Monday, February 20, 2017
Awakening to a sleepy sentencing debate: do tired federal judges sentence more harshly?
I just came across this pair of notable papers exploring empirically whether and how less sleep might mean more punishment from federal judges:
"Sleepy Punishers Are Harsh Punishers: Daylight Saving Time and Legal Sentences" by Kyoungmin Cho, Christopher Barnes, and Cristiano Guanara
Abstract: The degree of punishment assigned to criminals is of pivotal importance for the maintenance of social order and cooperation. Nonetheless, the amount of punishment assigned to transgressors can be affected by factors other than the content of the transgressions. We propose that sleep deprivation in judges increases the severity of their sentences. We took advantage of the natural quasi-manipulation of sleep deprivation during the shift to daylight saving time in the spring and analyzed archival data from judicial punishment handed out in the U.S. federal courts. The results supported our hypothesis: Judges doled out longer sentences when they were sleep deprived.
"Are Sleepy Punishers Really Harsh Punishers?: Comment" by Holger Spamann
Abstract: This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.'s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.'s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992- 2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.
Sunday, February 19, 2017
Front-line advocate's response to interview with former White House Counsel Neil Eggleston about Prez Obama clemency efforts
Regular readers know I am always eager to provide a forum for responses and respectful criticisms of sentencing-related activities and comments by public officials. In that vein, I am pleased to provide here the sharp commentary sent my way by Beth Curtis, a prisoner advocate who runs the website Life for Pot. Beth sent an extended commentary my way under the heading "Responding to: The Man Who Ran Obama’s Clemency Machine"; she was inspired to write by the recent Marshall Project interview with former White House Counsel Neil Eggleston about Prez Obama's clemency efforts (noted here).
Beth's full commentary is available for download below, and here is a snippet to highlight why the full piece is worthy of time and attention:
For the first five years of Obama’s presidency the federal prison population grew by 13,000 incarcerated people. In 2013, the population was 214,149, the highest incarceration rate in history.
Criminal justice organizations, prisoner advocacy groups, criminal defense attorneys, law school clinics, prisoner’s families and various other lobbying groups started the drum beat for sentencing reform and an initiative of Presidential Clemency. Finally in 2013 Eric Holder announced that there would be a clemency initiative that could mean 10,000 or more acts of mercy for incarcerated people who would not be a threat if they were released.
Those of us with incarcerated loved ones who had sentences that would assure that they would die behind bars now had a reason for hope. We felt an overwhelming sense of gratitude to the President and all who were involved in the decision and the process that would lead to our loved ones freedom. We could hope to have our family member in our daily lives again. The hope was an ache, but we knew this President had compassion. It was not to be.
The lack of commitment became apparent almost immediately. I have the web site Life for Pot and the nonviolent marijuana offenders that I advocate for waited patiently for their evaluation by cp-14. Surprisingly some were rejected, and others accepted to the project and were told they would be assigned an attorney. Those fortunate inmates who were assigned an attorney would sometimes just receive a notification that they were represented and hear nothing more. We urged them to submit their own and wait.
This is not just a passing interest for me. I have a 69 year old brother, John Knock, who has two life sentences for a nonviolent marijuana conspiracy. He has been incarcerated for 20 years and never had an infraction. His prison resume is impeccable. He is a first time offender. On January 18, his clemency petition was denied by President Obama.
These are the numbers that tell you about the mercy and compassion of the Clemency Initiative. The promise was 10,000 or more. 1,715 Commutations granted – we could only find 39 for nonviolent marijuana only offenders. The rest were denied or left pending.
Over 18,000 petitions for commutation were denied. Over 4,000 petitions for commutation we closed without action. Over 8,000 petitions for commutation were left pending in the Pardon Attorney’s office for the next administration.
I must reject Mr. Eggleston’s assertion that he had better information and insight than the attorneys, advocates, or families about who was a good candidate for release. He asserts that he and President Obama looked over all the applicants and rejected all but 1,715.
Apparently Mr. Eggleston and President Obama based their denials on secret information. That implies that all the nonviolent marijuana offenders that I know who were denied should remain in prison till they die because Mr. Eggleston and President Obama have special information unknown to anyone else? What are the secrets that gave them confidence to make this Sophie’s Choice? They missed the point of Clemency. It is not a legal process but a Constitutional Power given to the President to be compassionate and merciful. In this endeavor they failed miserably.
These assertions made by Mr. Eggleston have tainted the character and behavior of all they left behind. I can only believe this was done in order to in order to burnish the administrations legacy of compassion at the expense of those they left behind without hope.
There is one secret that most of us know that the White House and the Pardon Attorney did not address. That secret is that most nonviolent offenders who receive sentences of life without parole were charged with conspiracy and went to trial. A conspiracy charge does not require definitive evidence, but only the testimony of those testifying for a plea or for part of the forfeiture. If you exercise your sixth amendment right to trial you receive the trial penalty. This charge allows the Prosecutor to tell the story.
In the spring of 2016 at a White House Briefing, it was obvious to many of us that the promise of clemency was waning and The Administration was pivoting to reentry as the major emphasis for time and money.
The White House would not pay attention to any effort to expedite the clemency project by granting clemency to categories of inmates. Many individuals and groups implored them to take this approach so that they would not fail the thousands who placed their trust in their concept of mercy. The White House and Justice Department did not seem to even understand the concept as it had been used in the past. Heals were dug in, and fates were sealed.
UPDATE: For those unable to get download to work (which may be my fault, as I am working from the road), here is a link to Beth's site with her full commentary.
