Thursday, September 29, 2016

New HELP Act seemingly proposes death — and mandates LWOP — for spiked heroin dealing in every case in which "death or serious bodily injury results"

In this post yesterday I noted that Representative Tom Reed, who represents the 29th Congressional District of New York, last week introduced a bill (with four co-sponsors) that would respond to the current heroin epidemic by expanding the federal death penalty.  In that post, you can find Rep Reed's press release, headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," explaining the background and reasons for his proposal.

This morning, I found that this page at Congress.gov providing more information about the Help Ensure Lives are Protected (HELP) Act now has this link to the (quite short) text of Rep Reed's bill.  Somewhat disconcertingly, but not really all that surprisingly, the bill is written in a way that seems to mandate federal life without parole (and permits the death penalty) in any and every case in which any user of spiked heroin suffers even serious bodily injury and even if the person distributing the heroin does not know or even have any reason to know the heroin is spiked or that it could seriously injure a user.  

In other words, as I read the key text of the proposed HELP Act, this bill calls for holding any and all heroin distributors strictly and severely criminally liable for any and all serious injuries or deaths that result from a user ingesting spiked heroin.  This is because the HELP Act simply amends the "Penalties" provision of the Controlled Substances Act by adding "if the mixture or substance [of more than 100 grams] containing a detectable amount of heroin also contains a detectable amount of [spiked substance like fentanyl], and if death or serious bodily injury results from the use of such substance, such person shall be sentenced to life imprisonment or death."

Of course, the Supreme Court long ago concluded that the Eighth Amendment precludes even felony murderers from be subject to the death penalty unless and until it can be shown they were at least extremely reckless in the causing of a death.  Thus, because of constitutional limits, there is little chance this bill if enacted would end up sending lots of drug dealers to federal death row.  But, the Eighth Amendment was interpretted in 1991 to permit Michigan to mandatorily impose LWOP on adults for just the possession of a significant quantity of drugs.  Thus, if the HELP Act were to become law, there is a real reason to expect that a huge numbers of persons involved in heroin distribution throughout the US could soon be facing mandatory life sentences if anyone who gets a spiked drug gets seriously injured.

Prior related posts:

September 29, 2016 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Important review of the politics, power and personage surrounding US prosecutors

Infographic-1This lengthy new Fusion article, headlined "America's Prosecutor Problem: Prosecutors are more powerful than judges -- but the tough-on-crime stance they take to get elected multiplies racial injustices," brings an important empirical perspective to the story of American prosecutors and just who wields arguably the most power in modern criminal justice systems.  Here are excerpts:

Gordon Weekes describes a criminal case that landed on his desk this month in Fort Lauderdale, Florida: “An old lady comes out of her house and sees three or four kids in in her yard.”  She calls the police.  The kids scatter, but get caught. They’d climbed a fence to snag mangos from a tree.  One of the boys is charged with burglary.

“I suppose because he jumped the fence with an intent to take mangos, that it was a burglary,” muses Weekes, the chief assistant public defender in Broward County.  “But the kid is 13 years old -- and he didn’t even take a mango! The state attorney’s office is supposed to decide how to charge these cases. You would think they would go with the more appropriate charge, which is trespass. No -- they’re going with the more serious charge.”....

“Prosecutors have more power in this system than any judge, any supreme court, any police officer, or any attorney,” he says. They decide what charges to file -- “or more importantly, what charges not to file.”

Even as race and justice issues dominate national headlines, few media outlets have focused on the formidable power prosecutors wield. But they should.  Of the 2,437 elected prosecutors in America (at both the both federal and county levels), 79 percent were white men --- even though white men made up only 31 percent of the population, according to a 2014 report by the San Francisco-based nonprofit Women Donors Network.  That disparity, the report said, is a “structural flaw in the justice system” that has cascading effects -- like reducing accountability for police officers who shoot unarmed minorities.

As part of “Rigged,” our investigation into the dark side of modern-day electioneering, Fusion worked with Color of Change, another organization working on social justice issues, to collect and analyze data for every jurisdiction in America.

The results are stark: 93 percent of all prosecutors in the United States are white, though only 61 percent of the U.S. population is.  At the same time, there were 1,561,500 prisoners in state and federal prisons, according to the latest (2014) data from the Bureau of Justice Statistics, which noted that black men “were in state or federal facilities 3.8 to 10.5 times more often than white men.”  Fusion’s data supports what social justice activists have long maintained: At the local level, America’s justice system is disproportionately white-controlled, and disproportionately oriented toward punishing minorities.  There are no straightforward answers for how and why the disparity persists, but the data shows the disparity is real....

In many places in America, people of color represent a small share of the population, so it’s natural to assume that the overwhelming whiteness of US district attorneys is due to the whiteness of large swaths of the country. However, when Fusion analyzed the data, we found the imbalance persists even in communities of color:

  • In counties in the U.S. where people of color represent between 50% and 60% of the population, only 19% of prosecutors are prosecutors of color.
  • In counties where people of color represent between 80% and 90% percent of the population, only 53% of the prosecutors are prosecutors of color.
  • Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community.
  • Overall, in the 276 counties in the U.S. where people of color represent the majority of the population, only 42%, or less than half, of the prosecutors in these counties are prosecutors of color.
  • Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community....

Rashad Robinson, executive director of Color of Change, said that any prosecutor can be good or bad. The problem, he said, is that to get elected, they usually position themselves as “tough on crime” and make strong alliances with police. “They’re going into the job trying to get high conviction rates,” Robinson said. “They try to rack up as many convictions as possible, even though we a have mass incarceration problem.” What we really need, he says, is progressive prosecutors of any race who realize that “the prison-industrial complex has not made us safer.”

Indeed, Color of Change is tracking prosecutor elections and gathering data such as the number of times a prosecutor is elected, what party they represent, their race, gender, and whether they were appointed or ran unopposed. Of the 2,326 prosecutors elected to office as of 2016 and tracked by Color of Change, 72 percent -- 1,691 in all -- ran unopposed in their last election....

Many factors could contribute to the gap in the number of prosecutors of color who run for office. In the data that Color of Change collected, only 94 prosecutors of color were elected to office as of 2016. Of these, 60 ran unopposed in their last election, or 64 percent. Of the 2223 white prosecutors currently elected to office, 1627 or 73 percent ran unopposed. Although the percent of white incumbents who ran unopposed is slightly higher, there is not enough data to draw a conclusion primarily because there are so few prosecutors of color in office. Interestingly, three states (New Jersey, Connecticut and Alaska) appoint prosecutors. In these states, 32 percent of the prosecutors are people of color compared to just 4 percent of prosecutors who are elected. Color of Change hopes to track election outcomes over time in order to better understand what might be driving these differences.

After police arrest a person, the prosecutor and his/her staff of assistant attorneys make a host of decisions that can transform the life of the accused:

  • They can recommend whether the defendant should be released on bail, and can recommend a bail amount.
  • They can adjust the charges, making them more or less severe, felonies or misdemeanors.
  • They can decide whether a child is charged as a juvenile or an adult.
  • They can add or subtract counts.
  • They can also convene grand juries to determine which charges to pursue.
  • The prosecutor can also decide not to press charges at all.

