Tuesday, June 30, 2015

Might Pope Francis shame Prez Obama into doing more about mass incarceration?

The question in the title of this post is a bit of a riff off of this notable new commentary from Philadelphia magazine, headlined "Will the Pope Shame City Hall Into Fixing Its Atrocious Prison Problem?".  Here are excerpts:

The Cool Pope is visiting Philadelphia’s Curran-Fromhold Correctional Facility during his trip to the city this fall, the Vatican announced Tuesday.  

When Pope Francis tours the jail, he’ll find a prison system that has been sued over its crammed conditions almost non-stop for the past 45 years.  In fact, a judge ordered the city to build CFCF in the nineties in order to alleviate overcrowding.  Today, the city's prison system houses nearly 8,200 inmates — about 1,700 more than it was built to hold. At CFCF, 400 to 500 prisoners live in "triple cells," which are jam-packed, three-man cells that are intended to hold only one or two people.  

Will city officials allow the Pope to see the prison's lackluster conditions?  Will he pop into a triple cell?  Or will his impending visit pressure the city to finally get its stuffed jails under control?

We asked Mark McDonald, a spokesman for Mayor Michael Nutter, if there are plans to change the setup of CFCF or move inmates to other jails in the city's system during the Pope's visit.  "There are no plans to change the 'setup' at the prison.  The Pope will see the facility as it is.  He will visit with a group of inmates and also speak to a group of staffers," he said, adding, "No, inmates will not be moved from CFCF."

There's a good chance that this might light a fire under the city to cut down on the prison population, though.  Throughout Nutter's tenure, the city has taken several steps to reduce the number of inmates in the city's jails — and, at times, has been very successful.  In early 2011, the prison system's population fell to 7,700, a recent low. Still, it has never reached that magic number — 6,500, which is the maximum number of inmates that the system was constructed to hold — under Nutter.

The prison population has often fallen under Nutter shortly after the city has been sued due to overcrowding.  Likewise, it has risen after such lawsuits were put on hold.... Won't the upcoming visit by Pope Francis — and all of the international media attention that will come with it — give the city an even bigger incentive to cut down on overcrowding?...

It's also noteworthy that Pope Francis is touring CFCF, which opened in 1995 and is one of the city's newest prison facilities, as opposed to, say, the House of Correction, which is nearly 150 years old and lacks air conditioning.

My post title and question is actually prompted by the fact that I could not remember the last time Prez Obama (or, for that matter, any sitting or former Prez) ever visited a US prison.  Notably, as this article reports, Prez Obama did visit in 2013 the South African prison cell which long housed Nelson Mandela. 

As a general matter, I wonder if any Presidential historians can help me figure out if or how many sitting or former Presidents have ever made an official visit to a US prison or jail facility.  In the meantime, I will here call it notable and telling, and ultimately shameful, that modern mass incarceration in the United States apparently is more of a Papal than a Presidential concern.

June 30, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

If you are eager to gorge on Glossip gossip...

here is just a smidgen of some of the copious commentary one can find before the ink is really dry on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline, sources and authors varied):

June 30, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0)

Virginia Gov creates commission to study bringing back parole in state sentencing scheme

DownloadI have long thought and feared that the broad move in the 1980s and 1990s to abolish parole in the federal sentencing system and in many state systems was a significant (and rarely recognized) contributor to modern mass incarceration problems.  Consequently, I am intrigued and pleased to see this recent press report headlined "McAuliffe creates commission to study bringing parole back to Virginia." Here are the details of what is afoot in Virginia, as well as some highlights of the enduring political issues and debates that surround parole abolition and reforms:

Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country.... McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.

“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”

The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign. It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s....

Carl Wicklund, the executive director of the American Probation and Parole Association, said research suggests that the laws of the 1990s were not necessarily effective, and politicians from both parties are embracing change. Parole gives inmates motivation to better themselves in hopes they could be let out early, he said. “People are starting to look at that, how do you incentivize people when they’re in prison to actually start to get their act together?” Wicklund said.

But others say that crime declined in Virginia in the two decades since parole was abolished and that the prisons are not overflowing with nonviolent first-time offenders. “I want to ask them which murderer, rapist or armed robber they want to get out of jail,” said former Virginia attorney general Jerry Kilgore (R), a lawyer in private practice who was Allen’s secretary of public safety. “Under the old system, murderers were serving a fourth to a third of their time.”

C. Todd Gilbert (R-Shenandoah), a former prosecutor, said Virginia tends to lock up what he called “the right people”: violent offenders, repeat offenders, chronic probation violators and drug dealers. “Why the governor would want to tinker with undoing a good thing is beyond me,” he said. “It’s pure politics. I’m sure he’s getting a tremendous amount of pressure from the base of his party to tear down the criminal justice system. Criminal apologists would love nothing more than to have no one serve any time for practically anything.”

In the interview with WTOP (103.5 FM), McAuliffe said it is his job to protect citizens, but also safeguard taxpayer dollars. The state houses 30,369 inmates at a cost of $27,462 per year per inmate and a total of $833 million annually, he said. Inmates must serve at least 85 percent of their sentences before they can be released for good behavior. “The question now, 20 years later, is has it made us safer or have we spent a lot of money and we haven’t done what we need to do for rehabilitation?” he said.