Prior related post:
"I sentenced criminals to hundreds more years than I wanted to. I had no choice."
The title of this post is the headline of this recent Washington Post commentary authored by former federal judge Shira Scheindlin. Here are excerpts from a lengthy piece that merits a full read:
In my nearly 22 years as a U.S. district judge in New York, I sentenced roughly 1,000 defendants. Thankfully, not all were subject to “mandatory minimum” sentences — in which Congress has imposed a required statutory punishment for a particular crime. But many were; 145 federal crimes still require a minimum sentence, including distribution of narcotics, immigration violations and identity theft, just to name a few.
Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.
This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system....
Judicial discretion in sentencing matters. Many judges, including me, routinely sentence below the guidelines, particularly for first-time, nonviolent drug offenders. Indeed, in 2015 only 36.5 percent of all drug offenses nationwide resulted in a guideline-compliant sentences. Between 2005 and May 2016, when I retired from the bench, I sentenced more than 200 defendants convicted of narcotics offenses and imposed a lighter-than-advised sentence more than 80 percent of the time. Had I sentenced at the top of the guidelines’ range, these defendants would have served more than a millennium of additional prison time.
After I left the bench, Peter Dubrowski — my last law clerk — and I decided that we would review the sentencing protocols for each of those 200 defendants. As I expected, we found strikingly similar storylines. The overwhelming majority of the defendants were indigent. Seventy-two percent had children to support, and many of the defendants were under the age of 25 — barely adults themselves. More than half had not graduated from high school, most had not obtained a GED, and barely 5 percent had attended college. A majority battled alcohol addiction, drug addiction or both, and had begun abusing substances by age 14. Most were unemployed. Most came from single-parent homes, and most had at least one parent who was, or had been, incarcerated....
Does the length of the sentence deter people outside the courtroom from committing crimes? This is a popular idea in our country. Over time, I came to believe it is fiction. If this effect was real, my fellow judges and I would have seen narcotics arrests and prosecutions decline over the years. They never did. No young man on the street was ever deterred from criminal activity by the sentence given to a buddy. “Contrary to deterrence ideology and ‘get tough’ rhetoric,” says a report from the Sentencing Project, a nonprofit that studies criminal punishment, the evidence “fails to support” deterrence.
Saturday, February 18, 2017
BYOD in Az: spotlighting Arizona's (cheeky?) drug acquisition provision in its latest execution protocol
This AP article reports on a notable an unusual provision in Arizona's new execution protocol. The article is headlined "Arizona to death-row inmates: Bring your own execution drugs," and here are details:
The recent revelation that condemned prisoners in Arizona can now provide the lethal drugs to be used in their executions has received attention around the world and raised questions about the state's rules for the death penalty.
The novel policy has drawn sneers from defense attorneys who were puzzled as to why the state would think that they would assist in killing their clients. It has inspired wisecracks about Arizona's penchant for taking on envelope-pushing criminal justice policies and left some readers on social media asking whether the bring-your-own-drugs policy was actually the product of a news parody website.
Criminal defense lawyers and death penalty experts say they have never heard of a state suggesting that condemned inmates can line up drugs to be used in their executions. However unlikely it is that any of Arizona's 119 death-row inmates will take up the offer, the change is a reflection of the difficulties that Arizona, like other states, faces in finding execution drugs now that European pharmaceutical companies have blocked the use of their products for lethal injections.
Executions in Arizona have been on hold since the 2014 death of convicted killer Joseph Rudolph Wood, who was given 15 doses of the sedative midazolam and a painkiller and who took nearly two hours to die. The state will not be able to carry out executions until the resolution of a lawsuit that alleges Arizona has abused its discretion in the methods and amounts of drugs used in past executions.
The state hasn't publicly explained its aim in taking on the new policy, which surfaced last month in the lawsuit. The Arizona Department of Corrections, which carries out executions, didn't respond to requests for comment. The Arizona Attorney General's Office, which is defending the state in the lawsuit, declined to comment.
Under the policy, the state's top prison official would be required, in one execution drug protocol, to use the barbiturate pentobarbital that's obtained by lawyers for inmates or someone acting on their behalf. The corrections director also would have the choice of picking one of two drug protocols involving the sodium pentothal if the barbiturate is obtained on behalf of a prisoner....
Dale Baich, an assistant federal public defender who represents the inmates in the lawsuit,... explained that the policy is unfeasible because the Controlled Substances Act prohibits attorneys and inmates from getting the drugs. "As a lawyer, I just can't go to local Walgreens and pick up a couple of vials of pentobarbital," Baich said.
It's the responsibility of the state, not condemned prisoners, to carry out executions, Baich added. The policy would seem to appeal to inmates who have abandoned their appeals and want to speed up their executions. But Baich said the Controlled Substances Act would still prevent those prisoners from getting lethal-injection drugs.
Robert Dunham, executive director of the Death Penalty Information Center, which has been critical of the way executions are carried out in the United States, said the policy also raises ethical concerns. Death-penalty lawyers are supposed to zealously represent their clients and have a duty not to take actions that harm them, Dunham said. "No one has done it before, and the fact that it is impossible, impractical, illegal and unethical may have something to do with that," he said.
Timothy Agan, a longtime criminal defense lawyer in Phoenix who has handled several death penalty cases, said he can't imagine condemned prisoners lining up to seek their own execution drugs and couldn't foresee a situation in which the policy would be used.
Arizona's revised executions protocol is available at this link, and on page 28 one finds this language (with my emphasis added):
The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to which drug protocol (Chart B or Chart C) will be used for the scheduled execution.
