Friday, May 30, 2008

Habeas in Indiana: Not What You Might Think

There's an article on SSRN by Professors Nancy King and Susan Sherry at Vanderilt about how habeas has been derailed from challenges to state court judgments to challenges of administrative prison decisions: Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences. (Thanks to Doug Berman at Sentencing Law & Policy.)

According to the article, 61% of Indiana habeas cases in 2003-04 "contested sentence-administration decisions, not criminal judgments. . . . Thus in Indiana, the primary function of federal habeas review is to examine the decisions of state corrections officials, not state courts . . . ." (P. 11). It is not crystal clear, but it would seem that this is 61% of non-capital cases.

Here's the beef: in one national study of habeas cases filed in 2003-04, "only about one third of 1% of non-capital habeas petitions filed (7 cases total) received any relief and none of the claims granted relief were sentence administration claims." (P. 12).

Because there is no judicial review of decisions by the Department of Correction in Indiana, one would have thought that sentencing administration claims, not subject to the AEDPA, might be more successful. Apparently not.

I have an active interest--meaning a client--with a real problem in this area. He was found guilty but mentally ill some time ago. In Indiana, "GBMI" gets you nothing: you're sentenced just like everyone else. A GBMI verdict is supposed to be a big mitigating circumstance. At least in my client's case, he was given the maximum sentence nonetheless.

There is an unnoticed problem with sentencing the mentally ill like everyone else: they are unlikely to be able to behave themselves in prison. As a result of the misbehavior, they lose their credit time, which is one day for each day actually served in most cases. So a mentally ill inmate is likely to serve twice as much time as a normal inmate.

I am working on a few ideas about how to do something about this. The key seems to me to be that there has to be an equal protection claim against a system in which a judge sentences against a known background employing credit time and, at the same time, is supposed to sentence the mentally ill without regard to the known background.

If anyone has other ideas, please comment.

Sunday, May 11, 2008

The Sunday Pickle

Words That Make My Stomach Plummet
by Mira McEwan
from Ecstatic. Allbook Books, 2007

Committee Meeting. Burden of Proof.
The Simple Truth. Trying To Be Nice.
Honestly. I Could Have Died. I Almost Cried.
It’s Only a Cold Sore.
It’s My Night. Trust Me. Dead Serious.
I Have Everything All Under Control.
I’m Famous For My Honesty.
I’m Simply Beside Myself. We’re On The Same Page.
Let’s Not Reinvent The Wheel.
For The Time Being. There Is That.
I’m Not Just Saying That.
I Just Couldn’t Help Myself. I Mean It.

Coming Post: The Indiana
Blakely Lottery Continues: Steven Kendall v. State, Court of Appeals No. 49A05-0707-PC-391 (Ind. Ct. App. May 9, 2008).