Offer Of Proof

The Online Criminal Companion to the New England Law Review

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Glossip v. Gross

By Stephanie A. Mealey

The Supreme Court of the United States recently denied a rehearing on its decision in the case of Richard Glossip v. Kevin Gross (135 S.Ct. 2726 (2015)). This case was based on a claim brought by three death row inmates in Oklahoma alleging that the combination of drugs that the state uses in its lethal injection protocol violates a person’s constitutional right to be free from cruel and unusual punishment under the Eighth Amendment. The inmates claimed that the first drug used in the state’s three-drug protocol, the sedative midazolam, does not induce a state of deep unconsciousness as intended. This allows the inmate being executed to feel excruciating pain when the second and third drugs are administered. The executions of Clayton Lockett, Dennis McGuire, and Joseph Wood last year were highly publicized because the inmates were in agony. The excruciating death was allegedly due to the inefficacy of the drug midazolam as a sedative.

In a 5-4 opinion, the majority of the Supreme Court held that Oklahoma’s use of midazolam does not violate the Eighth Amendment as cruel and unusual punishment. The majority opinion, written by Justice Alito, offered two reasons for its holding: first, “the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims;” and second, “the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”

The Court went on to explain that under the Supreme Court case of Baze v. Rees, 553 U.S. 35, 61 (2008), it is settled that the Eighth Amendment requires a prisoner to plead and prove a known and available alternative method to execution. However, in her dissent, Justice Sotomayor questioned this reasoning, stating, “[C]ertainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.” She urged that the Court’s decision is unfounded and that Baze adopted no such requirement that the petitioner must offer and prove an alternative method. Justice Sotomayor further argued that the Court disregarded substantial evidence of the drug’s deficiencies and merely deferred to the District Court’s decision to “credit the scientifically unsupported and implausible testimony by a single expert witness.”

The Glossip decision raised controversial questions and passionate dissents regarding the constitutionality of the death penalty as well as the methods used to execute those prisoners placed on ‘death row.’ In the aftermath of this decision, having been denied a stay by the U.S. Supreme Court, Richard Glossip was scheduled for execution on September 30, 2015. However, on September 30, 2015, the Governor of Oklahoma, Mary Fallin, issued Glossip a last-minute stay of execution due to a mix-up with the execution drugs. One of the drugs in the three-drug protocol was potassium chloride, but correction officers received the drug potassium acetate instead. Thus, the Governor issued a 37-day stay in order to ensure that the state fully complies with the federal protocol for lethal injection drugs.

Glossip’s new execution date was scheduled for November 6, 2015. On October 1, 2015, Oklahoma Attorney General Scott Pruitt requested an indefinite stay of Glossip’s execution as well as for the two other executions, which were scheduled to take place in Oklahoma in November. Pruitt reasoned that his office wanted to investigate the Oklahoma Department of Correction’s purchasing of a drug that did not comply with protocol. The request for an indefinite stay was granted on October 2, 2015. A new execution date will likely not be set for at least a year until state and federal investigations into Oklahoma’s death penalty are concluded.

The full opinion is available here.


Here are select articles from our publication that address lethal injections:

Roderick C. Patrick, Hiding Death, 18 New Eng. J. on Crim. & Civ. Confinement 117 (1992).

Julie Levinsohn Milner, Dignity or Death Row: Are Death Row Rights to Die Diminished? A Comparison of the Right to Die for the Terminally Ill and the Terminally Sentenced?, 24 New Eng. J. on Crim. & Civ. Confinement 279 (1998).

Padilla v. Kentucky: The Foundation of Crimmigration

By Daniel F. O’Shea

Following the United States Supreme Court’s decision in Padilla v. Kentucky (559 U.S. 356 (2010)), criminal defense attorneys must now consider the immigration consequences of a criminal conviction, and must inform their clients of those consequences before entering a plea. Deportation is a unique and particularly severe penalty, and in certain circumstances, avoiding deportation may be more important than averting an incarceration’s maximum sentence.