Former Virginia attorney general Mark L. Earley Sr. — a Republican whom Allen once portrayed as an ally in abolishing parole — will chair the commission with McAuliffe’s secretary of public safety, Brian Moran, and his secretary of the commonwealth, Levar Stoney. The Commission on Parole Review must complete a final report by Dec. 4. “I want everybody just to relax here. We’re not saying let everybody out. We’re not doing that. We’re going to do a comprehensive study,” McAuliffe said.

The effects of parole abolition were also the subject of a study by the Senate Finance Committee released in November, which deemed the policy change a success. “Virginia has the third-lowest rate of violent crime and the second-lowest recidivism in the nation,” the 74-page report concluded. “Sentencing reform is working as intended.”

But the American Civil Liberties Union of Virginia said there is little evidence that parole abolition has made Virginians safer. In fact, the state’s incarceration rate has increased and crime rate has declined at a slower rate than states that have reduced their incarceration levels, the group said. “By removing the opportunity for parole, the commonwealth has also compounded the disproportionate impact that our criminal justice system has on people of color,” said ACLU executive director Claire Guthrie Gastañaga.

Democrats generally praised McAuliffe for revisiting the policy. “It’s an issue of public safety and our commitment to rehabilitation, are we actually doing that in Virginia?” said Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic caucus. Virginia House Minority Leader David J. Toscano (D-Charlottesville) said the commission could recommend relaxing parole for some offenders, but not others. “I don’t believe the governor has any interest in encouraging any policy that’s going to release hardened criminals in advance of their sentence being served,” he said.

But Republicans denounced any effort to roll back one of the landmark reforms of Allen’s governorship. Del. Robert B. Bell (R-Albemarle), a criminal lawyer and former prosecutor who is planning to run for attorney general in 2017, said changing the state’s policy “would be an enormous step back for public safety in Virginia” and would create a “backdoor out of prison” after jurors, detectives and victims have left the courtroom.

House Speaker William J. Howell (R-Stafford) said he agreed that the current system has served the commonwealth well and has become a national model. “While there are always improvements to be made, the notion that Virginia needs wholesale criminal justice reform seems to be more about politics than policy,” he said.

Parole abolition was popular in Virginia when Allen pushed for it, said Chris LaCivita, a Republican strategist who worked on Allen’s 1993 campaign. Allen won the governor’s office that year by an 18-point margin on the promise to abolish parole, and the General Assembly, then controlled by Democrats, passed it his first year in office, he said. “When Allen abolished parole in 1994, it was for violent offenders,” LaCivita said. “And the primary reason was because so many of those who were convicted of violent crimes were only serving a part of their sentence.”

As of 2000, 16 states had done away with discretionary release on parole, and four other states had gotten rid of the practice for certain crimes, according to the Bureau of Justice Statistics. Experts said few, if any, states seem to have reversed course. If Virginia were to do so completely, it might be the first, said Keith Hardison, the chief administrative officer of Association of Paroling Authorities International, which represents parole board staffers. “It’s not unexpected, because it seems like a logical extension of some of the changing, perhaps backing off somewhat of the ‘get tough’ era, and the ‘nothing works’ era,” he said.

Arlington Commonwealth’s Attorney Theo Stamos (D) said it “makes abundant sense” to revisit the policy but noted that she did not feel abolishing parole was a mistake. Crime has dwindled in Virginia since parole was abolished, and while she said there might not be a causation, it was a factor to be considered. “It’s a function of a lot of things, but clearly, the bad folks who are in for a long time . . . for the time that they’re in for, they’re not committing crimes on the street,” she said. Stamos noted that no matter what the commission finds, it would be up to the Republican-controlled General Assembly to restore parole — an unlikely outcome.

June 30, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term.  That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Some prior posts on Johnson and its possible impact:

June 30, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, June 29, 2015

"A Place to Call Home: Courts are reconsidering residency restrictions for sex offender"

The title of this post is the headline of this notable article from the July 2015 issue of the ABA Journal.  Here are excerpts:

[T]he California Supreme Court struck down the blanket application of [the state's] Jessica’s Law in March’s In re Taylor (PDF).  The justices noted that parole officers may impose residency restrictions on a case-by-case basis.  But they unanimously agreed that universal application of the law violates offenders’ constitutional rights — and doesn’t keep children safe.

The law “has hampered efforts to monitor, supervise and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators,” now-retired Justice Marvin Baxter wrote.  Though the decision applied only to parolees in San Diego County, the California Department of Corrections and Rehabilitation soon extended it to parolees statewide. CDCR spokesman Luis Patino says the state attorney general’s office believes courts would apply Taylor to every county.

California is not the only such state.  Later in March, a Michigan federal court struck down application of that state’s “geographic exclusion zones” to six plaintiffs, saying the law is unconstitutionally vague.  And in February, the New York Court of Appeals ruled that all local sex offender residency laws are pre-empted by state law, which does not include residency restrictions.

