Tuesday, July 17, 2018

Encouraging lawmakers to take a "face-to-face" approach to criminal justice reform

Connecticut Gov Daniel Malloy has this great commentary in The Hill under the headline "To reimagine the criminal justice system, start with a face-to-face connection." I recommend the piece in full, and here are excerpts:

Recently, the first lady and I convened a group of state officials, judges, prosecutors, victim advocates and other stakeholders to discuss Connecticut’s progress toward improving the state’s criminal justice system.  Sounds like a run-of-the-mill convening of policymakers and practitioners until you consider the venue: one of our state’s maximum-security prisons, the Cheshire Correctional Institution.

“Reimagining Justice 2018: Outside In” was the first-ever conference to be held inside such a prison, serving as a rare opportunity for those who shape and carry out Connecticut’s criminal justice policies to step into the confines of a prison and hear directly from those who are residents there.

During my time as governor, I’ve prioritized these types of meaningful interactions with people directly impacted by the correctional system, whether it’s been with people who are incarcerated, the corrections officers that supervise them or victims of crime.  Over the course of my 24 visits to date, interactions with victims, correctional officers and inmates have become a central part of my efforts to develop meaningful criminal justice policy changes.

These experiences have informed many policy discussions and have led to extraordinary progress in our state.  From 2008 to 2016, Connecticut has seen the complete closure of five prisons along with major portions of four other facilities.  More importantly our state has experienced the largest reduction in violent crime of any state in the nation over the past four years.  We’ve also seen our prison population reach its lowest level since 1994 due to fewer and fewer arrests and prison admissions and while continuing to see meaningful drops in recidivism rates....

Whether it be attending the reentry program graduation of someone preparing to return to the community after incarceration or meeting with corrections officers to discuss new ways to ensure a healthy working environment for them, these face-to-face engagements can help policymakers gain a deeper appreciation of the unique challenges people encounter when they are closely involved in the correctional system....

It’s critical for all elected leaders and policymakers at every level of government to understand the high value of these types of interactions.  That is why I, along with a group of 12 other Republican and Democratic governors across the country, have taken part in the Face to Face initiative, a call to action for all policymakers to personally connect with the people closest to the correctional system.

I urge all policymakers of all levels across the country to join these efforts and commit to following a thoughtful approach to policy that focuses not only on data, but the people behind those numbers.  Together, by considering the immeasurable human impact of our policy decisions, we can reimagine the way we approach criminal justice.

July 17, 2018 in Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

"McCleskey V. Kemp: Field Notes from 1977-1991"

The title of this post is the title of this notable paper authored by John Charles Boger available now via SSRN. Here is its abstract:

This Essay is an expanded version of a keynote address to a Symposium hosted by the Northwestern University School of Law.  It examines the handiwork of the Supreme Court in the McCleskey v. Kemp (1987) case and the adverse impact of McCleskey on the subsequent judicial consideration of statistical evidence -- even of widespread racial discrimination -- in the capital and criminal justice systems. 

As one member of the legal team who brought the McCleskey case, my contribution was to speculate on how and why the Court might have disregarded such meticulously documented and unrebutted patterns of racial disparities in capital sentencing, despite the Justices’ formal condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice.  This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.

July 17, 2018 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (0)

Monday, July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Spotlighting disparities in resentencing of juve LWOP cases in Pennsylvania ... and and broader post-Miller challenges

The Philadelphia Inquirer has this effective new article headlined “Why are juvenile lifers from Philly getting radically different sentences from those in the rest of Pennsylvania?”. Here are excerpts:

While Pennsylvania’s Supreme Court has attempted to create clear guidelines for that work, now that more than 300 juvenile lifers have been resentenced across 31 counties, the disparities are striking.

“It’s still very county-dependent, fact-dependent, and there are still a lot of politics involved,” said Brooke McCarthy, who has been tracking the results for the Philadelphia-based nonprofit Juvenile Law Center.  “If you look at the outcomes in Allegheny County, they are night and day from what we’re seeing in Philly.  That’s true in various counties: In Bucks County, one judge has been handling the sentencing, and she’s been particularly harsh. Different folks are handling the same facts differently.”

In Philadelphia, the average sentence for a juvenile lifer has been 31 years to life. In Bucks County, no one has received less than 40 years....

County by county, judges have disagreed about whether sentences on multiple homicides ought to run concurrently or be stacked consecutively.

A Lancaster County judge last year imposed consecutive 40-years-to-life sentences for Michael Lee Bourgeois, for killing his adoptive parents in 2001 with three accomplices.  And, in Allegheny County, a judge imposed three consecutive 25-to-life sentences on Donald Zoller, who killed three people when he was just 14; he won’t go before the parole board unless he lives to be 89.

But in Philadelphia, it’s been a different story. Jose Hernandez, convicted of killing four family members as a teen, received 45 years to life after the district attorney tried to offer him even less time.  And another juvenile lifer, Jorge Cintron Jr., was resentenced to 30 years to life for three murders; he could be released by age 47.

Judges have also differed when it comes to tacking on additional time for associated charges, such as robbery, conspiracy, or possession of a firearm....

According to a Pennsylvania Supreme Court decision last year, a juvenile must be found to be “permanently incorrigible” before a life sentence can be imposed.

Now, state appellate courts will have to weigh in on a slew of follow-up questions being lobbed from all across the commonwealth.  What comprises a de facto life sentence: Is 50 years too long?  Is it constitutional to stack consecutive sentences such that a juvenile who is not incorrigible has no hope of release?  What is a juvenile anyway — do 18-year-olds count?   And, what factors must judges consider in the resentencings, which are supposed to take into account the reduced culpability of an immature, impulsive youth, as well as his or her capacity for change?...

