Monday, August 21, 2017

NACDL and FAMM launch "State Clemency Project"

Site_logosThis new NACDL press release reports on an exciting new project that provides another example of new and important state-level criminal justice and sentencing work afoot these days.  Here are the details:

The National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM), with support from the Foundation for Criminal Justice (FCJ), announce today a major state-focused clemency initiative, the NACDL/FAMM State Clemency Project, a program designed to help to recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners to submit petitions to have their sentences commuted.  Outreach has already begun to several governors' offices across the nation.  And Governor Cuomo of New York has just announced a partnership with the NACDL/FAMM State Clemency Project to develop the necessary processes and procedures to enable volunteer lawyers through the project to help prisoners seeking clemency pursuant to the Governor's initiative. The Project will provide logistical support for the governor's initiative, among other ways, by recruiting and training volunteer lawyers to help prisoners apply for clemency.

"We are committed to provide training and resource support to volunteer lawyers to facilitate a process through which applicants can have access to counsel who can expeditiously submit a petition that makes the case for a second chance," said NACDL Executive Director Norman L. Reimer.  "We want the executive authority to see clearly that many offenders have learned from past mistakes and are ready to safely and productively return home."

"Those individuals who have worked hard to rehabilitate themselves and take responsibility for their mistakes deserve a chance to get out of the penalty box.  Their families, communities, and state will be better off with their release," said FAMM President Kevin Ring.  "We're excited to work with NACDL and Governor Cuomo on this important initiative and we look forward to partnering in other states."

"NACDL is proud to build on its experience as a Clemency Project 2014 founding partner in order to make this state-level clemency project a success," said NACDL President Rick Jones. "As a New York City defense attorney, I am especially pleased that Governor Cuomo is taking the lead in this effort.  Our goal is to provide many hundreds of applicants with qualified counsel who will submit first-rate petitions.  And our hope is that other Governors will launch their own programs, and we pledge to support them. It is long past time to recognize that people can change and that redemption is possible. This program recognizes that fundamental truth."

This project brings NACDL's and FAMM's collective experience as partners of the federal-level Clemency Project 2014 (CP 2014), to state-level clemency efforts. CP 2014, a partnership that also included the American Bar Association, American Civil Liberties Union and the Federal Public and Community Defenders, provided pro bono legal assistance to prisoners seeking to have their sentences commuted under specific criteria set by the White House.

Similarly the NACDL/FAMM State Clemency Project will focus on training lawyers to identify eligible prisoners based on criteria provided participating state executives.  Project staff will work with state agencies to devise the most efficient way to connect applicants to volunteers, provide essential applicant information, and submit well-crafted petitions.  The Project will have a state-based focus that will respond to the criteria for articulated by each governor or state clemency authority, and will rely heavily upon local attorneys, law firms and law clinics.

This link provides the press release from Gov. Cuomo's offices stating "Governor Andrew M. Cuomo today announced a first-in-the-nation partnership between a state and a coalition of legal organizations to expand New York's pro bono clemency program."  And more information about the NACDL/FAMM State Clemency Project with instructions on how to sign up to volunteer can be found here at the project website.  

Kudos to NACDL and FAMM and others involved in this project for building on the wisdom and successes achieved through the federal Clemency Project 2014.  Despite facing an array of challenges, CP14 ended up playing a huge role in helping secure clemency relief for many hundreds of federal prisons.  It would be amazing if this new project can achieve similar successes in a number of states in the months and years ahead.  (For those interested in a review of some recent federal clemency developments, the most recent issue of the Federal Sentencing Reporter has a group of articles curated by Professor Mark Osler looking broadly at Prez Obama's overall clemency initiative.) 

August 21, 2017 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Reviewing recent chapters of the long-running US "war on drugs"

The Guardian has this lengthy new article on federal drug crime policies headlined "How Jeff Sessions and Donald Trump have restarted the war on drugs."  I find the headline frustrating because the federal government never really ended the "war on drugs" so it is misguided to suggest something that never stopped has been restarted.  That lingo notwithstanding, the extended piece provides a useful primer on recent drug war developments during the Obama and Trump era, and here are excerpts:

Barack Obama’s attorney general, Eric Holder, [in 2013] was pushing through a set of “smart on crime” reforms that included directing federal prosecutors to avoid triggering mandatory minimum sentences when dealing with lower-level, nonviolent drug offenders.  For many years research and advocacy groups had opposed mandatory minimum sentences as cripplingly expensive, marked by racial disparities and of dubious value for crime prevention. But the laws were still on the books and the federal prison population continued to grow.