Courts weren’t always so friendly to these challenges. The highest court to rule on residency restrictions, the 8th U.S. Circuit Court of Appeals at St. Louis, ruled in 2005’s Doe v. Miller (PDF) that Iowa’s residency restrictions did not violate offenders’ constitutional rights.  That’s an important case, says professor Wayne Logan of Florida State University College of Law.  Most courts considering federal challenges on the issue have followed it.

But there are signs that things are changing.  Responding to compelling personal stories and mounting evidence that residency restrictions don’t work — and might even hurt public safety — courts are casting a more critical eye on these laws.  “There’s a public appetite for [sex offender laws], but there’s no evidentiary support that either registries or exclusion zones work,” says Miriam Aukerman, a lawyer for the American Civil Liberties Union of Michigan who represented the plaintiffs in the Michigan case. “And as a result, you’re seeing judges starting to rethink this.”

The facts of Taylor point to one of the biggest criticisms of residency restrictions: They often eliminate so much housing that they force ex-offenders into homelessness.  A 2011 report from the California Sex Offender Management Board expressly noted that “nearly 32 percent of sex offenders on parole are homeless due to Jessica’s Law.”...

And perhaps most damning, Levenson says the consensus among social science researchers is that residency laws don’t reduce recidivism. “We know from decades of research that most child sex abuse victims are well-known to their perpetrators,” she says. “So a person’s residential proximity … is really irrelevant.”

June 29, 2015 in Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Providing great reading (and little else of consequences), concurring and dissenting Justices use Glossip to debate death penalty's constitutionality

As noted in this prior post, states eager to move forward with challenged execution protocols got a big win on the merits from the Supreme Court this morning in Glossip v. Gross.  And while the substantive ruling from the Court will be of considerable consequence for states eager to move forward with scheduled executions, commentators (and law professors and death-penalty advocates) will likely take more note of the back-and-forth between Justice Breyer and Justices Scalia and Thomas in their separate Glossip opinion.  

Justice Breyer uses Glossip as an occassion to write a 40-page dissenting opinion (with Justice Ginsburg along for the ride) explaining why he now believes "it highly likely that the death penalty violates the Eighth Amendment" and that "the Court should call for full briefing on the basic question." Unsurprisingly, this disquisition prompts both Justice Scalia and Justice Thomas to author separate (and much shorter) concurring opinions seeking to explain why they think Justice Breyer's constitutional views are all washed up.

The work of these Justices debating the constitutionality of capital punishment as a categorical matter makes for great fun for those who enjoy constitutional debate as blood-sport (and for those eager to read the latest, strongests (policy) arguments against the modern death penalty). But the fact that seven current Justices apparently do not question the death penalty's essential constitutionality, including the five youngest Justices, suggests to me that abolitionists still have a lot more work to do before they can reasonable hope to see a majority of Justices find compelling a categorical constitutional ruling against capital punishment in all cases.

June 29, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

SCOTUS rules 5-4 against capital defendant's challenge to execution protocol in Glossip v. Gross

The Supreme Court handed down this morning the last big opinion of likely interest to sentencing fans via Glossip v. Gross, No. 14-7599 (S. Ct. June 29, 2015) (available here).  Here is how Justice Alito's opinion for the Court gets started:

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U.S.C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain.  They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain.  After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective.  The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.

For two independent reasons, we also affirm.  First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims.  See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion).  Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

Based on a too-quick read, the majority opinion seems like a big win for states seeking to move forward even with new and questionable execution methods. I doubt Glossip will halt all the lower-court litigation on state execution protocols, but it certainly should provide lower court judges a much clearer standard and basis for rejecting Eighth Amendment claims in this setting.

June 29, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Two distinct SCOTUS dissents from the denial of cert in capital federal habeas cases

Though a forthcoming opinion from the Supreme Court in Glossip v. Gross concerning executions methods is likely to highlight the Justices' distinct views on capital punishment, another example of this reality appears in this morning's SCOTUS order list.  At the end, one can find two lengthy dissents from the denial of cert: one, authored by Justice Thomas (and joined by Justice Alito), laments the Court's failure to take up a case from the Fourth Circuit that required further review of a North Carolina death sentence; the other, authored by Justice Sotomayor (and joined by Justices Ginsburg and Kagan), laments the Court's failure to take up a case from the Fifth Circuit that upheld a Mississippi death sentence.

Based on a quick read of both opinions, I must say I am generally content that the full Court did not bother to take up these cases as a prelude to seemingly inevitable 5-4 split capital decisions.  More generally, with so many interesting and important non-capital criminal law and procedure issues churning in lower courts, I hope the majority of Justices persistently resist what I see as a too-common tendency to get too-deeply engaged in what too often ends up as one-case-only, deeply-divided capital case error-correction (as I think we saw this term in Brumfield v. Cain and Davis v. Ayala).  

June 29, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Prison Abolition and Grounded Justice"

The title of this post is the title of this newly published article by Allegra McLeod. Here is the abstract:

This Article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste.  Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address — interpersonal violence, addiction, mental illness, and sexual abuse, among others.  Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law — principally deterrence, incapacitation, rehabilitation, and retributive justice — might be pursued by means entirely apart from criminal law enforcement.  Abandoning prison-backed punishment and punitive policing remains generally unfathomable.