In Michigan, home to 360 teen lifers, the state has sought to reimpose life without parole in more than half of its cases. In Virginia, Renwick said, “the commonwealth has fought at every step to prevent” resentencings.  And in Illinois, which is working through the resentencings of about 100 juvenile lifers, Shobha Lakshmi Mahadev, a professor at the Children and Family Justice Center at Northwestern University School of Law, said the vast majority are being resentenced to 50 or 60 years in prison, many with no opportunity for early release.

Other states, such as Louisiana, have addressed the issue legislatively, by creating across-the-board parole eligibility — though in some jurisdictions that still means few, if any, lifers are actually being released.

“What these decisions have done is opened up this conversation and this question: How do you sentence a child or an adolescent? What our systems did before was just to treat kids as adults — and that is unconstitutional and, given what we know now, inappropriate,” Mahadev said.

July 16, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, July 15, 2018

"Incarceration, Recidivism, and Employment"

The title of this post is the title of this paper recently posted to SSRN authored by a group of economists. Here is its abstract:

Understanding whether, and in what situations, time spent in prison is criminogenic or preventive has proven challenging due to data availability and correlated unobservables. This paper overcomes these challenges in the context of Norway’s criminal justice system, offering new insights into how incarceration affects subsequent crime and employment. We construct a panel dataset containing the criminal behavior and labor market outcomes of the entire population, and exploit the random assignment of criminal cases to judges who differ ystematically in their stringency in sentencing defendants to prison. Using judge stringency as an instrumental variable, we find that imprisonment discourages further criminal behavior, and that the reduction extends beyond incapacitation.

Incarceration decreases the probability an individual will reoffend within 5 years by 29 percentage points, and reduces the number of offenses over this same period by 11 criminal charges. In comparison, OLS shows positive associations between incarceration and subsequent criminal behavior. This Sharp contrast suggests the high rates of recidivism among ex-convicts is due to selection, and not a consequence of the experience of being in prison. Exploring factors that may explain the preventive effect of incarceration, we find the decline in crime is driven by individuals who were not working prior to incarceration. Among these individuals, imprisonment increases participation in programs directed at improving employability and reducing recidivism, and ultimately, raises employment and earnings while discouraging further criminal behavior. For previously employed individuals, while there is no effect on recidivism, there is a lasting negative effect on employment. Contrary to the widely embraced ‘nothing works’ doctrine, these findings demonstrate that time spent in prison with a focus on rehabilitation can indeed be preventive for a large segment of the criminal population.

July 15, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Saturday, July 14, 2018

The American Conservative reviews how "Law-and-Order Texas Takes on Criminal Justice Reform"

I spotlighted in this post last week this lengthy commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Now comes the second extended piece in a series appears here under the full headline "Law-and-Order Texas Takes on Criminal Justice Reform:Seeking alternatives to bloated prison populations and recidivism, the Lone Star state leads others to pursue to the same." Here are excerpts

Though Jerry Madden had no prior background in corrections or law enforcement, he helped change the course of both fields. Madden was serving in the Texas House in 2005 when he got called into the speaker’s office. Speaker Tom Craddock, a fellow conservative Republican, told Madden he would be chairing the corrections committee. Madden asked Craddock what he should do. Craddock uttered eight words that changed Madden’s life and altered the course of American corrections policy: “Don’t build new prisons, they cost too much.”

Texas, even more than most other states at the time, had been on a prison-building spree. It had reached a point where the return on investment was low. Madden used his training as a statistical engineer to hunt down the data about what wasn’t working, or could easily be changed, throughout the corrections system. Along with his counterpart in the state Senate, John Whitmire, Madden put together a package to overhaul parts of the state’s criminal justice system....

Recidivism fell quickly in Texas. Back in 2005, the state was paroling 21,000 prisoners, 11,000 of whom returned. A decade later, the state paroled 28,000 prisoners and about 4,500 came back. “It’s an effort to continue getting the gains in public safety we’ve been getting for 20 years now, while also reducing our extraordinarily high levels of incarceration,” says Vikrant Reddy, a senior fellow at the Charles Koch Institute.

The success of the Texas model stirred other states to replicate it, beginning with Kansas, Ohio, and South Carolina. The fact that Texas had a “hang ’em high” reputation, built not just on high incarceration rates but also on its status as the nation’s most active executioner, helped convince conservative legislators in other states that the idea of providing treatment for prisoners wasn’t some bleeding-heart proposal. Rather it was a skeptical redirection of government funds away from a strictly brick-and-mortar approach that demonstrably had not worked.

And so the Texas experiment became a model elsewhere. Cost savings and statistics that might on paper have been just as impressive out of California or Vermont wouldn’t have swayed so many red-state legislators, Reddy says, particularly the Deep South converts the criminal justice reform movement has found in places such as Louisiana, Mississippi, and Georgia. “It was a tremendous stroke of luck for the country that Texas was the first to step out of the gate,” says Adam Gelb, who directs the Pew Charitable Trusts’ public safety performance project, which provides technical assistance to states on criminal justice policies.

Nearly three-dozen states have now enacted policies that mirror, to a greater or lesser extent, the Texas template. Every state has done something to address prisoner reentry programs and employment. The impact of these efforts is now being felt in Washington.

Prior related post:

July 14, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Friday, July 13, 2018

Some midsummer highlights from Marijuana Law, Policy & Reform

Depending on one's perspective and professional calendar, the middle of July might feel more like the start of summer (for SCOTUS followers) or more like the end of summer (for law profs with classes starting in August). But with my favorite midsummer classic just a few days way, I am inclined to say call around now midsummer.