“At any time, until a jury is sworn or a plea taken by the court, the state attorney can chose to drop the case,” said Gordon Weekes. “That is always their power, for many reasons: not enough evidence, it’s not in the interest of the public to go forward, there’s an alternative that better suited.”

Because laws outline recommended prison sentences, or even dictate mandatory minimum sentences for particular crimes, a prosecutor can have far more latitude over a defendant’s ultimate prison sentence than a judge, based solely on what charges are brought. For example, at the federal level, someone accused of a misdemeanor charge of possession of marijuana could be fined $1,000 and spend a year in jail. With felony charge of selling marijuana, the fine could be $250,000 and the sentence, five years in prison. Weekes notes that the stronger the threat of punishment, the more inclined a defendant might be to just plead guilty and end the case rather than incur lawyer fees and take up time as the case goes to trial.

In Broward County, Florida, the site of the mango crime, the state attorney is Michael Satz, who was elected to his role in 1976 and has won every election since. He is now 73 years old. On his website, Satz makes no secret of his mission. He brags that in 1992, he “achieved the highest total conviction rate for trials and guilty pleas in the state, a high standard his office works hard to maintain.”

Satz made his reputation for being tough on crime during the drug wars of the 1980s and 90s -- and, critics, say, that reputation was built the backs of minorities. “He’s sent thousands of people to prison on very, very minor drug offenses,” Weekes said. “There’s probably more drug crime occurring on college campuses, but no one is going to any college and kicking down the dorm room door to find a bong under the bed.

“He’s a very nice guy, but he’s lost in a different age and different time,” Weekes said of Satz. “Because he doesn’t have any true connection to people who are impoverished, who have had to struggle, he can’t relate to a lot of the people entering the criminal justice system. There is a lack of empathy that comes from that office -- and countless examples in the ways they choose to prosecute cases.”

September 29, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Notable report on "California’s Historic Corrections Reforms"

The  Public Policy Institute of California (PPIC), a nonprofit nonpartisan think tank, has released this interesting new report titled simply "California’s Historic Corrections Reforms." This PPIC press release reviews the report's highlights: 

California has reduced the number of offenders incarcerated in the state without broadly increasing crime rates. But so far, the state’s historic reforms have not lowered California’s high recidivism rates or corrections spending. These are the key findings of a report released today by the Public Policy Institute of California (PPIC).

After a federal court ordered the state in 2009 to shrink the size of its prison population, California embarked on a path — unmatched by any other state — of reducing incarceration and reforming its corrections system.  October marks the five-year anniversary of public safety realignment, the major reform that shifted responsibility for lower-level felons from the state prison and parole systems to county jail and probation systems.  The passage of Proposition 47 in 2014 led to more changes.  The PPIC report, California’s Historic Corrections Reforms, assesses the impact of the reforms and their implications for the future in key areas:

  • Incarceration. After reaching a peak in 2006 of almost 256,000, the total number of inmates in state prisons and county jails declined by about 55,000. The incarceration rate fell from 702 to 515 per 100,000 residents — a level not seen since the early 1990s.  The prison population rapidly declined in the first year of realignment, when most lower-level felons with new convictions began serving their sentences in county jail or under probation supervision instead of in state prison. But the decline was about 10,000 inmates short of the court-mandated target of 137.5 percent of the prisons’ design capacity.

    Realignment also increased the statewide jail population by about 9,000 inmates in the first year, leading to early releases because of crowding.  It was not until voters passed Proposition 47 — which reduced penalties for some drug and property offenses — that the prison population fell below the court-ordered target and the jail population dropped to pre-realignment levels. Each of these reforms changed the composition of the jail population—and presented new challenges to the counties. A companion PPIC report, California’s County Jails in the Era of Reform, also released today, examines these changes.

  • Crime rates. Realignment resulted in an additional 18,000 offenders on the street, but through 2014 there is no evidence to suggest that it affected violent crime. Auto thefts did increase, by about 60 per 100,000 residents. In 2014, the most recent year with comprehensive data available, crime rates were at lows not seen since the 1960s. In 2015, violent crime rose by 8.4 percent and property crime by 6.6 percent, but data are not yet available to determine if these increases are part of a national trend or specific to California. The role of Proposition 47 on crime remains unknown, but compared to other states, California’s increase in property crime appears to stand out more than its increase in violent crime.

  • Recidivism.  Rearrest and reconviction rates for offenders released in the first year of realignment are similar to what they were before realignment: 69 percent of offenders released from state prison are rearrested within two years, and 42 percent are convicted again.  This reconviction rate — about 5 percentage points higher than before realignment — may simply reflect prosecution of offenses that in the past would have been processed administratively.  California did make one significant advance: realignment effectively reduced the costly practice of returning released offenders to prison for parole violations. As a result, two-year return-to-prison rates, which had been the highest in the nation, dropped from 55 percent to 16.5 percent.

  • Spending.  Despite a lower incarceration rate, the state’s General Fund spending on corrections in 2016–17 is $10.6 billion — 9 percent more than the $9.7 billion spent in 2010–11, the last year before realignment. The state also gives the counties $1.3 billion in realignment funds.  Since 2012, increases to the corrections budget have funded additional space to house prisoners, employee salaries and benefits, and bond repayment.  The state has also invested significantly to improve delivery of health care for inmates, though prisons continue to operate under a court-ordered medical receivership.  Regaining control of health care could help the state reduce costs. But to realize substantial savings, the state may need to reduce the prison population enough to close a state prison or reduce its use of private and out-of-state facilities to house prisoners.

Even with the significant decline in incarceration, California still houses about 200,000 inmates and spends at historically high levels on corrections, the report notes.

September 29, 2016 in National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 28, 2016

Terrific NPR segment about prisoners on strike throughout the US

I was lucky enough to have my drive home tonight coincide with my local NPR station's broadcast of a lengthy segment concerning US prisons and on-going strikes in a number around the nation. Among the participants in the call-in show was Beth Schwartzapfel who has been following developments and writing about them here at The Marshall Project under the headline "A Primer on the Nationwide Prisoners’ Strike: Prisoners can be forced to work without pay — the Constitution says so."

The reason I consider the NPR piece a "must-listen" is in large part because of two current prisoners were somehow able to call into the show and talk about these issues from prison for an extended period. (The currently incarcerated begin speaking around the 14:25 mark until about the 39:40 mark.

Really worth taking the time to check out for those who care about prisons and prisoners in the United States.

September 28, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

"The Case Against Prisons: Alternatives to imprisonment are working around the world — so why isn’t the United States on board?"

