lack of a prior criminal record and assertions that she was a good friend, had an abusive childhood and is a talented artist....

Under Arizona law, if the jury cannot reach a unanimous decision on sentencing, the panel would be dismissed and a new jury would hear arguments and determine a sentence. If the second panel cannot reach a unanimous agreement, the judge then would sentence Arias....

Earlier this week, her lawyers asked to be allowed to step down from the case, but a judge denied the request. Legal experts say the decision was not a surprising one because the lawyers have a conflict of interest with their efforts to save her life after Arias said she would rather die.

Recent related posts:

• 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

The title of this post is the headline of this notable new op-ed in today's New York Times authored by Bill Keller.  Here are some excerpts from an interesting read:

The marijuana debate has entered a new stage.  Today the most interesting and important question is no longer whether marijuana will be legalized — eventually, bit by bit, it will be — but how....

A few places, like the Netherlands, have had limited legalization; many jurisdictions have decriminalized personal use; and 18 states in this country have approved the drug for medical use.  (Twelve others, including New York, are considering it.)   But Washington and Colorado have set out to invent a whole industry from scratch and, in theory, to avoid the shortcomings of other markets in legal vices — tobacco, alcohol, gambling — that lurched into being without much forethought, and have supplied, along with much pleasure, much misery.

The biggest shadow hanging over this project is the Department of Justice.  Federal law still makes felons of anyone who trades in cannabis. Despite the tolerant drift of the polls, despite evidence indicating that states with medical marijuana programs have not, as opponents feared, experienced an increase in use by teenagers, despite new moves toward legalization in Latin America, no one expects Congress to remove cannabis from the list of criminal substances any time soon....  But federal authorities have always left a lot of room for local discretion on marijuana enforcement.  They could, for example, declare that they will prosecute only drug producers who grow more than a certain amount, and those who traffic across state lines.  Attorney General Eric Holder, perhaps preoccupied with scandal management, has been slow to come up with enforcement guidelines that could give the states a comfort zone in which to experiment.

One practical challenge facing the legalization pioneers is how to keep the marijuana market from being swallowed by a few big profiteers — the pot equivalent of Big Tobacco, or even the actual tobacco industry — a powerful oligopoly with every incentive to turn us into a nation of stoners.  There is nothing inherently evil about the profit motive, but there is evidence that pot dealers, like purveyors of alcohol, get the bulk of their profit from those who use the product to excess. “When you get a for-profit producer or distributor industry going, their incentives are to increase sales,” said Jonathan Caulkins of Carnegie Mellon, another member of the Washington consulting team.  “And the vast majority of sales go to people who are daily or near-daily consumers.”

What [UCLA Professor Mark] Kleiman and his colleagues (speaking for themselves, not Washington State) imagine as the likely best model is something resembling the wine industry — a fragmented market, many producers, none dominant.  This could be done by limiting the size of licensed purveyors.  It would help, too, to let individuals grow a few plants at home — something Colorado’s new law permits but Washington’s does not, because polling showed Washingtonians didn’t want that.

If you read the proposal Kleiman’s team submitted to Washington State, you may be a little boggled by the complexities of turning an illicit herb into a regulated, safe, consumer-friendly business.  Among the things on the to-do list: certifying labs to test for potency and contamination.  (Pot can contain, among other nasty things, pesticides, molds and salmonella.)  Devising rules on labeling, so users know what they’re getting. Hiring inspectors, to make sure the sellers comply.  Establishing limits on advertising, because you don’t want allowing to become promoting....

And then there is the issue of drugged driving.  Much about the chemistry of marijuana in human beings remains uncertain, in part because the government has not supported much research. So no one has come up with a pot version of the breathalyzer to determine quickly whether a driver is impaired.  In the absence of solid research, some legalization advocates insist stoned drivers are more cautious, and thus safer.  (Hands up if you want Harold and Kumar driving your taxi.  Or piloting your airplane.)  On this and much else, Washington and Colorado will probably be making it up as they go, waiting for science to catch up.

