Sunday, February 18, 2018

Is Henry Montgomery of Montgomery v. Louisiana perhaps on the verge of a parole grant?

The question in the title of this post is prompted by this new commentary by Jody Kent Lavy, executive director of the Campaign for the Fair Sentencing of Youth, who write about a high-profile defendant soon to be considered for parole at age 71. Here are excerpts:

Henry Montgomery has been incarcerated in Louisiana prisons since he was 17 years old, and today he is 71.   He was sentenced to life without the possibility of parole when he was only a child, for the impulsive shooting of a sheriff's deputy decades ago.

As a result, he has missed a lifetime’s worth of events, learning, and relationships.  The United States Supreme Court ruled two years ago in his case, Montgomery v. Louisiana, that it is unconstitutional to impose a life-without-parole sentence on the vast majority of youth — a sentence the United States alone imposes on its children.  Still, Montgomery remains incarcerated, and will finally see the parole board just days from now....

And although Montgomery’s case has become emblematic of the fight to end the brutal practice of sentencing children to life without parole (and to other extreme sentences), Montgomery is not yet free.  Prosecutors in Louisiana are fighting his freedom, despite the U.S. Supreme Court ruling his sentence unconstitutional, along with such sentences for all youth whose crimes reflect “transient immaturity” rather than “irreparable corruption” — a trait I cannot imagine any child possessing, given where they are developmentally.  But it certainly isn’t true of Montgomery, whom I was fortunate to meet last year.  He is a soft-spoken, gentle man who has tried to make the most of his time in prison by coaching boxing, silk-screening, and serving as a mentor.

While Montgomery and his supporters look forward to his hearing Monday, there is a sea change afoot, just about everywhere but Louisiana, where prosecutors are seeking to reimpose life-without-parole sentences on approximately one-third of those given relief by Montgomery.  Meanwhile, in the rest of the country, hundreds of individuals like Henry Montgomery have come home over the past two years because of the court’s ruling and over a thousand have been resentenced to lesser terms.  States across the nation are abandoning life without parole at a remarkable rate.  And the sky has not fallen.

Few of us make decisions today like we did when we were 15, 16, or 17.  Our brains, not just our bodies, matured.  A growing number of courts, legislatures, prosecutors, and parole boards understand this.  And still, Montgomery — a gentle man, guilty of a crime for which he deserved to be held accountable in ways which reflected his age and life experiences — sits in prison.

February 18, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Report that Mueller probe will soon produce another notable conviction and federal sentencing

A couple of month ago, as reported in this post, the investigation by special counsel Robert Mueller produced its first federal conviction when Michael Flynn pleaded guilty to lying to the FBI.   Now the Los Angeles Times is reporting here that another plea and another notable plea deal is in the works for another figure indicted by Mueller's team. Here are some of the basics (along with some sentencing details and a reminder of how economic issues can impact a defendant's decision-making):

A former top aide to Donald Trump's presidential campaign will plead guilty to fraud-related charges within days — and has made clear to prosecutors that he would testify against Paul Manafort, the lawyer-lobbyist who once managed the campaign.

The change of heart by Trump's former deputy campaign manager Richard Gates, who had pleaded not guilty after being indicted in October on charges similar to Manafort's, was described in interviews by people familiar with the case. "Rick Gates is going to change his plea to guilty," said a person with direct knowledge of the new developments, adding that the revised plea will be presented in federal court in Washington "within the next few days."

That individual and others who discussed the matter spoke on condition of anonymity, citing a judge's gag order restricting comments about the case to the news media or public. Gates' defense lawyer, Thomas C. Green, did not respond to messages left by phone and email. Peter Carr, a spokesman for special counsel Robert S. Mueller III, declined on Saturday to comment....

The imminent change of Gates' plea follows negotiations over the last several weeks between Green and two of Mueller's prosecutors – senior assistant special counsels Andrew Weissmann and Greg D. Andres.

According to a person familiar with those talks, Gates, a longtime political consultant, can expect "a substantial reduction in his sentence'' if he fully cooperates with the investigation. He said Gates is likely to serve about 18 months in prison.

The delicate terms reached by the opposing lawyers, he said, will not be specified in writing: Gates "understands that the government may move to reduce his sentence if he substantially cooperates, but it won't be spelled out."

One of the final discussion points has centered on exactly how much cash or other valuables — derived from Gates' allegedly illegal activity — that the government will require him to forfeit as part of the guilty plea.

Gates, 45, who is married with four children, does not appear to be well positioned financially to sustain a high-powered legal defense. "He can't afford to pay it," said one lawyer who is involved with the investigation. "If you go to trial on this, that's $1 million to $1.5 million. Maybe more, if you need experts" to appear as witnesses.

The Oct. 27 indictment showed that prosecutors had amassed substantial documentation to buttress their charges that Manafort and Gates — who were colleagues in political consulting for about a decade — had engaged in a complex series of allegedly illegal transactions rooted in Ukraine. The indictment alleged that both men, who for years were unregistered agents of the Ukrainian government, hid millions of dollars of Ukraine-based payments from U.S. authorities.

In this post after the Rick Gates was indicted along with Paul Manifort, I briefly sketched how guideline calculations could push their possible benchmark sentencing ranges into many years and even decades. Given these realities, I will be very interested to see if and how a plea deal for Gates might set out guideline calculations. As the press report suggests, Gates could and seemingly will be getting his sentence significantly reduced via 5K1.1 of the federal sentencing guidelines by providing "substantial assistance in the investigation or prosecution of another person who has committed an offense."   One cannot help but wonder is any person other than Manifort could be the subject of Gates' assistance to federal authorities.

February 18, 2018 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (1)

"Donald Trump and the Undoing of Justice Reform"

The title of this post is the headline of this lengthy New York Times editorial.  Here are excerpts:

In the decade or so before Donald Trump became president, America’s approach to criminal justice was changing fast — reckoning with decades of destructive and ineffective policies that had ballooned the prison population and destroyed countless lives.  Red and blue states were putting in place smart, sensible reforms like reducing harsh sentencing laws, slashing prison populations and crime rates, and providing more resources for the thousands of people who are released every week.

President Obama’s record on the issue was far from perfect, but he and his first attorney general, Eric Holder Jr., took several key steps: weakening racially discriminatory sentencing laws, shortening thousands of absurdly long drug sentences, and pulling back on the prosecution of low-level drug offenders and of federal marijuana offenses in states that have legalized it.  This approach reflected state-level efforts and sent a message of encouragement to those still leery of reform.

Within minutes of taking office, Mr. Trump turned back the dial, warning darkly in his Inaugural Address of “American carnage,” of cities and towns gutted by crime — even though crime rates are at their lowest in decades. Things only got worse with the confirmation of Attorney General Jeff Sessions, who, along with Mr. Trump, appears to be stuck in the 1980s, when politicians exploited the public’s fear of rising crime to sell absurdly harsh laws and win themselves re-election.  Perhaps that’s why both men seem happy to distort, if not outright lie about, crime statistics that no longer support their narrative....

Under Mr. Trump, the Justice Department has pulled back from his predecessor’s investigations of police abuse and misconduct; resumed the use of private, for-profit prisons; and stopped granting commutations to low-level drug offenders who have spent years or decades behind bars.