This Article argues that the general reluctance to engage seriously an abolitionist framework represents a failure of moral, legal, and political imagination.  If abolition is understood to entail simply the immediate tearing down of all prison walls, then it is easy to dismiss abolition as unthinkable.  But if abolition consists instead of an aspirational ethic and a framework of gradual decarceration, which entails a positive substitution of other regulatory forms for criminal regulation, then the inattention to abolition in criminal law scholarship and reformist discourse comes into focus as a more troubling absence. Although violent crime prevention and proportional punishment of wrongdoing purportedly justify imprisonment, this Article illuminates how the ends of criminal law might be accomplished in large measure through institutions aside from criminal law administration.

More specifically, this Article explores a form of grounded preventive justice neglected in existing scholarly, legal, and policy accounts. Grounded preventive justice offers a positive substitutive account of abolition that aims to displace criminal law enforcement through meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare.  This positive substitutive abolitionist framework would operate by expanding social projects to prevent the need for carceral responses, decriminalizing less serious infractions, improving the design of spaces and products to reduce opportunities for offending, redeveloping and “greening” urban spaces, proliferating restorative forms of redress, and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons subject to criminal law enforcement.  By exploring prison abolition and grounded preventive justice in tandem, this Article offers a positive ethical, legal, and institutional framework for conceptualizing abolition, crime prevention, and grounded justice together.

June 29, 2015 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA

This past weekend afforded me the opportunity read more closely the various opinions in the big SCOTUS constitutional sentencing ruling in Johnson v. US striking down a provision of the Armed Career Criminal Act (ACCA) as unconstitutionally vague.  Looking forward, it will be interesting to see how many federal prisoners will claim Johnson demands they receive a lower sentence and also to see how various lower courts sort through such claims.  (I flagged some post-Johnson litigation issues in this prior post, and I will say more on this front in future posts.)  Here I want to look back a bit to explain why I think Justice Alito was unable to get a single colleague to support his suggested ACCA jurisprudence revision to preserve the sentencing provision stuck down in Johnson.

The Court is Johnson finds so much uncertainty in the ACCA residual clause because it "requires a court to picture the kind of conduct that the crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury."  The Court stressed that it "is one thing [and presumably constitutional] to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction."  I think the Johnson majority is basically right on this front, especially seeing how lower courts have struggled greatly mapping various offenses abstractly onto ACCA's residual clause.

But Justice Alito has a readily response: noting ACCA "makes no reference to 'an idealized ordinary case of the crime," he contends the "residual clause can [and should] be interpreted to refer to 'real-world conduct'."  In other words, Justice Alito has a solution to the interpretive problems lamented by the majority: rather than looking at prior convictions in the abstract, sentencing courts could and should engaging in a "conduct-specific inquiry" to assess whether a prior offense presented a "serious potential risk of physical injury."

But while sounding like a viable and reasonable solution, I suspect Justice Alito's suggestion was rejected by all the other Justices because they could see many real-world challenges posed by a "conduct-specific inquiry" in this ACCA setting.  For starters, if a factual inquiry determined ACCA predicates, sentencing courts would have to conduct mini-trials to look at all the real-world conduct behind (long-ago) priors. The mini-trials of priors would implicate an array of complex Fifth and Sixth Amendment procedure issues --- e.g., what would be the burden of proof for the judge (or jury)? would the defense be able to call witnesses and assert confrontation rights?  what review standard applies for the (factual/legal?) determination of "serious potential risk"?

Moveover, with each ACCA case hinging on factual rulings about "real-world conduct," there could be no firm ACCA precedents: even after one court decided defendant Al's real-world drunk driving or flight from the police triggered ACCA, defendant Bert could and would still litigate the same issue in the next case based on his own distinct "real-world conduct."  Even in cases that facially should be easy ACCA calls, the prosecution or the defense might try to argue unique "real-world" conduct made, say, an offense of littering especially risky or an offense of sexual imposition especially safe.

Finally, Justice Alito's own concluding approach to Johnson's case itself reveals how ipse dixit the analysis of "real-world conduct" would still be under ACCA.  Obviously eager to trump up the seriousness of Johnson's shotgun possession offense, Justice Alito asserts "drugs and guns are never a safe combination" and posits that "collateral damage" and "carnage" were real possibilities.  But he seems to be making suppositions as a means to an end no more firm or determinate than considering shotgun possession in the abstract.

In short, I suspect Justice Alito was unable to convince any of his colleagues to embrace his "real-world conduct" approach to ACCA because they understood that this approach would likely create more real-world problems than it would solve.

Some prior posts on Johnson and its possible impact:

June 29, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, June 28, 2015

When might a modern marijuana reform issue get on the SCOTUS docket?