Only a matter of weeks after it was argued, the Supreme Court this morning unanimously decided that the Sixth Circuit got a habeas issue wrong in Metrish v. Lancaster, No. 12-547 (S. Ct. May 20, 2013) (available here). Here is the start of the SCOTUS opinion, per Justice Ginsburg:

Burt Lancaster was convicted in Michigan state court of first-degree murder and a related firearm offense.  At the time the crime was committed, Michigan’s intermediate appellate court had repeatedly recognized “diminished capacity” as a defense negating the mens rea element of first-degree murder.  By the time of Lancaster’s trial and conviction, however, the Michigan Supreme Court in People v. Carpenter, 464 Mich. 223, 627 N.W. 2d 276 (2001), had rejected the defense.  Lancaster asserts that retroactive application of the Michigan Supreme Court’s decision in Carpenter denied him due process of law.  On habeas review, a federal court must assess a claim for relief under the demanding standard set by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).   Under that standard, Lancaster may gain relief only if the state-court decision he assails “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court.” 28 U.S.C. § 2254(d)(1).  We hold that Lancaster’s petition does not meet AEDPA’s requirement and that the United States Court of Appeals for the Sixth Circuit erred in granting him federal habeas relief.

Absent something remarkable in the full opinion, I suspect it may prove to be more interesting (or at least more fun) to try to make jokes about the defendant's name in this case rather than to debate the ruling's enduring significance.

Lancaster is the only criminal justice ruling from the Supreme Court today, and I surmise from SCOTUSblog that the next decision day for the Court will be next Tuesday.  I am hopeful (but not optimistic) that the long holiday weekend will give the Justices a chance to finish off at least some of the notable criminal justices cases that we argued way back in January (Alleyne and Deschamps) and February (King and Peugh).  I am also I am hopeful (and a bit more optimistic) that the long holiday weekend will give me a chance to speculate about who may be authoring these opinions and why the are taking so long.

As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date.  This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the (Sixth Circuit) land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean.  Here is part of what it says:

Blewett can only help federal (not state) prisoners who (1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND (2) received a mandatory minimum sentence for a crack cocaine offense, AND (3) were sentenced before August 3, 2010.  The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine....

We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion.  If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it.  This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be.  This opinion could be reversed, in which case it would not help anyone....

If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you.  FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.

A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences.  That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit. 

Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could (and I think should) file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law.

Related posts on Blewett:

• On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences
• "Crackheaded Ruling by Sixth Circuit"

As reported in this Chicago Tribune article, only a Governor's veto now stands in the way of Illinois becoming the most populous state other than California to have legalized medical marijuana.  Here are the details:

The Senate today approved legislation that would allow doctors to prescribe medical marijuana to patients with serious illnesses, sending the measure to Gov. Pat Quinn. The issue pitted supporters arguing for compassion for those suffering from pain they say only cannabis can ease against opponents who contend the legislation would undermine public safety.

Sponsoring Sen. Bill Haine, D-Alton, argued the measure is one of the toughest in the nation. Haine said his bill does not reflect other states that have “sloppily” instituted medical marijuana laws. “This bill is filled with walls to keep this limited,” said Haine, a former Madison County state’s attorney.

Sen. Kyle McCarter, R-Lebanon, raised concerns about lawmakers endorsing a product that classified as a controlled substance by the federal government, arguing marijuana is a gateway drug that could lead users to harder substances....

The proposal would create a four-year trial program in which doctors could prescribe patients no more than 2.5 ounces of marijuana every two weeks. To qualify, patients must have one of 42 serious or chronic conditions -- including cancer, multiple sclerosis or HIV -- and an established relationship with a doctor.

Patients would undergo fingerprinting and a criminal background check and would be banned from using marijuana in public and around minors. Patients also could not legally grow marijuana, and they would have to buy it from one of 60 dispensing centers across Illinois. The state would license 22 growers.

The measure drew strong opposition from the Illinois Association of Chiefs of Police and the Illinois Sheriffs' Association, which sent a letter to the governor and lawmakers warning the proposal would not stop medical marijuana card holders from driving while under the influence. They suggested blood and urine testing be included in the legislation to allow police to determine whether card holders had marijuana in their system while driving....

The Senate vote was 35-21, with 30 needed to pass the bill. It goes to Quinn, who has not indicated whether he will sign it. The Democratic governor recently said he is open minded to the legislation.

Though I have not tried to precisely run the numbers, I think the legalization of medical marijuana in Illinois would means that around half of Americans would be living in states with marijuana legalized for use under certain circumstances.  And, as I have suggested before, I think this fact is of potential constitutional significance.