Friday, February 17, 2017
Hoping for the best from Prez Trump's creation of crime task force
As noted in this prior post, last week Prez Trump signed three crime-fighting executive orders. In my view, the EO with arguably the most enduring significance and substance was this one creating a “Task Force on Crime Reduction and Public Safety.” Here is the heart of what the EO says about this Task Force:
The Attorney General shall determine the characteristics of the Task Force ... [and the] Task Force shall:
(i) exchange information and ideas among its members that will be useful in developing strategies to reduce crime, including, in particular, illegal immigration, drug trafficking, and violent crime;
(ii) based on that exchange of information and ideas, develop strategies to reduce crime;
(iii) identify deficiencies in existing laws that have made them less effective in reducing crime and propose new legislation that could be enacted to improve public safety and reduce crime;
(iv) evaluate the availability and adequacy of crime-related data and identify measures that could improve data collection in a manner that will aid in the understanding of crime trends and in the reduction of crime; and
(v) conduct any other studies and develop any other recommendations as directed by the Attorney General....
The Task Force shall submit at least one report to the President within 1 year from the date of this order, and a subsequent report at least once per year thereafter while the Task Force remains in existence. The structure of the report is left to the discretion of the Attorney General. In its first report to the President and in any subsequent reports, the Task Force shall summarize its findings and recommendations under subsections (c)(ii) through (c)(v) of this section.
I find interesting and valuable that this Task Force is tasked with, inter alia, seeking to "improve data collection" and to write a detailed report with a year. More generally, I think the Task Force is a really good idea and one that is, notably, not all that much of a variation on crime commissions recently urged by folks across the political spectrum. Specifically, back in 2009, then-Senator Jim Webb introduced legislation to create a National Criminal Justice Commission, and in May 2015 President Obama’s Task Force on 21st Century Policing made this notable "overarching recommendation": "The President should support and provide funding for the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform."
Among the reasons I am eager and hopeful about the work of this Task Force is the fact that crime realities appear quite divergent in different parts of the county. While some big cities like Chicago, Los Angeles and Washington DC seem to be experiencing worrisome increases in crime in recent years, other big cities like Philadelphia, New York and San Diego seem to be achieving record low crime rates. I sense there is a similar diversity of experiences in small cities and rural areas nationwide as well. Ideally, the AG's Task Force can and will advance and deepen our understanding of all the nationwide diverse and distinctive crime and punishment realities throughout the United States circa 2017-18.
"The Progressive Prosecutor's Handbook"
The title of this post is the title of this notable new short piece by David Alan Sklansky now available via SSRN. Here is the abstract:
A growing number of chief prosecutors are winning office by pledging a more thoughtful and evenhanded approach to criminal justice — an approach more attentive to racial disparities, the risk of wrongful conviction, the problem of police violence, and the harms of mass incarceration. But there is no roadmap for progressive prosecutors, no consensus set “best practices” for elected prosecutors who want to make criminal justice not just more effective but also fairer and more humane.
This short essay starts to develop such a roadmap. It offers ten suggestions to reform-oriented chief prosecutors: decide in advance how you want to be judged, evaluate and reward your attorneys for what you care about, collect and share data, build in second looks, have a clear and generous disclosure policy, do not turn a profit, reduce case delays, investigate police shootings independently and transparently, pay attention to office culture, and diversity your staff.
US Sentencing Commission announces plans and opens registration for two(!) national seminars
I was intrigued this morning to receive an email from the US Sentencing Commission announcing that it will be conducting two "National Seminars on the Federal Sentencing Guidelines." As this USSC webpage reveals, historically the USSC has presented only a single annual seminar, and even that event did not happen in 2013 due to tight budget times thanks to the sequestration that year. But now, despite a new administration saying two bad old federal regulations are going to be cut for every shiny new one, apparently the mighty Sentencing Commission this year was able to flip this around by offering two shiny new seminars when in the bad old days we only got one.
Jokes aside, I have always found the USSC annual seminars to be terrific and informative events, and the fact that these events are free to participants and fully open to the public truly makes them a very valuable and important form of government public service. This USSC page provides the details of the two upcoming events and links for registering for them:
2017 National Seminar Series on the Federal Sentencing Guidelines
May 31-June 2 in Baltimore
September 6-8 in Denver
The Commission will also hold a seminar in San Diego on June 22-23 for judges only. Other seminars are open to the public.
Registration opened on Friday, February 17, 2017 for both the Baltimore and Denver seminars. Registration is on a first come, first served basis.
Thursday, February 16, 2017
"Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration"
The title of this post is the title of this notable new report from the Vera Institute of Justice authored by Danielle Sered. Here is an overview of the report from Vera:
In the United States, violence and mass incarceration are deeply entwined, though evidence shows that both can decrease at the same time. A new vision is needed to meaningfully address violence and reduce the use of incarceration — and to promote healing among crime survivors and improve public safety. This report describes four principles to guide policies and practices that aim to reduce violence: They should be survivor-centered, based on accountability, safety-driven, and racially equitable.
This two-page fact sheet sets out the "four principles" referenced above:
Principle 1: Responses to violence should be survivor-centered.
Principle 2: Responses to violence should be based on accountability.
Principle 3: Responses to violence should be safety‑driven.
Principle 4: Responses to violence should be racially equitable.