I am also inclined to note that it has been nearly a month since I did a full round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, and so I will head into the weekend by here rounding up some MLP&R highlights (for MLB highlights, the Home Run Derby is Monday):

July 13, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Detailing how recent reforms have helped Louisiana shrink its incarceration rate to no longer be nation's leader

Ranking have a way of capturing attention, and this new Pew article reporting on a notable change in state rankings caught my eye.  The piece is headlined "Louisiana No Longer Leads Nation in Imprisonment Rate: New data show impact of 2017 criminal justice reforms," and here are excerpts:

Louisiana no longer leads the nation in imprisonment, one year after enacting a landmark package of 10 criminal justice reform laws. In June 2018, Oklahoma became the U.S. state with the highest imprisonment rate, replacing Louisiana, which had been the nation’s prison capital for nearly 20 years.

The numbers are based on calculations by The Pew Charitable Trusts, which analyzed data from the state corrections departments and population estimates from the U.S. Census Bureau. At the beginning of June, the imprisonment rate in Louisiana was 712 per 100,000 residents, compared with 719 per 100,000 residents in Oklahoma. Louisiana now ranks second in imprisonment. The numbers in both states far exceeded the national rate, including state and federal prisoners, which was 450 per 100,000 residents at the end of 2016.

The latest data reinforce a central lesson of criminal justice reform in the past decade: States’ policy choices can help control the size and cost of their prison systems and protect public safety. Although implementation of Louisiana’s reforms is still in the early stages, the Department of Public Safety and Corrections and the Commission on Law Enforcement released a report in June with some initial results that show quick and solid progress since the first pieces of legislation went into effect in August 2017....

After a year’s worth of data analysis and study by the task force, the Legislature in 2017 passed and the governor signed the most significant overhaul of criminal justice laws in state history. The package of 10 bills — sponsored by six Republicans, two Democrats, and one independent — steers people convicted of less serious crimes away from prison, strengthens incarceration alternatives, reduces prison terms for those who can be safely supervised in the community, removes barriers to re-entry into the community, and bolsters programs that support victims of crime.

Louisiana’s landmark reforms are perhaps the most dramatic example of a state taking greater control of its prison growth and spending, but many others have acted as well. More than 30 states have adopted reforms, spurring shifts in imprisonment rate rankings. In 2007, for example, Texas began investing hundreds of millions of dollars in various treatment and diversion programs.  The state dropped from third place in 2008 to seventh by the end of 2016, the most recent year for which complete national data are available. In South Carolina, comprehensive reforms enacted in 2010 helped move the state from ninth to 20th.

Pew also this week released this Fact Sheet on state reform efforts under the heading "35 States Reform Criminal Justice Policies Through Justice Reinvestment."

July 13, 2018 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

"'Finding' a Way to Complete the Ring of Capital Jury Sentencing"

The title of this post is the title of this paper newly posted on SSRN and authored by Maria Kolar. Here is its abstract:

In the modern death penalty era in America, two findings have emerged as generally required before a murderer can be sentenced to death.  First, the decisionmaker must find that the murder was especially egregious, due to specific, statutorily-defined characteristics of the murder or the murderer — typically referred to as “aggravating circumstances.”  Second, the decisionmaker must find that any aggravating circumstances in the case “outweigh” any “mitigating circumstances,” i.e., anything that makes the crime or the defendant seem less deserving of death.  Remarkably, regarding the second finding (the weighing finding) it remains unclear who “the decisionmaker” must be and how convinced the decisionmaker must be — even though the Supreme Court held back in 2002, in Ring v. Arizona, that the Sixth Amendment mandates that the decisionmaker for the aggravating circumstance finding must be a jury and that the jury must be convinced “beyond a reasonable doubt.”

This Article asserts that Ring’s use of the word “fact” to describe the kind of determination that must be made by a jury has completely undermined the functional and elements-based approach of Ring.  This approach, properly understood, mandates that the Sixth Amendment jury requirement applies to any finding (not just “fact”) that is required for a death sentence.  This Article traces the Court’s use of the term “finding” in this context — from the beginning of the modern death penalty era in 1976, through Apprendi v. New Jersey in 2000, Ring in 2002, and Hurst v. Florida in 2016 — and asserts that the Apprendi Court’s use of the broader term “finding” in this arena is more faithful to the Sixth Amendment and to substantive state law.  This Article catalogs how state supreme courts and federal circuit courts overwhelmingly concluded (post-Ring) that the capital weighing finding is not subject to the Sixth Amendment, because it is not a “fact” under Ring — aided by the Court’s Eighth Amendment “death eligibility” doctrine, which misleadingly suggests that defendants become “eligible” for a death sentence based solely on the finding of an aggravating circumstance.

The Court’s broader approach in Hurst does provide some hope in this realm and has led to momentous changes in Delaware, Florida, and Alabama. And all but two states now insist that a jury make all the findings that are required for a death sentence under state law.  Nevertheless, while nearly 75% of the current thirty-one death penalty states require a weighing-type finding for a valid death sentence, almost 75% of these states still fail to require that this finding be made beyond a reasonable doubt, as the Sixth Amendment mandates.  There is still much work to be done.

