Monday, November 30, 2015

Detailing how Ohio prosecutors, armed with LWOP options, are migrating away from capital charges

19271024-largeThis recent local article, headlined "Eluding death: Ohio prosecutors charge far fewer capital murder cases," spotlights the role that local prosecutors are playing in changing the death penalty landscape in the Buckeye State. Here are excerpts:

Prosecutors across Ohio are changing the way they charge suspected killers.  They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.

The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year. During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.

The Ohio numbers mirror a national trend involving the death penalty.  Legal experts cited the high costs of taking a capital case to trial.  They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families....

As the death penalty in Ohio sits stalled in a moratorium over the drugs used in executions, the emerging trends of how prosecutors handle aggravated murder cases offer insight into the way justice is meted out in Ohio courtrooms. "We simply are not charging people with the death penalty like we once did," said Michael Benza, a senior instructor of law at the Case Western Reserve University School of Law....

Since late 2012, when Prosecutor Timothy J. McGinty took office, five men have been indicted on death-penalty charges. But there were 75 cases that met the criteria for the penalty, according to prosecutors' records. That means McGinty's office pushed the death penalty in less than 7 percent of the possible cases....  Compare McGinty's record to his predecessor, Bill Mason: From 2009 through much of 2012, Mason's office indicted 89 death-penalty cases out of a possible 114 that met the requirements for the charge, or 78 percent, according to prosecutors' records.

McGinty told The Plain Dealer that he believes in the death penalty when going after the worst of the worst. "The death penalty used in the correct case — a case that leaves no doubt — is, I believe, a strong deterrent to crime," McGinty said. "But the endless appeals process has undermined the death penalty.  In every case, I have to ask, 'Are we going to survive this?'  We have to take a case to a judge and jury and then face 25 years of appeals.  Is it fair to families of victims?  Is it fair putting them through a quarter century of appeals?'

Since taking office, McGinty has used an internal office review committee to examine whether the death penalty is justified in each case brought to his office.  Specifically, the panel looks at whether the crime fits the letter and spirit of the law, whether a reasonable jury would return a guilty verdict and whether it would be worth the resources to spend decades fighting the appeals. Based on the panel's recommendation and the family's wishes, McGinty makes the decision.

Life in prison without parole became an option to jurors in death-penalty cases in 1995.  Ten years later, state lawmakers made it possible for prosecutors to seek the life-without-parole sentence in other murder cases.  Years later, the trends have become quite clear.

* Death-penalty indictments dropped 77 percent, going from 81 in 2010 to 19 this year, according to records from the Ohio Public Defender's Office.

* The number of felons convicted of murder and sentenced to life in prison without parole has jumped 92 percent, going from 283 in January 2010 to 544 in October, according to state prison records.  The inmates make up about 1 percent of the 50,370 inmates in the system.

* It costs $22,836 a year to house an inmate in Ohio.  Since there are 544 serving sentences of life without parole, that means the total dollar amount for the group is $12.4 million a year.  Because many are under the age of 35, the costs will grow for years to come.

But counties and the state also bear major costs in death-penalty trials. The trials can cost hundreds of thousands of dollars prosecuting and defending complex cases at trial — and much more during the appeals process. Ohioans to Stop Executions cited a study by WHIO-TV in Dayton that found it costs $3 million to execute a person in Ohio — from arrest to death. By comparison, the television station found, it costs $1 million to keep an inmate in prison for the rest of his or her life....

For years, Ohio Public Defender Tim Young has pushed the sentence of life without parole.  "It is a good thing as an alternative to the death penalty for a myriad of reasons," Young said. "There's closure for the family, and it is cheaper to put a person in prison for life than litigating the case for 15 to 20 years. At the end of the day, it's a good thing for our society."

Others disagree.  "Yes, life without parole is the lesser of two evils, but we have to be careful of applauding these sentences," said Ashley Nellis, the senior researcher at the Sentencing Project, a Washington, D.C., group that seeks criminal justice reform.  "It would be wrong to simply toss them away and forget about them."

Nellis said she is not opposed to sending the most violent convicts to prison for life.  But she believes that their cases should be reviewed.  "These people should not be kicked to the curb," she said. "Life in prison is a death sentence, without the execution."  If there is enough evidence that shows the inmates have grown and matured behind bars, Nellis said, then they should receive consideration before the parole board or judge.

November 30, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, November 29, 2015

Hawaii Supreme Court refuses to exempt recidivist enhancement from Apprendi mandates

A helpful reader alerted me to a notable ruling last week by the Hawaii Supreme Court rejecting broad application of Apprendi's prior conviction exception. Hawaii v. Auld, No. SCWC-13-0002894 (Haw. Nov. 24, 2015) (available here), which discusses Alleyne and Almendarez-Torres at length, is a must-read for all hard-core Apprendi fans. It concludes this way:

We hold that, under article I, sections 5 and 10 of the Hawai'i Constitution, the State must allege the predicate prior conviction(s) in a charging instrument in order to sentence the defendant to a mandatory minimum sentence as a repeat offender under HRS § 706-606.5.  We further hold that, as a matter of state law, Apprendi’s “fact of prior conviction” exception does not apply to repeat offender sentencing under HRS § 706-606.5, and that a jury is required to find that the defendant’s prior conviction(s) have been proved beyond a reasonable doubt to trigger the imposition of a mandatory minimum sentence under that statute.  As these new rules result from the express overruling of prior appellate precedent holding that the Apprendi rule did not apply to mandatory minimum sentencing and that notice of repeat offender sentencing did not need to be given in a charging instrument, they are given prospective effect only.

November 29, 2015 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Pollard, parole and the possibilities for potent sentencing reform

Writing at Salon, Daniel Denvir has this interesting and useful take on the recent release of convicted spy Jonathan Pollard. Here is the full headline of this piece: "People are celebrating this spy’s release from prison. Here’s what they should be doing instead. Jonathan Pollard sold intel to Israel. 30 years later, he's free. But thousands of others have no chance of parole." Here are excerpts:

Last Friday, something extraordinary happened: Jonathan Pollard, a Naval intelligence analyst sentenced to life in prison for extensively spying for Israel, was released from federal prison on parole 30 years after his arrest. Most coverage, now and in recent decades, has focused on the campaign waged by Israeli and Jewish-American leaders to free him, and the vehement opposition mounted by American intelligence figures.