Padilla was a postconviction proceeding brought by Jose Padilla, a veteran and a lawful permanent resident of the United States for over 40 years. Mr. Padilla was incorrectly advised by his attorney that he “did not have to worry about immigration status since he had been in the country so long.” Relying on this advice, Mr. Padilla pled guilty to the transportation of marijuana, essentially making his deportation mandatory. Mr. Padilla claimed that had he received accurate advice from his attorney, he would not have pled guilty and would have gone to trial.

The Supreme Court granted certiorari to determine if Mr. Padilla’s counsel had an obligation to advise Mr. Padilla that a guilty plea would result in removal proceedings. The Court held that deportation is an integral part of the penalty for noncitizens accused of specific crimes and intimately related to the criminal process. Therefore, advice regarding deportation falls within the ambit of the Sixth Amendment right to effective assistance from competent counsel.

Although Mr. Padilla’s “counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute,” the Court acknowledged that immigration law can be complex. When the law is not very straight forward, a criminal defense attorney need only “advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” When the statute is clear, as in this case, a criminal defense attorney has a “duty to advise the client that that he [or she] will be subject to deportation as a result of the plea.”

Padilla helped set the foundation for Crimmigration and how defense counsel must be aware of immigration consequences for their noncitizen clients. The full opinion is available here:

Please join us for our Fall Symposium on November 5, 2015 from 4:00 to 6:00 pm to learn more about this interesting cross section of criminal and immigration law. We have a diverse panel that will discuss Crimmigration and the impact that it can have on practicing attorneys. Please click here for more information.

What is Crimmigration?

By Carly C. McClain

“Crimmigration” is the intersection of criminal law and immigration law. This term was coined in 2006 by Attorney Juliet Stumpf and is quickly becoming part of the national criminal and immigration law lexicon. However, the practice of criminalizing the activities of certain immigrant groups has been in practice for far longer than the term has been in use. Prior to the Supreme Court’s decision Padilla v. Kentucky (559 U.S. 356 (2010)), when a foreign national defendant found himself or herself in a criminal court, a defense attorney was not mandated to explain the immigration consequences of a criminal conviction to him or her. Immigration consequences, including deportation, had previously been treated by the courts, the government, and defense attorneys as collateral consequences of criminal convictions, akin to losing housing subsidies or becoming ineligible to obtain federal student loans. In Padilla, the Supreme Court held that the immigration consequences for a foreign national defendant that arose from his conviction were not collateral, but an integral part of the punishment proscribed by the court. The Court held that defense counsel’s failure to advise a client of the immigration consequences of pleading guilty can be ineffective. In certain circumstances, the client’s criminal conviction could even be overturned, on grounds now known as a Padilla motion. It is important for clients and practitioners alike to understand that certain criminal offenses trigger deportation and that a client has a constitutional right to make an informed decision regarding a plea deal.

In response to Padilla’s mandate, and to prepare future practitioners to better serve foreign national defendants, law schools across the country are offering courses in Crimmigration, including New England Law | Boston, Harvard Law School, Strum College of Law at the University of Denver, and UC Berkeley School of Law. There are websites devoted entirely to Crimmigration, with attorneys regularly posting best practices and recent state and federal court decisions. Law schools and bar associations are organizing symposia and other events on Crimmigration, where practitioners and theorists explore the myriad of issues raised throughout the country due to state-by-state differences in the application of Padilla.

Our publication is hosting a symposium on Crimmigration on November 5, 2015 from 4 to 6 pm. This event is open to the public. Speakers will include Justice Robert J. Cordy, Attorney Aditi Goel, Professor Christopher LaschProfessor Halim Morris, Attorney James P. O’Shea, and Professor Juliet Stumpf. Professor Dina F. Haynes will moderate the event. Please click here for more information.