July 13, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, July 12, 2018

AG Jeff Sessions "surges" federal war against synthetic opioids in select counties

This new press release from the US Justice Department, headed "Attorney General Jeff Sessions Announces the Formation of Operation Synthetic Opioid Surge (S.O.S.)," reports on a notable new federal front in the modern war on drugs. Here are the details (with my emphasis added):

Attorney General Jeff Sessions today announced Operation Synthetic Opioid Surge (S.O.S.), a new program that seeks to reduce the supply of deadly synthetic opioids in high impact areas and to identify wholesale distribution networks and international and domestic suppliers.

As part of Operation S.O.S., the Department will launch an enforcement surge in ten districts with some of the highest drug overdose death rates. Each participating United States Attorney’s Office (USAO) will choose a specific county and prosecute every readily provable case involving the distribution of fentanyl, fentanyl analogues, and other synthetic opioids, regardless of drug quantity. The surge will involve a coordinated DEA Special Operations Division operation to insure that leads from street-level cases are used to identify larger scale distributors. Operation S.O.S. was inspired by a promising initiative of the United States Attorney’s Office in the Middle District of Florida involving Manatee County, Florida.

"We at the Department of Justice are going to dismantle these deadly fentanyl distribution networks. Simply put, we will be tireless until we reduce the number of overdose deaths in this country. We are going to focus on some of the worst counties for opioid overdose deaths in the United States, working all cases until we have disrupted the supply of these deadly drugs," Attorney General Sessions said. "In 2016, synthetic opioids killed more Americans than any other kind of drug.  Three milligrams of fentanyl can be fatal — that's not even enough to cover up Lincoln's face on a penny. Our prosecutors in Manatee County, Florida have shown that prosecuting seemingly small synthetic opioids cases can have a big impact and save lives, and we want to replicate their success in the districts that need it most.  Operation S.O.S. — and the new prosecutors who will help carry it out — will help us put more traffickers behind bars and keep the American people safe from the threat of these deadly drugs."...

In Manatee County, a county just south of Tampa with a population of about 320,000, overdoses and deaths skyrocketed in 2015 (780 overdoses/84 opioid related deaths) and 2016 (1,287 overdoses/123 opioid related deaths). In summer of 2016, local law enforcement reported frequent, street-level distribution of fentanyl and carfentanil for the first time.

To combat this crisis, the Middle District of Florida committed to prosecuting every readily provable drug distribution case involving synthetic opioids in Manatee County regardless of drug quantity.  The effort resulted in the indictments of forty five traffickers of synthetic opioids.  Further, from the last six months of 2016 to the last six months of 2017, overdoses dropped by 77.1% and deaths dropped by 74.2%. Overall, the Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average now of less than one per day.

I am not at all keen on the idea of federalizing every small local drug case, but these reported data from Manatee County, Florida leads me to understand why AG Sessions might want to try to expand a program that he believes has proven distinctly effective. The Attorney General also delivered this speech in conjunction with the announcement of this new surge. Here is how he described the new initiative:

It’s called Operation Synthetic Opioid Surge — or S.O.S.

I am ordering our prosecutors in 10 districts with some of the highest overdose death rates—including this one—to systematically and relentlessly prosecute every synthetic opioid case. We can weaken these networks, reduce fentanyl availability, and save lives.

We are going to arrest, prosecute, and convict fentanyl dealers and we are going to put them in jail. When it comes to synthetic opioids, there is no such thing as a small case.

Three milligrams of fentanyl can be fatal. That’s equivalent a pinch of salt. It’s not even enough to cover up Lincoln’s face on a penny. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.

I want to be clear about this: we are not focusing on users, but on those supplying them with deadly drugs.

Manatee County, Florida shows that a united and determined effort, focusing on fentanyl dealers, can save lives. Your counterparts in the U.S. Attorney’s Office in the Middle District of Florida tried this strategy in Manatee County, which is just south of Tampa. Like many parts of this country, they had experienced massive increases in opioid deaths in 2015 and 2016.

In response, they began prosecuting synthetic opioid sales, regardless of the amount. They prosecuted 45 synthetic opioids traffickers—and deaths started to go down. From the first six months of 2016 to 2017, overdose deaths dropped by 22 percent. This past January, they had nearly a quarter fewer overdoses as the previous January. The Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average of one a day. Those are remarkable results.

As you implement this proven strategy, I am sending in reinforcements to help you. Last month, I sent more than 300 new AUSAs to districts across America .... It was the largest prosecutor surge in decades.

Today I am announcing that each of these ten districts where the drug crisis is worst will receive an additional prosecutor. As a former AUSA and U.S. Attorney myself, I know what you can do — and my expectations could not be higher. Our goal is to reduce crime, reduce fentanyl, and to reduce deaths, plain and simple. I believe that this new strategy and these additional prosecutors will have a significant impact.

July 12, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement

851_coverThe United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements).  A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication.  Here are highlights from the web account:

This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.

Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing.  The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.

Key Findings

Cases in which an 851 enhancement applied are rare.

  • The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
  • The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief.  There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.

The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.

  • In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
  • There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
  • Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn.  Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.

The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.

  • In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
  • Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).

While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.

  • Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
  • Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
  • Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
  • The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.

The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.

July 12, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"The Quest to Get a Pardon in the Trump Era: ‘It’s Who You Know’"

The title of this post is the headline of this notable new New York Times piece documenting various realities that are well-known to those who have been paying attention to the clemency activities of recent Presidents.  Here are excerpts from a terrific piece worth reading in full:

Few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out.  The president declares a person officially forgiven, and it is so.

A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary.  A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

The show isn’t new.  Absolving political allies is a notorious if decades-old practice, and Bill Clinton was hardly sticking to procedure when he included friends, family and the well-connected in his last-minute clemency spree.  But Mr. Trump is not waiting for the last minute.