The title of this post is the headline of this lengthy new piece by Rebecca Gordon at The Nation (although the title is a bit misleading because the piece talks more about justice and punishment than about prisons). Here are excerpts:

This year, a brave New Jersey state senator, a Democrat, took on the pernicious problem of distracted walking. Faced with the fact that some people can’t tear themselves away from their smartphones long enough to get across a street in safety, Pamela Lampitt of Camden, New Jersey, proposed a law making it a crime to cross a street while texting. Violators would face a fine, and repeat violators up to 15 days in jail. Similar measures, says the Washington Post, have been proposed (though not passed) in Arkansas, Nevada, and New York. This May, a bill on the subject made it out of committee in Hawaii.

That’s right. In several states around the country, one response to people being struck by cars in intersections is to consider preemptively sending some of those prospective accident victims to jail. This would be funny, if it weren’t emblematic of something larger. We are living in a country where the solution to just about any social problem is to create a law against it, and then punish those who break it....

I’ve been teaching an ethics class at the University of San Francisco for years now, and at the start of every semester, I always ask my students this deceptively simple question: What’s your definition of justice?...

For most of my students – for most Americans in fact – justice means establishing the proper penalties for crimes committed. “Justice for me,” says one, “is defined by the punishment of wrongdoing.” Students may add that justice must be impartial, but their primary focus is always on retribution. “Justice,” as another put it, “is a rational judgment involving fairness in which the wrongdoer receives punishment deserving of his/her crime.”...

Often, when citing the sources of their beliefs about justice, students point to police procedurals like the now-elderly CSI and Law and Order franchises. These provide a sanitary model of justice, with generally tidy hour-long depictions of crime and punishment, of perps whose punishment is usually relatively swift and righteous.

Certainly, many of my students are aware that the U.S. criminal justice system falls far short of impartiality and fairness. Strangely, however, they seldom mention that this country has 2.2 million people in prison or jail; or that it imprisons the largest proportion of people in the world; or that, with 4% of the global population, it holds 22% of the world’s prisoners; or that these prisoners are disproportionately brown and black. Their concern is less about those who are in prison and perhaps shouldn’t be, than about those who are not in prison and ought to be.

They are (not unreasonably) offended when rich or otherwise privileged people avoid punishment for crimes that would send others to jail. At the height of the Great Recession, their focus was on the Wall Street bankers who escaped prosecution for their part in inflating the housing bubble that brought the global economy to its knees. This fall, for several of them, Exhibit A when it comes to justice denied is the case of former Stanford student Brock Turner, recently released after serving a mere three months for sexually assaulting an unconscious woman. They are (perhaps properly) outraged by what they perceive as a failure of justice in Turner’s case. But they are equally convinced of something I struggle with – that a harsher sentence for Turner would have been a step in the direction of making his victim whole faster. They are far more convinced than I am that punishment is always the best way for a community to hold responsible those who violate its rules and values....

Of course, the urge to extend punishment to every sort of socially disapproved behavior, including texting in a crosswalk, is hardly a new phenomenon. Since the founding of the United States, government at every level has tended to make unpopular behavior illegal. Just to name a few obvious examples of past prohibitions now likely to stop us in our tracks: at various times there have been laws against having sex outside marriage, distributing birth control, or marrying across races (as highlighted in the new movie Loving). In 1919, for instance, a constitutional amendment was ratified outlawing the making, shipping, or selling of alcohol (although it didn’t last long)....

It’s hard to imagine a justice system that doesn’t rely primarily on the threat of punishment when, for most Americans, no alternative is imaginable. But what if there were alternatives to keeping 2.2 million people in cages that didn’t make the rest of us less safe, that might actually improve our lives? Portugal has tried one such alternative. In 2001, as the Washington Post reported, that country “decriminalized the use of all drugs” and decided to treat drug addiction as a public health problem rather than a criminal matter. The results? Portugal now has close to the lowest rate of drug-induced deaths in Europe – three overdose deaths a year per million people. By comparison, at 45 deaths per million population, the United Kingdom’s rate is more than 14 times greater. In addition, HIV infections have also declined in Portugal, unlike, for example, in the rural United States where a heroin epidemic has the Centers for Disease Control and Prevention worried about the potential for skyrocketing infection rates.

All right, but drug use has often been called a “victimless” crime. Maybe it doesn’t make sense to lock up people who are really only hurting themselves. What about crimes like theft or assault, where the victims are other people? Isn’t punishment a social necessity then?

If you’d asked me that question a few years ago, I would probably have agreed that there are no alternatives to prosecution and punishment in response to such crimes. That was before I met Rachel Herzing, a community organizer who worked for the national prison-abolition group Critical Resistance for 15 years. I invited her to my classes to listen to my students talk about crime, policing, and punishment. She then asked them to imagine the impossible – other methods besides locking people up that a community could use to restore itself to wholeness.

This is the approach taken by the international movement for restorative justice. The Washington, D.C.-based Centre for Justice and Reconciliation describes it this way: “Restorative justice repairs the harm caused by crime. When victims, offenders, and community members meet to decide how to do that, the results can be transformational.”...

So the next time you find yourself thinking idly that there oughta be a law – against not giving up your seat on a bus to someone who needs it more, or playing loud music in a public place, or panhandling – stop for a moment and think again. Yes, such things can be unpleasant for other people, but maybe there’s a just alternative to punishing those who do them.

September 28, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers" ... UPDATE: With four co-sponsors

Current PortraitThis official press release from the offices of Representative Tom Reed, who represents the 29th Congressional District of New York, reports on the introduction of a bill that would respond to the current heroin epidemic by expanding the federal death penalty.  The press release is headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," and here are the details form the press release:

Tom Reed continued his fight against heroin and opioid abuse by offering a proposal which would toughen penalties for drug dealers that supply users with illicit substances that cause an overdose death. “We care about the families of every overdose victim in our community and the addicts that are struggling. We’ve held several roundtable discussions and heard directly from the parents who have lost children to opioids and heroin. It’s only right that we hold those responsible for harming our loved ones accountable,” said Reed.

The bill, known as the Help Ensure Lives are Protected (HELP) Act, would allow federal prosecutor expanded access to more severe penalties, including life in prison or the death penalty, when prosecuting certain criminal drug cases where prosecutors can connect an overdose death to the drug dealer that sold heroin laced with fentanyl.

The move comes in the wake of several roundtable discussions held by Reed throughout the region as well as the recent spike in overdoses directly related to fentanyl laced heroin. The number of deaths due to synthetic opioids, mainly Fentanyl, rose 80% between 2013 and 2014.

Fentanyl is extremely addictive substance, 100 times more powerful than morphine, which is often included in heroin without the user’s knowledge, to maximize the dealer’s profits. The substance is so potent that law enforcement officers are forced to wear level ‘A’ hazmat suits following raids and seizures to avoid coming in contact with it. These hazmat suits are the same kind worn by medical professionals combating Ebola.

Reed supported the Comprehensive Opioid Abuse Reduction Act which was signed into law in July. The law provides for new programs that offer prevention and treatment options for addicts by offering grants to states, and groups of states, to implement and expand access to these services. The government funding proposal, which is expected to pass the House later this week, will designate $37 million to these efforts.