The real scandal, however, is that most federal prisoners, including drug offenders make up nearly half of a federal prison population of nearly 200,000, have no chance at parole. Pollard’s crime was incredibly serious, and many drug offenders who committed crimes orders of magnitude less harmful are serving harsh mandatory minimums of 5, 10 and 20 years, if not life — all without the possibility of parole.

Pollard’s release has been covered in the context of national security intrigue. In fact, his parole reflects a quirk in federal sentencing law: He had a shot at parole because he committed his crime before parole eligibility was abolished for all those convicted of committing a federal crime on or after November 1, 1987, amidst a wave of tough-on-crime politicking.

Pollard is a true anomaly. According to a 2014 Congressional Research Service report, roughly 3 percent of federal prisoners are eligible for parole. When Pollard finally speaks to the media—he is reportedly not allowed to under the conditions of his parole—it would be good of him to express some solidarity with the far less dangerous fellow federal inmates he left behind.

The abolition of federal parole, and its sharp limitation or elimination in many states, has, like the introduction of harsh mandatory minimum sentences, been a major driver of this country’s extraordinary prison population boom. From 1988 to 2012, the average time federal inmates served rose from 17.9 to 37.5 months, according to The Pew Charitable Trusts. The federal prison population rose during that same period from 49,928 inmates to 217,815....

Releasing Pollard was not a bad thing. Few people deserve punishment without end. We punish most every crime far too harshly in the United States, which is how we came to construct a system of human punishment unmatched by any nation on earth. But Pollard’s crimes were extremely serious. Compare his crimes to those committed by Alton Mills, who is serving a life without parole sentence after being convicted of couriering crack because of two prior, extremely minor, drug possession convictions. Mills’ family misses him too. And desperately so.

It’s not just a federal problem but also a matter for the states, where the bulk of American prisoners are incarcerated. Fourteen states joined the federal government in eliminating or severely restricting parole, according to a Marshall Project investigation.

“In the early 1990s, the New York state board voted to parole more than 60 percent of those eligible. That rate then went into a two-decade decline, dipping below 20 percent in 2010,” the investigation found. “In many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.”

Sen. Bernie Sanders, a Democratic candidate for president, has introduced legislation that would reestablish federal parole. Most media attention has been focused on bill provisions banning private prisons. But reestablishing parole would be far more consequential. (The Clinton campaign did not respond to requests for comment.)

Way back in 2009 in this Symposium article published in the Florida Law Review, I made the claim that model modern sentencing reforms should include parole mechanisms because "parole boards possess both the effective legal tools and an ideal institutional perspective to reduce incarceration rates and mitigate extreme punishments." I therefore agree wholeheartedly agree with the suggetion in Denvir's piece that reinstituting robust parole mechanisms and opportunities in many sentencing systems would provide a truly potent path for future sentencing reforms.

November 29, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, November 27, 2015

"Prisons as Panacea or Pariah?: The Countervailing Consequences of the Prison Boom on the Political Economy of Rural Towns"

The title of this post is the title of this notable new paper by John Major Eason available via SSRN.  Here is the abstract:

The nascent literature on prison proliferation in the United States typically reveals negative impacts for communities of color.  Given that southern rural communities of color were the most likely to build during the prison boom (1970-2010), however, a more nuanced understanding of prison impact is warranted.

Using a dataset matching and geocoding all 1,663 U.S. prisons with their census appointed place, this study explores the countervailing consequences of the prison boom on rural towns across multiple periods.  For example, locales that adopted prisons at earlier stages of the prison boom era received a short-term boon compared to those that did not, but these effects were not lasting.  Furthermore, later in the boom, prison building protected towns against additional economic decline.  Thus, neither entirely pariah nor panacea, the prison serves as a state-sponsored public works program for disadvantaged rural communities of color but also supports the perverse economic incentives for prison proliferation.  Methodological, substantive, theoretical, and policy implications regarding the intersection of race and punishment are explored.

November 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Spotlighting why ending the drug war could make a big dent in mass incarceration

This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration.  Here is how it starts (with links from the source):

Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons.  But some researchers have pushed back against this notion in recent years.  They point out that drug offenders account for only about 1 in 5 state and federal inmates.  The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent.  Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.

But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison.  Rothwell calls this "stock and flow."

He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison.  The reason for the difference?  Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals.  So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.

"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes.  "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."

Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes.  Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society.  A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.

November 27, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Might Prez Obama seek to do something bold on the death penalty in his final year?

The question in the title of this post is prompted by this new AP article, headlined "Obama Still Pondering Death Penalty's Role in Justice System."  Here are excerpts:

Even as President Barack Obama tries to make a hard case for overhauling sentences, rehabilitating prisoners and confronting racial bias in policing, he has been less clear about the death penalty.  Obama has hinted that his support for capital punishment is eroding, but he has refused to discuss what he might call for.

A Justice Department review has dragged on for 18 months with little mention or momentum.  The president recently repeated he is "deeply concerned" about the death penalty's implementation, though he also acknowledges the issue has not been a top priority. "I have not traditionally been opposed to the death penalty in theory, but in practice it's deeply troubling," Obama told the Marshall Project, a nonprofit journalism group, citing racial bias, wrongful convictions and questions about "gruesome and clumsy" executions.  His delay in proposing solutions, he said, was because "I got a whole lot of other things to do as well."

Obama said he plans to weigh in, and considers the issue part of his larger, legacy-minded push for an overhaul of the criminal justice system. White House officials say the president is looking for an appropriate response and wading through the legal ramifications.

Capital prosecutions are down across the United States.  A shortage of lethal injection drugs has meant de facto freezes in several states and at the federal level.  Spurred in part by encouragement from Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg, advocates are debating whether the time is right to push the court to take a fresh look at whether the death penalty is constitutional....

Obama isn't alone in struggling with the issue.  "We have a lot of evidence now that the death penalty has been too frequently applied and, very unfortunately, often times in a discriminatory way," Democratic presidential candidate Hillary Rodham Clinton said.  "So I think we have to take a hard look at it."  She also said she does "not favor abolishing" it in all cases.

For Clinton's Democratic presidential rival, Vermont Sen. Bernie Sanders, the issue is settled. "I just don't think the state itself, whether it's the state government or federal government, should be in the business of killing people," he said.  On the Republican side, candidate Jeb Bush says he's swayed by his Catholic faith and is "conflicted."...

In September, Pope Francis stood before Congress and urged that the death penalty be abolished. Obama specifically noted the comment when talking about the speech to aides. White House spokesman Josh Earnest said Obama was "influenced" by what the pope said. Such hints have death penalty opponents likening Obama's deliberations to his gradual shift toward supporting gay marriage.