Meanwhile, Mr. Sessions, who as a senator was one of the most reliable roadblocks to long-overdue federal sentencing reform, is still throwing wrenches into the works as Congress inches toward a bipartisan deal.  Mr. Sessions called the Sentencing Reform and Corrections Act, a sweeping bill that would reduce some mandatory-minimum sentences, and that cleared the Senate Judiciary Committee on Thursday, a “grave error.”  That earned him a rebuke from the committee’s chairman, Senator Charles Grassley, who pointed out that the attorney general is tasked with enforcing the laws, not writing them.  “If General Sessions wanted to be involved in marking up this legislation, maybe he should have quit his job and run for the Republican Senate seat in Alabama,” Mr. Grassley said.

Mr. Grassley is no one’s idea of a justice reformer, but he supports the bill because, he said, it “strikes the right balance of improving public safety and ensuring fairness in the criminal justice system.”

So what has this administration done right?  The list is short and uninspiring.  In October, Mr. Trump declared the epidemic of opioid abuse a national emergency, which could be a good step toward addressing it — but he’s since done almost nothing to combat a crisis that killed more than 64,000 Americans in 2016.

In his State of the Union address last month, Mr. Trump promised to “embark on reforming our prisons to help former inmates who have served their time get a second chance.”  It’s great if he really means that, but it’s hard to square his assurance with his own attorney general’s opposition to a bill that includes recidivism-reduction programs intended to achieve precisely this goal....

The rhetoric from the White House and the Justice Department has emboldened some state and local officials to talk tougher, even if just as ignorantly, about crime.  The good news is that it’s not working as well anymore. In Virginia’s race for governor last fall, the Republican candidate, Ed Gillespie, attacked his opponent, Ralph Northam, with ads blaming him for violence by the MS-13 gang.

It was a despicable stunt, its fearmongering recalling the racist but effective Willie Horton ad that George H. W. Bush ran on in his successful 1988 presidential campaign.  Thankfully, Virginia’s voters overwhelmingly rejected Mr. Gillespie, another sign that criminal justice reform is an issue with strong support across the political spectrum.  In the era of Donald Trump, candidates of both parties should be proud to run as reformers — but particularly Democrats, who can cast the issue not only as a central component of a broader progressive agenda, but as yet another example of just how out of touch with the country Mr. Trump and his administration are.

February 18, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Notable White House personnel development that should help the cause of criminal justice reform

This recent press article about a new person joining the White House staff should hearten those hoping to see some form of federal criminal justice reform become a reality.  Here are the details:

Brooke Rollins is headed to Washington to join a new White House office run by President Donald Trump’s son-in-law, Jared Kushner.  Rollins, 45, is a former aide to Texas Gov. Rick Perry and a member of Trump’s economic advisory committee.  Since 2002, she’s run the influential think tank Texas Public Policy Foundation, which lobbies on a host of conservative issues in Austin.

Rollins has been working closely with the office she’ll join, Trump’s Office of American Innovation.  The office’s mission is to apply ideas from corporate America to solve the nation’s problems.  Kushner said in a statement he’s “grateful” to have Rollins join his team, where she’ll “continue executing on our key initiatives.”

Rollins already works closely with Kushner and his office on criminal justice reform, an issue she added to TPPF’s policy priorities and championed for more than a decade in Texas. Rollins recently paired with the Koch network on a $4 million, multi-state criminal justice reform project.

Trump campaigned promising to take a tough-on-crime approach. Rollins said the White House has been receptive to TPPF’s ideas on the issue, and the think tank recently added staff in D.C. to work specifically on criminal justice.  “They’re business oriented people and they want results fast,” Rollins said of the Office of American Innovation last year. “They see an organization like ours… and we’ve been able to implement that in Texas, and they want to understand how to do that here.”

Here are snippets of an op-ed piece that Rollins co-authored that was published just last week:

Far too many inmates are incarcerated when they could instead be rehabilitated. Of the 1.3 million people held in state prisons at the end of 2015, 197,200 had as their most serious offense a drug charge; 44,700 of those were for simple possession....

The emphasis on punishment rather than rehabilitation has a high dollar cost — $80 billion a year for incarceration, and an even higher cost in the diminution of the human spirit.

The system traps individuals in a soul-crushing cycle of poverty and prison, while doing next to nothing to make our streets safer or change the behavior of those who are going to be living among us when their time is served.

Proposals to address these challenges are not pie-in-sky do-gooderism; they are a clear-eyed assessment based on evidence and experience. We must ensure that individuals coming out of prison are better people than when they entered. Preparations for re-entry and reintegration into communities must begin on the first day of incarceration, not 90 days before they are released, as often happens now....

[S]tates have seen the results and are instituting programs focusing on education and training that are showing success in rehabilitating individuals and reducing recidivism. Everyone deserves a second chance.

Rollins will not be able to ensure federal criminal justice reforms become a reality ASAP, but her very hire suggests to me continuing commitment from at least some persons to have effective advocates for reform working within the White House.

February 18, 2018 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (3)

Saturday, February 17, 2018

Should jail inmates face tougher sentencing for applauding charged cop killer as he was brought into jail?

A helpful reader alerted me to this interesting AP story, headlined "Jail inmates applaud career criminal accused of killing Chicago police commander, may face reprisals," that provides the basis for the question that is the title of this post.  Here are the particulars:

Five Cook County Jail inmates who applauded as the man charged with the fatal shooting of a Chicago police commander was led by their cell could face reprisals for their actions, a jail official said Friday.

Cara Smith, the chief policy officer for Sheriff Tom Dart, said a security video shows them clapping as suspect Shomari Legghette was being led past a crowded holding cell on Thursday after his first court appearance.  The inmates were in the holding cell awaiting action on their cases.  Legghette is charged with first-degree murder in Tuesday's shooting death of Commander Paul Bauer.

She said the five inmates were transferred overnight from Chicago to a jail in southern Illinois, where it will be more difficult for family and friends to visit them while they are in custody.

The jail also is forwarding to prosecutors the video and reports of the incident Thursday afternoon so they can use the information if the inmates are convicted, she said. "The conduct that those detainees engaged in was disgraceful... and speaks to their character," Smith said.  "We feel it should be considered by prosecutors in connection with their sentencing."  The video could be a "factor of aggravation" considered by a judge in sentencing.

But Steve Greenberg, a prominent Chicago defense attorney, said there is no way the inmates should be penalized for what he said is a clear exercise of their right to free speech.  "These inmates ... no matter how vile or disgusting you may think their expression is, they have an absolute right under the First Amendment to express those feelings and it is a violation of their rights as citizens to penalize them or consider that as aggravation," said Greenberg, who is not representing any of the men.

The video was taken moments after the 44-year-old Legghette appeared in court on charges of first-degree murder of a peace officer, armed violence, unlawful use of a weapon by a felon and possession of a controlled substance.

Police say they wanted to question Legghette Tuesday when he took off running and Bauer pursued him on foot. He caught Legghette near the James R. Thompson Center, a government building, where the two struggled and Legghette fell down the stairs.  Bauer either fell or ran after him to a landing where, Legghette, wearing a bullet proof vest and armed with a semi-automatic handgun, allegedly shot the 53-year-old Bauer six times.

