Category Archives: Justice News

Four Justices Question The Constitutionality of Arizona’s Death Penalty Scheme

Today the United States Supreme Court denied certiorari review in Hidalgo v. Arizona, No. 17-251. Hidalgo asked the court to consider two important Eighth Amendment questions: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

The case was distributed for conference ten times before certiorari was denied. Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, issued a strong statement respecting the denial of certiorari as to the firstquestion presented—whether Arizona’s statutory sentencing scheme satisfies the Eighth Amendment’s “narrowing requirement” for determining who is “eligible” for the death penalty. The justices did not comment about the second and broader question about whether the death penalty in all cases violates the Eighth Amendment.

It is well-settled, “[t]o pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)). As Justice Breyer explains in Hidalgo, “[t]o satisfy the ‘narrowing requirement,” a state legislature must adopt ‘statutory factors which determine death eligibility’ and thereby “limit the class of murders to which the death penalty may be applied.” (quotation marks omitted). Hidalgo’s certiorari petition argued that Arizona’s scheme “utterly fails to do that” because “[t]he number of statutory aggravators has proliferated such that ‘virtually every person—around 99%—convicted of first-degree murder is eligible for the death penalty.” The Arizona trial court denied Hidalgo’s request for an evidentiary hearing to “establish through witnesses, expert testimony, and documentary evidence that [Arizona’s] statutory aggravating circumstances … apply to virtually every first-degree murder case in the State.”

The Arizona Supreme Court affirmed the trial court but did not dispute Hidalgo’s evidence. “Despite assuming that the aggravating circumstances fail to materially narrow the class of death-eligible first-degree murder defendants, the Arizona Supreme Court nevertheless concluded that the State’s death penalty system meets the Constitution’s narrowing requirement. It said that the petitioner was ‘mistaken … insofar as he focuses only on the legislatively defined aggravating circumstances’ because use of those circumstances ‘is not the only way in which Arizona’s sentencing scheme narrows the class of persons eligible for the death penalty.’” The Arizona Supreme Court identified five factors not related to the legislative definition of aggravating circumstances.

Justice Breyer’s opinion examines and rejects all five factors as either previously having been rejected by Supreme Court precedent or not showing “the necessary legislative narrowing that [its] precedent requires.” For example, with respect to the Arizona Supreme Court’s reliance on prosecutorial discretion to perform the narrowing requirement, Justice Breyer says “that reasoning cannot be squared with this Court’s precedent—precedent that insists that States perform the ‘constitutionally necessary’ narrowing function ‘at the stage of legislative definition.” (quotation marks omitted). Although the four justices concluded that the Arizona Supreme Court “misapplied” Supreme Court precedent, and that Hidalgo’s evidence “points to a possible constitutional problem,” they agreed that certiorari should be denied. That’s because the record in Hidalgo’s case (through no fault of his own) came to the Court “largely unexamined by experts and the courts below in the first instance.” In Breyer’s view, “the issue presented in [Hildago’s] petition will be better suited for certiorari with such a record.”

New Report On Firearms Offense Sentences Released

The United States Sentencing Commission issued a report on March 15th titled Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System. This is the third publication in the Commission’s series on mandatory minimum penalties, including the 2017 Mandatory Minimum Overview and the 2017 Drug Mandatory Minimum Report.

Yesterday’s Mandatory Minimum Firearms report uses fiscal year 2016 data and focuses on firearms offenses, the second most common federal offenses carrying mandatory minimums after drug offenses. The report analyzes two statutes carrying minimum mandatory penalties: (1) 18 U.S.C. § 924(c) (relating to using, carrying or possessing firearms in furtherance of a drug trafficking or crime of violence); and (2) 18 U.S.C. 924(e), the Armed Career Criminal Act. The publication also addresses the impact of these statutes on the Bureau of Prison’s prisoner population.

Here are some highlights from the 81-page report:

1. Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

2. Offenders charged with and convicted of multiple counts under section 924(c)received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

3. In addition, other charging and plea decisions also play a significant role in theapplication and impact of firearms mandatory minimum penalties.

4. Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

5. While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

6. Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

Federal Courts Beef Over Definition Of “Violent Crime”

A forthcoming University of Miami Law Review article titled A Touchy Subject: The Eleventh Circuit’s Tug-of-War Over What Constitutes Violent Physical Force, examines internal disagreements within the Eleventh Circuit, and that Court’s conflicts with other circuits, about the proper application of the Armed Career Criminal Act’s elements clause after United States v. Johnson, 135 S. Ct. 2551 (2015) (Johnson II). The article is written by Assistant Federal Defenders Conrad Kahn and Danli Song from the Middle District of Florida. The abstract of the article, available for download on SSRN here, states:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA). If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause. But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA’s elements clause. This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong—specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause. This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

Sentencing Commission Releases 2017 Federal Crime Statistics

Last week the United States Sentencing Commission released its 2017 Annual Report and 2017 Sourcebook of Federal Sentencing. FY2017 encompasses the federal government’s fiscal year October 1, 2016 to September 30, 2017 and includes data on sentencings occurring during this period and reported to the Commission before February 14, 2018. Together the Report and Sourcebook represent the annual report required by 28 U.S.C. § 997, as well as analysis, recommendations, and accounting referenced in 28 U.S.C. § 994(w)(3).

The 2017 Annual Report provides information on the Commission’s activities, such as conducting research, collecting and reporting sentencing data, sentencing policy development (i.e., guideline amendments), and training and outreach.

The 273-page 2017 Sourcebook contains sentencing statistics on a wide range of variables—such as length of sentences and adjustments for various primary offenses—in each federal judicial circuit and district, reflected in tables, figures, and pie charts. The information in the Sourcebook is also available in the Commission’s online resource Interactive Sourcebook of Federal Sentencing Statistics. The data in the interactive sourcebook can be tailored to any district or group of districts. Here are some highlights from the Sourcebook data:

In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.

The race of federal offenders remained largely unchanged from prior years. In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race. Non-U.S. citizens accounted for 40.7 percent of all offenders.

Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.

Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.

Drug sentences remained relatively stable across all drug types in fiscal year 2017. The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.

Study Reveals No Relationship Between Prison Terms For Drug Offenses And Rates Of Drug Use, Arrests, Or Overdose Deaths

The PEW Charitable Trusts issued a brief, earlier this month, reporting on the relationship between prison terms and the reduction in rates of drug use, arrests, and overdose deaths.

The analysis found no statistically significant relationship between drug imprisonment rates and three indicators of state drug problems: drug use, drug overdose deaths, and drug arrests. “In other words, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.” The PEW study also revealed that in states that had revised their drug penalties, prison populations had been reduced without an increase in crime rates.

Additionally, in South Carolina, after the state expanded probation and parole opportunities for people convicted of drug offenses, the prison population decreased by 14 percent, a larger proportion of the state’s inmates were convicted of violent offenses, and the violent crime rate dropped by 16 percent between 2010 and 2015.

The brief concluded that research revealed that “some strategies for reducing drug use and crime are more effective than others and that imprisonment ranks near the bottom of the list.”