Charles Ogletree, a Harvard law professor who taught the president, said: "Though not definitive, the idea that the president's views are evolving gives me hope that he — like an increasing number of prosecutors, jurors, judges, governors and state legislators — recognizes that the death penalty in America is too broken to fix."

White House officials caution that any presidential statement disputing the effectiveness or constitutionality of the death penalty would have legal consequences.  For example, would the administration then commute the sentences of the 62 people currently on federal death row to life in prison?

I suspect hard-core capital abolitionists are growing ever more eager to hear Prez Obama say ASAP that he has evolved now to believe, in the words of Prof Ogletree, that "the death penalty in America is too broken to fix."  But any statement by Prez Obama to that effect would likely trigger a significant backlash among an array of GOP leaders (including most running to be Prez), and could refocus death penalty debate away from persistently problematic state capital cases to higher-profile (and less problematic) federal capital cases like the Boston Marathon bomber.  With another White House occupant coming soon, I am not sure such a change in focus would enhance the success of the broader abolitionist effort in the long run.

This all said, I could still imagine Prez Obama and his Justice Department moving ahead on a number of lower-profile efforts that would continue to advance an abolitionist agenda.  DOJ could file SCOTUS amicus briefs in support of state capital defendants or provide additional funding for research on some of the issues Justice Breyer flagged as the basis for a broadsided constitutional attack on the death penalty.  And I would not be at all surprised if Prez Obama around this time next year, when he is a true lame duck and we all know who will be following him into the Oval Office, does something genuinely bold in this arena.

Speaking of doing something genuinely bold, the headline of this San Francisco Chronicle piece provides one possibility: "Obama considers clemency for 62 federal Death Row prisoners." Here is an excerpt from the extended piece:

The bulk of the more than 3,000 Death Row inmates nationwide, including nearly 750 in California, were sentenced under state law.  They are beyond the president’s authority.  But, by commuting federal prisoners’ sentences to life without the possibility of parole, Obama would stamp the issue as part of his legacy and take a bold action that no successor could overturn.

It is “a quantitatively small gesture that could make the point he’d want to make,” said Stanford Law Professor Robert Weisberg, co-director of the law school’s Criminal Justice Center and a veteran death penalty lawyer.  Like other commentators, he offered no prediction of what action Obama would take, but said the president would probably wait until after the November 2016 election, to avoid voter reaction against whoever the Democratic candidate is.

November 27, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Thursday, November 26, 2015

So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...

I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration.  The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment."  Here are excerpts:

Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.

Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive.  Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.

Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation.  The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.

So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....

After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time.  Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”

U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.

Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences.  Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....

In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.

Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades.  In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution.  Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....

Some federal prosecutors have declined requests by federal judges for shorter sentences.  In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy...  Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions.  The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014.  “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.

U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.

November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

So thankful for the renewed focus on federal clemency... but...

I am still annoyed and troubled that it still seems Prez Obama is more committed to making headlines with the silly annual tradition of pardoning turkeys than with clemency grants to federal defendants seeking commutations while serving excessively long sentences or those seeking relief from the collateral consequences of long-ago federal convictions.  This article, headlined "Obama pardons TOTUS — the Turkey of the United States," discusses the latest clemency work of Prez Obama in this arena:   

President Obama seemed to be trying out a Thanksgiving-themed comedy club act Wednesday as he engaged in the traditional White House turkey pardoning. "Feel free to keep on gobbling," Obama told the Rose Garden crowd as he announced that, also per tradition, two turkeys would be spared this Thanksgiving Eve.

"I can announce that the American people have spoken, and we have two winners," he said. "Their names are Honest and Abe — I confess that Honest looks like good eating, but this is a democracy." With daughters Malia and Sasha at his side, Obama declared that "Abe is now a free bird" and will now be designated "TOTUS — the Turkey of the United States."...

During the Rose Garden ceremony, Obama thanked his daughters "for once again standing here with me during the turkey pardoning ... They do this solely because it makes me feel good — not because they actually think that this is something I should be doing."...

The president weighed in on one of the Thanksgiving football games, sticking up for his hometown Chicago Bears. "I'm grateful for the fact the Bears are going to beat the Packers this weekend," Obama said (though it must be said that the Pack is a big favorite, and the game is in Green Bay).

He also took an obligatory poke at the news media: "I've got to listen to my critics say I'm often too soft on turkeys, and I'm sure the press is digging into whether or not the turkeys I've pardoned have really rededicated their lives to being good turkey citizens."

Obama pointed out that this was his seventh turkey pardoning as president. "Time flies," he said. "Even though turkeys don't."  As the crowd chuckled. Obama said: "I thought it was good. You think it's funny too, don't you?" Also: "I know some folks think this tradition is a little silly. I do not disagree."

November 26, 2015 in Clemency and Pardons, Who Sentences? | Permalink | Comments (7)

So thankful for federal sentencing reform moving ahead in Congress... but...

this recent article from the New York Times highlights why I will not celebrate the reform movement's accomplishments until a bill is being signed by the President.  The article, headlined "Rare White House Accord With Koch Brothers on Sentencing Frays," details what has become more controversial elements of bipartisan criminal justice reform efforts.  Here are excerpts:

For more than a year, a rare coalition of liberal groups and libertarian­minded conservatives has joined the Obama administration in pushing for the most significant liberalization of America’s criminal justice laws since the beginning of the drug war.  That effort has had perhaps no ally more important than Koch Industries, the conglomerate owned by a pair of brothers who are well­known conservative billionaires.

Now, as Congress works to turn those goals into legislation, that joint effort is facing its most significant test — over a House bill that Koch Industries says would make the criminal justice system fairer, but that the Justice Department says would make it significantly harder to prosecute corporate polluters, producers of tainted food and other white­collar criminals.

The tension among the unlikely allies emerged over the last week as the House Judiciary Committee, with bipartisan support, approved a package of bills intended to simplify the criminal code and reduce unnecessarily severe sentences. One of those bills — which has been supported by Koch Industries, libertarians and business groups — would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.

Many laws already carry such a requirement — known as “mens rea” — but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws.  Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.

If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.

The debate over the bill, sponsored by Representative Jim Sensenbrenner, Republican of Wisconsin, has become particularly complicated for House Democrats, who have been warned that its passage would be essential for obtaining support from Republicans for a larger package of criminal justice bills.  Many liberal Democrats see this session of Congress as a rare chance to address what they see as significant unfairness in the criminal justice system.  Many of them feel that anything that jeopardizes that opportunity, like trying to block Mr. Sensenbrenner’s bill, is not worth doing.  Two liberal members of the Judiciary Committee, Representatives John Conyers Jr. of Michigan and Sheila Jackson Lee of Texas, were co­sponsors of the bill.