OXYwater Co-founders Sentenced

By Christopher E. Hughes

OXYwater was billed to investors as the next Vitaminwater, a drink that “promoters claimed was an all-natural, vitamin-enhanced sports drink that contained added oxygen for improved physical performance.” Prosecutors brought suit against Imperial Integrative Health Research and Development LLC (Imperial), the developer of OXYwater, for fraud. Preston Harrison, his wife Lovena Harrison, and his business partner Thomas Jackson operated Imperial until it closed in 2013. Prosecutors alleged that the defendants provided fraudulent documentation about Imperial’s sales and profits in order to obtain additional investments. Between August 2010 and the spring of 2013, the defendants misappropriated an estimated $2 million in investors’ funds. This included approximately $1.1 million in 20ll that the defendants “diverted into an account in the name of a daycare business and used for personal expenses.” This money was not reported on the defendants’ tax return in 2011. Prosecutors claimed that the defendants used the investors’ money to “purchase . . . jewelry, a Cadillac Escalade, a BMW vehicle, weapons, clothing, home improvements and a swimming pool.” As a result of the defendants’ misappropriations, investors in Imperial suffered an estimated $9 million loss.

Preston Harrison was convicted of conspiracy to defraud the United States, filing a false income tax return, conspiracy to commit wire fraud, conspiracy to commit money laundering, and 12 counts of money laundering. He was sentenced to 83 months in prison and 3 years of probation. In addition, he was ordered to pay $375,985.15 in restitution to the IRS, pay $8,840,706 to victims of the fraud, and forfeit $1.1 million.

Lovena Harrison was convicted of conspiracy to defraud the United States, filing a false income tax return, and structuring financial transactions to evade currency reporting requirements. She was sentenced to 1 year and 1 day in prison, 3 years of probation, and must pay $375,985.15 in restitution to the IRS.

Jackson was convicted of conspiracy to commit wire fraud, conspiracy to commit money laundering, 8 counts of wire fraud, and 12 counts of money laundering. He was sentenced to 83 months in prison, 3 years of probation, and must pay $8,840,706 to victims of the fraud.

Acting Assistant Attorney General Caroline Ciraolo stated, “The sentences imposed today reflect the department’s commitment to investigating and vigorously prosecuting individuals who defraud investors, misappropriate funds to finance lavish lifestyles and file false tax returns to conceal their ill-gotten gains . . . Like the Harrisons, those who engage in such conduct will pay a heavy price.”


For more information see: and


Here are select articles from our publication that address white collar crimes:

Tristan R. Brown, Nobody Goes to Jail: The Economics of Criminal Law, Securities Fraud, and the 2008 Recession, 41 New Eng. J. on Crim. & Civ. Confinement 343 (2015).

Danielle K. Byrdsong, Keeping the Best Kept Secrets: Mandatory Minimum Sentencing for Trade Secret Theft Under the Economic Espionage Act, 41 New Eng. J. on Crim. & Civ. Confinement 421 (2015).


Informant Testimony and State v. Carter

By Adam X. Halpin

Recently, Markelus Carter, who was charged with aggravated murder with a gun and having a gun under a court sanction, was mistakenly placed in the same holding cell as Steven Upham, the jailhouse informant who was scheduled to testify against him. Predictably, Carter and Upham, both of whom were not handcuffed, became involved in an altercation in the holding cell. Corrections officers were able to break up the fight in a couple of minutes and both men only suffered minor injuries. Carter was charged with intimidation of a witness.

The judge allowed testimony and a video of the fight to be shown to the jury. Carter was convicted and sentenced to life in prison without parole. The judge denied Carter’s lawyer request for a mistrial based on the fight. Carter maintains that he is innocent and his lawyer plans to appeal.

In general, Federal Rule of Evidence 404(b)(2), prohibits the use of “crimes, wrongs, or other acts” evidence in a criminal trial. The rationale for this is that an individual’s prior crimes, wrongs, or other acts should not be used to infer that he or she acted in accordance with his or her character when committing the current crime. While there are exceptions to FRE 404, such as proving motive, knowledge, or absence of mistake, it is generally counter to the intent of the Federal Rules of Evidence to allow such prejudicial information to come before a jury.