Reed says his proposal will “bring balance to the approach” by providing law enforcement with additional options to aid prosecution.  “This is about justice for the victims and their families and giving our law enforcement and prosecutors the tools they need to stop the flow of these lethal substances into our communities,” said Reed.  The proposal was introduced late last week.

I cannot yet find the Help Ensure Lives are Protected (HELP) Act on-line, but I am very interested in seeing just how this bill seeks to apply and administer LWOP and the death penalty in this setting.

UPDATE I have found this page via Congress.gov providing more information about the HELP Act, which on that site goes by this description "H.R.6158 - To provide for enhanced penalties for certain offenses relating to controlled substances containing fentanyl, and for other purposes."  Unfortunately, that webpage does not yet have either the bill text or the a substantive summary, but the page does note that H.R.6158, the HELP Act, was introduced with these four other sponsors:

Rep. Yoho, Ted S. [R-FL-3]

Rep. LaMalfa, Doug [R-CA-1]

Rep. Flores, Bill [R-TX-17]

Rep. Chabot, Steve [R-OH-1]

September 28, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

"How Did Chicago Get So Violent? Did the effort to eradicate the city’s gangs in the 1990s inadvertently lead to its bloody present?"

The question in the title of this post are the headline of this really interesting new Slate article.  I recommend the article in full, and this extended excerpt highlights the key ideas of the piece:

The first wave of convictions stemming from Operation Headache came in March 1996.  But the biggest, most symbolically meaningful blow to the Gangster Disciples was delivered in May 1997, when Hoover was convicted of 42 counts of conspiracy to distribute drugs, received a sentence of six life terms, and was transferred to a supermax prison in Colorado, where his cell was located several stories underground and his ability to communicate with the remnants of his gang were severely constrained.  Soon, the GDs in Chicago had been all but neutralized, and the authorities shifted their attention to decapitating the city’s other major drug organizations, the Black Disciples and the Vice Lords.

Over the course of a roughly 10-year stretch starting in the mid-1990s, leaders from the GDs, the Vice Lords, the Black Disciples, and to a lesser extent, the Latin Kings were successfully prosecuted and taken off the street.  The top-down assault appeared to work as Safer and his colleagues had hoped: violent crime in Chicago began to decline, with the city’s murder total dropping from a high of 934 in 1993 to 599 10 years later.

For a while, it looked like the trend might continue moving in a positive direction, but after dipping below 500 in 2004, the number of murders in Chicago per year leveled off and began hovering in the 400s.  Over the past several years, however, the situation started getting worse; today, Chicago is once again synonymous with out-of-control gun violence, a city that regularly makes national news for the perilous existence that some of its poorest residents must endure.  Over the weekend of Sept. 12, the city passed 3,000 shootings and 500 murders since the beginning of the year, surpassing in just nine months the total numbers from 2015. As of this writing, the 2016 tally is up to 3,131 shootings and 530 homicides; a recent report from the Brennan Center for Justice showed that Chicago, by itself, is responsible for half of the 13 percent increase in homicides that the country as a whole is projected to experience this year.

According to the Chicago Police Department, 85 percent of the city’s gun murders in 2015 can be attributed to gang violence — a statistic that suggests a return to the bad old days while obscuring how profoundly the nature of Chicago’s gang problem has changed in the intervening years.  While experts say the Latin Kings, a Hispanic gang, continue to run a large and rigidly organized drug-selling operation on Chicago’s West Side, the majority of Chicago residents who call themselves gang members are members of a different type of group. Rather than sophisticated drug-selling organizations, most of the city’s gangs are smaller, younger, less formally structured cliques that typically lay claim to no more than the city block or two where they live.  The violence stems not from rivalries between competing enterprises so much as feuds that flare up with acts of disrespect and become entrenched in a cycle of murderous retaliation.

Many close observers of Chicago’s violence believe that, as well-intentioned as it was, the systematic dismantling of gangs like the Disciples led directly to the violence that is devastating the city’s most dangerous neighborhoods in 2016.  Taking out the individuals who ran the city’s drug trade, the theory goes, caused a fracturing of the city’s criminal underworld and produced a vast constellation of new entities that are no less violent, and possibly even more menacing, than their vanquished predecessors.

“Every time they hit these large street gangs, they’d focus on the leadership,” said Lance Williams, an associate professor at Northeastern Illinois University, and the co-author of a book about the rise and fall of the Black P Stone Nation, a gang that was eradicated in the 1980s.  “It’s like cutting the head off a snake — you leave the body in disarray and everyone begins to scramble for control over these small little areas. And that’s where you get a lot of the violence, because the order is no longer there.”  Williams added: “When you lose the leadership, it turns into chaos… What we’re dealing with now is basically the fallout of gang disorganization.”

The proliferation of small gangs has created a complicated and ever-changing patchwork of new alliances and rivalries, and instilled in many young people — predominantly poor, black men — a sense that they are vulnerable at all times to lethal attacks by members of opposing factions.

September 28, 2016 in National and State Crime Data, Offender Characteristics, Offense Characteristics | Permalink | Comments (8)

Tuesday, September 27, 2016

When someone focused on criminal justice empirics calls this the "Greatest. Graph. Ever."...

via this tweet, I feel compelled to reprint it:

CtYe_SeW8AABV59

Those who are familiar with Professor John Pfaff's work on Twitter or elsewhere will surely understand why he views this graph as reflecting so much greatness, and those not familiar with Professor John Pfaff's work should see this post as my recommendation that you take the time to figure out why he things this graph is so great.

Also, to add my two cents (and also throw in another useful discussion point), I think the graph would be even better is it also noted that December 1972 also marked the end of conscription for the military (i.e., "the draft") in the United States.

September 27, 2016 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (16)

"Why Nobody's Talking About the Supreme Court"

The title of this post is the headline of this timely and interesting post-debate Bloomberg View piece by Noah Feldman. Here are excerpts:

The U.S. Supreme Court didn’t come up Monday in the first presidential debate, and so far, it hasn’t been an important campaign issue. Given the unprecedented vacancy during an election season, that seems weird. But there is an explanation: The election’s consequences for the court are asymmetrical for the two political parties.

If the Democrat, Hillary Clinton, is elected, it will change the court’s balance, either through the confirmation of President Barack Obama’s nominee, Judge Merrick Garland, in the lame-duck session or with the appointment of Garland or another liberal after she takes office.  If the Republican, Donald Trump, is elected, all he can do is replace the late Justice Antonin Scalia with another conservative. That won’t change the court’s political balance.  For that to happen, Trump would need Justice Ruth Bader Ginsburg or Justice Stephen Breyer to be unable to serve, which won’t happen voluntarily for either in the first four years of a Trump presidency.

The result of this asymmetry is that neither candidate has much reason to put the Supreme Court front and center.  Clinton can try to appeal to her base by promising to reshape the Supreme Court, which is an inspiring vision for some liberals, to be sure.  But it isn’t good politics for her to trumpet a liberal transformation of the court when she’s trying to win over the median voter, who may well be skeptical of more judicial activism.