I have not been following closely the Nevada state habeas proceedings in which convicted armed robber and kidnapper (and acquitted murderer) OJ Simpson is contesting his convictions and sentences.  But this recent Christian Science Monitor article spotlights how "The Juice" is now, yet again, in court bringing attention to notable lawyering and criminal legal practice issues:

O.J. Simpson’s current appeal for a new trial has the potential to shed light on an issue that affects countless lesser-known defendants in the US court system: bad lawyering. Along the way, he might get a helping hand from the US Supreme Court.

Mr. Simpson is seeking a ruling overturning his conviction of armed robbery and kidnapping of sports memorabilia dealers in 2007. He says his counsel was inadequate and that his lawyer misled co-counsel. "I had never sold any of my personal memorabilia, ever," he testified Wednesday, dressed in prison blues.

Squabbles between lawyers and their clients and co-counsels are not uncommon, says Robert Pugsley, a professor at Southwestern Law School in Los Angeles. “Most clients in this situation are so poor or low on the economic scale that their bad lawyering doesn’t get much attention, and so the issue remains largely unnoticed,” he adds. “Whether Simpson prevails or not, this proceeding has a great chance to put the spotlight on this widespread problem.”...

Simpson’s claim of ineffective assistance of counsel “will predictably devolve into a ‘he said, he said,’ conflicting, fact-based narrative by Simpson and his former attorney,” says Professor Pugsley. Simpson's counsel in the robbery case that went to trial in 2008, Yale Galanter, has refused to comment publicly but is scheduled to testify Friday.

Potentially working in Simpson’s favor is a US Supreme Court ruling last session (Missouri v. Frye) that held that the guarantee of “effective assistance of counsel” extends to the consideration and negotiation of pleas – Simpson’s key complaint.

Co-counsel in the 2008 trial, Gabriel Grasso, said on the stand this week that while Mr. Galanter told him he'd talk with Simpson about a proposed plea deal, Galanter never told Mr. Grasso why he rejected it. Grasso said he didn't know if Simpson was even told.

“O.J. might have the good luck to rely on the Supreme Court’s decision last term in Missouri v. Frye. Timing is everything,” says Laurie Levenson, a professor at Loyola Law School in Los Angeles....

Simpson maintains that advice from Galanter not to testify in 2008 is, in fact, part of the reason for this week’s appeal....

The appeal is taking place in Las Vegas, and this is Simpson's last chance under Nevada law to prove that he was wrongly convicted. A federal court appeal is still possible.

However, the standard of proof is so high that Simpson is unlikely to meet it, even if the judge believes everything he says, says Norman Garland, a professor at Southwestern Law School. “Simpson has to prove not only that the advice given to him was deficient, but that he was prejudiced by that deficiency,” says Professor Garland. “The requirements for demonstrating ineffective assistance of counsel are demanding, and the defendant must overcome a strong presumption that counsel’s performance was within the range of competent representation in order to prevail.”

A few recent related posts on Lafler and Frye:

• "Two Rights to Counsel"
• A prosecutor's potent perspective on Lafler, Frye and the future of plea bargaining
• A potent response to a prosecutor's perspective on Lafler, Frye and the future of plea bargaining

As reported in this lengthy new local article, "Gov. Rick Scott has accelerated the pace of signing death warrants in Florida by lining up three executions over the next few weeks, the most in such a brief period of time in more than two decades."   Here is more about his actions and recent similar activity within his state's legislature:

Scott and his chief legal adviser say they are doing nothing unusual.  But legal experts who oppose the death penalty wonder whether other factors are at work — such as Scott’s desire to improve his standing with voters as he seeks re-election next year.

Not since 1989, when an unpopular Gov. Bob Martinez set a record by signing six death warrants in a single day, has a Florida governor been so eager to use the death penalty. “In the past, governors wouldn’t do multiple warrants at a time. It was a much more orderly process than this,” said Martin McClain, an attorney who has defended many Florida Death Row inmates. “If appears that every 10 days, Gov. Scott is signing a death warrant.”

Scott recently signed three death warrants in succession, for condemned murderers Elmer Leon Carroll, William Van Poyck and Marshall Lee Gore.  All three have been on Death Row for longer than 20 years.  Their executions, set over the next six weeks, will keep the death chamber at Florida State Prison in Starke unusually busy.  Two other recent death warrants have been blocked in federal court.