February 17, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (21)

Friday, February 16, 2018

Spotlighting how local district attorney elections have become focal point for criminal justice reform advocates

BnwxbIoIgAAVLkBThis notable NBC News piece, headlined "Criminal justice reformers aim big by targeting local DA races," reports on how greater modern attentiveness to the role of prosecutors in the criminal justice system is now leading to greater modern concern for who gets elected to these positions. Here is how it gets started:

If you can’t win big, go small. That’s the strategy gaining momentum among criminal justice reformers in the age of Trump, as the federal government hardens its approach to law enforcement.

Instead of pouring money and energy into squeezing change out of Washington, national civil rights organizations are teaming with local groups to push their agendas in county-level district attorney races, where a few thousand votes can determine who asserts the most influence over the local justice system.

Picking their targets carefully, and crunching election data to influence pivotal voter blocs — and benefiting from the largesse of liberal billionaire George Soros — these crusaders have already racked up big wins, most recently in Philadelphia, where civil rights lawyer Larry Krasner was elected chief prosecutor last year.

Using Krasner as proof that their strategy can work, the American Civil Liberties Union, Color of Change and like-minded political action committees are now fixating on several 2018 races, with Dallas at the front of a list that could also include Baltimore; Charlotte, North Carolina; Los Angeles; Oakland, California; San Diego and St. Louis, as well as parts of Massachusetts, Oklahoma and Oregon.

Each will involve teams of campaign strategists and targeted voter-education drives, from public forums to digital advertising, and the hiring of formerly incarcerated men and women to canvass neighborhoods, asking voters to demand that candidates pledge to curb mass incarceration — and to cast ballots for those who agree. In some cases, political action committees will steer donations to campaigns that embrace their vision. In others, reformers are recruiting upstart candidates.

“We want to send a clear message that these are the real issues and the litmus test in the election, and to demonstrate the public demand for it,” said Scott Roberts, a senior campaign director at Color of Change, which organizes online campaigns focused on ending injustices against African-Americans. “We can put out a press release, but the candidates, the people who are trying to get votes, will respond on a deeper level when they’re hearing about it from people as they are out campaigning.”

This is a new development in American politics, where district attorney races have rarely attracted outside attention, let alone intense interest from voters. Incumbents usually run unopposed, research has found. And when they do face opposition, they usually win, with races focused on the candidates’ character and experience, or controversial cases, rather than discussions of policy.

“That conventional wisdom has been turned on its head,” said David Alan Sklansky, a professor at Stanford Law School who studies prosecutors and how they wield power. “In a growing number of races, people have defeated incumbents by running on platforms that are very policy heavy. They’re not calling for more punishment, but more sensible policies,” from police oversight to criminal sentencing.

The trend began about five years ago, when Ken Thompson defeated longtime Brooklyn District Attorney Charles Hynes. Since that 2013 election, self-described reform candidates have taken office in Chicago, Denver, Houston, and Orlando, Florida, and in smaller jurisdictions in Louisiana, Mississippi, New Mexico and Texas. Many were lifted into office by outcries over police shootings, wrongful convictions or the disproportionate numbers of poor people and minorities behind bars.

The movement has been supported by new research into the causes of the three-decade rise in prison populations, which peaked in 2009, long after crime began to decline. In his 2017 book, "Locked In," Fordham University law professor John Pfaff blamed prosecutors, “the most powerful actors in the criminal justice system,” for driving drastic increases in felony cases, all but a tiny fraction of which result in plea bargains. Those locally elected prosecutors, Pfaff wrote, are rarely held accountable by voters for their decisions.

But Pfaff also documented how reform candidates have started to challenge that narrative. Some have received donations from political action committees connected to Soros, who heads the Open Society Foundation. Some have received tactical help from national reform groups like the ACLU and Color of Change. But others haven’t, which Sklansky takes as evidence that the movement has been driven from the bottom as much as from the top.

February 16, 2018 in Who Sentences? | Permalink | Comments (5)

New GAO report explores "Federal Prisons: Information on Inmates with Serious Mental Illness and Strategies to Reduce Recidivism"

The United States Government Accountability Office yesterday released this lengthy report with the title that is the quoted portion of the title of this post.  This "Highlights" page summarizes "What GAO Found":

About two-thirds of inmates with a serious mental illness in the Department of Justice's (DOJ) Federal Bureau of Prisons (BOP) were incarcerated for four types of offenses — drug (23 percent), sex offenses (18 percent), weapons and explosives (17 percent), and robbery (8 percent) — as of May 27, 2017.  GAO's analysis found that BOP inmates with serious mental illness were incarcerated for sex offenses, robbery, and homicide/aggravated assault at about twice the rate of inmates without serious mental illness, and were incarcerated for drug and immigration offenses at about half or less the rate of inmates without serious mental illness.  GAO also analyzed available data on three selected states' inmate populations and the most common crimes committed by inmates with serious mental illness varied from state to state due to different law enforcement priorities, definitions of serious mental illness and methods of tracking categories of crime in their respective data systems.

BOP does not track costs related to incarcerating or providing mental health care services to inmates with serious mental illness, but BOP and selected states generally track these costs for all inmates.  BOP does not track costs for inmates with serious mental illness in part because it does not track costs for individual inmates due to resource restrictions and the administrative burden such tracking would require.  BOP does track costs associated with mental health care services system-wide and by institution.  System-wide, for fiscal year 2016, BOP spent about $72 million on psychology services, $5.6 million on psychotropic drugs and $4.1 million on mental health care in residential reentry centers.  The six state departments of corrections each used different methods and provided GAO with estimates for different types of mental health care costs.  For example, two states provided average per-inmate costs of incarceration for mental health treatment units where some inmates with serious mental illness are treated; however, these included costs for inmates without serious mental illness housed in those units.

DOJ, Department of Health and Human Service's Substance Abuse and Mental Health Services Administration (SAMHSA), and criminal justice and mental health experts have developed a framework to reduce recidivism among adults with mental illness.  The framework calls for correctional agencies to assess individuals' recidivism risk and substance abuse and mental health needs and target treatment to those with the highest risk of reoffending.  To help implement this framework, SAMHSA, in collaboration with DOJ and other experts, developed guidance for mental health, correctional, and community stakeholders on (1) assessing risk and clinical needs, (2) planning treatment in custody and upon reentry based on risks and needs, (3) identifying post-release services, and (4) coordinating with community-based providers to avoid gaps in care.  BOP and the six states also identified strategies for reducing recidivism consistent with this guidance, such as memoranda of understanding between correctional and mental health agencies to coordinate care.  Further, GAO's literature review found that programs that reduced recidivism among offenders with mental illness generally offered multiple support services, such as mental health and substance abuse treatment, case management, and housing assistance.

February 16, 2018 in Offender Characteristics, Reentry and community supervision | Permalink | Comments (1)

Thursday, February 15, 2018

Interesting statements from Senate Judiciary Committee on Sentencing Reform and Corrections Act of 2017 ... and now passage by 16-5 vote!