What’s more, Clinton lacks a signature constitutional issue that would make liberals excited about a progressive majority.  That’s because much of the liberal constitutional agenda has been achieved in the last two years, courtesy of Justice Anthony Kennedy.  He wrote the gay-marriage decision in 2015. In 2016, he delivered an opinion protecting affirmative action in higher education. He also provided the deciding vote in the Texas abortion case, safeguarding the abortion right for another generation.  With these decisions, Kennedy effectively took away the sense of constitutional fear and desperation that might otherwise be haunting liberals alongside the possibility of a Trump presidency....

For Trump, the calculus is a little different.  He can’t credibly promise to be a change agent when it comes to Supreme Court appointments. All he can do is say he will hold the line by appointing a conservative -- and indeed he has by releasing the names of 21 possible nominees.  That might have been enough to win over Texas Senator Ted Cruz, if you take Cruz’s word for his flip-flop on endorsing Trump.  But Trump doesn’t really like to depict himself as a movement conservative trying to preserve the status quo. His message is all about how things are broken.  Even if he chose to say that the Supreme Court got it wrong on gay marriage, abortion rights and affirmative action, he can’t say that he would be able to appoint justices who would change those results.

Furthermore, diehard conservatives who care about the Supreme Court are sophisticated enough to understand that they’ve lost on the big-ticket issues that have mattered most to them over the last 20 years. They know the court won’t immediately reverse itself.  Activist legal conservatives are focused mostly on preserving religious liberty in the aftermath of the gay-marriage decision, a position that is essentially defensive and operates on the (correct) background assumption that the culture war has already been lost.

The upshot is that for Trump, making the Supreme Court an election issue doesn’t hold much appeal as a way to energize the right or to capture new voters from the center. He can certainly criticize the courts when it’s convenient, or dismiss their holdings as “anti-police” the way he did during the debate.  So don’t expect much more on the Supreme Court during this election season.  When the dust has settled, however, the Supreme Court will return to the front pages very quickly indeed, and the question of who will succeed Scalia will be one of the most pressing issues facing the new president, whoever it is.

As long-time readers know, and as this prior post explains, I would add to this analysis the important fact that Prez Obama picked a nominee that is a relative political "yawner" for both parties.  As I have explained before, I thought back in March and continue to think today that the current politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick, and that would be especially so if he had selected the only woman of color who was seriously vetted for this open SCOTUS spot, US District Judge Ketanji Brown Jackson.  Though I dislike discussion that focus on "playing the race card" or "playing the gender card," I like to be honest when highlighting that it is the personnel and not just the politics at the heart of this "non-issue" reality. 

If the GOP Senate was blocking even a hearing for the first woman of color nominated to the Supreme Court, I am certain Clinton would now be seeking to appeal to her base (and also to moderates) by promising to not let the GOP Senate continue to push Judge Brown Jackson to the back of the bus.  Actually, I suspect Hillary Clinton may be much too cautious politically to actually try to play a race/gender card at the same time via a Rosa Parks reference, but I am certain some of her surrogates (as well as some Dems seeking to wins seats in the Senate) would not be afraid to make this kind of pitch.

Prior related posts on new SCOTUS nominee possibilities:

September 27, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (8)

House Speaker Paul Ryan reportedly still eager to push for federal criminal justice reform

This new Politico article , headlined "Ryan pushes sentencing reform in face of skeptical GOP," reports that a very important politician remains very committed to trying to move along federal sentencing reforms.  Here is how the piece starts:

House Speaker Paul Ryan is facing a major obstacle in his months-long quest to pass criminal justice reform: unenthused House Republicans still skittish about looking soft on crime.  The Wisconsin Republican for weeks has repeated his personal desire to move a bipartisan package that would include allowing well-behaved nonviolent prisoners to be eligible for early release and easing some drug-related sentencing requirements.

It would mark a major accomplishment for the speaker, and a chance for Republicans to show racial minorities they care about issues of social justice — plus a salient, positive message countering Donald Trump’s racially charged bid for the White House.

But the odds are decidedly long. With Trump advocating for controversial policies like systematic “stop and frisk,” and the protests in Charlotte, North Carolina, against police-involved shootings causing racial tensions to flare, Ryan’s conference is not eager to vote on the matter.  An internal GOP leadership “survey” last week taking House Republicans’ temperature on the issue showed that most members were lukewarm at best.

That means that if Ryan wants to make a push for criminal justice reform after the election, he will have his work cut out.  “It’s not an easy thing to make these reforms, and the [Judiciary] committee has taken some time doing it; now they’re taking time educating members on it,” Majority Leader Kevin McCarthy (R-Calif.) said Monday of a package of bills drafted by the Judiciary Committee.  “It is a priority for the speaker. There are concerns … so we’re getting all the questions answered.”

The Judiciary panel last year passed 11 bills to reform federal sentencing laws and improve the prison re-entry system. While the package would not eliminate mandatory minimum sentences, it would significantly reduce sentences for nonviolent drug offenders. It would also create a program to reduce recidivism rates.

The politics of criminal justice reform have soured for conservative supporters. Trump has warned repeatedly of dangerous, crime-ridden cities.  And the FBI on Monday released new statistics showing that murders increased 11 percent and violent crimes rose 4 percent in the U.S. last year.  Though the rates are still low by recent historical standards, it's enough to make law-and-order Republican lawmakers nervous.

While proponents argue that reform would go a long way toward easing racial tensions, opponents vow they’ll never vote against the recommendations of law enforcement during a time of unrest.  (Some Republican lawmakers worry that law enforcement could come out against the pitch, though many national police groups haven’t taken a position.)

Even if Ryan managed to get a bill through the House, the Senate and its 60-vote threshold could stop it in its tracks. Hawkish Republicans, including Sens. Tom Cotton of Arkansas and Jeff Sessions of Alabama, have been sounding the alarm against criminal justice reform.  Senate Majority Leader Mitch McConnell (R-Ky.) has shied from the matter because it divides his conference.  Democrats by and large support the reform proposals.

Sources familiar with Ryan’s thinking say he’s not ready to relent just yet because of the charged political environment.  While he wasn’t able to pass the Judiciary package in September as he originally hoped, Ryan is now eyeing the lame-duck session, by which time tensions might have eased.  “I’m trying to get criminal justice reform done this session of Congress,” Ryan said last week during a speech at the Economic Club of New York.  “That train is on the tracks, and I’m hoping we can get that done sooner rather than later.”