Scott had signed a total of six death warrants before the recent burst. “I go through them when people have exhausted their appeals and they’re finished with the clemency process,” Scott said. “Then I continue to move the process along.”...

Scott’s spurt of death warrant signings also parallels the Legislature’s recent passage of a bill aimed at speeding up the death penalty appeals process.  Dubbed the Timely Justice Act by legislators, the bill (HB 7083) passed both chambers by wide margins.  It has not yet been sent to Scott for action.  “We’ll review it and see what it does,” Scott said of the bill.  One provision of the bill would require the governor to sign a death warrant within 30 days of a Death Row inmate’s clemency review, a standard step in all death penalty cases.

Some legal experts have raised concerns that the bill could increase the possibility that an innocent person could be put to death.  Former state Supreme Court Justice Raoul Cantero recently co-authored an opinion column in which he said the Timely Justice Act should be viewed in a broader framework of Florida’s death penalty system, “to minimize the risk that Florida might execute innocent people or others who shouldn’t be subject to the death penalty.”....

Florida is one of 33 states that has the death penalty, and it has 405 inmates on Death Row, more than any other state except California.  The state has executed 75 people since 1976, when capital punishment was re-instituted after a long absence.

This new piece from Salon highlights the severity of the US sentencing system relative to our friends across the pond.  The piece is headlined " U.K. hacker sentencing highlights U.S. overreach: LulzSec members in Britain receive maximum of 15 months, while hacktivist Jeremy Hammond faces life in prison here." Here is how it starts:

Hacktivist Jeremy Hammond has already spent 14 months in pretrial detention at federal prison in New York.  He awaits trial for his alleged involvement in the famed LulzSec Stratfor hack and faces up to 42 years in prison.  Meanwhile, across the Atlantic, sentencing of admitted LulzSec hackers in Britain highlights the severity of the U.S. approach to hacktivism.  Three young men in the U.K. pled guilty to activity attributed to the Anonymous offshoot; their charges mirror those facing Hammond, while the extent of punishment is wildly disparate.

As activist publicity organization Sparrow Media pointed out Thursday, “three English co-defendants who plead guilty to being members of the Lulzsec hacktivist group were today sentenced by a UK court.  Ryan Acroyd, the most technically experienced of the three, received the longest sentence -- he will spend 15 months in prison.”

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here).  Here are excerpts from Whelan's take:

[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....

Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett.  Here are the titles and links to the press releases coming from these groups:

• from the ACLU here, "Appeals Court Says Fair Sentencing Act Applies Retroactively"
• from the FAMM here, "Don't Appeal Crack Fairness Ruling, FAMM Tells DOJ"

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.

Related post:

• On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

The Room for Debate on-line section of the New York Times has this new set of pieces discussing drunk driving and the law's responses thereto.  Here is the section's set up:

This week the National Transportation Safety Board recommended lowering the blood alcohol limit from 0.08 percent — the measurement now for 13 years — to 0.05 percent.

Is decreasing this number the best way to minimize traffic fatalities?

Here are the contribututions, with links via the commentary titles:

• "Follow Up on a Life-Saving Trend" by Deborah A. P. Hersman, National Transportation Safety Board

• "Tipsy Driving Is Dangerous, Too" by Barron H. Lerner, author, “One for the Road"

• "Let’s Not Stigmatize Innocent Drivers" by Gary Biller, National Motorists Association

• "Lower Levels Mean Fewer Fatalities" by Kathryn Stewart, Safety and Policy Analysis International

• "Other Measures Are Just as Important" by Jan Withers, Mothers Against Drunk Driving

The playfully alliterative headline for this post is spurred by this lengthy and effective local piece headlined "The Kansas death penalty has cobwebs." Here are excerpts:

It may be weeks before Kansans know if prosecutors will seek the death penalty for Kyle Flack, accused of killing four people in Franklin County this spring.   It will take far longer — 10 years or more — before anyone in the state is actually put to death for a crime.

And that time gap, advocates on both sides of the death penalty debate say, suggests the state remains deeply uneasy about the punishment — an ambivalence that muddies its value.  “When a law isn’t applied, it isn’t really a law,” said David Muhlhausen, a death penalty supporter and expert with the conservative Heritage Foundation.