As I write this, the Senate Judiciary Committee is in the midst of a discussion of the Sentencing Reform and Corrections Act of 2017, and the discussion is quite interesting (though relatively predictable given the articulated past and present positions of various members).   The discussion can be followed at the SJC website here, where one can also find a host of amendments offered by members and Senator Chuck Grassley's official statement.  Here is a portion of Senator Grassley's statement, which summarizes the bill and also why Senator Grassley has become its chief advocate:

Today, we’re also marking up the Sentencing Reform and Corrections Act. This legislation reforms mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals. This is a bipartisan bill that cuts costs, reduces crime, and optimizes the criminal justice system. It is supported by a diverse array of groups including FreedomWorks, the American Conservative Union, Prison Fellowship, Families against Mandatory Minimums, the NFL, the ACLU, and the NAACP.

It is also a bill with policies that enjoy broad national support. A recent poll showed that the American people strongly support improving our criminal justice system. 87% of Americans and 83% of Republicans believe that mandatory minimums for nonviolent offenders should be replaced by a system focused on judicial discretion. 76% of Americans and 68% of Republicans believe the criminal justice system needs significant improvements. 87% of Americans and 80% of Republicans think we’re spending too much money on prisons that should be used instead for treatment, rehabilitation, law enforcement, and victim services.

The bill gives judges additional discretion in sentencing defendants with minimal non-violent criminal histories that may trigger mandatory minimum sentences under current law. It also applies some of these reforms retroactively, including the Fair Sentencing Act.  But before this happens, judges must first review eligible inmates’ individual cases, including criminal histories and conduct while incarcerated to determine whether a sentence reduction is appropriate.

Importantly, the bill preserves cooperation incentives to aid law enforcement in tracking down kingpins and stiffens penalties for individuals convicted of serious violent felonies. It also adds new mandatory minimums for certain crimes involving interstate domestic violence and the provision of weapons to terrorists and prohibited countries.

Additionally, it creates a new five-year sentencing enhancement for trafficking of heroin laced with fentanyl.  In addition, the bill establishes recidivism reduction programs to help prepare low-risk inmates to successfully re-enter society. Qualifying inmates may receive reductions to their sentences through time credits upon successful completion of recidivism reduction programming....

Yesterday, Attorney General Sessions sent us a letter setting forth his views on the Sentencing Reform and Corrections Act.  When I read his letter, it was almost as if Senator Sessions was back on the Judiciary Committee.  But that’s the problem. He is now the Attorney General and is charged with executing the laws that Congress passes, not interfering with the legislative process.  Certainly we value input from the Department of Justice, but if General Sessions wanted to be involved in marking up this legislation, maybe he should have quit his job and run for the Republican Senate seat in Alabama.

I’ve talked to Attorney General Sessions about this bill many times. He opposes the elimination of mandatory minimums, as do I.  He believes in being tough on crime, and so do I. But I also believe in being fair.  This is a view shared by the last Republican Attorney General, Michael Mukasey, who testified in support of this bill last Congress. So we have one Republican Attorney General who thinks this bill is good policy, and one who has some concerns....

This bill is good public policy. It is the result of years of careful negotiations.  We’ve demonstrated that this bill has significant bipartisan support.  Twenty-two United States Senators are cosponsors, including more than half of the members of this committee.  I look forward to continuing to work with the administration and the House on a legislative solution that the President can sign into law.

A few prior related posts:

UPDATE: Around 12noon and after an interesting debate over an amendment proposed by Senator Cruz to strip the SRCA of its retroactivity provisions and other reforms, the full SJC voted finally on the bill as proposed and voted 16-5 in favor of it. Now the issue becomes whether Senate Majority Leader will bring the bill to the Senate Floor for a full vote. I fear he will not, but we shall see.

February 15, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (6)

Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty?

As noted in this post last week, the ABA House of Delegates earlier this month asked for all death penalty jurisdictions to ban capital punishment for any offender who committed their crime at the age of 21 or younger.  But, as the title of this post wonders, the push for raising the age on limits on the death penalty could be impacted by the horrible crimes committed yesterday in Florida.  This article, "Suspect in Florida shooting could face death penalty for 17 counts of premeditated murder," provide these basics:

Nikolas Cruz, the suspect in the shooting at a Florida high school on Wednesday, could face the death penalty after being charged with 17 counts of premeditated murder.

Sheriffs in Broward County posted custody records online Thursday, the morning after they arrested Cruz. They listed 17 separate counts of premeditated murder, matching the latest casualty figures from officials.

Cruz, 19, will stand trial as an adult. In Florida, a judge can impose the death penalty if a sentencing jury unanimously recommends it.

I am not at all surprised that Cruz may soon be facing the death penalty, and I will not be at all surprised if supports of the death penalty will make Cruz a poster-child example of why the age for death penalty eligibility ought not be raised.

A few prior related posts:

February 15, 2018 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (37)

"Aching bad: 'Kingpin Granny' nicked in huge prescription drugs bust"

As a fan of Breaking Bad, I could not resist using the title of this news report of a notable drug dealer as the title of this post.  Here is the story:

Silver surfers are known to rattle from the numerous pills foisted on them by doctors as their health fails, but one Tennessee veteran stands accused of possessing drugs with an altogether different purpose.

Dubbed "Kingpin Granny" by Decatur County cops, The Smoking Gun reported that 75 year-old wheelchair-bound Betty Jean Jordan was arrested at her home in Parsons, 160km (100 miles) southwest of Nashville, on Friday following an undercover investigation in which agents bought tabs from her.

The subsequent raid on the gangster granny's property uncovered over a thousand pills including the opioid painkiller Oxycodone, smack addict weaner Methadone and anti-anxiety tranq Xanax. Cops also said they seized more than $12,000 in "cash and assets".

Jordan was slapped with six felony narcotic charges – one count of drug manufacturing/delivery/sale, two counts of possession of a prescription drug with intent, one count of possession of a prescription drug – plus one count of evading arrest.

The little old lady was taken to the county slammer but was released after posting the $50,000 bond. Meanwhile, authorities are further investigating the alleged distribution ring and hope to make more arrests.

February 15, 2018 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (0)

Wednesday, February 14, 2018

AG Sessions writes to Senator Grassley to say passages of SRCA "would be a grave error"

Via this new HuffPost piece, headlined "Jeff Sessions Opposes Bipartisan Drug Sentencing Reform Bill," I see that Attorney General Jeff Sessions has now officially weighed in on the Sentencing Reform and Corrections Act of 2017 due to be considered by the Senate Judiciary Committee tomorrow morning. Here are the basics:

Attorney General Jeff Sessions has come out swinging against a bipartisan drug sentencing reform bill that has the support of many of his former Republican colleagues in the Senate, warning that the legislation would be a “grave error” and not allow adequate punishment for “a highly dangerous cohort of criminals.”

In a Feb. 14 letter to his former colleague Sen. Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee, Sessions wrote that he “strongly” urged the Senate to consider the ramifications of the bill.

“In recent years, convicted drug traffickers and other violent criminals have received significant sentencing breaks from the federal courts and the United States Sentencing Commission.” Sessions wrote. “Passing this legislation to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation’s history would make it more difficult to achieve our goals and have potentially dire consequences.”