September 27, 2016 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Monday, September 26, 2016

Florida paper devotes three-part editorial to assail state's sex offender residency restrictions

A helpful reader altered me to this remarkable three-part editorial from the Florida Times-Union that concluded over the weekend highlighting problems with residency restrictions for sex offenders:

Ever eager to focus on solutions even more than problems, I will highlight here the closing sections of the last of these editorials:

A year ago, California stopped requiring all sex offenders meet residency restrictions, instead enforcing these laws only against high-risk offenders. Available housing for low-risk offenders increased dramatically, and the number of homeless offenders decreased. Counties here, such as Duval and Nassau, should immediately create working groups to look at the effectiveness of strict county residency restrictions en route to making changes. We should also look at novel ways to create more housing for released sexual felons.

Communities in Florida have begun to experiment. Several hotels that meet residency restrictions have been transformed into facilities to house sex offenders. In other places in the state, mobile home parks have been converted to complexes that serve those coming out of prison.

One of the more comprehensive programs, however, has been launched by a nonprofit in Eugene, Ore.  An organization, Sponsors, provides both short-term and long-term housing for sexual offenders and predators upon their release. In addition, the organization is currently building an entire complex of apartments that will offer permanent housing for ex-felons, including those convicted of sexual offenses.

Other states such as Washington and Vermont have similarly enacted more humane and effective measures for housing sex offenders and predators that pair governmental agencies with nonprofits to locate housing.

It’s time we look at the possibility of creating such programs here.  Homelessness is not the answer.

September 26, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (7)

FBI releases "official" 2015 US crime statistics showing increase in violent crime (especially murderes) and decreased property crime

As reported in this official FBI press release, "[a]fter two years of decline, the estimated number of violent crimes in the nation increased 3.9 percent in 2015 when compared with 2014 data, according to FBI figures released today. Property crimes dropped 2.6 percent, marking the 13th straight year the collective estimates for these offenses declined." This short FBI report on its latest data provides these additional particulars and helpful context:

Today, the FBI released its annual compilation of crimes reported to its Uniform Crime Reporting (UCR) Program by law enforcement agencies from around the nation. Crime in the United States, 2015 reveals a 3.9 percent increase in the estimated number of violent crimes and a 2.6 percent decrease in the estimated number of property crimes last year when compared to 2014 data.

According to the report, there were an estimated 1,197,704 violent crimes committed around the nation.  While that was an increase from 2014 figures, the 2015 violent crime total was 0.7 percent lower than the 2011 level and 16.5 percent below the 2006 level.

Among some of the other statistics contained in Crime in the United States, 2015:

  • The estimated number of murders in the nation was 15,696. [This is a roughly 11% increase from 2014.]

  • During the year, there were an estimated 90,185 rapes. (This figure currently reflects UCR’s legacy definition.....) [This is a roughly 6% increase from 2014.]

  • There were an estimated 327,374 robberies nationwide, which accounted for an estimated $390 million in losses (average dollar value of stolen property per reported robbery was $1,190).

  • Firearms were used in 71.5 percent of the nation’s murders, 40.8 percent of robberies, and 24.2 percent of aggravated assaults.

  • Property crimes resulted in losses estimated at $14.3 billion. The total value of reported stolen property (i.e., currency, jewelry, motor vehicles, electronics, firearms) was $12,420,364,454.

Like all detailed and intricate numbers about crime and punishment, these latest data can (and surely will) be spun in all sorts of ways.  For some early examples of the spin, here are some early commentaries about the data:

From Crime & Consequences here, "Complacency Mongers, Start Your Engines!"

From the Daily Beast here, "Violent Crime Is Up, but Trump Is Still Wrong"

From the Huffington Post here, "2015 Was One Of The Safest Years In The Past 2 Decades, According To FBI Crime Stats"

September 26, 2016 in Data on sentencing, Detailed sentencing data, National and State Crime Data | Permalink | Comments (5)

"Ask the Candidates if They Are Ready to Legalize Marijuana — and, if Not, Why?"

The title of this post is the headline of this recent Nation piece, from which comes these excerpts:

Presidential debates, as organized by the lamentable Commission on Presidential Debates, are deliberately boring. Most of the questions asked of the candidates are little more than invitations to repeat their most shopworn talking points. And, worse yet, there has been a recent trend toward asking candidates to critique their opponents — literally asking for more of the talking-head punditry that extinguishes whatever enthusiasm might be generated by a clash of ideas.

What to do?  Why not ask Hillary Clinton and Donald Trump some pointed questions about legalizing marijuana? Arizona will be voting this fall on whether to legalize the possession and consumption of marijuana by persons who are 21 years of age or older. If passed, Proposition 205 (The Regulation and Taxation of Marijuana Act) would establish a Department of Marijuana Licenses and Control to regulate the cultivation, manufacturing, testing, transportation, and sale of marijuana....

While manufacturers of synthetic painkillers and other corporate interests oppose the measure, it has earned support from educators, physicians, public-health advocates and supporters of criminal-justice reform. Among the statements filed in support of a “yes” vote with the Arizona secretary of state is a reflection from a pair of retired Drug Enforcement Agency agents, Michael Capasso and Finn Selander....

So how about these two questions for Clinton and Trump:

1. Both of you have campaigned in Arizona, where polls suggest the presidential race is close. On the same November 8 ballot where voters will be asked to choose between your candidacies, they will also be asked whether they would like to legalize marijuana and establish a strictly regulated system for its cultivation, manufacturing, testing, transportation and sale. By this point, both of you should be well aware of the arguments for and against legalizing marijuana. If you were voting in Arizona, how would you cast your ballots: “yes” for legalization or “no” for continued prohibition?

2. If either or both of the candidates answer “no,” or try to waffle on the issue, read the statement from the retired DEA agents, and then ask: How do you respond to the arguments of people with experience, such as Agents Capasso and Selander, who write that prohibition doesn’t keep marijuana off our streets or decrease use but that it does does result in billions of dollars in profits flowing to drug cartels? Aren’t there sound domestic and foreign-policy arguments for legalization?

Yes, of course, Donald Trump might still argue that a wall would somehow solve every problem. Hillary Clinton might still try to suggest that settled issues need more study. (And viewers might really start to wish that Libertarian Gary Johnson and Green Jill Stein were on the stage to present alternative views.) But the debate about legalizing marijuana, which has for too long been neglected at the highest levels of American politics, would finally be given the hearing it deserves.

I really like this proposed framing of a marijuana reform question, although first-debate moderator Lester Holt could also find lots of ideas for other sharp marijuana reform questions from a number of these recent posts at Marijuana Law, Policy and Reform:

September 26, 2016 in Campaign 2016 and sentencing issues, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Looking at the impact of SCOTUS Johnson ruling in the heart of the state in the heart of it all

I live in the center of a state that sometimes uses the tourism slogan "Ohio, The Heart of It All."  Though some might dicker with the formal accuracy of this sloganeering, there is little basis to resist the claim that Ohio is a bellwether state, and that reality makes extra interesting this new Columbus Dispatch article about the impact of the most consequential of Supreme Court sentencing rulings in recent years.  The piece is headlined "U.S. Supreme Court ruling on sentencing law could free hundreds in Ohio," and here are excerpts:

Celia Ward has the menu planned for her son’s welcome-home dinner: fried chicken, cabbage, cornbread and mac and cheese. It’s been a while since Hozae Rodriguez Ward, 39, sat down at his mother’s table.