Capital punishment opponents aren’t eager to speed up executions, of course.  But they say the state’s lengthy death penalty procedure is costing taxpayers millions of dollars in legal fees and other expenses without significantly improving public safety.  “Constituents have said to me, ‘We have a theoretical death penalty, but we don’t carry it out in practice,’” said Mary Sloan, executive director of the Kansas Coalition Against the Death Penalty.  “So if we’re not going to carry it out in practice, why do we pay all that cost?”

No one has been put to death in Kansas since 1965.  “Kansas is 10 years and $20 million away from its first execution,” predicted lawyer and capital punishment opponent Sean O’Brien of Kansas City.

But death penalty supporters say the state’s ultimate sanction shouldn’t be judged solely by the number of times it’s actually used.  The mere threat of death — or decades locked in isolation, waiting for death — plays an important role, they say, in the state’s justice system.

Kansas lawmakers reinstated the state’s death penalty in 1994.  Since then, 13 men have been condemned to death for murder.  All remain alive.  Only nine sit on the state’s death row, according to the Kansas Department of Corrections’ website.  The others’ sentences were reduced after appeals and plea agreements, or have been vacated pending a new trial.

Since 1976, when the U.S. Supreme Court validated rewritten capital punishment laws, only two states with death penalty statutes — Kansas and New Hampshire — have not executed a single inmate.

The long gap between capital crime and capital punishment in Kansas is the result of several interlocking factors, experts say.  The state’s death penalty law is narrow, providing a way for even the most brutal killers to escape the punishment.  Some prosecutors use the death penalty more as a negotiating tool than a criminal sanction, and some politicians remain ambivalent about executions, as do many residents in the state.

And the courts play a critical role.  All death sentences in Kansas are automatically reviewed by the state’s Supreme Court.  It’s uniquely allowed to “scour the record” for trial and sentencing errors in capital cases, even those not raised by defense lawyers.  That further raises the chances for delays....

This fall, the U.S. Supreme Court will consider Kansas death row inmate Scott Cheever’s case — he claims his Fifth Amendment protection against self-incrimination was violated during his trial and sentencing for killing a sheriff....

In 2003, a legislative audit examined the state’s death penalty expenses in the previous decade.  Kansas, the audit found, had spent or would spend almost $20 million on its 14 death penalty cases, including cases where the death penalty was sought but not granted. By contrast, taxpayers spent $6.3 million on eight cases where the prosecutors did not ask for death in a murder case.

The most expensive death penalty case involved Johnson County’s John E. Robinson Sr., convicted on two capital murder counts.  Ten years ago, the state said Robinson’s case would cost taxpayers $2.4 million, a bill that has continued to grow.  “Nobody in his right mind defends the death penalty because it saves money, anywhere, anytime, under any circumstances,” O’Brien said.  “Because it doesn’t.”...

Gov. Sam Brownback said last week that his view on capital punishment has changed in recent years, putting him to the left of most in his Republican Party.  He now believes it should be reserved for inmates who pose a future threat to society, using Osama bin Laden as an example. “You’re always looking to protect life,” he said.  “That’s a very narrow definition of the use of the death penalty.”

Brownback’s views on capital punishment in Kansas, though, may be less important than they appear.  Even if he is re-elected in 2014, it’s unlikely he would still be in office when any death row clemency requests might be filed.  But they do suggest many Kansans, even some conservatives, remain uncomfortable with the ultimate sanction....

Some prosecutors and supporters, though, say keeping the death penalty on the Kansas books remains important.  Studies show the death penalty is still a deterrent, Heritage’s Muhlhausen said, although the effect drops in states that don’t actually carry it out.

Other experts dispute his conclusion. The Kansas murder rate is 3.5 per 100,000 people, according to the Death Penalty Information Center.  In Missouri, it’s 7 murders per 100,000.  Both have the death penalty, but only Missouri has carried it out in recent years. Iowa has no death penalty.  Its murder rate is 1.3 per 100,000 people.

But even the threat of capital punishment can focus a defendant’s attention on plea agreements that spare victims’ families from long trials, some lawyers say.  In most agreements, almost all future appeals are waived, ending the trauma of court appearances and media stories about the crime.  Additionally, death penalty defendants have more to worry about than death.