Notable accounting of what Mayor Emanuel sought from AG Sessions to deal with Chicago's gun violence
This local article, headlined "Emanuel used meeting with Sessions to get specific on fed help," reports on the requests Chicago's mayor made to the new Attorney General to help combat violence in a city that has been a frequent talking point about violent crime for Prez Trump. Here is how the article starts:
Attempting to turn President Donald Trump’s talk into federal action, Mayor Rahm Emanuel said Tuesday he used his first meeting with U.S. Attorney General Jeff Sessions to present a list of ways the federal government can help stop the bloodbath on Chicago streets. “On the FBI, DEA, ATF, send more agents [who] are permanently placed here in Chicago to cooperate and work with our Chicago Police Department. They do it in a number of areas today. But, we don’t have the full expanse of what we need to do the job and we have a good relationship with those three federal entities,” the mayor said.
“Second is invest in the technology that you saw in Englewood in the 7th District and the 11th District — the strategic predictive analytic rooms — help us take that to other police districts in the city.”
The mayor’s wish list goes beyond policing to expansion of mentoring, summer jobs and after-school programs from which both the state and federal government have been AWOL, as he put it. “I talked about making sure that our kids have an alternative consistent with what I’ve said about BAM [Becoming A Man] as a mentoring program,” Emanuel said. “There’s an account that deals with ex-offenders. We would like to see that because we have the largest ex-offender program. . . . And help us with summer jobs and after school where the federal government has actually been cutting those resources.”
Emanuel said he also renewed his call for the U.S. Justice Department to step up federal prosecution of gun crimes. A Chicago Sun-Times story last year found that federal weapons charges in Chicago have fallen slightly over the past five years — despite the local rise in firearm offenses. Federal prosecutors in some other major urban areas — Manhattan, Brooklyn, Milwaukee, Detroit and Baltimore — have charged far more people with weapons offenses than the U.S. attorney’s office in Chicago has.
Sources said the meeting with Sessions focused exclusively on ways the Justice Department can assist Chicago in stopping the unrelenting gang violence on city streets.
Wednesday, February 15, 2017
"Emotional Judges and Unlucky Juveniles"
The title of this post is the title of this notable new paper on SSRN authored by two economists, Naci Mocan and Ozkan Eren. Here is the abstract:
Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact.
The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings.
These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.
Repeat rape and murder for sex offender subject to monitoring shows limits of GPS as incapacitation tool
This article in my local paper about a local murder that has received a lot of attention provides a cold reminder that GPS monitoring typically cannot and will not alone serves as fool-proof crime prevention tool. The article is headlined "Ex-convict charged in slaying of Ohio State student was on GPS monitoring," and here are the details:
A sex offender who is accused of abducting, raping and killing an Ohio State University student was on GPS monitoring. Brian L. Golsby, 29, who was released from state prison on Nov. 13 after serving six years for robbery and attempted rape, had special conditions of supervision under his post-release control for five years.
"I can confirm that he was on GPS monitoring, which is not uncommon due to the fact that he did not have a permanent residence upon his release," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Golsby was living in a state-contracted residential housing program that granted him a temporary residence.
Grove City police arrested Golsby after 21-year-old Reagan Tokes' body was found on Feb. 9 near the entrance of Scioto Grove Metro Park. Detectives say Golsby abducted Tokes after she left work Feb. 8 in the Short North. He forced her to withdraw $60 from an ATM, raped her and fatally shot her twice in the head before dumping her body. Investigators already had Golsby's DNA from prior offenses and matched it to a cigarette butt left in Tokes' car. Tokes was set to graduate from OSU in May with a degree in psychology.
Smith said state law prevents her from going into details of the conditions Golsby had to follow. All offenders are prohibited from carrying guns, but it's unclear whether travel restrictions were placed on Golsby in addition to what sex offenders have to abide by. "DRC contracts with community providers for electronic monitoring and GPS services. The level of monitoring depends on the offender and circumstances for which the service is requested," Smith said.
She would not specify which vendors are used or describe the level of monitoring that offenders like Golsby could have. It's unclear whether he triggered an alert while wearing the bracelet, or, if he had discarded the monitor, how parole officers would have been notified. It's also unknown how often parole officers check the movements of offenders assigned to them, or how far back the monitor records travel. "DRC is not providing specifics relative to this case due to the ongoing criminal investigation," Smith said.
Columbus police have been looking at Golsby as a possible suspect in a series of attacks on women in German Village and near Nationwide Children's Hospital.
Interesting Q&A about Prez Obama's clemency efforts with former White House counsel Neil Eggleston
The Marshall Project has this notable new piece that reviews Prez Obama's clemency work via an interview with former White House counsel Neil Eggleston. The piece is headlined "The Man Who Ran Obama's Clemency Machine: 'He felt strongly that this was a gift, and the gift had to be earned.'" Here are excerpts:
From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to more than 1,700 federal prisoners.... But his final tally was also far below earlier expectations, given that former Attorney General Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners. Obama also received more petitions for clemency than any recent president.
Blame has been passed around, much of it centering on the bureaucracy that emerged to handle the deluge of potential cases, as well as the role federal prosecutors played in the process. In the end, attorneys who felt they had submitted strong cases to the president often wondered why they lost. “In granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it,” one of those attorneys, Sean Nuttall, wrote recently at The Marshall Project.
One key figure in the process was Neil Eggleston, who served as White House counsel from April 2014 through the end of Obama’s term. We asked him to discuss the process from the inside....
How closely did President Obama look at each of the applications for clemency he received? And what did you learn about him based on how he handled them?
I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”
Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”
He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out. He felt strongly that this was a gift, and the gift had to be earned.
One common criticism of the process was that there were arbitrary outcomes, that two people with similar cases could be granted and denied clemency.
I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew. All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, “How can this be?” So is there some arbitrariness? Humans making decisions will not always be perfect. But I reject the notion that there was arbitrariness....