The question in the title of this post is prompted not only by the fact that the Supreme Court is expected to issues its final opinions of the current Term on Monday, but also because some commentators have noticed parallels between quickly changing voter opinions and state laws on gay marriage and quickly changing voter opinions and state laws on marijuana.  Of course, the SCOTUS already has before it the challenge brought directly by Oklahoma and Nebraska assailing the spill-over harms from Colorado's reforms.  But I believe most informed Court-watchers expect that the Justices will refuse to hear the suit brought by Colorado's neighbors

While we all await the final rulings from SCOTUS on Monday and anticipate some future SCOTUS Term with cases addressing new modern marijuana reforms, here are some recent posts of note from Marijuana Law, Policy and Reform (including a few reporting on events that could generate some significant litigation): 

June 28, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2)

"Reducing Racial and Ethnic Disparities in Jails: Recommendations for Local Practice"

The title of this post is the title of this notable new report authored by Jessica Eaglin and Danyelle Solomon for the Brennan Center for Justice. Here is how the report is summarized:

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial disparities in our jails lays out common sense reforms to reduce this disparity, including increasing public defense representation for misdemeanor offenses, encouraging prosecutors to prioritize serious and violent offenses, limiting the use of pretrial detention, and requiring training to reduce racial bias for all those involved in running our justice system.

June 28, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Gearing up for the next SCOTUS death penalty case while awaiting Glossip ruling

Though the Supreme Court has saved for last its decision in the still-pending Glossip case concerning execution protocols, I still am not expecting that Glossip will prove to be a blockbuster ruling.  I am guessing the decision will focus principally on Oklahoma's history with various execution drugs (and, if lower courts are lucky, will provide a clearer script for resolving Eighth Amendment challenges to execution protocols).  

Consequently, an especially for those who are even more concerned about the imposition of death sentences than how they get carried out, it is perhaps not too soon to look ahead to future SCOTUS death penalty cases.  One such case already on the near horizon comes from Florida, as this new local press article highlights.  The article is headlined simply "Fla. death penalty faces scrutiny from Supreme Court," and here are excerpts:

Thirteen years after the U.S. Supreme Court ruled that juries, not judges, should decide death sentences, Florida stands alone in how its justice system imposes capital punishment....  Now the nation’s highest court is poised to consider in its next term whether Florida needs to change its system for deciding whom to execute.  The issue concerns the role of juries in death penalty decisions. It’s an aspect of the state’s system of capital punishment that courts have struggled with for years.

In Florida, as in other states, when defendants are convicted of murder in a death penalty case, juries hear evidence regarding the existence of “aggravating factors,” or aspects of the case that weigh in favor of a death sentence, as well as “mitigating factors,” information that favors a sentence of life in prison without the possibility of parole.  In recommending a sentence, a jury determines whether aggravating factors in a case outweigh the mitigating circumstances and justify the imposition of a death sentence.

But Florida juries, unlike most other states, are told their decisions are merely advisory, and that the judge will make the ultimate determination over whether to sentence a defendant to death.  Trial judges in Florida are required to make their own, independent findings and are permitted to impose sentences different from jury recommendations. Juries in Florida also are not required to reach unanimous decisions on the existence of specific aggravating factors or on whether to recommend a death sentence.

No other state allows the imposition of a death sentence without jurors either finding unanimously that a specific aggravating factor has been established or unanimously finding that capital punishment is appropriate.  The American Bar Association, which takes no position on the overall constitutionality of the death penalty, is urging the U.S. Supreme Court to direct Florida to make changes and require jurors to specify which aggravating factors they have unanimously found to be present.  The association wants the high court to require jurors to unanimously agree on the imposition of death sentences....

The U.S. Supreme Court in 2002 threw out Arizona’s system of capital punishment, ruling it was unconstitutional because judges, not juries, determined the existence of aggravating factors and sentenced defendants to death.  Months later, the Florida Supreme Court left intact the state’s system of capital punishment, concluding that the U.S. Supreme Court had repeatedly reviewed it and found it constitutional.  The state’s high court noted that the U.S. Supreme Court had refused to hear the appeal of one of the Florida defendants challenging the state system, even after it made the Arizona decision....

The state Supreme Court called in 2005 for the state Legislature to make changes to the state’s death penalty law to require unanimity in jury recommendations.  But state lawmakers didn’t act.  In the ensuing years, the state Supreme Court continued to hold that the state’s death penalty system is constitutional.  One of those rulings came in the Escambia County case of Timothy Lee Hurst, convicted of murdering coworker Cynthia Harrison in a robbery at Popeye’s restaurant on May 2, 1998....

At the conclusion of the second sentencing hearing [in Hurst's case], jurors returned a verdict of 7-5 in favor of death.  Hurst appealed again to the state Supreme Court, which upheld his death sentence, rejecting arguments that included assertions the jury should have been required to unanimously find a specific aggravating circumstance and unanimously decide his sentence.

The state Supreme Court noted in its Hurst ruling that it has previously concluded that the U.S. Supreme Court ruling in the Arizona case did not require juries to make specific findings of aggravating factors or to make unanimous decisions regarding death sentences. The Florida court refused to revisit its prior rulings.

Hurst also argued the jury should have been required to determine whether he was mentally disabled, a finding that would have barred the implementation of the death penalty.  After hearing testimony from witnesses and experts, the trial judge ruled that Hurst was not mentally disabled.  The state Supreme Court ruled that although some states require such findings be made by juries, Florida is not one of those states, and the U.S. Supreme Court has not mandated that procedure.