On Tuesday, he issued more pardons, this time for two Oregon ranchers who had been serving sentences for arson on federal land. Interior Secretary Ryan Zinke was apparently among the ranchers’ strongest supporters.  Mr. Trump has said he is considering pardons for Martha Stewart, the lifestyle guru, and Rod Blagojevich, the former governor of Illinois, and people whose cases are championed by professional football players.  He has rebuffed questions as to whether he was planning to pardon any of his own associates — or himself, for that matter.

Pardon seekers have been watching all this.  Having once put their hopes in an opaque bureaucratic process, they are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity.  What’s the best way to get a letter to Sean Hannity, the Fox News host and close Trump ally?  How hard would it be to pull aside Robert Jeffress, the prominent Trump-backing pastor, after a church service?

“It’s who you know now,” said Weldon Angelos, whose cause for clemency has been supported by politicians, judges and celebrities. At the consent of prosecutors, Mr. Angelos was released from prison in 2016, after serving a quarter of a 55-year sentence on a drug-related conviction. Now he is seeking a full pardon.  “Everyone’s now trying to get their names out there, to get some buzz,” he said. “That’s the strategy I’m seeing”

Self-promotion in pursuit of forgiveness comes naturally to some and strikes others as absurd.  But there is broad agreement on one point. The standard, procedural route to presidential clemency — a process that has become ever more impenetrable — has hardly been a portrait of justice itself...

Clemency petitions go through the Office of Pardon Attorney in the Justice Department, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person.  For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

But starting about 40 years ago, “the prosecutors really got a hold of the process,” said Margaret Love, who was the Pardon Attorney from 1990 to 1997, and now represents clemency applicants. “They became increasingly hostile to the pardon power.”  Even as laws have grown harsher, the number of pardons has dwindled significantly. “It is so secretive and the standards are so subjective,” Ms. Love said.  “They operate like a lottery. Except a lottery is fair.”

In 2014, the Obama administration set up a clemency initiative that led to 1,715 sentence commutations, by far the most of any president.  Still, this accounted for only about 5 percent of the commutation petitions submitted during his two terms. As for full pardons, the Obama administration was stingier than most of its predecessors. The traditional clemency process, as a pardon attorney described in her 2016 resignation letter, remained sidelined and backlogged.

“The process,” wrote Luke Scarmazzo of his attempt at clemency in the Obama years, “was a bureaucratic nightmare.”  In 2008 Mr. Scarmazzo was sentenced to more than two decades in prison for running a medical marijuana dispensary in California. He and his co-defendant, Ricardo Montes, spent months working on an application, but in the end Mr. Montes received a commutation, while Mr. Scarmazzo did not.  Now, “instead of support from career politicians and judges, we’re seeking support from celebrities and influential social icons,” Mr. Scarmazzo wrote in an email from prison.  “We’re less focused on pleasing the D.O.J. bureaucracy and more focused on grabbing the attention of the Oval Office.”

Much of the recent focus on clemency has either been on those, like Ms. Johnson, who are seeking release from prison, or on the famous pardon recipients like Dinesh D’Souza, the conservative provocateur, and I. Lewis Libby Jr., the former aide to Dick Cheney.  But there are countless people living quietly and whose time in the criminal justice system is years in the past, but who, because of the ever-expanding tally of consequences for felony convictions, feel permanently confined.

July 12, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Will guilty plea and statement, after another baby's death, deter reliance on faith-healing more than prior prison terms for Oregon church members?

The question in the title of this post is prompted by this remarkable local crime and punishment story out of Oregon, headlined "Faith-healing parents plead guilty in death of newborn twin.' Here are some essentials (with a few details emphasized) from a case that highlights the potential limits of traditional punishment to deter when individuals are motivated by an even higher power:

The parents of a twin girl who died hours after a home birth attended by dozens of people from the faith-healing Followers of Christ Church pleaded guilty Monday to negligent homicide and criminal mistreatment.  It marked the fifth criminal case in Clackamas County after a child's death in the church community over the last nine years but the first to end in a plea deal.  The mother, Sarah Elaine Mitchell, 25, and father, Travis Lee Mitchell, 22, each were sentenced to prison for six years and eight months.

In an unusual development, the Mitchells not only acknowledged their failure to provide necessary medical care for their newborn but also said in a statement read aloud by one of their lawyers that "everyone in the church should always seek adequate medical care for our children.''

Sarah and Travis Mitchell are members of the Followers of Christ, which traces its origin to the Pentecostal movement of the late 19th century. Sarah Mitchell is a granddaughter of the church founder, Walter White. Her father is also named Walter White.  Sarah Mitchell's father signed the statement, which will be prominently posted inside the church for all to read, under the terms of the plea agreement....

The guilty pleas came in a Clackamas County courtroom before more than 50 church supporters and Multnomah County Circuit Judge Eric J. Bergstrom, who who helped the parties reach a settlement.... Senior Deputy District Attorney Bryan Brock called the outcome of the case, with the couple accepting responsibility and issuing a public statement, a "landmark resolution."

"These are senseless and avoidable deaths, and we keep asking ourselves what will it take" to convince others in the church to get the right medical care for their children, Brock said.  He said he hoped the message will be for church followers to "seek medical attention and prayer. They're not mutually exclusive.''

Sarah Mitchell's lawyer Stephen Houze called the couple "utterly sincere, decent, caring human beings," who have suffered with the loss of one of their children while separated in custody. They have had in-jail visits with their surviving daughter, who is now 16 months old and bonding with each parent, Houze said. She remains in foster care. The parents are accepting responsibility for their actions "knowing a price must be paid," Houze said.