Were you afraid that a single heinous crime by one of these released men or women would derail the whole program?
We never mentioned the words “Willie Horton.” But the answer is yes — very much so. The president wanted to make sure these were people who would take advantage of their second chances, but part of that was making sure they wouldn’t go back to jail. In the letter the president sent to released prisoners, he wrote to them that their choices “will also influence...the possibility that others in your circumstances get their own second chance in the future.” He was saying: “If you mess up, I may not be able to give clemency to other people.” It’s pretty explicit....
One criticism was that it was strange to have prosecutors — from the same department who got these sentences in the first place — weigh in on clemency decisions. Did you think about this?
I think that criticism was completely misguided and based on some sort of theoretical, potential problem. The fact is that Deputy Attorney General Sally Yates, a 27-year Department of Justice prosecutor out of Atlanta, was a very strong supporter of this initiative. Loretta Lynch, too. The people who criticized their involvement did so on a theoretical conflict — not an actual conflict. It’s just not true.
That suggests the Department of Justice under incoming Attorney General Jeff Sessions could rapidly go in another direction and oppose the use of clemency.
I know Sessions publicly opposed our initiative. I hope that I’m wrong, but I worry that given his comments, this will not be pursued by the new administration. It’s going to require them to decide this is something they want to continue. I hope they do.
Tuesday, February 14, 2017
Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics
This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:
Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear. He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.
About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit. She introduced him to her younger sister, age 13. This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.
The two 13-year-olds started skyping Zachary together. Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance. By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear. Her face was not visible, nor were her private parts.
That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist. Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature. Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.
Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone. All this, from five underwear pictures. If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.
Instead, he took a plea bargain. This is what prosecutors do: scare defendants into a deal. Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.
Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender." The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months. "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."
As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce. Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor. The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....
Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.
Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry. But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.
I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.
UPDATE: A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above. This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.
"The American Death Penalty Decline"
The title of this post is the title of this new paper recently posted to SSRN and authored by Brandon Garrett, Alexander Jakubow and Ankur Desai. Here is the abstract:
American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer argued today’s death penalty is unconstitutional, noting that from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” That decline has become more dramatic. Just fifty-one defendants were sentenced to death in 2015 in thirty-eight counties. In 2016, just thirty defendants were sentenced to death in twenty-seven counties. In the mid-1990s, by way of contrast, over three hundred people were sentenced to death in as many as two hundred counties per year.
While scholars and journalists have increasingly commented on this decline and speculated as to what might be causing it, empirical research has not examined it. This Article reports the results of statistical analysis of data hand-collected on all death sentencing, by county, for the entire modern era of capital punishment, from 1990 to 2016. This analysis of death sentencing data from 1990 to 2016, seeks to answer the question why a few counties, but not the vast bulk of the others, still impose death sentences. We examine state and county-level changes in murder rates, population, victim race, demography, and other characteristics that might explain shifting death sentencing patterns.
We find that death sentences are strongly associated with urban, densely populous counties. Second, we find that death sentences are strongly associated with counties that have large black populations. Third, we find homicide rates are related to death sentencing in three ways: contemporaneously within and between death sentencing counties, lagged within and between death sentencing counties. and that counties with more white victims of homicide have more death sentencing. Fourth, we find that death sentencing is associated with inertia or the number of prior death sentences within a county. These results suggest what remains of the American death penalty is quite fragile and reflects a legacy of racial bias and idiosyncratic local preferences. We conclude by discussing the practical and legal implications of these trends for the much-diminished death penalty and for criminal justice more broadly.
"Maryland prosecutor sentenced for hotel sex acts in front of glass door in Ocean City"
The title of this post is the headline of this Washington Post article, which sort of has a Valentine's Day theme. I recommend the article if full in order to get the "full monty" details, but here are highlights from the start of the article and its update:
It’s Valentine’s Day, and the top prosecutor in Cecil County, Md., having already celebrated his love with his wife in full view of numerous others, will stand before a judge today and receive a criminal sentence for such public displays of affection.
Edward “Ellis” Rollins III (R) was arrested in June for indecent exposure and disorderly conduct, for having sex, standing naked and other related acts at the sliding glass door of his tenth-floor Ocean City, Md., hotel room, while four tourists, a security officer and two Ocean City police officers watched. He was convicted by a Worcester County, Md., jury after a two-day trial in December. Rollins, 61, likely will not face jail time for the two misdemeanor convictions.... He did remove himself from consideration for a circuit court judgeship, which he was scheduled to interview for with the governor shortly after his arrest, on a bench where both his father and grandfather served.
Rollins did not return phone and email messages Monday, and his attorney, Cullen Burke, also did not return a call. At trial, Rollins did not testify, but his lawyer did not deny that Rollins and his wife enjoyed various carnal relations next to the sliding glass door of their hotel room. Burke described Rollins and his wife, Holly Rollins, as “still newlyweds” after six years of marriage, according to the Cecil Whig, and Holly Rollins testified she had no idea anyone was watching from the adjacent condominiums. Burke said there was 172 feet between the two buildings and that the Rollins’ hotel room “was a speck” in the vision of the tourists’ apartment.
But the four Pennsylvania women who spotted the activity, on two different days, felt it was much more visible than a speck. They returned to Ocean City and testified in detail about Rollins’ actions. It really wasn’t the sex so much as Rollins’ naked dancing and posing at the sliding glass door that truly offended the visitors, according to the media reports of their testimony. “You’re just sickening,” one woman turned and said to Rollins during her testimony. “I have nightmares because of you. I argue with my husband because it’s all I can talk about.”