The full text of the three-page letter from AG Sessions to Senator Grassley is embedded in the HuffPost piece (and is also available here thanks to Politico), and it starts this way:

This letter presents the views of the Department of Justice on S. 1917, the "Sentencing Reform and Corrections Act of 2017." S. 1917 presents issues of very great importance to the public safety of the United States and will impact a number of cases.

The legislation would reduce sentences for a highly dangerous cohort of criminals, including repeat dangerous drug traffickers and those who use firearms, and would apply retroactively to many dangerous felons. regardless of citizenship or immigration status. In my opinion, if passed in its current form, this legislation would be a grave error....

I would strongly urge the Senate to consider carefully the potential ramifications of this legislation in its current form.  In recent years, convicted drug traffickers and other violent criminals have received significant sentencing breaks from the federal courts and the United States Sentencing Commission.  Passing this legislation to further reduce sentences for drug traffickers in the midst of the worst drug crisis in our nation's history would make it more difficult to achieve our goals and have potentially dire consequences.  In addition, as you know, the Administration supports helping former inmates who have served lawfully imposed sentences and have demonstrated a commitment to a better life, and is working closely with Congress to achieve a responsible reform along these lines.  Respectfully, this legislation runs counter to this serious Administration-wide effort.

A few prior related posts:

UPDATE: I just saw that Senator Grassley took to Twitter to respond to the letter from AG Sessions:

February 14, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

Notable advocate for clemency on behalf of next condemned to die in Texas

According to this Death Penalty Information Center page, Alabama, Florida and Texas all have executions scheduled for February 22.  This new Los Angeles Times story, headlined "Texas father seeks clemency for son who tried to kill him," discusses the notable person making a notable pitch for clemency for the killer scheduled to be executed.  Here are excerpts:

In a week, Thomas "Bart" Whitaker, 38, is scheduled to be executed for plotting a 2003 attack that left his mother and brother dead and almost killed his father. That father, Kent Whitaker, is doing everything he can to halt the execution. Inspired by his Christian faith and his son's repentance, the 69-year-old retired construction firm comptroller hopes to have his son's sentence commuted.  "The death penalty in this case is the wrong punishment," he said.

Kent Whitaker forgives his son. He paid for lawyers to fight the death sentence at trial in 2007, and got down on his knees and begged prosecutors to seek a life sentence.

Texas is known for capital punishment, executing more inmates than any other state in the country — three this year, seven last year. But Kent Whitaker notes that it is also a victims' rights state, meaning his wishes should be taken into account. "Juries routinely defer to victims in cases to spare the life of a killer," he said.

Thomas Whitaker's last chance is a clemency petition filed with the seven-member Texas Board of Pardons and Paroles, which makes a recommendation to the governor by majority vote.  Clemency is rare.  One of Whitaker's attorneys won it for another convicted murderer, Kenneth Foster, hours before he was scheduled to die in 2007, based on arguments drawn from Scripture.  Parole board members in Texas are bound by their consciences, not the law, and some told the lawyer afterward that his biblical arguments had influenced their votes.

So in Thomas Whitaker's clemency petition, his attorney cited the Old Testament story of Cain, who after murdering his brother Abel was marked — but not killed — by God. He also cited the New Testament parable of the prodigal son, forgiven and accepted by his father after he strayed because he repented. "You have a collision between two interests. Every one of those board members is a death penalty supporter. A nd every one of them is there to protect victims' interests. They have to decide if it is more important to execute Thomas Whitaker or spare Kent Whitaker," attorney Keith Hampton said.

Board members don't confer about clemency: They send their votes to the state individually. Condemned inmates and their families can request to meet a member of the board, but it's not guaranteed.   Last week, board member James LaFavers, a former Amarillo detective, met Whitaker's son on death row. They spent two hours talking. On Tuesday, the chairman of the board, former Lubbock County Sheriff David Gutierrez, met with Kent Whitaker, his new wife and brother in Austin for half an hour.  The chairman didn't ask any questions, just listened as Kent Whitaker made his case for clemency. He said his son had been a model prisoner for 11 years, that the family had asked prosecutors not to seek the death penalty at trial and "it ought to mean something when a victim asks for mercy."

Thomas Whitaker has confessed to plotting the murder of his family. His father believes he has reformed behind bars. Prosecutors disagree.

Whitaker was a troubled teenager.  After he was arrested for breaking into his high school with friends to steal computers, his parents sent him to a private Christian school, then Baylor University and Sam Houston State University. But he stopped attending.  The night of the attack, the family went out to dinner to celebrate his graduation, unaware that it was a lie — he had missed too many classes....

As they entered their house in the Houston suburb, an accomplice shot them, fatally wounding his mother, Tricia, 51, and 19-year-old brother, Kevin. A bullet passed just inches from Kent Whitaker's heart. Thomas Whitaker was shot in the arm to make it appear he too was a victim.  He then called 911.  It would be years before he admitted his role in the crime. A thousand people attended the funeral at the largest church in the family's conservative suburb, Sugar Land — including Thomas Whitaker. "He sat there smiling, acting as victim, knowing that he killed them," prosecutor Fred Felcman said.  Shortly before Whitaker was to be charged in 2004, he fled to Mexico, where he was caught a year later.

Felcman argued at trial that Whitaker planned to kill his family for a million-dollar inheritance. He had two accomplices — the gunman, who pleaded guilty in exchange for a life sentence, and a getaway driver, who got 15 years in prison. Although Whitaker was not the triggerman, Felcman argued, he "was the ringleader. He literally led his family back to be assassinated."

Felcman said Kent Whitaker has been used by his son. "Most people have a conscience so they don't try to manipulate people outright. He does," Felcman said.  The prosecutor has tried 13 capital cases. About half resulted in death sentences. "There's certain crimes you have to forfeit your life for," he said, in part because it's the will of the people. "As soon as Bart Whitaker gets executed I will feel safer, and there are other people who feel that way, too."...

If the board doesn't grant clemency, Whitaker plans to attend his son's execution. When his son looks out of the glassed-in chamber, he wants him to see a caring face among the crowd. Kent Whitaker already has nightmares about what he will witness.   "I hope the board will focus on how this execution will affect those of us who are living," he said. "We've all worked hard to get past our grief, and we're all going to be thrown back into that, realizing that Bart's gone too, that he was the last member of my immediate family. It looks like I'm going to be victimized all over again. What kind of justice is that?"

February 14, 2018 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

"Reentry Court Research: An Overview of Findings from the National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts"

The title of this post is the title of this new report on findings about eight programs that received funding and technical assistance from the Bureau of Justice Assistance under the Second Chance Act of 2007.  Here is part of the report's abstract:

Background: There are myriad challenges associated with the reentry of formerly incarcerated individuals, coupled with a dearth of rigorous research examining reentry courts. It is well known that formerly incarcerated individuals face overwhelming obstacles, such as limited occupational or educational experiences to prepare them for employment, drug and alcohol addictions, mental and physical health challenges, strained family relations, and limited opportunities due to the stigma of a criminal record.  Reentry courts seek to address these challenges by assessing the individuals for risks and needs; linking them to appropriate community-based services; and overseeing the treatment process through ongoing court oversight, probation or parole supervision, and case management.  Under the Second Chance Act (SCA) of 2007 (Pub. L. 110-199), the Bureau of Justice Assistance funded reentry programs including the eight sites participating in this National Institute of Justice Evaluation of SCA Adult Reentry Courts.  This document provides a summary overview of the evaluation and complements three annual reports that provide more detailed information on the program processes and populations, research methods, and findings....