Paul Cramm represented Edwin Hall, now serving a sentence of life without parole after pleading guilty to murdering Kelsey Smith. Clients, Cramm said, are often as worried about the conditions of death row as they are about the execution chamber itself, which encourages plea deals. Death row inmates are kept in El Dorado, Kan., in isolation from almost all other prisoners. Most defendants realize “the likelihood of an acquittal or a finding of not guilty is not real high,” Cramm said. “The likelihood of being executed in your lifetime is not real high. So I guess what we’re negotiating for is, what sort of life do you want to have while you’re incarcerated?”...

Asked if the gap between sentence and execution in Kansas is too long, Brownback hesitated for several seconds. “I’ve been at the chambers in Lansing, where the death penalty would have to be administered,” he said. “That’s a very sobering place to see.

“But I think it’s kind of actually worked for the state,” he added. “Most Kansans would look at it as wanting this to be very, very, very sparingly used.”

The title of this post is the title of this notable new article by Josh Bowers now available via SSRN. Here is the abstract:

This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel.  The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. 

To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye.  An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law.  Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.”  In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle.

It does not follow, however, that the Court’s two-track jurisprudential approach is misguided.  Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.

With thanks to all the folks who alerted me while I was dealing with other matters, I am finally back on-line and able to report on a remarkable new split panel ruling by the Sixth Circuit today in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here). The start of the majority opinion (per Judge Merritt) will highlight for all federal sentencing fans why this ruling is a very big deal:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005.  The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years.  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes.  The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.  The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio.  However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).  As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.”  The Collapse of American Criminal Justice 184 (2011).  He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010.  The Act should apply to all defendants, including those sentenced prior to its passage.  We therefore reverse the judgment of the district court and remand for resentencing.

The start of the dissent (per Judge Gilman) will highlight for all federal sentencing fans why this ruling seems sure to get en banc and/or Supreme Court review:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat.  To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

As the title of my post hints, though I really like the effort, I am not sure a Fifth Amendment equal protection theory provides a strong constitutional foundation for giving the new crack sentences retroactive effect.  But I have long thought, in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA.

If (dare I say, when) this notable Blewett ruling gets subject to further review, I hope to have a chance to fully explicate (perhaps via an amicus brief) my Eighth Amendment approach to reaching the conclusions reached by the majority here on distinct constitutional grounds. In the meantime, we have an interesting Friday ruling to debate through the weekend.

The title of this post is the headline of this lengthy new Forbes article which gets started this way:

Like many of her peers, Zoe Helene, 48, smoked marijuana in her early 20s but gave it up as her career in the digital world took off in the 1990s.  Today the multidisciplinary artist and environmental activist lives in Amherst, Mass., and is building a global network of trailblazers called Cosmic Sister.  Since she married an ethnobotanist in 2007, she has returned to using cannabis occasionally — “as a tool for evolving and expanding my psyche.”

Helene is among a group of women that Marie Claire magazine has dubbed “Stiletto Stoners — card-carrying, type-A workaholics who just happen to prefer kicking back with a blunt instead of a bottle.”  She’s also one of a growing legion of boomers who are returning to marijuana now that the stigma and judgment (and laws) surrounding its use are becoming more lax.

Massachusetts, which decriminalized pot in 2008, became the 18th state to legalize medical marijuana, last year.  In the 2012 presidential election, which New York Times columnist Timothy Egan called America’s “cannabis spring,” Colorado and Washington voters legalized recreational use, launching weed into the national spotlight and spawning a flurry of marijuana initiatives.  Since then, decriminalization bills have been introduced in 10 additional states, and legalization is being considered in 11 states and Puerto Rico.

This trend, along with decriminalization in cities like Chicago, Boston, New York and Denver, has removed a major “barrier to entry” for law-abiding citizens who would use cannabis as medicine or a substitute for alcohol.  No longer worried about breaking the law or having their kids discovering their “dirty little secret,” many boomers are returning to a substance they once enjoyed.  Others, who never stopped smoking, are coming out of the closet (or the garage) about their use.

Thanks to How Appealing,I just saw this interesting new AP profile of the interesting new judge on the Eighth Circuit.  The article is headlined "Jane Kelly's experience rare on US appeals court," and here are excerpts:

Jane Kelly will become a federal appeals court judge Friday with an unusual background that supporters say makes her a perfect fit for the job and a potential U.S. Supreme Court candidate someday.

The 48-year-old attorney has spent her career as a public defender representing low-income criminal defendants, a rarity in the ranks of appeals court judges who are often former prosecutors and trial judges. She'll become just the second woman in the 122-year history of the 8th U.S. Circuit Court of Appeals, which handles cases in seven states from Arkansas to the Dakotas.