UPDATE, 2:02 p.m.: Worcester County Circuit Judge Brian Shockley imposed a $1,000 fine and a 90-day jail sentence with all time suspended for Ellis Rollins, along with 100 hours of community service, 18 months of supervised probation and mental health treatment. Worcester County State’s Attorney said he asked for a two-year sentence with 18 months suspended, which would have meant Rollins would have spent six months in the Worcester jail, but Shockley did not take that recommendation.
Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration
Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style." Here are excerpts:
It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things. But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration. In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree. The American Civil Liberties Union and the American Conservative Union Foundation agree. Bernie Sanders and Newt Gingrich agree.
Here’s what they agree on:
• The United States went overboard on mass incarceration in the 1980s and 1990s.
• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.
• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.
• Jailing people is really, really expensive.
• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.
• There are alternatives to imprisonment that keep Americans safe.
(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)
Even all this agreement is no guarantee of progress in Washington. President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator. He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose. But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote. So the administration can be expected to be unhelpful, with Congress a question mark.
While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans. So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states. Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.
California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.
More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....
The cost of prisons was a huge issue. In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”
Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.
That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”
“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”
At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden. And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.) Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....
The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature. “You have a problem and we’re going to help you with your problem.” Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.
The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.
Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail. Thousands of people are sent back to prison each year for technical revocation of parole or probation. As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....
The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities. One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent. Twenty years ago, a Republican in Georgia would have boasted about the opposite.
If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”
This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years. The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.
I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders. But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement. And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.
February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)
Poll shows strong commitment to rehabilitation and prison alternatives for youth
A new poll released today by Youth First shows that 78 percent of Americans favor keeping young people out of prisons and instead prefer community-based alternatives that are proven to lead to better outcomes.
At a time when partisan polarization is dominating the political landscape, the poll finds that Americans from a wide range of backgrounds and all political stripes support shifting the youth justice system’s focus from incarceration and punishment to prevention and rehabilitation. Youth First, a national advocacy organization working to end the unconscionable practice of youth incarceration and reform the youth justice system, commissioned the poll which was conducted by GBA Strategies.
“Youth prisons are notoriously dangerous, ineffective, and outdated – and there is a clear consensus that it’s time to change the system,” said Liz Ryan, President of Youth First. “We know that kids can be rehabilitated without being locked up, if given the opportunity. States across the nation should unify behind this growing movement to close youth prison facilities and focus on solutions that actually work.”
The survey of over 1,000 adults found that:
· 89 percent support design treatment and rehabilitation plans that include a youth’s family in planning and services.
· 83 support providing financial incentives for states and municipalities to invest in alternatives to youth incarceration, such as intensive rehabilitation, education, job training, community services, and programs that provide youth the opportunity to repair harm to victims and communities.
· 69 percent support increasing funding to provide more public defenders to represent children in court.
· 70 percent support requiring states to reduce racial and ethnic disparities in the youth justice system.
Respondents cut across partisan affiliations, with 81% of Democrats, 83% of Independents, and 68% of Republicans supporting reform efforts.
Monday, February 13, 2017
Is due process violated when a plea is taken and sentence imposed on a nearly dead-drunk defendant?
I am always eager to find funny sentencing stories, but the sentencing stories that might seem funny are really never that funny. This Omaha World-Herald article, which prompts the question in the title of this post, is one of those not-really-funny stories. The article is headlined "Court accepts guilty plea from Omaha woman too drunk to stand, sparking concerns due process was violated," and here are the particulars:
Douglas County Judge Lawrence Barrett convened court on a Thursday morning in early February, 15 cases on his docket. The first: A 32-year-old Omaha woman accused of violating the probation term she had been given for reckless driving.
A month after Barrett had placed her on probation, Sarah E. Carr was arrested in Lincoln on suspicion of driving drunk. Officers said her blood-alcohol content was over .15. Hence the probation violation. Hence the Feb. 2 hearing. Barrett called out Carr’s name. Her aunt approached. “Your Honor, Sarah is here, but she’s passed out in the car.” Barrett: “She’s passed out in her car?”
After some discussion, the aunt and a court official went to the vehicle, pulled out a drunken Carr and loaded her into a wheelchair. What happened next shocked longtime legal observers. Judge Barrett allowed the woman, plopped in her wheelchair, to plead guilty to a probation violation. He then found her guilty and sentenced her to 90 days in jail. And no one protested.
After Carr received her sentence, deputies administered a breath test. Her blood-alcohol content measured .44 — 5½ times the legal limit for driving, and a level so high that it could lead to death, according to toxicology experts.
Her barely conscious plea has caused a stir in the courthouse, prompting concerns about what was done to preserve the woman’s constitutional rights to due process. Under the Fifth Amendment, a defendant must “knowingly, willingly, intelligently and voluntarily” enter a plea. Carr has since told others she has little to no memory of being in court. (Attempts to interview Carr at the jail last week were unsuccessful.)
After The World-Herald inquired about the case, Deborah Lee, a 16-year Douglas County public defender who represented Carr, resigned. Douglas County Public Defender Tom Riley confirmed that Lee resigned but declined to detail reasons. Carr is far from the first defendant to show up drunk at court — especially in county courtrooms where DUIs and other drunken offenses are heard.
But courthouse veterans say this is the first case they could recall in which the typical protocol wasn’t followed when someone suspects a defendant is drunk. In other cases, judges have had deputies or probation officers administer a breath test. T ypically, a defense attorney then asks for the case to be delayed. The judge increases bail or revokes it. And the defendant sobers up in jail until his or her next court date.