Mr. Conyers, in a statement on Tuesday, said he supported the bill, which the Judiciary Committee approved by voice vote last week, because outside parties had raised “a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.”  But he said he was committed to finding a way to address the Justice Department’s concern....

“There are some groups on the left that mistrust the people who have put this proposal forward,” said John G. Malcolm, who served in the Justice Department’s criminal division during the Bush administration.  He now works at the Heritage Foundation, a conservative research center, where he has aggressively pushed for the change in the mens rea provisions.  “It is an unfair and unwarranted characterization,” he added.

Koch Industries and conservative groups have some important liberal allies on the matter, including the National Association of Criminal Defense Lawyers. Norman L. Reimer, the organization’s executive director, said it was not surprising the Justice Department opposed the legislation. “D.O.J. is always up in arms over anything that looks like they’d have to do their jobs,” he said.  If the Justice Department’s job was harder in some cases, he said, that would be a good thing. For example, he cited a case in which prosecutors charged a fisherman with violating federal accounting laws by tossing undersized fish overboard. (Koch Industries made a major donation to the defense lawyers’ group last year.)

November 26, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, November 25, 2015

Notable Ninth Circuit panel squabble over computer-search supervised release condition

Yesterday, a split Ninth Circuit panel rejected a defendant's claim that a computer-search condition in his supervised release terms was clearly unreasonable.  The majority opinion in US v. Bare, No. 14-10475 (9th Cir. Nov. 24, 2015) (available here), found adequate the government's contention that, since "Bare kept paper records of his illicit firearms pawn business," if officers were permitted to search "only paper records — but not computers — [it] might enable Bare to evade discovery of recidivist activity by switching his records into an electronic format."  Judge Kozinski dissent starts this way:

Persons on supervised release may have diminished expectations of privacy, but they have privacy rights nonetheless. Moreover, Congress has instructed us to adopt conditions of supervised release that impose “no greater deprivation of libertythan is reasonablynecessary” to achieve the goals of supervised release. 18 U.S.C. § 3583(d)(2).  The majority today disregards this command by allowing probation officers to search defendant’s computer at anytime, for any reason or no reason, even though defendant did not use a computer to carry out his crime, and (so far as we know) did not even own a computer when he committed the offense.

The majority’s rationale, that defendant’s crime could be committed with the help of a computer, is no limitation at all.  Pretty much any federal crime can be committed by using a computer in some way — to maintain records, to case the premises using Google Street View or to track down accomplices, methods and supplies necessary for committing the crime.  If a hypothesis about how the crime might have been committed is a sufficient justification for imposing a supervised release condition, then any condition can be justified by supposing that the crime could be committed in a way that’s different from the method employed by the defendant.  I cannot subscribe to such a broad and amorphous standard.

November 25, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Intriguing findings on race and criminal justice issues from 2015 American Values Survey

Screen-Shot-2015-11-11-at-1.18.33-PM-640x826I just came across this recently released publication by the Public Religion Research Institute, which "conducted the 2015 American Values Survey among 2,695 Americans between September 11 and October 4, 2015."  The lengthy survey report, titled "Anxiety, Nostalgia, and Mistrust: Findings from the 2015 American Values Survey," covers lots of ground on lots of issues, and the last four pages discuss findings under the heading "Race and the Criminal Justice System."  Here are just a few highlights from this discussion:

Most Americans do not believe that police officers treat blacks and other minorities the same as whites.  Only about four in ten (41%) Americans say that the police generally treat racial and ethnic groups equally, while nearly six in ten (57%) disagree....  

White Americans are divided in their views about police treatment of racial minorities. Half (50%) say police officers generally treat blacks and other minorities the same as whites, while 48% disagree.  In contrast, more than eight in ten (84%) black Americans and nearly three-quarters (73%) of Hispanic Americans say police officers do not generally treat non-whites the same as whites....

Additionally, more than six in ten Republicans (67%) and Tea Party members (63%) say police treat blacks and other minorities the same as whites, while only about one-quarter (23%) of Democrats agree. Three-quarters (75%) of Democrats — including two-thirds (67%) of white Democrats — say that police do not treat blacks and whites the same.  The views of political independents closely mirror the general public....

Americans’ views on racial disparities in the criminal justice system largely mirror views on racial disparities in treatment by police.  Nearly six in ten (58%) Americans do not believe blacks and other minorities receive equal treatment as whites in the criminal justice system, while four in ten (40%) believe they are treated equally.  In 2013, Americans were evenly divided on whether nonwhites receive the same treatment as whites in the criminal justice system (47% agreed, 47% disagreed).

There are stark racial and ethnic divisions in views about the fairness of the criminal justice system.  White Americans are closely divided: slightly less than half (47%) say blacks and other minorities receive equal treatment as whites in the criminal justice system, while a slim majority (52%) disagree.  In contrast, more than eight in ten (85%) black Americans and two-thirds (67%) of Hispanic Americans disagree that minorities receive equal treatment in the criminal justice system.

White Americans’ attitudes on racial disparities in the criminal justice system differ substantially by class.  White working-class Americans are divided: 52% say blacks and other minorities receive equal treatment as whites in the criminal justice system, while 47% disagree.  In contrast, just 36% of white college-educated Americans say whites and non-whites are treated equally in the criminal justice system, while nearly two-thirds (64%) disagree.

Partisan divisions on this issue closely mirror divisions on the question of police treatment of whites versus non-whites. More than six in ten Republicans (64%) and Tea Party members (65%) say blacks and other minorities are treated the same as whites in the criminal justice system, while about three-quarters (74%) of Democrats disagree.  The views of independents are identical to the views of Americans overall....

When asked which punishment they prefer for people convicted of murder, a majority (52%) of Americans say they prefer life in prison with no chance of parole, compared to 47% who say they prefer the death penalty.  Views about the death penalty have held roughly steady since 2012 when the public was closely divided.

Partisan attitudes on this question are mirror opposites.  Two-thirds (67%) of Republicans prefer the death penalty over life in prison with no chance of parole for convicted murderers, while nearly two-thirds (65%) of Democrats prefer the opposite. The attitudes of independents mirror the general population.