One situation in which a judge may not only allow a witness to testify about the altercation, but also show the altercation to the jury is to prove consciousness of guilt regarding witness intimidation. The defendant may have attacked the informant to intimidate him or her. The jury may consider information about the altercation and use it to assist them in inferring that the defendant is guilty. While it is possible that this was the case here, there are also many other possible reasons the altercation between Carter and Upham may have occurred. For example, Upham may have made up Carter’s confession in an attempt to gain leniency or other benefits.

If the fact of an assault is grounds for displaying consciousness of guilt by a defendant, may a defendant then show a lack of assault of a jailhouse informant in a similar situation as consciousness of innocence? It will be interesting to see how the appellate court handles this unique situation, especially when the credibility of the jailhouse informant may be important to the prosecution.


For more information see: 


Here are select articles from our publication that discuss informants:

Jenny R. Yampolsky, Case Comment, Wanted Posters on the Internet: United States v. Carmichael and New Criminal Defense Tools to Level the Playing Field, 32 New Eng. J. on Crim. & Civ. Confinement 279 (2006).

Brian Murray & Joseph C. Rossa, He Lies, You Die: Criminal Trials, Truth, Perjury, and Fairness, 27 New Eng. J. on Crim. & Civ. Confinement 1 (2001).

Toby H. Hollander, The Use of Confidential Informants in Prison Disciplinary Proceedings, 8 New Eng. J. on Prison L. 347 (1982).

Save the Date!

Crimmigration: At the Border of Criminal Justice and Deportation

Fall 2015 Symposium

Thursday, November 5 from 4-6 pm in the Cherry Room

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Wall Street Executives Beware

By Travis J. Grefenstette

Over the course of his tenure, former Attorney General Eric Holder, was criticized for the Justice Department’s role in the investigation and prosecution of corporations and the leniency the Department gave those corporations’ top executives following the 2008 financial crisis. The recently appointed Attorney General, Loretta Lynch, is taking the initiative to not only enforce penalties on the corporations, but also to pursue the executives who are responsible for the corporations’ actions. The Department released a memorandum on September 9th detailing its position of pursuing the punishment of corporate executives. Deputy Attorney General Sally Yates stated that, “The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.”

The Department depends upon the cooperation of the corporations under investigation in order to carry out its newly proposed guidelines. However, Deputy Attorney General Yates explained that the Department expects the corporations’ cooperation to be substantive. Accordingly, the Department will not “accept[] a company’s cooperation when they just offer up the vice president . . . going to jail.” During settlement conversations, corporations will now be required to produce the names of the high ranking executive members who made the decision in question. However, it is anticipated that corporations will prefer to pay a customary fine instead of providing names.

Moreover, commentators believe that the new guidelines may cause ethical concerns for the attorneys of the corporations and the corporations’ employees. To this effect, corporate executives may be less likely to report wrongdoings to compliance offices if they know that they could be charged criminally. Further, corporate employees may hire personal counsel to protect their own personal interests over the corporations’.

However, if the Department is true to its word, the impact of this new initiative could be substantial within the corporate world. The guidelines could restore the public’s perspective of the Department — knowing the Department will investigate and prosecute all criminals, not just the ones on the street corner.


For a more thorough reading on the issue see:

Matt Apuzzo & Ben Protess, Justice Department Sets Sights on Wall Street Executives, N.Y. Times (Sept. 9, 2015), module=first-column-region®ion=top-news&WT.nav=top-news&_r=1.

David Ingram & Mica Rosenberg, New U.S. Prosecution Policy is Recipe for Corporate Conflict: Lawyers, Reuters (Sept. 10, 2015),


Here is an article from our publication that discusses corporate compliance and punishment:

Cindy Johnson, Note, For Better or Worse: Alternatives to Jail Time for Environmental Crimes, 26 New Eng. J. on Crim. & Civ. Confinement 265 (2000).