From 1995 to 2007, he was in the county jail and state prison. Since 2009, he has been in federal prison.  But according to the U.S. Supreme Court, he should have been home five years ago.  Ward is eligible for immediate release after the high court ruled on June 25, 2015, that the Armed Career Criminal Act, under which Ward was sentenced, was too vague.

The ruling probably affects many more than just Ward.  The federal public defender’s office in Cincinnati is conducting an “initial” review of 400 federal inmates sentenced under the act to see if they, too, have been in prison too long.  The office covers only the Southern District of Ohio.  The total number of inmates affected nationwide is unknown, but there are 89 district courts in the 50 states, including two in Ohio.

On Wednesday in Columbus, U.S. District Judge Michael H. Watson ordered Ward’s release, which should occur within 30 days.  Watson sentenced Ward on June 30, 2009, to the minimum mandatory term of 15 years after he pleaded guilty to being a felon in possession of ammunition. “No one is terribly comfortable with that, given your previous record,” Watson said.  “Nonetheless, you’ve served more than twice the guideline range, as recalculated.”  The defense and prosecution agreed that, based on the high court’s ruling, Ward’s maximum sentence should have been 27 months.

The Armed Career Criminal Act imposed a mandatory minimum 15-year prison sentence on felons convicted of a firearm offense who had three previous convictions for violent felonies or serious drug offenses.  The act defined those violent felonies as burglary, arson, extortion and those involving the use of explosives.  The problem, the justices wrote in Johnson v. United States, is that the act continued to add a broad “residual clause” that included crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”  The court ruled that the residual clause violated the Fifth Amendment’s due-process provision because it was too vague and “invites arbitrary enforcement” by judges....

“We’ve had numerous folks who have walked out the Bureau of Prison door,” said Kevin Schad, appellate director for the federal public defender’s office for the Southern District of Ohio.  In addition to his office’s 400 cases, others are being reviewed by attorneys appointed by the court to help, said Schad, who filed the motion in Ward’s sentencing....

Schad said the number of inmates affected by the ruling might grow.  The Supreme Court has agreed to hear an outgrowth of Johnson v. United States.  The petitioners in Beckles v. United States argue that a similarly vague clause exists in other enhanced-sentencing guidelines.  “That opened up a whole number of other cases,” Schad said. 

September 26, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Making the argument for legalization as the best response to the US heroin problems

This new opinion piece by Bonnie Kristian at The Week, headlined "Legalize heroin," makes a full-throated argument for why eliminating criminal law rather than making it more tough would be the best way to deal with the current heroin epidemic. Here are excerpts:

The U.S. government should legalize heroin.  The last five years have seen heroin overdose deaths dramatically spike in the United States, from just over 3,000 in 2010 to more than 10,500 in 2014, the latest year for which the National Institutes of Health provides data. In fact, drug overdose deaths now outpace car crashes in taking American lives, and about half those overdoses are attributable to heroin and other opioids....

Recent history and present practicalities alike make clear that the best way to cut down on heroin abuse is to legalize it — or at the very least, decriminalize it.  The crown jewel of evidence for this point is the experience of Portugal, whose culture and form of government are similar enough to our own to make comparison reasonable.  In 2001, Portugal decriminalized all drugs. All drugs.

A decade later, hard drug abuse had dropped by half.  Drug overdose deaths in Portugal are now all but nonexistent: just three for every million people each year. (Were overdose deaths happening in America at a Portuguese rate, we'd see fewer than 1,000 die annually, more than a 90 percent drop from the current numbers on opioid-related deaths, let alone total overdose deaths.)  Portuguese use of sketchy "legal" substitutes is way down, too, because there’s no need to mess with dangerous unknowns when you’ll only get a small fine and maybe a rehab referral if you’re caught with the real thing. Heroin addiction — suffered by fully 1 percent of Portugal's population pre-decriminalization — is estimated to have dropped by about half, and most of those who are still addicted are on substitution treatment and in no statistical danger of overdose.

By contrast, here in the States, strict prohibition has utterly failed to prevent drug use rates at world-record levels.  Drug war spending is perhaps the only thing to spike faster than heroin addiction, and we have nothing to show for it. In 2016, Rolling Stone notes, "the federal government is spending more than $1,100 per person to combat the habit of America's 27 million illicit-drug users, and 22 million of them use marijuana."  With more than $1.5 trillion down the drain, U.S. addiction rates have utterly failed to improve.

If anything, the drug war makes illicit opioid use more dangerous than it otherwise would be. Heroin abuse often begins as an extension of opioid addiction fostered by over-prescription, and once users get their supply from the street instead of the pharmacy, prohibition produces tainted and mislabeled products that make overdose more likely — just like it did with alcohol nearly a century ago.

Criminalizing the heroin supply chain produces a risky and therefore lucrative market for violent criminals, leading to casualties far beyond the toll of drug abuse itself.  To argue for legal heroin "does not, at first blush, appear to put one on the side of the angels," explains Harvard's Danielle Allen, but "the war on drugs drives violent crime, which in turn pushes up incarceration and generates other negative social outcomes. You just can't move $100 billion worth of illegal product without a lot of assault and homicide."

Prohibition even makes safe treatment less likely for addicts who know they have a problem and actively want to change their lives.  After decriminalization, Portugal saw the rate of people seeking addiction treatment nearly double, because now there is essentially no downside to doing so. With a looming threat of jail or coercive court-mandated rehab stints shaped as much by policy goals than each individual's unique health care needs, the same cannot be said here....

Heroin addicts need relief too — relief from their addiction itself, yes, but also from dangerous products, organized crime, and a government eager to lock them up in a prison environment hardly conducive to improving physical or mental health.  Of course, there is an element of choice in opioid abuse that is missing from a cancer diagnosis.  Still, the heroin epidemic is a health crisis, and legalization is a viable and practical solution that compassion dictates we must consider.

September 26, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, September 25, 2016

"The Under-Policed"

The title of this post is the title of this interesting and provocative new essay authored by I. Bennett Capers now available via SSRN.  Here is the abstract:

While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way.

Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?

Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice?  If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed?  Finally, how might those conversations impact the issue du jour, mass incarceration?  This essay concludes by offering some suggestions for reducing mass incarceration.

September 25, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (18)

Can and will California voters "save" the death penalty in the United States?

The quirky question in the title of this post is prompted by this lengthy new press article and its provocative headline: "Death penalty is dying across America. Will California save it?". Here are excerpts:

The last inmate executed in California was 76-year-old Clarence Ray Allen, legally blind and suffering from diabetes, who had his heart stopped with a lethal chemical cocktail as punishment for a triple homicide in Fresno he’d ordered from a Folsom Prison cell a quarter century earlier. It was more than a decade ago when Allen spoke his last words – “Hoka Hey, it’s a good day to die” – and the poisons flowed into his veins at San Quentin State Prison.