The Mitchells' baby died in the master bedroom at the Oregon City home of Sarah Mitchell's parents.  It was the same place where Sarah Mitchell's older sister Shannon Hickman delivered a premature baby boy who died eight hours after birth in September 2009.

The first of the twins, Evylen, was born in a breech position -- bottom first, a significant potential complication -- at 2:30 p.m., weighing only 3 pounds, 8 ounces, nearly two months premature. Twenty-three minutes later, Ginnifer was born at 2:53 p.m., weighing only 3 pounds, 6 ounces. Breathing problems persisted for both newborns but no one called 911 or took the girls to a hospital. At 4:36 p.m., a relative texted others, asking, "R u guys hearing that the second baby is dark and they r wanting prayers?" according to investigators.

Over four hours, Ginnifer fought for her life, trying to take oxygen into her underdeveloped lungs. At 6:05 pm., Travis Mitchell "laid on hands" and the family took turns praying for healing as the baby continued labored breathing and changed colors. Ginnifer died at 7 p.m. that day. "I knew she was dead when she didn't cry out anymore,'' her father said, according to court documents.

Both Sarah and Travis Mitchell admitted in interviews that their daughter's death was just like the Hickman case, Brock wrote in court papers.  A jury convicted Hickman and her husband of second-degree manslaughter and they were sentenced to six years and three months in prison for not seeking medical treatment for their son born at 32 weeks. "The Mitchells were more knowledgeable of the risks and consequences to their newborns from having experienced the Hickman case," Brock wrote in court documents.

Also present at the birth were Sarah Mitchell's in-laws, three mid-wife birthing assistants and other family, including Sarah Mitchell's eldest sister, Stephanie Edwards, and her husband, Brian, as well as church members....

"We hope that this office is never again forced to prosecute parents in the Followers of Christ Church for neglecting the medical care of their children," the Clackamas County District Attorney's Office said in a statement. "However, we continue to stand ready to do so if the members of that congregation do not heed the call of this family."

The couple showed no emotion in court. As each stood to be handcuffed by sheriff's deputies before they were led out of the courtroom, Travis Mitchell, a 2014 graduate of Oregon City High School, mouthed "I love you" to his parents. The Mitchells will get credit for the 13 months they've already been in custody and credit for good time served. They'll face three years of post-prison supervision.

I always find stories of parents convicted and imprisoned for allowing their children to die are always heart-wrenching, and I find it almost hard to believe that the same large family would allow two newborns to die in the same room in their house in seemingly the same way only years apart.  And, as the title of this post is meant to highlight, it is remarkable to realize that a prior manslaughter conviction with a significant prison term was itself not enough to deter the family from the same sort of criminal behavior the second time around.

For the sake of everyone involved, I sure hope a statement prominently posted inside the church will start leading these church members to see the importance of getting traditional medical care. But I can understand why prosecutors want to stress their willingness to keep prosecuting neglectful parents. 

July 12, 2018 in Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Wednesday, July 11, 2018

Drug company succeeds in getting Nevada execution using its drug postponed

As reported in this local article, "Nevada’s plan to execute a convicted murderer with a never-before-used combination of drugs is on hold for at least 60 days." Here is more:

The state was planning to use three drugs — midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) — to execute Scott Dozier on Wednesday night.

Clark County District Judge Elizabeth Gonzalez ruled in favor of the company that makes midazolam, which sued the state, saying Nevada had illegitimately acquired the product for the execution. It wants the state to return its stock of the drug to the company. Gonzalez granted a temporary restraining order. “If the state is permitted to use the midazolam manufactured by plaintiff, plaintiff has shown a reasonable probability it will suffer irreparable damages,” Gonzalez said in her Las Vegas court.

The drug maker, Alvogen, and the state are scheduled to return to court September 10 for another hearing in the case.

The execution would have been the first time that fentanyl, one of the central drugs in the US opioid epidemic, has been used in a capital punishment case in the United States, said Robert Dunham, executive director of the Death Penalty Information Center. It would likely have been a first for cisatracurium to be used as well, he said.

Dozier, 47, is not making legal challenges to halt his execution. “Life in prison isn’t a life,” he told the Las Vegas Review-Journal. “This isn’t living, man. It’s just surviving.”... His attorney, Thomas Ericsson, told CNN that his client wants to be executed.

Although Dozier is not trying to stop his execution, there is opposition to the drug cocktail the state plans to use in carrying out the death sentence. “Nevada should not use prisoners as guinea pigs in experimental executions, even if they ask to die,” tweeted the ACLU of Nevada.

Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002. The victim’s torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections. Dozier was also convicted of second-degree murder in the death of another victim found buried in the Arizona desert.

Prior related posts:

July 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9)

Isn't it about time AG Jeff Sessions stops talking about "surging violent crime"?

The question in the title of this post is prompted by a comment appearing in this new Justice Department press release headlined "Attorney General Jeff Sessions Welcomes Brian A. Benczkowski as Assistant Attorney General for the Criminal Division."  Here is the start of this release with a key phrase highlighted:

Attorney General Jeff Sessions today welcomed the confirmation of Brian Allen Benczkowski as the Department of Justice’s Assistant Attorney General for the Criminal Division. “Brian is an outstanding lawyer with a diverse public service and criminal law background spanning over 20 years,” said Attorney General Sessions.  “This will be the sixth senior position Brian has held at the Department, and we are fortunate to have someone with his breadth of experience and strong leadership skills willing to serve again.  At a time like this — with surging violent crime and an unprecedented drug epidemic — this position is especially important.”