Solitary Confinement: A Trusted Tool or a Form of Torture?

By Emily C. Gansler

The practice of solitary confinement dates back to the 1800s, beginning in the Eastern State Penitentiary in Pennsylvania. There, prison officials believed that solitary confinement could aid inmates in their healing and teach inmates to become more virtuous. Some inmates were placed in straightjackets and left in their cells. In the winter months, the inmates were drenched with water and left outside. Although the practice of solitary confinement was discredited in the early 1900s, the use of solitary confinement did not end. However, by then, only the most dangerous inmates were placed in isolation and the length of time they spent in isolation was limited to a couple of weeks.

The practice of solitary confinement made a resurgence in the 1980s as a result of the War on Drugs, which caused a deluge of inmates into the prison system. Prison officials began using solitary confinement as a quick fix for a myriad of confinement issues associated with overpopulation. Even today, isolation is used as a trusted tool to maintain order and safety in prisons. Greg Marcantel, a prison administrator in New Mexico said, “It’s very, very easy to overuse segregation. I mean, for a guy like me, it’s safe, right? It’s safe. If these prisons are quiet, I don’t get fired.” Opponents of solitary confinement consider corrections officers to be the biggest roadblock to reform because corrections officers are on the front lines and believe that isolation is an important deterrent to violence for inmates.

Today, roughly 80,000 Americans are in solitary confinement. Unlike the early inmates who would only spend a few days in isolation, today’s inmates may spend years or even decades in solitary confinement and experience isolation for twenty-three hours a day. The practice is no longer reserved for the most dangerous inmates. Pregnant inmates, young inmates, and inmates with mental illnesses are subjected to isolation. Additionally, five of the six offenses that result in individuals being sentenced to solitary confinement are non-violent. Research shows that isolation leads to higher rates of suicide and mental illness, due, in part, to the isolated inmates’ lack of meaningful social interactions. A former inmate at the Eastern State Penitentiary, Anthony Goodman, stated, “This institution here, I thought it would have had broke me. You know, this place here really did something to me psychologically.”


For a more thorough reading of the issue see:

Brian Mann, How Solitary Confinement Became Hardwired in U.S. Prisons, NPR (Aug. 23, 2015, 7:58AM),

Natasha Haverty, Amid Backlash Against Isolating Inmates, New Mexico Moves Toward Change, NPR (Aug. 24, 2015, 4:47AM),

Brian Mann, New York Begins to Question Solitary Confinement As Default, NPR (Aug. 24, 2015, 4:35PM),

General Overview, Eastern State Penitentiary, (last visited Sept. 13, 2015).


Here are select articles from our publication that address solitary confinement:

Alexa T. Steinbuch, The Movement Away from Solitary Confinement in the United States, 40 New Eng. J. on Crim. & Civ. Confinement 499 (2014).

Cassandra Shaylor, “It’s Like Living in A Black Hole”: Women of Color and Solitary Confinement in the Prison Industrial Complex, 24 New Eng. J. on Crim. & Civ. Confinement 385 (1998).

Maria A. Luise, Solitary Confinement: Legal and Psychological Considerations, 15 New Eng. J. on Crim. & Civ. Confinement 301 (1989).


Effects of the Federal Drug Sentencing Laws of the 1980s and 1990s

By Lauren S. Fackler

The Pew Charitable Trusts recently released a report stating that the federal drug sentencing laws of the 1980s and 1990s have a high cost and low return in terms of reducing drug use and decreasing recidivism.

The federal drug sentencing laws enacted in the 1980s and 1990s require more drug offenders to go to prison. Probation for convicted drug offenders decreased 20% from 1980 to 2014 and there were 800% more inmates in the federal prison system in 2013 than in 1980. The federal drug sentencing laws also require drug offenders to stay in prison longer. The average time that released drug offenders spent behind bars increased 153% from 1988 to 2012. The increase in the number of prisoners is not without a cost. Federal prison spending increased 595% from 1980 to 2013.