Americans are also closely divided over whether there are racial disparities in death penalty sentencing.  A majority (53%) of Americans agree that a black person is more likely than a white person to receive the death penalty for the same crime, while 45% of Americans disagree.  American attitudes about the way that the death penalty is applied are virtually unchanged from 1999, when half (50%) of Americans said a black person is more likely than a white one to be sentenced to the death penalty for an identical crime, and 46% disagreed.

American attitudes about the fairness of death penalty sentences continue to be sharply divided along racial and ethnic lines.  More than eight in ten (82%) black Americans and roughly six in ten (59%) Hispanic Americans, compared to fewer than half (45%) of white Americans, report that a black person is more likely than a white person to receive a death penalty sentence for the same crime.  A majority (53%) of white Americans disagree.  White Americans’ views on this question differ significantly by social class.  A majority (54%) of white college-educated Americans say a black person is more likely than a white person convicted of the same crime to receive the death penalty, compared to four in ten (40%) white working-class Americans.  A majority (58%) of white working-class Americans say that this is not the case.

Consistent with previous patterns, there are stark partisan divisions in views about the administration of the death penalty.  Roughly six in ten (64%) Republicans and Tea Party members (58%) do not believe a black person is more likely than a white one to be sentenced to the death penalty for the same crime, while fewer than three in ten (28%) Democrats agree.  Seven in ten (70%) Democrats say that a black person is more likely than a white person to receive the death penalty.  Independents are evenly divided over whether a black person convicted of the same crime as a white person is more likely to receive the death penalty (49% agree, 49% disagree).

There is a strong correlation in views about how fairly the death penalty is applied and support for it as punishment for people convicted of murder.  A majority (59%) of those who say that there is no racial disparity in death penalty sentencing support capital punishment, compared to 37% who say there are racial disparities.

November 25, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

"The Gaping Hole in the Prison Early Release Program: Mental Health Care"

MentalhealthThe title of this post is the headline of this lengthy National Journal article which carries this subheadline: "Much has been made of this latest effort, but inmates who suffer mental illness will continue without the services they need — in and out of prison."  Here are excerpts:

In Oc­to­ber, the Obama ad­min­is­tra­tion an­nounced the early re­lease of more than 6,000 fed­er­al in­mates.  While a surfeit of data on Amer­ica’s over-in­car­cer­a­tion ap­pears to sup­port the ad­min­is­tra­tion’s ra­tionale for the early-re­lease of in­mates serving time for non­vi­ol­ent of­fenses, a cru­cial as­pect went un­ad­dressed in the hoopla sur­round­ing the announce­ment: What kind of men­tal-health re­sources are avail­able in com­munit­ies for in­mates des­ig­nated for early re­lease?

And, across the board, as the ad­min­is­tra­tion and ad­voc­ates un­der­take strategies to ad­dress mass in­car­cer­a­tion, what is the fate of the es­tim­ated hun­dreds and thou­sands of in­mates in Amer­ic­an jails and pris­ons who are men­tally ill?

The U.S. Sen­ten­cing Com­mis­sion’s early-re­lease pro­gram put a point on grow­ing na­tion­al aware­ness about the implcations of Amer­ica’s vast in­car­cer­a­tion uni­verse.  It res­ul­ted from a bi­par­tis­an ef­fort to re­make harsh drug-re­lated sen­ten­cing guidelines that had spurred the mass in­car­cer­a­tion of mostly black and Latino men be­gin­ning in the mid-1980s.  By year end 2014, 2.2 mil­lion people were locked up in Amer­ica’s jails and pris­ons, rep­res­ent­ing the highest rate of in­car­cer­a­tion among de­veloped na­tions world­wide.  The pop­u­la­tion of in­mates who are sched­uled to re­ceive early re­lease is com­posed primar­ily of drug of­fend­ers who will be un­der the watch of pro­ba­tion of­ficers after they return to ci­vil­ian life, ac­cord­ing to Sally Yates, Deputy U.S. At­tor­ney Gen­er­al.

But the ab­sence of a com­pre­hens­ive plan to serve the men­tal health needs of in­mates in the early-re­lease pro­gram high­lights a long-stand­ing con­cern among pris­on re­form ad­voc­ates: the tight in­ter­sec­tion of drug or al­co­hol ab­use, men­tal ill­ness, and in­car­cer­a­tion.  Men­tal health ex­perts cite the “co-oc­cur­ring” pres­ence of drug or al­co­hol ab­use and men­tal ill­ness among in­mates as a ma­jor chal­lenge, one that makes both the daily pro­cess of safely hous­ing pris­on­ers par­tic­u­larly com­plex, and which also com­plic­ates the re­turn of in­mates to com­munit­ies....

A 2014 re­port by the Na­tion­al Re­sources Coun­cil (NRC) showed that men­tal ill­ness in the na­tion’s jails and pris­ons is per­vas­ive.  Pro­duced by an in­ter­dis­cip­lin­ary com­mit­tee of re­search­ers, the re­port ex­amined data from cor­rec­tions-department sur­veys and un­covered the pres­ence of “men­tal-health con­cerns” among 64 per­cent of in­mates in the nation’s jails, 54 per­cent of state pris­on­ers, and among 45 per­cent of in­mates at fed­er­al fa­cil­it­ies.... Con­sequently, a grow­ing num­ber of crim­in­al-justice and pris­on­er-re­hab­il­it­a­tion ex­perts are fo­cus­ing in on men­tal health as a key compon­ent of Amer­ica’s mass in­car­cer­a­tion, both as a primary in­stig­at­or of im­pris­on­ment, and also as a ma­jor challenge that must be ad­dressed in shap­ing re­lease policies and pro­to­cols....

Amer­ica’s jour­ney on the path to be­com­ing the de­veloped na­tion with the most in­car­cer­ated people in the world — and the na­tion where pris­ons and jails are de facto men­tal-health catch­ments — gained steam with the “War on Drugs,” a col­lec­tion of re­gion­al and fed­er­al tough-on-crime policies and harsh sen­ten­cing laws that es­cal­ated dur­ing the 1980s as crack co­caine use in urb­an loc­ales drove up vi­ol­ent-crime rates and gen­er­ated nightly news cov­er­age of com­munit­ies in crisis.  But the spark that lit the fire un­der mass in­car­cer­a­tion in the U.S. was struck long be­fore the mid-1980s.