Had AG Sessions been speaking in January 2017, I could see a plausible basis for him to talk about it being "a time ... with surging violent crime."  But circa July 2018, all indications seem to be that violent crime is back to declining at least slightly: (1) the latest official FBI release reported that "overall violent crime decreased 0.8 percent in the first six months of 2017 compared with the same time frame in 2016," (2) the violent crime survey from the Major Cities Chiefs association for year-end 2017 and for the first part of 2018 show violent crime decreasing, and (3) the Brennan Center recently found, in a "final analysis of crime rates in 2017, ... an overall decline in rates of violent crime, murder, and overall crime in the 30 largest American cities."

I understand why and how politicians end up being sloppy with crime and punishment rhetoric, and I am not troubled when AG Sessions says violent crime is too high or employs similar terminology when espousing his tough-on-crime philosophy and policies.  But facts matter and should matter to the Attorney General.  And, according to all the data of which I am now aware, the simple fact is that the United States is not right now experiencing "surging violent crime."

So, in addition to wanting also to welcome Brian Benczkowski as Assistant Attorney General for the Criminal Division, I want to request that he be a bit more conscientious with his crime rhetoric than his boss (and especially his boss's boss).

July 11, 2018 in National and State Crime Data, Who Sentences? | Permalink | Comments (4)

Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work

Over at his SDFLA Blog, David Oscar Markus has this helpful new post titled "A look into some of Judge Kavanaugh's criminal justice opinions." I recommend the whole post, and here are two particular opinions flagged there that ought to be of particular interest to sentencing fans: 

1. Acquitted Conduct. Many people, lawyers and non-lawyers alike, are shocked that sentencing judges are permitted to use acquitted conduct in fashioning a federal sentence. Kavanaugh wrote about the practice here in a thoughtful concurrence (in denying en banc review) shortly after Blakely and Booker. He said that although the law currently permits it, district judges have the discretion NOT to use acquitted conduct and his advice is that they should NOT use it at sentencing.  Here's a portion:

Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?....
3. Sentencing.  Here's a dissent in which Kavanaugh sides with the Government, calling the majoirty opinion "confounding." The majority opinion explains that the district judge did not adequately explain the upward variance. Kavanaugh disagrees: "Seizing on the Guidelines range as if it were talismanic (which it is not post-Booker), the majority opinion concludes that the District Court committed procedural error by failing to adequately explain Matthews’ above-Guidelines sentence. I disagree."

I am inclined to mostly agree with David's post's overall assessment of Judge Kavanaugh: "So after reading these opinions, my take is that Kavanaugh appears to be more in line with Roberts.  He won't be a Scalia and he won't be an Alito.  But he'll probably be more sympathetic to criminal justice issues than Kennedy was."  But I would add that I expect Judge Kavanaugh to be less sympathetic to capital defendants that Justice Kennedy has been, but possibly just a bit more sympathetic to some (but not all) others. 

A few related posts:

July 11, 2018 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"Intellectual Disability, The Death Penalty, and Jurors"

The title of this post is the title of this new paper on SSRN authored by Emily Shaw, Nicholas Scurich and David Faigman. Here is its abstract:

In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors reason about and make these decisions.

This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were considerably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled.  They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which increased perceptions of both the defendant’s blameworthiness and his mental ability.  These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.

July 11, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, July 10, 2018

Drug maker sues Nevada seeking to prevent state from using its drug in state's first execution in a dozen years

As reported in this local article, the "maker of a sedative set for inclusion in a Nevada execution on Wednesday — the state’s first in 12 years — is suing to stop it from being used to kill Scott Dozier." Here is more:

American pharmaceutical company Alvogen filed a lawsuit Tuesday in Clark County District Court, saying the Nevada Department of Corrections purchased the drug on false pretenses even though they knew Alvogen objected to its use for executions. The company is asking a judge for a temporary restraining order, for the drug midazolam to be impounded and for it to be barred from any use in capital punishment.

“Defendants intentionally defrauded Alvogen’s distributor by, on information and belief, concealing the April 2018 letter from the distributor and/or the fact that Defendants intended to use the Alvogen Midazolam Product for purposes of an execution,” the lawsuit said. “Defendants omitted relevant information and implicitly made the false representation that they had legitimate therapeutic rationale to purchase the Alvogen Midazolam Product.”

A spokeswoman for the Nevada Department of Corrections didn’t immediately respond to a request for comment on Tuesday, and it’s unclear whether the suit — filed a little more than 24 hours before the execution — will prompt a delay.

Alvogen says on its website that it tries to prevent its product midazolam from use in executions. But the Nevada Department of Corrections announced last Tuesday that it was adding midazolam to its three-drug lethal injection combination after another drug expired, and on Friday it distributed photos of the packaging with Alvogen labels — a response to a request from the American Civil Liberties Union of Nevada for more information about the drugs’ origins.

The pharmaceutical company said it learned its product would be used when it started to receive press inquiries on July 7. “Alvogen does not market, promote or condone the use of any of its approved prescription drug products, including midazolam, for use in state sponsored executions,” spokesperson Halldór Kristmannsson said in a statement on Monday. “To avoid any improper, off label use of our products, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen works with our distributors and wholesalers to restrict any resale, either directly or indirectly, of our midazolam product to any prison system or department of correction.”

Alvogen’s suit said the state has refused to return the products, and added that the prison agency “was aware of and actively fought disclosure of certain execution-related information because such information had been used to persuade manufacturers to cease selling their products for executions.” NDOC’s actions “have caused, and will continue to cause unless enjoined, substantial and irreparable injury to Alvogen, its reputation, and its goodwill,” the lawsuit said.