Results: Results were mixed across sites.  One site consistently demonstrated positive outcomes across the interview, recidivism, and cost analyses with the reentry court successfully delivering more substance abuse treatment and other services than what was received by the comparison group.  In addition, reentry court participants out-performed the comparison group in reduced recidivism (re-arrests and re-conviction) and reincarceration (revocation and time in jail or prison).  Two sites had neutral, trending toward positive, results with reduced participant re-arrests but with other outcomes (such as convictions and re-incarceration) not significantly different between the participants and the comparison group.  Two other sites had mixed results (e.g., participants had significantly fewer re-arrests but significantly increased re-incarceration) and two had negative results (e.g., participants had significantly more re-arrests and incarceration while other outcomes were no different between groups).  Cost findings were similarly mixed with two sites experiencing cost savings due mainly to lower recidivism costs and fewer victimization costs for reentry court participants ($2,512 and $6,710 saved per participant) and the remainder experiencing loss (ranging from just over -$1,000 to almost -$17,000 loss per participant). The research protocol and process evaluation findings are documented in three annual project reports; research caveats include a lack of detailed treatment service data. Also, reentry court program investment costs are described, but the comparison of cost estimates is limited to outcomes and does not include net benefits based on investment in non-reentry court case processing in the comparison group.

Conclusions: Key processes that set the one site with positive outcomes apart from the other sites was the high level of consistency and intensity of substance abuse treatment, wraparound services for multiple criminogenic needs, high intensity supervision, as well as an increased use of praise from the judge along with other incentives and sanctions.  In addition, the eligibility criteria for this site required that participants have a substance use disorder with risk levels ranging from moderate to high (based on their local risk assessment with a three point scale that ranged from low to high).  In contrast, other site eligibility criteria did not require a substance use disorder and participant risk levels were mostly high to very high (depending on the assessment tool used and their specific scoring and risk category criteria).  It is possible that the sites with less positive results did not have the appropriate level and type of services consistently available to best serve the varying risk levels of their participants.

This detailed report reinforces yet again the conclusion I often, somewhat depressingly, reach when looking at careful research on an important topic: many of our most pressing criminal justice problems are really complicated and lack simple solutions.

February 14, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Tuesday, February 13, 2018

Mapping the politics and making the case against the Sentencing Reform and Corrections Act of 2017

Over at the Powerline blog, Paul Mirengoff has this lengthy post about the Sentencing Reform and Corrections Act of 2017 titled "Leniency Legislation Is Back."  The post title previews Paul's disaffinity for the SRCA, and his post explains why after some forecasting about the politics surrounding the bill.  I recommend his post in full, and here are excerpts:

The [SRCA] bill that died two years ago is before the Judiciary Committee.  It will breeze through that body. Three of the legislation’s main opponents two years ago — Jeff Sessions, David Perdue and David Vitter — are no longer on the committee (Sessions and Vitter are no longer in the Senate).  Sens. Orrin Hatch and Ted Cruz remain and are likely to oppose the bill again, and Sen. Ben Sasse, a new member of the committee, might join them. But the committee will approve the leniency legislation, most likely with only three dissenters.

What happens then? I hope McConnell will make the same calculation he made two years ago under similar circumstances. However, Team Leniency, which includes the Majority Whip (Sen. Cornyn) and the Judiciary Committee chairman (Sen. Grassley), will push hard for a vote.

Meanwhile, many potential opponents of the legislation are focused on other matters, most notably immigration reform. The opposition troops have not yet been rallied.

On the plus side, though, Sen. Tom Cotton, who along with Jeff Sessions led the charge against leniency legislation two years ago, has his eye on this ball, notwithstanding his key role in the immigration battle.

The biggest difference between now and two years ago is, of course, that Donald Trump is president, not Barack Obama. The second biggest difference, for purposes of the sentencing reform debate, flows from the first — Jeff Sessions is the Attorney General.

Sessions still vigorously opposes reducing the mandatory minimums. His view is shared, I think, by President Trump. I’ve heard that the White House might make its opposition known publicly this week.

If Trump is against the leniency bill, it would be especially pointless for McConnell to bring it to a vote. Why split the GOP members and force them to vote on highly controversial legislation when the president doesn’t want the bill and likely would veto it?

My main purpose in writing this post is to call attention to the push for leniency legislation — to rally the troops. As for the merits of the bill, there are three main reasons why I oppose it.

First, the current mandatory minimums have been instrumental in the dramatic decrease in violent crime the U.S. has enjoyed since they were instituted. Why change a system that has been so effective in reducing violent crime?

Second, the leniency legislation would apply retroactively, Thus, thousands of prisoners could petition to be released even though they haven’t completed their legally imposed sentences.  Given the high recidivism rate for federal drug offenders — around 70 percent — the legislation is guaranteed to yield more crime, and not just by those released early but also by those sentenced to less time under the bill.

Third, the leniency legislation grants judges too much discretion in sentencing.  We know from the high-crime era before mandatory minimums that liberal judges will abuse that discretion to go soft on serious offenders.  With a raft of new Obama-appointed judges, this error will likely produce the same sort of damage we lived through during that era....

As I said, the leniency bill is a done deal in committee. What counts now is how President Trump and Majority Leader McConnell respond.

I’m cautiously optimistic that the legislation will again die on the vine, but we shouldn’t simply assume that it will. We need to watch this one closely.

Paul's analysis and criticism of the SRCA is crude in a number of particulars, mostly because he is discussing and taking issue only with Title I of the SRCA dealing with sentencing reform, while ignoring the arguably more consequential parts of the bill dealing with corrections and the creation of a national crime commission.  But I still thought it useful to reprint the thinking and rhetoric of those inclined to be against the bipartisan criminal justice reform effort moving forward in the Senate this week.

A few prior related posts:

UPDATE: One reason I described Paul Mirengoff's criticisms of the sentencing part of the SRCA as crude is because I thought he had his data off about the "recidivism rate for federal drug offenders" which he pegs at "around 70 percent."   I just had a chance to check his numbers aided by this big report that the US Sentencing Commission released last year titled "Recidivism Among Federal Drug Trafficking Offenders." Here is one key statistic from the report's executive summary: 

Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics.  Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9 percent of federal drug trafficking offenders released from prison over the same five-year period.

Paul may have been thinking of the BJS report on state drug offenders when coming up with his 70 percent number, but the Commission data shows the recidivism rate to be much lower. That said, even a much lower predicated recidivism rate does not completely undercut his basis for arguing that retroactive application of sentencing reductions will "yield more crime."   By the same token, these recidivism realities themselves help make the case for corrections part of the SRCA; high rates of recidivism provide strong evidence that our prison system needs the kinds of "Recidivism reduction programming and productive activities" that appear in Title II of the SRCA.

February 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies

Evelyn Baker, a retired Missouri circuit court judge, has this notable new opinion piece in the Washington Post under the headline "I sentenced a teen to die in prison. I regret it." Here are excerpts:

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis.  Two shots were fired.  A bullet grazed one person, but no one was seriously injured.  The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana.  Despite overwhelming evidence against him, Bostic chose to go to trial.  He was found guilty.

Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201.  Nobody in this room is going to be alive in the year 2201.”

I thought I was faulting Bostic for his crimes.  Looking back, I see that I was punishing him both for what he did and for his immaturity.  I am now retired, and I deeply regret what I did.  Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic.  What I learned too late is that young people’s brains are not static; they are in the process of maturing.  Kids his age are unable to assess risks and consequences like an adult would.  Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing.  But for the same reason, they also have greater capacity for reform.

That’s perhaps not surprising.  As a society, we recognize that children and teens cannot and do not function as adults.  That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol....

Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic.  While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release.  He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.

I see now that this kind of sentence is as benighted as it is unjust.  But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.

This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance.  The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.

Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong.  Bostic was immature, and I punished him for that.  But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.

I am pleased to see a judge who imposed a functional LWOP sentence now recognizing and advocating that functional LWOP sentences create the same constitutional concerns as formal LWOP sentences that the Supreme Court found to violate the Eighth Amendment in Graham.  That said, I find it a little rich this judge now asserting that she "learned too late" that juvenile brains are different than adult brains.  Also, as the judge's commentary hints and as this local article from a few years ago about the case confirms, it seems Bostic's decision to go to trial rather than his crimes largely accounts for his need now to seek constitutional relief from the Supreme Court:

Bostic is serving a vastly greater sentence than Hutson, his accomplice, who received 30 years and will be eligible for parole six years from now.

Both men were accused of firing guns that night. The only difference: Bostic went to trial and Hutson pleaded guilty.

February 13, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Brain Development, Social Context and Justice Policy"

The title of this post is the title of this new paper available via SSRN authored by Elizabeth Scott, Natasha Duell and Laurence Steinberg. Here is its abstract:

Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers’ involvement in crime.  But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend.  This Article explains that features associated with biological and psychological immaturity alone do not lead teenagers to engage in illegal conduct.  Instead the decision to offend, like much behavior in adolescence, is the product of dynamic interaction between the still-maturing individual and her social context.  The Article probes the mechanisms through which particular tendencies and traits linked to adolescent brain development interact with environmental influences to encourage antisocial or prosocial behavior.

Brain development in adolescence is associated with reward-seeking behavior and limited future orientation.  Further, as compared to adults, adolescents are particularly sensitive to external stimuli (particularly peers), easily aroused emotionally, and less able to regulate strong emotions.  The Article shows how these tendencies may be manifested in different teenagers in different ways, depending on many factors in the social context.  By analyzing this intricate relationship, the Article clarifies how social environment influences adolescent choices in ways that incline or deter involvement in crime and in other risky behavior.  Thus a teenager who lives in a high-crime neighborhood with many antisocial peers is more likely to get involved in criminal activity than one in a neighborhood with few such peers, even though the two may not differ in their tendencies and propensities for risk-taking.

The Article’s interactive model offers powerful support for laws and policies that subject adolescent offenders to more lenient sanctions than adults receive and that tailor dispositions to juveniles’ developmental needs.  Our examination confirms and illuminates the Supreme Court’s conclusion that juvenile offenders differ in important ways from adult counterparts; juveniles deserve less punishment because their offenses are driven by biological and psychological immaturity, and also because, as legal minors, they cannot extricate themselves from social contexts (neighborhoods, schools and families) that contribute- to involvement in crime.  The model also confirms that correctional facilities and programs, which constitute young offenders’ social settings, can support healthy development to adulthood in individual offenders, or affect their lives in harmful ways.

February 13, 2018 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Marti Gras highlights from Marijuana Law, Policy & Reform

Though I have blogged here a bit about AG Jeff Sessions rescinding the Cole Memo and related policies, I have not done yet done in 2018 any round-ups of posts of note from the blogging I now do over at  Marijuana Law, Policy & Reform.  So, here are just some (of many) legal and policy highlights from MLP&R that sentencing fans might find worth checking out:

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

Monday, February 12, 2018

Interesting tales of a local grand jury that decided some drug cases were not as criminal as a ham sandwich

This recent local article from Arizona, headlined "Tucson grand jurors rebel against drug prosecutions," provides an interesting report on some interesting work by a local grand jury.  Here are highlights:

You may have heard that saying: If prosecutors want to, they could get a grand jury to indict a ham sandwich. It’s a knock on how much control prosecutors hold over the grand juries to whom they give evidence for possible indictments.

The 269th Pima County Grand Jury could not be controlled like that.  That 16-member grand jury met from July to October last year, one of two county grand juries meeting twice a week in Tucson at the time.  But this one was led by a criminal-defense attorney and populated by freethinkers who took to heart their role as “conscience of the community.”

They went so far as to decline to indict people even though there was enough evidence to show probable cause, foreman Natman Schaye and others told me. That, in essence, is grand-jury nullification — not carrying out the law because, in the jury’s opinion, it is unjust.  “There were cases where we felt like, maybe there’s probable cause, but this is not something that we believe should result in a felony,” Schaye said.

Rick Myers, a well-known Tucsonan who is a member of the Arizona Board of Regents, also was on the Notorious 269th. What bothered him was the many cases of small quantities of drugs that were charged as Class 4 felonies, as state law dictates. He said he began making a distinction between what’s actually a “crime” and what’s “breaking the law.”

The reason, another grand juror, Jodi Kautz, said was: They were presented with possession cases involving drug amounts as tiny as 2/100th of a gram, a trace amount. “We left every day frustrated, and frustrated for society,” Myers said. “There’s a whole lot of people getting charged for things that are not hurting other people.” As a grand juror, he said, “You want to not just be a rubber stamp. You want to do what’s right.”...

Deputy County Attorney Malena Acosta, who runs the grand juries, and Thomas Weaver, the chief criminal deputy, told me the number of drug cases is a function of the number of arrests by police. “We respond to what comes through the door,” Weaver said. “If we’re getting more cases presented to us, then there will be more cases charged.”

He also noted that a significant proportion, maybe half, of the cases brought to them are never brought to a grand jury, because of problems with the cases. And it’s not as if the prosecutors have a choice on how to charge the possession cases involving any drug except marijuana.  Meth, cocaine, heroin — whatever someone has, and however much, that will earn them a class 4 felony.  Marijuana possession can be treated as a misdemeanor.

LaWall explained her thinking on charging decisions: “If police officers bring us cases, and the evidence is there, we make our decisions based on legal reasoning. If the evidence proves a crime was committed, we have an ethical obligation to follow the law.”  She also noted that her office has created various programs that are alternatives to prison for drug offenders, but they occur after they are convicted, so they’d have to be charged to take part.

As to the grand jurors’ decision to reject some cases with adequate evidence, Acosta said that really isn’t their place.  They take an oath to follow the law before taking their seats, she said. “If somebody has a particular agenda, I suppose they can go to the Legislature and say, ‘We don’t like this law, maybe you should change it.’ But the grand jury isn’t the place for that kind of activity,” she said.