Hurst appealed to the U.S. Supreme Court, which agreed to hear the case in its next term, which begins in October.

June 28, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, June 27, 2015

"Will New Bipartisan Criminal Justice Reform Plan Fly?"

The question in the title of this post is the headline of this notable new Crime Report piece by Ted Gest discussing the prospects for the newly introduced SAFE Justice Act (basics here). Here are excerpts:

As support for criminal justice reform has spread, many states have left the federal government behind when it comes to reducing their prison populations. There were 208,598 federal inmates as of yesterday, dwarfing the state with the most in the last national count: Texas, with about 168,000. Prisons are consuming at least a quarter of the U.S. Justice Department's budget, putting a squeeze on other spending.

Until yesterday, most discussion of the issue in Congress has taken place in the Senate, where several members, ranging from conservative Republican Rand Paul of Kentucky to liberal Democrat Cory Booker of New Jersey have filed competing bills that would change federal sentencing laws and help inmates return successfully to society.

Now, two key House members from both major political parties are weighing in with a "Safe, Accountable, Fair, and Effective Justice Act"-- dubbed SAFE -- they suggest could go even farther than the Senate measures.

They are James Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, who have long headed the House subcommittee dealing with crime. (Scott recently moved from the panel, officially called the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and turned his role over to Rep. Sheila Jackson Lee of Texas.)...

Sensenbrenner and Scott headed a House over-criminalization task force that has spent the last year and a half holding hearings on the issue that led in large part to the new bill. Sensenbrenner contended yesterday that over-criminalization is a "major driver" of the federal prison count, although he conceded that no one know how many such cases are filed.

Liberals are much more interested in drug cases, arguing that mandatory minimum penalties dating from the 1980s have ensnared thousands of Americans serving terms of five or ten years or longer for relatively minor violations. Scott said that two-thirds of federal inmates serving mandatory terms in drug cases are not narcotics kingpins. He argued that in the end, the nation's high incarceration rate "generates more crime than it stops."

One notable aspect of yesterday's announcement was the presence of a wide range of organizations supporting the bill, including the American Civil Liberties Union, the conservative Koch Industries, the American Conservative Union Foundation, Families Against Mandatory Minimums, and the Police Foundation.

Helpfully, this article provides this link to this full text of the new House proposal which is formally the "Sensenbrenner-Scott Over-Criminalization Task Force Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015."

Prior related post:

June 27, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?

Gay Prison MarriageLots of folks a lot more invested in gay rights and broad constitutional jurisprudence likely have a lot more important things to say than I do about the Supreme Court's landmark marriage ruling in Obergefell v. Hodges.  But given that, as noted in this prior post, the Oklahoma Corrections Department halted all prison weddings while awating the Obergefell ruling, I could not resist here wondering aloud about whether prison officials will be long struggling with the reach of the ruling as the intersection of prisoner rights and the fundamental right to marry creates new and complicated administrative concerns. 

As the opinion for the Court in Obergefell mentioned, decades ago in Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court "held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry." The Obergefell ruling further mentions Turner in a notable passage that perhaps takes on extra meaning when one considers the loneliness and fear that surely accompany long-term incarceration for many prisoners:

And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U.S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14).  Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

Of course, Supreme Court jurisprudence has long explained that prisoners have greatly diminished rights (e.g., they have no reasonable expectation of privacy and thus few if any traditional Fourth Amendment rights), and that the rights they retain behind prison walls must give way to reasonable prison regulations. More specifically, in Turner, the Court expressly stated that "legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry."

Nevertheless, in Turner the Court rigorously questioned claims by Missouri officials rationales for strict limits on prisoner marriages and concluded that an "almost complete ban on the decision to marry is not reasonably related to legitimate penological objectives." Consequently, in the wake of the the Obergefell ruling, I read Turner to preclude prison officials from simply asserting, without substantial evidence, that it will never allow prisoners to have a same-sex marriage. (Notably, only one current Justice was on the Court when Turner was decided, and Justice Scalia joined the opinion for the Court authored by Justice O'Connor striking down the Missouri prison's "almost complete ban on the decision to marry.")

June 27, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

Friday, June 26, 2015

How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?

After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US.  (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.

But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences.  I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims.  But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim.  In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.

That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid. 

Some prior posts on Johnson and its possible impact (last two from before the opinion)

June 26, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (15)

A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson

As noted here, the US Supreme Court issued a (very?) big constitutional criminal procedure ruling today in Johnson v. US.  I will need at least a few hours (if not a few days and certainly many reads) to really figure out how big a deal Johnson is.  But I can and will here, at the risk of prioritizing speed over accuracy, quickly type out the first big 5 thoughts that have come to mind concerning the  line-up of jurists in the Johnson ruling:

1.  It is truly amazing (and quite significant) that Justice Scalia was able to convince five of his colleagues (including three of the four newer Justices) to issue a big pro-defendant constitutional criminal procedure ruling in Johnson.

2.  It is very significant that Chief Justice Roberts joined Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.

3.  It is interesting that Justice Kennedy briefly concurred separately and did not join Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.