The 80-page complaint can be found at this link.

Prior related posts:

July 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

"The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It"

The title of this post is the title of this extraordinary big new report released today by the National Association of Criminal Defense Lawyers. Here is an overview of the 84-page report from the NACDL's website:

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.  To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system

This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident.  The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems.  The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.

Former US District Judge John Gleeson authored a thoughtful Foreword to the report, and here are excerpts that also provide a partial account of what follows:

This report is a major contribution to the discussion of one of the most important issues in criminal justice today: the vanishing trial.  Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don’t do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers.

The first task in solving a problem is identifying its causes, and this report nails that step.  Mandatory minimum sentencing provisions have played an important role in reducing our trial rate from more than 20% thirty years ago to 3% today.  Instead of using those blunt instruments for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.  The Sentencing Guidelines also play an important role, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not.  Finally, the report correctly finds that federal sentencing judges are complicit as well.  In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big.  The same judges who will go along with a plea bargain that compromises a severe Guidelines range are too reticent to stray very far from the sentencing range after trial.

The report’s principles and recommendations will stimulate some much-needed discussion.  Today’s excessive trial penalties, it concludes, undermine the integrity of our criminal justice system.  Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.  The report properly raises the “innocence problem,” that is, the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty and the outcome if he goes to trial and loses that even innocent defendants now plead guilty.  But there’s an even larger hypocrisy problem.  Our Constitution claims to protect the guilty as well, affording them a presumption of innocence and protecting them from punishment unless the government can prove them guilty beyond a reasonable doubt.  A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy that burden, hollowing out those protections and producing effects no less pernicious than innocents pleading guilty.

The report’s recommendations range from the sweeping (ban those mandatory minimums) to the technical (eliminate the motion requirement for the third “acceptance” point), and include suggested modifications to the “relevant conduct” principle at the heart of the Guidelines, pre-plea disclosure requirements, “second looks” at lengthy sentences, and judicial oversight of plea discussions.  A particularly attractive recommendation would require judges sentencing a defendant who went to trial to pay greater attention to the sentences imposed on co-defendants who pled guilty; few things place today’s excessive trial penalty in sharper relief.

There is no such thing as a perfect criminal justice system. But a healthy one is constantly introspective, never complacent, always searching for injustices within and determined to address them.  The sentencing reform movement a generation ago disempowered judges and empowered prosecutors.  Federal prosecutors have used that power to make the trial penalty too severe, and the dramatic diminution in the federal trial rate is the result.  Our system is too opaque and too severe, and everyone in it — judges, prosecutors, and defense attorneys — is losing the edge that trials once gave them.  Most important of all, a system without a critical mass of trials cannot deliver on our constitutional promises. Here’s hoping that this report will help us correct this problem before it is too late.

July 10, 2018 in Examples of "over-punishment", Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)

9780190866044Not long after Justice Anthony Kennedy announced his retirement, I authored a post hoping to germinate an idea with criminal justice reformers and litigants: "With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers."  I am not especially optimistic that Judge Brett Kavanaugh, who has now been tapped as Justice Kennedy's replacement, will be chomping at the bit to reverse his old boss's troublesome Eighth Amendment work in Harmelin.  But I remain optimistic that a new generation of judges (including Chief Justice Roberts and Justice Gorsuch) may be significantly more open these days to "refreshing" an Eighth Amendment jurisprudence in order to put at least some limits on some extreme prison terms for some adult offenders.

With these thoughts swimming in my mental soup, an important new ingredient came to mind as a result of recent opportunities to talk with Sixth Circuit Judge Jeffrey Sutton about his terrific new Oxford University Press book titled "51 Imperfect Solutions: States and the Making of American Constitutional Law." Here is how the book is described by Oxford:

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system.  Yet much of our constitutional law is not made at the federal level.  In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties.

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion.  Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court.  But these explanations tell just part of the story.  The book corrects this omission by looking at each issue — and some others as well — through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges.  Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions.

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty.  In trying to correct this imbalance, the book also offers several ideas for reform.

I recommend Judge Sutton's book to all serious legal thinkers (and not-so- serious ones, too), and I mentioned to Judge Sutton that I viewed proportionality litigation around the Eighth Amendment and its state analogues to be another area full of dynamic (though often disconcerting) stories about the role of the state courts and state constitutions in a jurisprudential dialogue with federal courts.  Indeed, as some reader may recall, a little over five years ago I worked with folks at National Association of Criminal Defense Lawyers (NACDL) to develop this 51 state resource in the form of a "collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

As states continue to work through the implications of Graham and Miller and Montgomery, I sense and surmise there is plenty of interesting constitutional litigation over the Eighth Amendment still on-going in state courts, and Judge Sutton's work has me wondering how much of that litigation also involves state constitutional proportionality claims pressed in addition to federal claims.  (A key theme in Judge Sutton's book is that lawyers always should, when available, be pressing state constitution claims on behalf of their client as well as federal claims.)  I know I am overdue on a pledge to be updating these NACDL state-by-state resources, and I would be especially eager to hear from any and all state defense lawyers about whether there has been considerable new proportionality jurisprudence in their jurisdictions in recent years.

As thew title of this post suggest, I think Judge Sutton's book can and should serve as a suggestion to all state criminal defense lawyers to keep pressing state constitutional claims.  Doing so could not only lead to important state-level rulings, but also provide still further ideas and energy to perhaps help the US Supreme Court see a reason to overrule or at least recast its ugly work in Harmelin.

July 10, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)