Riley said someone should have put a stop to the Carr hearing. “This certainly isn’t the first person who has appeared in court under the influence,” Riley said. “It was incumbent upon someone in the courtroom — whether it was our lawyer or the prosecutor or the (judge) on their own observation — to at least make further inquiry into her condition.”
Judge Barrett, a 23-year veteran of the bench and a former assistant public defender, said he hopes the woman gets help before she further harms herself. He encouraged a World-Herald reporter to listen to a digital recording of the hearing. When the reporter asked if Carr was drunk, the judge said: “Not that I know of.” “I questioned her,” Barrett said. “She listened to everything I asked — and responded.”
Barrett’s statement that he didn’t know the woman was drunk raised eyebrows among those who observed the hearing.... An Omaha man, who was among about 30 people gathered in the courtroom, later said he was appalled at the scene, calling it a “miscarriage of justice.” An attorney in the courtroom recalled that the woman appeared “dazed and confused.”...
[Kevin] Slimp, the assistant city prosecutor, could not be reached for comment. However, Omaha City Prosecutor Matt Kuhse said Slimp has told him that he did not know Carr was drunk. In fact, Kuhse said, Slimp had little recall of anything about the case, other than the woman being in a wheelchair. Kuhse said city prosecutors often are balancing multiple cases — and often are having side conversations with defense attorneys while another case is being heard.
“When you notice that someone is just not getting what’s going on, we do have an obligation to step in,” Kuhse said. “That being said, I’m not convinced there’s enough evidence to show that the prosecutor should have stepped in in this case. We now know that it was a .44 (blood-alcohol level), but that’s the benefit of hindsight. My understanding is that she answered appropriately to the judge’s questions. It wasn’t like she blurted out ‘banana’ to a yes-no question.”...
Riley said he was “distressed” by the case. “Do I think the result would have been different? Probably not,” he said. “But there’s a right way to do things, and there’s a wrong way to do things. “Shame on us for not doing it the right way.” Riley said he assigned another public defender to visit Carr in jail last week. The new attorney explained to Carr that she probably would succeed if she attempted to withdraw her plea. One reason to try: Riley said his office could have argued for a lesser jail term. Barrett gave Carr the maximum term for that misdemeanor.
Carr was not interested — instead opting to focus on getting better, Riley said. “Mercifully, there would have been options to undo this,” Riley said. “I’m glad that this person wasn’t irreparably harmed. “But there were enough problems with all of this to share blame all around. I’m hopeful this will open people’s eyes up to how we should be doing things.”
Major Ponzi schemer gets major break from guidelines ... but still subject to major prison time
This local article, headlined "Lexington Ponzi scheme founder, 70, gets nearly 15-year prison term for ZeekRewards," reports on a notable white-collar sentence handed down this morning in a North Carolina federal courthouse. Here are some details:
A federal judge Monday handed Paul Burks, founder of ZeekRewards.com, a prison sentence of 14 years and eight months for his lead role in the Lexington Ponzi scheme. Judge Max Cogburn Jr. agreed with U.S. attorneys' "fair and generous" sentencing recommendation, a minimum 15 years and eight months and a maximum 19 years and seven months for the 70-year-old Burks. Burks could have been sentenced to up to 59 years under federal sentencing guidelines.
ZeekRewards.com, founded in 2010, was one of the largest Ponzi schemes in U.S. history at $939 million, according to federal regulatory officials and prosecutors. The Lexington companies, which debuted in January 2011, were shut down and their assets frozen in August 2012. There were more than 800,000 victims worldwide.
Cogburn dropped Burks' sentencing by a year so that it would be about double the 90-month prison term handed to Dawn Wright-Olivares. Wright-Olivares and her stepson, Daniel Olivares, pleaded guilty in February 2014 to fraud charges after reaching agreements in December 2013 with the U.S. Attorney’s Office for the Western District of N.C. Wright-Olivares cooperated with the federal government in its case against Burks. Wright-Olivares served as ZeekRewards' chief operating officer, while Olivares was senior technology officer. Olivares received a two-year prison term.
On July 21, a federal jury found Burks, of Lexington, guilty of wire and mail-fraud conspiracy, wire fraud, mail fraud and tax-fraud conspiracy. Burks has been free on bond for the past 4 ½ years. The wire and mail-fraud conspiracy charge, the mail-fraud charge and the wire-fraud charge each carry a maximum prison term of 20 years and a $250,000 fine. The tax-fraud conspiracy charge carries a maximum prison term of five years and a $250,000 fine.
Burks opted not to speak on his behalf except to say he approved of the case being presented by his attorney, Noell Tin.... U.S. attorneys, citing Burks’ health and his role as caregiver to his wife, Susan, who has breast cancer, recommended 15.5 years to just short of 20 years. Tin asked Cogburn to set a sentence of no more than 11.5 years, also in consideration for the Burks’ health.
Cogburn and Kenneth Bell, the receiver for ZeekRewards, responded to Tin’s request by saying the U.S. attorneys’ sentencing recommendation was “fair and generous” given the level of crime involved in the Ponzi scheme. “This is a huge amount of money, which is why the sentencing guidelines run to such a large extent,” Cogburn said. “He is essentially facing a life sentencing given his health conditions.”
Tin said that among the health issues affecting Burks are hypertension, diabetes, heart illness, chronic renal failure, prostate cancer, the removal of his esophagus and mild dementia. Burks appeared in good health at the sentencing, though he walked with a slight limp.... The likely [prison] facility [for Burks] could be Butner, where fellow Ponzi scheme felony Bernie Madoff resides....