Be­gin­ning in the 1960s, states began rad­ic­ally re­du­cing tax­pay­er-fun­ded men­tal-health hos­pit­als and in­pa­tient cen­ters, re­leas­ing hun­dreds of thou­sands of men­tally ill or chal­lenged pa­tients in­to com­munit­ies.  Known as deinstitutionala­tion, the pro­cess was deemed ne­ces­sary by state law­makers and gov­ernors in or­der to shut­ter hos­pit­als that of­ten resembled 19th-cen­tury “snake pits” — large, poorly run fa­cil­it­ies in which thou­sands of vul­ner­able men­tally ill citizens were ware­housed, un­der-served, and for­got­ten....

Dur­ing the same era, from Cali­for­nia to New York, a per­fect storm of factors af­fect­ing in­car­cer­a­tion rates loomed and then broke: na­tion­wide, thou­sands of res­id­ents who needed men­tal health at­ten­tion but couldn’t af­ford private care or ac­cess af­ford­able ser­vices turned to self-med­ic­at­ing be­ha­vi­or — through drug or al­co­hol use — which led to crim­in­al activ­ity, which in turn brought them in­to the crim­in­al-justice sys­tem at the very mo­ment when judges and elec­ted of­fi­cials coast to coast pushed for severe sen­ten­cing of those in­volved in drug-re­lated activ­ity.

In city after city, those without money to af­ford private drug treat­ment or men­tal-health care — or private at­tor­neys — were swept in­to jails and pris­ons, some­times fa­cing terms of a dec­ade or longer un­der new man­dat­ory-min­im­um sen­ten­cing rules for pos­sess­ing or selling small or mod­er­ate amounts of nar­cot­ics.  A raft of new sen­ten­cing guidelines nar­rowed av­en­ues for pro­ba­tion for those with mul­tiple drug of­fenses.  These ‘three strikes’ laws, as they came to be known, were ap­proved by a dec­ade’s worth of Con­gress mem­bers, as well as by Demo­crat­ic and Re­pub­lic­an pres­id­ents.

Thou­sands of low-level de­fend­ants, many suf­fer­ing from emo­tion­al- or men­tal-health chal­lenges that they had been "street treat­ing" by us­ing il­leg­al drugs, then pro­duced the co-oc­cur­ring dy­nam­ic of in­di­vidu­als strug­gling with men­tal ill­ness and drug or al­co­hol ad­dic­tion.  Plunged in­to state or fed­er­al pen­it­en­tiar­ies, thou­sands re­ceived poor treat­ment or no treat­ment, and their men­tal health de­teri­or­ated.  In some in­stances, men­tally ill in­mates fell prey to vi­ol­ence from oth­er in­mates, harmed or killed them­selves, or de­veloped deep­er drug or al­co­hol ad­dic­tions.  A Feb­ru­ary study from the Vera In­sti­tute for Justice found that 83 per­cent of jail in­mates in the U.S. do not re­ceive men­tal-health services or treat­ment after be­ing ad­mit­ted....

Justice De­part­ment of­fi­cials and some state judges have star­ted to dis­play act­iv­ist tend­en­cies, for­cing loc­al jur­is­dic­tions to be­gin find­ing solu­tions for the grow­ing num­ber of men­tally ill in­mates with­in the vast net­works of loc­al ­correc­tion­al fa­cil­it­ies.  In Au­gust, for ex­ample, Los Angeles County agreed to im­ple­ment ma­jor re­forms aimed at improv­ing the con­di­tions of men­tally ill in­mates fol­low­ing strong pres­sure from DOJ....  [I]n the state that came to em­body the ac­cel­er­a­tion of mass in­car­cer­a­tion, a blue­print is tak­ing shape for achiev­ing hu­mane and fisc­ally re­spons­ible out­comes for men­tally ill people who come in­to con­tact with the crim­in­al-justice sys­tem.

November 25, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, November 24, 2015

Outgoing Kentucky Gov restores voting rights to many thousands of nonviolent felons

As reported in this AP article, the "outgoing Democratic governor of Kentucky signed an executive order Tuesday to restore the right to vote and hold public office to thousands of non-violent felons who've served out their sentences."  Here is more:

The order from Gov. Steve Beshear — who leaves office next month — does not include those convicted of violent crimes, sex offenses, bribery or treason. Kentucky already restores voting rights to some nonviolent convicted felons, but the felon must apply to the governor's office, which approves them on a case by case basis. This new order automatically restores voting rights to convicted felons who meet certain criteria upon their release. Those who have already been released can fill out a form on the state Department of Corrections' website.

"All of our society will be better off if we actively work to help rehabilitate those who have made a mistake," Beshear said. "And the more we do that, the more the entire society will benefit."

Kentucky was one of four states that did not automatically restore voting rights to felons once they completed all the terms of their sentences. About 180,000 in Kentucky have served their sentences yet remain banned from casting ballots. The Kentucky legislature has tried and failed numerous times to pass a bill to restore voting rights to felons. The Republican-controlled Senate would agree only if there was a five-year waiting period, which Democrats refused....

Democrats control state government until next month, when Republican Gov.-elect Matt Bevin takes office. Bevin could repeal Beshear's order or allow it to stand. Bevin spokeswoman Jessica Ditto said Bevin supports restoring voting rights to nonviolent offenders, but added he was not notified of Beshear's order until a few minutes before he announced it. "The Executive Order will be evaluated during the transition period," she said.

Republican State Rep. Jeff Hoover, the minority floor leader of the state House of Representatives, said he supports restoring voting rights to convicted felons but opposes Beshear's method of doing it. "It should be the role of the legislature, not one person, which should address these issues through legislative debate," Hoover said in a news release. "This is a prime example of this Governor following in the footsteps of President Obama and putting his own agenda above the people of Kentucky and the elected legislators who serve them."

November 24, 2015 in Clemency and Pardons, Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (13)

"Is Congress Ready to Back a New Crime Commission?"

Download (4)The question in this title of this post is the headline of this recent Crime Report piece by Ted Gest.  Here are excerpts:

Growing Congressional interest in justice reform has improved the prospects for creation of a National Criminal Justice Commission that can spearhead a "top to bottom review" of the justice system, says Sen. Gary Peters (D-MI). Peters told the American Society of Criminology [last week] that the time was "long overdue" for a national effort similar in scope to the Commission on Law Enforcement and Administration of Justice created by President Lyndon B. Johnson in 1965.

At a panel marking the 50th anniversary of the LBJ initiative, Peters was joined by staff members of the original commission for a discussion of the challenges and prospects of a new national effort to muster support for innovation in criminal justice.