4. It is notable that the concurrence authored by Justice Thomas is longer than the majority opinion (and I suspect it was going to be the opinion for the Court before Justice Scalia convinced his colleagues to order rehearing on the constitutional issue the majority addressed).

5. It is not at all surprising Justice Alito alone dissents, and I may start formally counting how many (non-capital) criminal cases have been (and will in the coming years) be defined by that reality.

June 26, 2015 in Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague

In a very important Fifth Amendment criminal procedure ruling, though one certain to be overlooked because of an even more important Fourteenth Amendment ruling issued right before it, the Supreme Court this morning in Johnson v. United States, 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  Justice Scalia wrote the main opinion for the Court (which carried five other Justices, including the Chief), and here is a key paragraph from the begining of the opinion's legal analysis:

We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause [of ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.

I will need some time to review and reflect to figure out how big a ruling Johnson may prove to be. But the basic reality that the defendant prevailed here on the broadest constitutional ground (and especially the fact that only Justice Alito was prepared to rule for the federal government on appeal) further proves a point I have been making since Blakely was handed down over a decade ago: The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.

That all said, and of particular significance for ACCA sentences that are built on convictions that do not depend on interpretations of the residual clause, the Court's opinion in Johnson ends with this critical and clear discussion of the limits of the holding:

We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.

June 26, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders

SS-602x399As this report from The Hill details, a notable and significant group of Representatives are backing a notable and significant new federal criminal justice reform bill.  Here are the basics:

A bipartisan pair of lawmakers on Thursday unveiled a comprehensive criminal reform bill aimed at reducing the federal prison population.  The Safe, Accountable, Fair, and Effective (SAFE) Justice Act from Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) calls for new rehabilitation methods and sentencing reforms.  The bill is the result of the House Judiciary Committee's over-criminalization task force which examined ways to reform federal prisons....

Sensenbrenner said the bill was intended to reverse the staggering increase in the prison population, which has quadrupled in the last 30 years.  Despite increased incarceration and spending on prisons, recidivism still remains a problem, he also noted.  The bill applies mandatory minimums only to major crimes, and “expands recidivism reduction programming to incentivize and reward those who are working to make a change,” Sensenbrenner said....

Scott said the bill would encourage innovate approaches to criminal justice reform. “We were not interested in playing politics with crime policy,” said Scott.  He noted that 32 states had been able to reduce both crime and incarceration rates over the past five years. Calling those states "laboratories of democracy," he said the bill adopted many of those tested practices.

Scott lamented the high incarceration rate in the U.S. He said the bill aims to “direct non-violent low level, first time offenders from prison" and better acknowledge the conditions that lead to crime.  “If you address those underlying issues, you will have a better return rate than just from locking them up,” he said.

The bill also garnered support from major groups across the political spectrum. Leaders and representatives from Koch Industries, the ACLU, the NAACP, the Washington D.C. Police Foundation, Families Against Mandatory Minimums, and the Center for Criminal Justice Reform at the American Conservative Union have expressed support for the bill.

The bill is co-sponsored by Reps. Doug Collins (R-Ga.), Elijah Cummings (D-Md.), Raul Labrador (R-Idaho), Judy Chu (D-Calif.), Mia Love (R-Utah), and Scott Rigell (R-Va). “Too many of our children have gotten caught into a cycle that they can not get out of,” said Love, explaining the bill's appeal.

Rep. Rigell touted the broad coalition backing the bill, which includes Koch Industries, owned-by the Koch Brothers, who are major conservative donors. “If you think of those as two gate posts, “ he said, noting Koch Industries and the ACLU, “that’s an awfully wide gate.”

I am struggling to find on-line the full text of this important new federal sentencing reform proposal, but this summary from FAMM leads me to believe that this new SAFE Justice Act may go significantly farther (and be more politically viable) that the Smarter Sentencing Act and the Justice Safety Valve Act proposals that failed to move forward in the last Congress.  Indeed, these passages from this new Vox article, which provides the most detailed media account of the SAFE Justice bill's specifics, is prompting me to think all would-be federal reformers — including Prez Obama and his Justice Department, and especially Senators Cruz and Paul and other reform-minded GOP Prez candidates — should think seriously about giving up on the SSA and other reform bills now in the Senate in order to put all their advocacy efforts behind getting SAFE Justice passed through the House ASAP:

While Senate efforts at criminal justice reform have exposed a generational split in the Republican Party, in which young reformers like Senators Mike Lee and Rand Paul face off against old-school, tough-on-crime conservatives like Senators Chuck Grassley and Jeff Sessions, the House's bill was written by one of those old-school Republicans — Rep. James Sensenbrenner of Wisconsin — as well as Rep. Bobby Scott (D-VA).

Sensenbrenner and Scott think of the Safe Justice Act as a federal version of the criminal justice reform bills that have been taken up in state after state over the past several years, many of them under the mottos of "justice reinvestment" and "smart on crime." In their minds, they're building on what's worked in the states and are in line with reformers' emphasis on "data-driven" and "evidence-based" criminal justice policymaking.

The Safe Justice Act is a collection of dozens of different reforms. Most of them aren't terribly big on their own, but many of them overlap. That makes it really hard to estimate exactly how much the federal prison population would shrink if the bill became law. But its effect would be bigger than anything that's been introduced in Congress so far.