Cogburn and Bell cited the enormity of the Ponzi scheme and how Burks and other ZeekRewards officials misled and mispresented how the company generated money and how it paid “winners.” Cogburn compared Burks’ marketing strategy of capturing hundreds of millions of dollars to the Biblical story of Jesus of turning loaves and fishes into enough food to feed at least 5,000 individuals. “The scheme got out of hand, more than Mr. Burks may have thought was going to happen,” Cogburn said. “But anyone could have seen what was going to occur outside himself and his (marketing) cheerleaders.”
Will Prez Trump and AG Sessions listen to law enforcement leaders with diverse views on crime and punishment?
The question in the title of this post is prompted by this New York Times article, headlined "Police Chiefs Say Trump’s Law Enforcement Priorities Are Out of Step," discussing a new report issued by organization Law Enforcement Leaders to Reduce Crime and Incarceration. The NY Times piece provides this accounting of the report along with some diverse perspectives on how diverse law enforcement leaders look at and toward the Trump Administration:
Not surprisingly, President Trump’s approach to crime, which began to take shape in a series of moves last week, generated swift criticism from liberals and civil rights groups. But it also stirred dissent from another quarter: prominent police chiefs and prosecutors who fear that the new administration is out of step with evidence that public safety depends on building trust, increasing mental health and drug addiction treatment, and using alternatives to prosecution and incarceration.
“We need not use arrest, conviction and prison as the default response for every broken law,” Ronal W. Serpas, a former police chief in Nashville and New Orleans, and David O. Brown, a former Dallas chief, wrote in a report released last week by a leading law enforcement group. “For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities.”
The organization, the Law Enforcement Leaders to Reduce Crime and Incarceration, is made up of more than 175 police officials and prosecutors, including Charlie Beck, Los Angeles’s police chief; Cyrus R. Vance Jr., Manhattan’s district attorney; and William J. Bratton, the former police chief in New York and Los Angeles. Other leading law enforcement groups have also called for an increase in mental health and drug treatment, a focus on the small number of violent offenders who commit the most crimes, training officers on the appropriate use of force, and retooling practices to reflect a growing body of evidence that common practices, such as jailing people before trial on minor offenses, can actually lead to an increase in crime. The group warned that “failing to direct these resources toward our most immediate and dangerous threats risks wasting taxpayer dollars,” singling out using federal money on “dragnet enforcement of lower-level offenses.”
Mr. Trump has shifted the focus from civil rights to law and order, from reducing incarceration to increasing sentences, from goading the police to improve to protecting them from harm. Last week, he swore in a new attorney general, Jeff Sessions, who has said that the government has grown “soft on crime,” and helped block a bipartisan bill to reduce sentences. Mr. Sessions said that a recent uptick in crime in some major cities is a “dangerous, permanent trend,” a view that is not supported by federal crime data, which shows crime remains near historical lows. The president signed executive orders that repeatedly connected public safety to immigration violations, vowing to fight international crime cartels; to set up a task force to “comprehensively address illegal immigration, drug trafficking, and violent crime”; and to focus on preventing violence to peace officers.
Some police chiefs and sheriffs have complained that immigration enforcement is not consistent with their priorities and could undermine hard-earned trust. “I would rather have my officers focused on going after violent criminals and people breaking into homes than going after nannies and cooks,” Chief Art Acevedo of Houston said. Kim Ogg, the new district attorney in Houston, won office promising to make changes like dropping prosecution of low-level drug offenses, reducing the use of money bail and releasing videos of police shootings. Those priorities were much more aligned with the Obama administration than Trump’s, in whose pronouncements Obama-era buzzwords like deincarceration, constitutional policing and de-escalation — reducing the use of force during police encounters — have all but disappeared. Mr. Trump did tell a gathering of police chiefs this week: “As part of our commitment to safe communities, we will also work to address the mental health crisis. Prison should not be a substitute for treatment.”...
Some police chiefs said they are reserving judgment until there is more meat on the bones of the administration’s plans. “Hopefully, they are going to seek our practical advice,” said Edward A. Flynn, Milwaukee’s police chief, who also heads the legislative committee of the Major Cities Chiefs Association. “That to us is key. We don’t want any more policy bromides grounded in campaign promises. We want ideas grounded in practical wisdom about how to protect our cities.”
Still, a number of chiefs — and perhaps the vast majority of lower-ranking officers — say they are basking in the glow of Mr. Trump’s positive attention after feeling under siege during the Obama administration. “Law enforcement in general was painted with a very broad brush,” said Michael J. Bouchard, the sheriff of Oakland County, Mich. “The idea was that policing was broke, and I think that was a false dialogue.”
Unions agreed. “I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.”
Law enforcement leaders responded more positively to Mr. Trump’s order to ratchet up the fight against organized crime cartels, which operate through intermediaries in even the smallest American cities through the sale of heroin, methamphetamine, and other drugs. But Darrel W. Stephens, the executive director of the Major Cities Chiefs Association, said the nation also needed to address its appetite for drugs: “We must do everything we can to stop the flow of drugs into our country, but doing so would not solve our substance abuse problem.”
The full 28-page report referenced here is titled "Fighting Crime and Strengthening Criminal Justice: An Agenda for the New Administration," and it is available at this link. An executive summary and press release provides these five bullet points describing the report's suggested priorities:
• Prioritizing fighting violent crime.
• Enact federal sentencing reform.
• Increasing mental health and drug treatment.
• Bolstering community policing.
• Expanding recidivism reduction programs.