Unfortunately, the recidivism rate has not fallen since the 1980s. The use of illegal drugs has increased 2.5% from 1990 to 2012 and the chance of being imprisoned for selling cocaine is less than 1 in 15,000. Most of the federal drug offenders in prison performed relatively minor roles in the drug trade. The most serious drug traffickers (high-level suppliers and importers) only represent 11% of federal drug offenders. In 2009, more than half of the high-level suppliers and importers received relief from mandatory minimum penalties compared to less than a third of the street-level dealers.

The Pew Charitable Trusts concluded the report by noting that, “In response to these discouraging trends, federal policymakers recently have made administrative and statutory revisions that have reduced criminal penalties for thousands of drug offenders while maintaining public safety and controlling costs to taxpayers.”

The full report is available here.


Here are select articles from our publication that address sentencing:

Kimberly L. Patch, The Sentencing Reform Act: Reconsidering Rehabilitation as a Critical Consideration in Sentencing, 39 New Eng. J. on Crim. & Civ. Confinement 165 (2013).

Mary Price, Everything Old is New Again: Fixing Sentencing by Going Back to First Principles, 36 New Eng. J. on Crim. & Civ. Confinement 75 (2010).

Commonwealth v. Camacho

By Tifanei N. Ressl-Moyer

The Massachusetts Supreme Judicial Court recently clarified the situations in which a victim’s prior acts of violence may be introduced as evidence of who was the first aggressor in a gang related shooting.

A jury found defendant, Jesse Camacho, guilty on all charges (including murder in the first degree) after multiple witnesses and surveillance footage identified him firing shots, and shooting the victim twice point-blank, in a gang-related shooting at a night club in Chelsea, Massachusetts. One of the issues on appeal was whether the lower court erred by preventing Camacho from introducing evidence of the victim’s past violent crimes.

Camacho argued that evidence of the victim’s violent past would assist his claim that the shooting was “in defense of another.” The Court disagreed, citing two recent Massachusetts Supreme Judicial Court Cases: Commonwealth v. Adjutant, 443 Mass. 649 (2005) and Commonwealth v. Chambers, 465 Mass. 520 (2013):

[T]he primary question for the jury was not who began the altercation or escalated it to deadly force, but rather whether the defendant was legally entitled to use the force that he did in defense of another. We recognize that there may be a question as to which act, the bottle throwing or the gun firing, escalated the fight into a deadly confrontation, but that is a wholly distinct question from which individual initiated each such act. Neither the identity of the person who threw the bottle nor the identity of the person who fired shots is in dispute, and the limited sweep of Adjutant and Chambers does not authorize introduction of evidence to shed light on any other question.

The Court went on to explain that evidence of the victim’s prior bad acts is “admissible only where the victim is involved in the altercation that leads to his death.” Here, there was no evidence that the victim played a role in the brawl or posed a threat to the Camacho’s group so evidence of the victim’s prior violent conduct is not probative of why Camacho shot him.

The full opinion is available here.


Here are select articles from our publication related to gang violence:

Matthew J. Cannata, Achieving Peace in the Streets: How Legislative Efforts Fail in Combating Gang Violence in Comparison to Successful Local Community-Based Initiatives, 35 New Eng. J. on Crim. & Civ. Confinement 243 (2009).

Jeffrey A. Kidder, Gang Deterrence and the Community Protection Act of 2005: Why the Federal Response to MS-13 is Flawed and How It Will Have an Adverse Impact on Your State, 33 New Eng. J. on Crim. & Civ. Confinement 639 (2007).

Phillip Kassel, The Gang Crackdown in “Massachusetts” Prisons: Arbitrary and Harsh Treatment Can Only Make Matters Worse, 24 New Eng. J. on Crim. & Civ. Confinement 37 (1998).

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