Criminologist Alfred Blumstein of Carnegie Mellon University said a new panel could tackle a number of major national issues, including high incarceration rates and overcriminalization. But he also noted that a commission with members named by the president and Congressional leaders, as proposed by the current bill to establish the body, could lead to political polarization.

Peters is a leading sponsor of the bill, which has has been endorsed by organizations of police and prosecutors, and has 20 co-sponsors in the Senate. A similar plan by former Sen. Jim Webb (D-VA) fell short because he failed to win much Republican support. But this time around, Peters has the backing of Sen. John Cornyn (R-TX), the deputy majority leader, and Sen. Lindsey Graham (R-SC), a conservative Judiciary Committee member.

Peters, who formerly represented Detroit as a member of the House and is familiar with that city's longstanding crime problems, listed some of the issues that a new commission could address, such as grand juries that are reluctant to charge police officers who shoot citizens, the challenges of former prisoners trying to re-enter society, and flawed forensic science procedures that do not provide accurate evidence in criminal cases....

Earlier this year, a task force on 21st century law enforcement named by President Obama called for a broader presidential task force on the entire criminal justice system. The Peters-Cornyn-Graham bill would go further, creating a 14-member panel that would issue a report within 18 months.

In a discussion of the bill, Washington lawyer Sheldon Krantz, another original staff member of the LBJ panel, said the 1960s panel worked well partly because its voting members were not entrenched criminal justice experts, and they relied on a professional staff that lacked "political infighting."

Laurie Robinson of George Mason University, former assistant U.S. Attorney General for justice programs, said a new commission could pose and answer basic questions of "what do we want for the nation's criminal justice system?" She noted that public opinion on such issues as policing, drugs, and overcriminalization has changed in the past few years. In the national discussion that followed the Ferguson police killing of Michael Brown last year, "the ground is shifting, the terrain is changing," she said.

November 24, 2015 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, November 23, 2015

US District Judge Bennett finds legal limit to giving retroactive effect to new lower federal drug sentencing guidelines

Regular readers know that US District Judge Mark Bennett regularly produces thoughtful and thorough opinions on an array of cutting-edge federal sentencing issues.  The latest Judge Bennett opus arrived today via US  v. Feauto, No. CR 12-3046-MWB (D. Iowa Nov. 23, 2015) (available for download below).  As this start to the Feauto opinion reveals (with lengthy footnotes left out and breaks added), Judge Bennett's latest work likely means a not-so-happy Thanksgiving week for at least on federal defendant:

Before me for consideration is defendant Randy Feauto’s eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782, the “All Drugs Minus Two Amendment,” to the United States Sentencing Guidelines.  The parties and the Federal Defender for the Northern and Southern Districts of Iowa, as invited amicus curie, argue that a defendant subject to a mandatory minimum sentence who previously received a “substantial assistance” reduction below that mandatory minimum can be resentenced pursuant to Amendment 782 without regard to the mandatory minimum.  That position was originally music to my ears, because I have consistently — and vehemently — disagreed with the harshness of most mandatory minimum sentences.  In fact, in most of the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.  I would often inform or remind defendants and their families and supporters in the courtroom that reform of mandatory minimum sentencing must come from the legislative branch of our federal government — Congress.

So it is with significant irony, but consistent with my view that only Congress has the authority to waive mandatory minimum sentences (with the exception of substantial assistance motions, pursuant to § 3553(e) and FED. R. CRIM. P. 35(b), and “safety valve” eligibility, pursuant to § 3553(f)), that I disagree with the parties’ argument that the Sentencing Commission has the authority to use Amendment 782, or any other amendment to the Sentencing Guidelines, to “nullify” a mandatory minimum sentence established by Congress.  For the reasons set forth below, my understanding is that only Congress itself, not the Sentencing Commission or the Judicial Branch, has that power.  Consequently, the proper net effect of Amendment 782, applied either retroactively or prospectively, is that it can only reduce the sentence of a defendant who originally received a reduction for substantial assistance if he had no mandatory minimum or both his original guideline sentence and his amended guideline sentence are above his mandatory minimum.  Feauto is not such a defendant.

I fully recognize that, like the vast majority of mandatory minimum sentences themselves, this construction leads to a harsh result, but fidelity to the rule of law and principles of non-delegation and separation of powers trumps any personal views on the harshness of federal sentencing.  As discussed below, the construction urged by the parties and amicus creates an Alice In Wonderland like scenario in which the retroactive application of Amendment 782 opens a rabbit hole that Feauto, instead of Alice, falls through and receives a lower sentence in Wonderland than if he were originally sentenced today for his crime with the application of post-Amendment 782.  Surely, this Mad Tea Party scenario creates the very kind of unwarranted disparity the guidelines were intended to avoid.

Download Feauto.Final

November 23, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

NY Times editorial: "Cut Sentences for Low­-Level Drug Crimes"

This New York Times editorial provides a glimpse into the latest state (and notable criticisms) of federal statutory sentencing reform making slow-but-steady progress in Congress. Here is how it starts and ends:

Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.

The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts.  That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.

The new sentencing­-reform bills now moving through the Senate and House would help reduce some of the longest mandatory­-minimum sentences, including ending the use of life without parole for drug crimes, and would give judges more power to impose a shorter sentence when the facts of a case warrant it.

But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, non-violent crimes, and have no serious history of violence. More than half of the current drug­-offender population has no violent history at all, according to a new analysis by the Urban Institute and the Charles Colson Task Force on Federal Corrections.  Less than 14 percent were sentenced for using or threatening to use violence, or directing its use.  And only 14 percent were sentenced for having a high-­level or leadership role in a drug operation, the study found....

A critical fix Congress could make right now would be to change the law so that a person’s sentence is determined by his role in a drug operation, and not by the entire amount of drugs found in that operation, which is a poor measure of culpability.

One version of the sentencing reform legislation, introduced in the House by Jim Sensenbrenner, Republican of Wisconsin, and Robert Scott, Democrat of Virginia, would have addressed this issue squarely by applying many mandatory minimum sentences only to the leaders of a drug organization. But that smart idea was heavily watered down in the bills passed by the Senate and House Judiciary Committees in recent days.  Congress should resurrect this sensible provision, which would go a long way toward bringing some basic fairness and rationality back into the nation’s horribly skewed drug laws.

Some recent related posts:

November 23, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Would dueling initiatives in California bring capital clarity or continued confusion?