Kelly, who's worked at the federal public defender's office in Cedar Rapids since 1994, graduated from Harvard Law School in the same 1991 class as President Barack Obama. But her appointment was far from patronage. She had so much support that her confirmation received a 96-0 vote in the Senate less than three months after she was appointed, speedier than any other circuit judge nominated by Obama. She also is the survivor of a 2004 beating on a popular jogging trail that left her hospitalized for weeks and shook Cedar Rapids.

Associates say she is a smart legal thinker who has zealously defended the rights of even the most publicly despised clients, including a notorious mailbox bombing suspect and the biggest white-collar criminal in Iowa history. Even prosecutors who disagreed with her in court praise Kelly, who will take the oath of office privately.

"Her story is compelling all the way around," said Debra Fitzpatrick of the University of Minnesota-based Infinity Project, which advocates for more women on the 8th Circuit. "Her credentials and her background and her career sort of set her up to be the right candidate at the right time."

If a Supreme Court justice retires during Obama's second term, Kelly could get mentioned as a potential nominee. Her supporters say they expect her to shine on the circuit, which has 11 active judges and hears 3,500 appeals a year. The lifetime appointment pays $184,500 annually.

Iowa Sen. Tom Harkin, a Democrat, recommended Kelly to Obama to replace retiring Judge Michael Melloy after she rose above an "outstanding" pool. He said she would be the first career public defender on the circuit, bringing "a critically important perspective." Iowa's other senator, Republican Chuck Grassley, ranking member on the judiciary committee, helped convince colleagues to move Kelly's confirmation quickly. Grassley said he supported Kelly because she received a glowing endorsement from respected retired judge David Hansen of Iowa, appointed to the circuit by President George H.W. Bush.

Kelly, Hansen's clerk from 1992 to 1993, was a persuasive writer and debater who often argued opposing viewpoints to help him flesh out cases, Hansen said. "She's a delight to be around, and I predict a very bright future for her in the federal judiciary," Hansen said. "She isn't going to have any trouble intellectually with the work because she has a brilliant legal mind."

Kelly, who did not respond to an interview request, received friendly questions and praise at her confirmation hearing. She said her background gives her a "broader view" of the challenges facing defendants but that she'd need to get up to speed on civil matters. She introduced her partner, Tom Lidd, who has credited Kelly with helping inspire and edit his book about Iowa football legend Nile Kinnick.

A long-distance runner, Kelly's life almost ended when she went for a morning jog on the Cedar River Trail in June 2004. She was tackled and beaten by a male stranger, then dragged to a creek and left for dead. Passersby found Kelly in a pool of blood, in and out of consciousness and struggling to call for help. Speculation swirled that the attack was linked to Kelly's legal work, but no one ever was arrested.

Kelly quickly returned to representing criminal defendants after spending months in recovery. Her colleagues gave her the John Adams Award, which recognizes an Iowa lawyer's commitment to the constitutional right to criminal defense. And hundreds gathered one year later for a "Take Back the Trail" event, where Kelly jogged there again for the first time.

Kelly grew up in Newcastle, Ind., and graduated from Duke University in 1987. She earned a Fulbright scholarship to study in New Zealand before enrolling at Harvard, where she and Obama were acquaintances but not friends. She clerked for U.S. District Judge Donald Porter in South Dakota and then for Hansen.

She taught one year at University of Illinois law school before returning to Iowa as one of the first hires for the new public defender's office. She's been a fixture ever since, often representing "not the most popular person in the room," as she put it in her confirmation hearing, including drug dealers, pornographers and con artists.

As long-time readers and sentencing gurus likely know, many of the most notable modern SCOTUS sentencing rulings involved reversals of Eighth Circuit decisions.  In just last few years alone, the defendants in Pepper, Spears, Greenlaw, and Gall all lost on sentencing issues in the Eighth Circuit prior to reverals in the Supreme Court.  Indeed, I have long speculated that some Justices take an extra long look at some of the sentencing decisions that emerge from that circuit.  I suppose only time will tell if and how these federal sentencing law patterns, and the broader criminal justice jurisprudence of the Eighth Circuit, change at all in the months and years ahead now that a fresh new face with a fresh new perspective has joined that august court.