Now, with the death penalty dying across America, the nation is watching California as its voters weigh competing initiatives meant to either revive executions or abolish capital punishment. Several states in recent years ended their death penalties through court decisions or legislation, but California is a test of whether voters think executions are worth trying to save....

Proposition 62 on the November ballot would end the death penalty and convert the sentences to life without parole. Proposition 66 aims to speed up executions with – among other things – limits on appeals and deadlines on court rulings. Should both measures pass, the one with the most votes becomes law. California’s decision comes as the death penalty withers in the rest of the nation. There were 28 executions in America last year, the lowest number since the death penalty was reinstated in 1976, and a 70 percent decline from the peak in 1998.

Only six states had executions last year, most of them in the cotton belt. Even America’s execution capital of Texas is slowing down, with a 68 percent decline in inmates put to death over the past 15 years. A new Harvard University study found that just 16 counties in the U.S.’s 3,143 had imposed at least five death sentences since 2010. Supreme Court Justice Stephen Breyer noted last year that “the number of active death penalty counties is small and getting smaller.”

Reasons include legal challenges to death sentences, botched executions – including a 2011 Oklahoma injection where the condemned man writhed and moaned as it took him more than 40 minutes to die – difficulty obtaining lethal drugs from pharmaceutical companies reluctant to play a role in ending lives, and wrongful convictions. More than 150 people on death row nationwide have been exonerated since 1973, according to the Death Penalty Information Center, including three in California. Wrongful convictions doomed the death penalty in Illinois, which passed legislation to abolish it in 2011.

States are also balking at costs of a death penalty case and appeals. Lawmakers in conservative Nebraska voted to join the states shedding the death penalty last year, citing expenses and religious objections. The issue will go to Nebraska’s voters in a November referendum.

The death penalty is on hold in California, Arizona, Arkansas, Colorado, Kentucky, Louisiana, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania and Washington state as a result of legal challenges or moratoriums imposed by governors. Capital punishment has been abolished in eight other states over the past decade and is in limbo in Florida, which has the nation’s second-most-populous death row after California, following a Supreme Court decision striking down the state’s death penalty statute....

Sacramento County District Attorney Anne Marie Schubert said that regardless of what was happening in the rest of the nation she saw the death penalty as appropriate justice for the “worst of the worst” killers in California. “It’s a policy that Californians continue to support but they want the system fixed,” Schubert said.

?California voters supported keeping the death penalty in 2012 with 53 percent of the vote. Recent polling suggests this year’s initiative campaign to end capital punishment is struggling to win majority support. No state has repealed the death penalty by public vote since Oregon in 1964 – and voters there reinstated it in 1978. While courts and legislatures around the nation are abolishing capital punishment, when it goes to a public vote the hard line tends to have the advantage, said Franklin Zimring, a criminal justice expert at the University of California, Berkeley.

“The question is what do you do with the worst criminals you have?” Zimring said. “And if that ever becomes a question of sentiment the answer is boil them in oil.” California has the largest death row population in the Western Hemisphere, with 746 inmates who are sentenced to die. The nonpartisan Legislative Analyst’s Office estimates that eliminating California’s death penalty would save around $150 million a year, including reduced costs for trials and challenges to death sentences.

According to the study from Harvard’s Fair Punishment Project, five of the 16 U.S. counties in the U.S. that imposed at least five death sentences since 2010 are in Southern California – Kern, Los Angeles, Orange, Riverside and San Bernardino. Riverside County has become the nation’s leader in death sentences – with eight people sent to death row last year alone. Meanwhile, no one is actually being executed in California....

Cal-Berkeley’s Zimring predicts the initiative designed to speed executions in California will have minimal impact if it passes. The main result would be litigation and delay, he said, since the ballot measure has so many pieces open to challenge. That’s disputed by Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento. “The most important reforms of this carefully drafted initiative are virtually bulletproof,” he asserted.

September 25, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Saturday, September 24, 2016

"Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitutution"

The title of this post is the title of this new paper authored by Adam Lamparello and Charles MacLean now available via SSRN. Here is the abstract (which unfortunately does not seem to flesh out the title or themes of the piece's focus on Justice Scalia's criminal jurisprudence):

Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.”  Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”

Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so.  In United States v. Windsor, Scalia lamented as follows: "We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."

The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.

September 24, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

US House passes significant update to federal Juvenile Justice and Delinquency Prevention Act

Though it now seems that major federal statutory sentencing reform remains dead at least until the election (as I had thought months ago), this Marshall Project piece highlights that some other federal criminal justice reform has been moving quietly forward.  Here are the details:

Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory. But on Thursday, the House of Representatives quietly — and overwhelmingly — passed what might be the most significant justice reform measure to reach Obama in his tenure.

The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial. The legislation would also ban states from locking up minors for so-called status offenses — things that are crimes only because of the age of the offender, such as truancy or breaking curfew.... “I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues — one that doesn’t go backward — has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.

The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week. A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.

Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time — in a season devoted to reaching a spending deal and funding the fight against the Zika virus — with a debate and vote on the legislation.“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine....

The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.

States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country — assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.

But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated. Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.

September 24, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Friday, September 23, 2016

Eager to hear sharp suggestions for sharp Prez debate questions on criminal justice issues

Next week kicks off the Prez debate season, and I am certainly among the "yuge" number of folks really, really excited to see how Hillary Clinton and Donald Trump will perform and engage with the issues and each other on the big debate state starting on Monday.  Among the reasons I am so excited this season, beyond the obvious and diversely distinctive entertainment value of both candidates, is because it seems quite likely that criminal-justice-related issues will be major topics of discussion (especially, of course, with respect to immigration policy/enforcement and police/citizen encounters).

As readers know, I am regularly rooting for sentencing-specific (and/or "war on drugs/marijuana") topics to take center stage at debates, and I am regularly disappointed that these topics either fail to get raised or get raised in ways that make it too easy for the candidates to respond with only fuzzy rhetoric.  But now because Trump has made "law and order" a focal point of his recent campaign, and especially because both candidates have through the years made notable statements on topics ranging from the death penalty to mass incarceration to drug policy, I am yet again hopeful (though still not really optimistic) that the issues that consume this blog could be end up being discussed at some length and with some real bite at one or more of the coming debates.

Ever eager to help those with the challenging task of planning and moderating the coming debates, I am now eager to hear from readers in the comments throughout the weekend about what criminal justice issues they hope to see raised in the debates.  I would be especially eager, as the title of this post highlights, to read in the comments actual suggested questions that are crafted in sharp ways to try to help ensure the candidates cannot get away with fuzzy answers.   I genuinely doubt that the first debate moderator, Lester Holt, is a regular reader of the comment section of this blog, but you never know.

So, dear readers, my weekend challenge is to urge comment with some sharp suggestions for sharp Prez debate questions on criminal justice issues.

September 23, 2016 in Campaign 2016 and sentencing issues, Who Sentences? | Permalink | Comments (8)