The question in the title of this post is prompted by this Orange County Register editorial, which is headlined "Cloudy prospects for death penalty in California." Here are excerpts:

Is the death penalty viable in California? Until recently, opposing it usually meant political suicide at the state level. In 1986, Rose Bird, chief justice of the California Supreme Court and Gov. Jerry Brown’s appointee, was booted from office by voters after she overturned 64 straight death-penalty convictions.  So were two like-minded associate justices.

After that, even Democrats promised to execute the worst criminals.  Democratic Gov. Gray Davis executed five men. His successor, Arnold Schwarzenegger, terminated three, the last being Clarence Ray Allen, convicted of organizing three murders.... In 2012, voters defeated Proposition 34, which would have repealed capital punishment in California....

In recent years, the death penalty has been suspended because of accusations the “drug cocktail” used in executions violated the Eighth Amendment’s guarantee against “cruel and unusual punishments.”  However, as the Register’s Martin Wisckol reported last week, “Death penalty advocates cheered two incremental steps this month: The Department of Corrections will proceed with the review process toward replacing the three-drug cocktail with a single drug, and an appeals court made a narrow technical ruling that favors the death penalty.”

Voters again could get a say.  One initiative advanced for the November 2016 ballot by actor Mike Farrell would repeal the death penalty.  Given that Prop. 34 lost, 52 percent to 48 percent, it has a chance.  The other proposed initiative is backed by county district attorneys across the state, including Orange County’s Tony Rackauckas.  In Mr. Wisckol’s summary, the measure would streamline “the process for approving a single-drug injection” and the appeals process, and expand “the pool of defense attorneys available to represent death row inmates.”  Under state law, if two similar initiatives pass, the one with the most votes becomes law.

However, California elects a new governor in 2018. Lt. Gov. Gavin Newsom, who already has announced his candidacy, in 2013 came out strongly against the death penalty.  Other Democratic candidates likely will take the same stance.  Republicans now are so weak a statewide electoral force, supporting the death penalty won’t help much.  Which means a death penalty opponent almost certainly will move into the Governor’s Office in 2019.

As a big supporter of direct democracy, I generally favor any and all efforts to put issues before voters. In addition, given the persistent mess that California's capital punishment system has been, I think it would be very valuable to give voters clear choices to either end or to mend the death penalty in the state. For various legal and political reasons, even a landslide vote on death penalty reform likely would not resolve all capital issues in California. But I think it could help bring a lot more capital clarity.

November 23, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Sunday, November 22, 2015

"Hegel and the Justification of Real-World Penal Sanctions"

The title of this post is the title of this notable new philosophical paper authored by Antje Du Bois-Pedain available via SSRN.  Here is the abstract:

This paper revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions.  Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state.  Hegel is also right to stress that punishment is — not merely conceptually, but also in the reality of our social world — a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom.

This understanding of punishment sets significant limits to punishment’s permissible forms, particularly — but not only — with regard to the death penalty.  By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents.  In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

November 22, 2015 in Purposes of Punishment and Sentencing | Permalink | Comments (2)

Stray kittens strut their stuff in prison

DownloadI am not sure that catblogging is really an internet thing anymore, but I am sure that this local article from Washington state headlined "This Humane Society is sending stray cats to prison," is blog-worthy as a feel-good story about a local prison program.  Here are excerpts:

The Kitsap Humane Society has a new approach for stray cats: send them to prison. Inmates at the Mission Creek Corrections Center for Women, near Belfair in Mason County, are rehabilitating 10 stray cats until they are ready to be adopted by the public.

The women raising the cats say they offenders benefit as well. "It's a win-win for everybody involved," said Cydney Berthel, who is locked up on a theft conviction. "We're rehabilitating the lives of these little kittens and rehabilitating our lives too," said Berthel. She said working with the cats has been therapeutic.

It's taught the offenders how to nurture a living thing, something they didn't always do in their past lives. "We definitely made mistakes," said Shauna Teagle, "I feel this is my little bit of payback I can do." Teagle, who was sentenced to three years in prison for dealing drugs, said caring for the cats will help her be a better mother when she's released.

To participate in what the inmates call the "Pawsitive Prison Program," offenders must be infraction-free for the past six months.

Though some may view this post a fluff piece, I have heard enough anecdotes about "pets for prisoners" to wonder seriously if any systematic research has been done on recidivism rates after particitation in one of these kinds of programs.  At the very least, I hope there is no reason to fear that prisoners involved in these positive programs do not later get caught up in kitty porn.

(Sorry folks, like cats drawn to catnip, I could not resist my favorite bad cat-crime pun.)

November 22, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Saturday, November 21, 2015

Latest BJS official data show reduction of offenders on probation and parole

As reported in this official press release, the Bureau of Justice Statistics this past week released this report, titled "Probation and Parole in the United States, 2014," providing the latest official data on offenders under community supervision throughout the nation. Here are some data highlights from the press release:

The one-percent decline in the number of adults supervised in the community on probation or parole between yearend 2013 and 2014 marked the seventh consecutive year of decline in the population, the Bureau of Justice Statistics (BJS) announced today.  In the past seven years, adults under community supervision declined between 0.5 percent and 2.6 percent annually, or by nearly 400,000 offenders over the 7-year period.

Between yearend 2008 and 2014, the probation population fell 10 percent, while the parole population increased nearly 4 percent.  Probation is a court-ordered period of supervision in the community, generally used as an alternative to incarceration, and parole is a period of conditional supervised release in the community following a prison term.

An estimated 4.7 million adults were under correctional community supervision in the United States on December 31, 2014, down 45,300 offenders from the same day in 2013. The decline in community supervision was due to a drop in the number on probation that was offset by an increase in the number on parole. Between yearend 2013 and 2014, the probation population decreased by 46,500 offenders (from 3,910,600 to 3,864,100 offenders) while the parole population increase by 1,700 offenders over the same period (from 855,200 to 856,900 offenders)....

Other probation findings include —

  • About 25 percent of probationers were female in 2014, up from 22 percent in 2000....
  • Of all persons on probation during 2014, the incarceration rate (5 percent) among those violating their conditions of supervision — including incarceration for a new offense, a revocation and other reasons — was similar to the rate observed in 2013 (5.4 percent).

Other parole findings include —

  • Twelve percent of parolees were female in 2014, unchanged from 2000.
  • In 2014, nearly a third (31 percent) of parolees were being supervised for violent offenses, about a third (31 percent) for drug crimes and nearly a quarter (22 percent) for property offenses....
  • Among all persons on parole during the year, an estimated 9 percent were reincarcerated in 2014, a rate similar to 2013.

November 21, 2015 in Data on sentencing, Detailed sentencing data, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)