Many of the reforms would cut sentences for drug crimes — which reflects a growing consensus that nonviolent drug offenses aren't as bad as violent crimes. Drug prisoners are about half of all federal prisoners (unlike in states, where violent crime is the biggest cause of incarceration). That means that many of the Safe Justice Act's biggest reforms would target the largest slice of the federal population....

Most changes to prison sentences in Congress have focused on cutting mandatory minimum sentences, which force judges to sentence people to five, 10, or 20 years for certain drug crimes. But across-the-board cuts to mandatory minimums have been met with serious resistance from old-school Republicans, including Senate Judiciary Chair Chuck Grassley (R-IA). The House's solution, via the Safe Justice Act, isn't to reduce the mandatory minimums themselves — but to narrow the range of people who they apply to. Instead of someone who's convicted of trafficking a certain amount of cocaine being automatically sentenced to 10 years, for example, he'd only trigger the 10-year minimum if he were also a leader or organizer of an organization of five or more people. And even then, the bill says that judges can override the mandatory minimum if the defendant doesn't have much of a criminal history, or has a serious drug problem.

The bill would also make it possible for more people to be sentenced to probation instead of getting sent to prison. It would allow drug offenders to get probation if they'd been convicted of low-level drug crimes before. It would encourage judges to give probation to first-time low-level offenders. And it would encourage districts to start up drug courts and other "problem-solving courts"; some states have found these are better ways to treat some addicts than prison is....

Current prisoners whose sentences would have been affected by the bill's front-end reforms could apply to get their sentences reduced that way. But the Safe Justice Act would also give them another way to reduce their sentences: by getting time off for rehabilitation. Under the bill, every federal prisoner would get an individual case plan, based on what particular prison education, work, substance abuse, or other programs are the best fit for his needs. For every month a prisoner follows the case plan, he'd get 10 days off his prison sentence — meaning a prisoner with a perfect behavior record could get his sentence reduced by a third. (Prisoners serving time for homicide, terrorism, or sex crimes aren't eligible for time off, but that's a very small slice of the federal prison population.) The logic is that prisoners who want to rehabilitate themselves, and whose good behavior shows they're succeeding, shouldn't be forced to spend extra time in prison just for prison's sake.

The bill goes even further when it comes to probation — which affects many more people than prison. For every month of perfect behavior on probation, the offender would get 30 days off the end of his sentence — essentially cutting the probation term in half. If the offender violated probation, on the other hand, there would be a set of gradually escalating punishments, instead of an automatic ticket back to prison....

In the year 2015, it is extremely hard to get any sort of bill through Congress. And Sensenbrenner, Scott, and their fellow reformers have a narrow window before the presidential campaign saps Congress of any will to act it has left. So the barriers are pretty high. But this isn't, in itself, supposed to be a polarizing bill. The presence of Sensenbrenner and other old-school Republicans reflects that. And this is something that both houses of Congress have been debating for some time.

If House leadership decides to snatch up the Safe Justice Act and bring it to the floor quickly, it might give the Senate enough time to act. Maybe they'll be interested in the provisions that would make it a little harder for the federal government to treat regulatory violations as crimes; that's a pet cause of conservatives, even those who aren't otherwise committed to reforming criminal justice.

Still, House leadership might not be interested. But this is the broadest bill that's been introduced during the current wave of criminal justice reform, and it's a marker of just how much consensus there is among reformers in both parties when it comes to reducing federal incarceration.

June 26, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"A Second Chance: Rebiography as Just Compensation"

I often tell my sentencing students that every good legal or policy debate has some important sentencing story lurking within it.  The title of this post is the title of this intriguing article authored by Jamila Jefferson-Jones just now appearing on SSRN, and it argues Fifth Amendment's Takings Clause has an important sentencing story lurking within.  Here is the abstract:

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary.  As one legal historian noted, "American culture and law put enormous emphasis on second chances."  For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal.  My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted.  Then, regulatory takings analysis was applied to that reputational damage.  In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation.  Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.

Rebiography as "just compensation" for the reputational taking suffered by the previously convicted leaves open two questions: First, does the takings analysis have the same outcome regardless of the offender?  In other words, does an offender have to try to use her reputation in a positive manner and be prevented from doing so in order to have a takings claim, or is it enough to say that requiring disclosure of criminal history is a taking across the board that always requires just compensation?  Secondly, what is the relationship between "rebiography" and "privacy"?  In "A Good Name," an established continued stigma attachment was shown as a governmental taking. Now, it is offered in a way to show that "just compensation" is owed to the previously convicted and that the way to provide it is through establishing a "rebiography right," stemming from the taking of a constitutionally cognizable property right.

Part I of this new article provides the introduction, giving general definitions of rebiography and “just compensation.”  In Part II, there are reviews of the application of the Takings Clause to the reputational damage suffered by the previously convicted and apply this analysis to actual cases.  In Part III, it is further explained as to why rebiography is necessary given statistics on the previously convicted's employment prospects and recidivism.  The article goes on to examine legislative and judicial options for rebiography.

June 26, 2015 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)