Joel Feinman was happy to hear of grand jurors exercising their usually unused muscles.  The Pima County public defender has been compiling data on the steadily growing number of felony cases and drug prosecutions in an effort to reduce jail stays and prison sentences.  His most stunning discovery concerned the amount of drugs possessed by those charged in the 725 felony drug cases his office has received in the last five months.  The median amount in all those cases, he said, was 0.496 of a gram.  “Felony filings are at an all-time high, felony drug filings are at an all-time high — and are a plurality of the cases — and the median amount is half a sugar packet,” he said.

That’s what bothered some of the grand jurors of the Notorious 269th.  “The drugs are the ones that bug me,” said Myers, the regent. “I feel like we have a puritanical view of even a minuscule amount of drugs.” Said Schaye: “It’s tremendously frustrating. We put far too many people in prison, and it does no good.”... “We all took it extremely seriously, because these are people’s lives. A felony really screws you over.”

February 12, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

NY Times editorial laments "The Problem With Parole"

This new New York Times editorial, headlined "The Problem With Parole," discusses problems with offender supervision that are not confined only to parole policies and practices. Here are excerpts:

States that set out a decade ago to trim prison costs have learned that success lies in a few areas — rolling back draconian sentencing that drove up prison populations in the first place, and remaking parole and probation systems, which have, in numerous cases, sent as many or even more people to jail for rule violations as the courts do for new crimes.

Significant progress has been made on both fronts.  Yet New York, a national leader in reducing its prison population, could do much more to reform its parole and probation systems.

These systems were established across in the United States in the 19th century.  The premise was that steering people who commit minor offenses to probation, rather than prison, and shortening prison sentences with parole in exchange for good conduct further the goal of rehabilitation.  But that notion fell out of favor after the country embraced mass incarceration in the late 20th century, driving up the prison population from about 200,000 at the start of the 1970s to a peak of 1.6 million at the end of the 2000s.

The woefully underfunded parole system fell in line with the jail-first agenda.  Parole officers, who were buried under massive caseloads, sent parolees back inside for technical violations, like failing drug tests, missing curfew or socializing with friends they had been forbidden to see.  With nearly five million people in the nation under supervision — more than twice the number housed in prisons and jails — the parole and probation systems have become what corrections researchers now describe as a significant driver of recidivism.

Even law-and-order states have grasped the need to refashion so-called hair-trigger community supervision systems that reflexively and unnecessarily send people to prison for minor infractions that have no bearing on public safety.  Some have hired additional case workers to make their systems more effective, have given newly released inmates better access to drug treatment or mental health care, or have developed community sanctions that send only the most troubled or repeat-prone offenders back to prison.

A recent analysis by the reform-focused Council of State Governments Justice Center found that states like Arizona, Colorado, Georgia, Michigan, North Carolina, South Carolina and Texas have seen dramatic reductions over the last decade in recidivism connected to probation or parole.

Then there is New York. The state, which has closed more than a dozen prisons over the last decade alone, is a national standout when it comes to sentencing reform. But a new study from Columbia University’s Justice Lab calls on state lawmakers to do significantly more to address the problems with the community supervision system, which come at a considerable cost to the local jails where most of the people locked up for state parole violations are held....

Gov. Andrew Cuomo has called on the State Legislature to make changes that would help those in custody for parole violations, such as abolishing money bail for people accused of misdemeanors, eliminating state supervision fees for people on parole and reviewing how child support is calculated for people incarcerated for more than six months.

But the Columbia study calls on the Legislature to do a lot more. It recommends that the state adopt several common-sense reforms, most of which have already shown promise in other states. These include: adopting a system of graduated sanctions and rewards, instead of automatically dumping people into jail for minor infractions; capping jail terms for minor parole violations; requiring a judicial hearing before parole officers can jail people accused of technical violations; shortening parole terms for people who stay out of trouble for specified periods of time; and using the savings reaped from cutting the prison population to expand education, substance abuse and housing opportunities for parolees, who need considerably more help than they’re getting to forge stable lives in their communities.

These proposals would be a heavy lift in the conservative New York State Senate. But they make good policy and economic sense, and would bring the state to the forefront of the parole reform movement.

February 12, 2018 | Permalink | Comments (0)

"Yes, Trump is embracing criminal justice reform"

The title of this post is the headline of this new opinion piece that struck me as notable for any number of reasons: the piece appears in the right-leaning Washington Examiner and is authored by well-known conservatives Ken Blackwell and Ken Cuccinelli.  The piece also ends with a call for Congress to catch up to states in the criminal justice reform arena.  Here are excerpts:

Throughout the last election cycle, there came fevered predictions from many commentators on the Left that, given candidate Donald Trump’s frank messaging about returning to "law and order" and confronting violent crime in American cities, criminal justice reform efforts were officially dead in the water.  Criminal justice reform appears “bleak in the age of Trump,” stated one article. “How Criminal Justice Reform Died,” intoned another.

Such fatalism was both misplaced and inaccurate. Misplaced, because the lion’s share of successful criminal justice reforms over the last ten years have advanced at the state and local levels, not in D.C.— mainly by southern red states. With oversight over roughly 90 percent of the country’s incarcerated population, the states will always be the primary mover of criminal justice policies, not the federal government.

But such predictions have now been proven inaccurate as well, given recent remarks made by now-President Trump about the need for federal prison reform....

Society is justified in expecting individuals to take ownership not just for their actions, but also for their reformation. This is hampered, however, when the weight of accumulated barriers to re-entry becomes a millstone. Research has been clear that getting a job upon release is among the most critical steps to reducing a person’s likelihood for recidivism. When President Trump and others say society has a “great interest” in helping ex-offenders get on the path of self-sufficiency, he’s speaking a well-established truism.

Fortunately, conservative states have long since begun helping ex-offenders land on their feet upon release. Chief among them: Texas, long known as a “tough on crime” stalwart. In 2007, state lawmakers passed a $241 million “justice reinvestment” package to increase capacity for substance abuse and mental health treatment and expand probation and parole services, as well as community-based diversion programs. This avoided the immediate need for $2.1 billion in spending just to meet their expected needs for new prison capacity.

More recently, Texas has passed indemnity laws to insulate employers and landlords from liability when they extend a job or lease to ex-offenders.  This makes it less likely that a criminal record will be an insuperable barrier to work or finding a place to live. Communities in Texas have been getting safer at the same time.  Crime rates have fallen by 31 percent, while incarceration rates have fallen by more than 20 percent. Eight prisons have been shuttered even as Texas’ population has soared, saving millions in annual operating costs.

In 2012, Georgia began investing in efforts aimed at reducing recidivism, including an expansion of in-prison educational resources.  They’ve since reduced their prison population and nearly eliminated its backlog of inmates awaiting transfer, all the while reducing crime by 8 percent and saving $25 million.  A large reform package passed in Louisiana last year has similar aims of steering less serious offenders away from incarceration and into more effective community-based programs. South Carolina, Utah, Alaska, Kentucky, and others have passed comprehensive reforms, as well.

As we mentioned above, the states are the natural gatekeepers for criminal justice reform.  But Congress has shortcomings within its own prison system to address, and is quickly running out of excuses for doing so.  President Trump, whom so many on the Left falsely assumed would spell the end of reform, has instead sounded a clarion call to advance it. He was right for doing so, as many conservative states have proved, and it's time Congress took up that challenge as well.

February 12, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)