Holder was announcing that federal prosecutors were being instructed to use minimum sentences in fewer, and more serious, cases. Central to this push for change, said America’s first black attorney general, was the evidence that America’s harsh drug enforcement had fallen more heavily on African Americans....

In May [2017], Sessions reversed his predecessor’s initiative, claiming, without evidence, that Holder’s sentencing changes had led to America’s sudden 10.8% increase in murders in 2015.... What is so striking about the move by Sessions and the Trump administration is that it is at odds with much thinking across the globe about the war on drugs, including among leaders in Latin America.  Ever since 2011 when Juan Manuel Santos, as the president of Colombia, declared that the war on drugs had failed, a growing international consensus has been forming on the need for a new conversation to discuss the violence, bloodshed and ruined lives that followed in the wake of the war on drugs – whether in Colombia, Mexico or America.

The change in direction in the US has come at a time when America has been also seeing an increasing number of states liberalizing laws on the consumption and sale of marijuana.  Into this evolving international and national context has stepped Sessions, with a very different approach.  The new attorney general and his initiatives represent a huge setback for advocates who have worked for decades to build bipartisan agreement that America’s war on drugs had been a failure and it was time to reverse the damage....

For decades, reciting law and order slogans has been the path of least resistance for politicians -- and the policymakers who sign such harsh legislation have not been held responsible for its consequences. “I am unaware of any legislator who has gotten into political trouble for codifying a simple-minded slogan or soundbite that pushes up the incarceration rate with no effect on crime,” says Bobby Scott, an African American Democratic congressman from Virginia who has been fighting for a better approach to criminal justice since he was first elected in 1993. “I am aware of many politicians who voted for intelligent, research-based initiatives that reduce crime and save money, and because they’re labeled ‘soft on crime’ they get in political trouble.”

In recent years, driven by the enormous price tag of mass incarceration for taxpayers, reforming America’s criminal justice system has become a bipartisan effort, with the Republican mega-donor Koch brothers and the advocacy group Right on Crime supporting the cause, and conservative states like Texas leading the way on reducing their prison populations.  Rick Perry, the former Texas governor who now serves as Trump’s energy secretary, was one of the many Republicans who signed on to these reforms. “After 40 years of the war on drugs, I can’t change what happened in the past,” he said at the World Economic Forum in 2014. “What I can do as the governor of the second largest state in the nation is to implement policies that start us toward a decriminalization and keeps people from going to prison and destroying their lives, and that’s what we’ve done.”... “

You are never going to win the war on drugs. Drugs won,” Koch Industries executive Mark Holden told reporters in Colorado in June, expressing frustration at Sessions’ return to war on drugs policies and rhetoric. “Illegal drug usage is at the same or higher levels now than it was when we started the war on drugs,” Holden, who leads the Koch criminal justice reform efforts, told the Guardian. “We need to go to a different approach.”

Sessions’ rollback of Holder’s sentencing reforms has been hailed by some law enforcement groups, and the Justice Department has also defended Sessions’ changes by pointing to his backing from people “actually on the front lines dealing with violent criminals on a daily basis”.  Among Sessions’ supporters in law enforcement are the Fraternal Order of Police (the nation’s most prominent police union), the Federal Law Enforcement Officers Association, and the National Association of Assistant US Attorneys, which represents the frontline federal prosecutors whom Holder had tried to rein in.

Larry Leiser, the national association’s president, says that many federal prosecutors believe that tough mandatory minimum sentences are a crucial tool in convincing lower-level drug defendants to cooperate with the government when it’s prosecuting the higher-ups involved with the criminal activity.  “The tools we have [to tackle drugs and violence] are the tools that Congress has created for us, Leiser says. “We’re just trying to hold on to the ones we’ve got.”

“Some organizations and people like to make these drug traffickers the victims. What about the people whose lives they kill and the lives they destroy?” Leiser asks. “We’ve lost our way on this issue; we’ve failed to focus on the victims.”...  Leiser and Patrick O’Carroll, the executive director of the Federal Law Enforcement Officers Association, both say they believe the Obama administration’s modest criminal justice reforms are connected to 2015’s increase in murders. “If you have less drugs in the marketplace, there are less people dying and fighting over the drugs, and you’re going to have less murders,” Leiser says.

August 21, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, August 20, 2017

Eleventh Circuit upholds a 57-year sentence for federal juve offender for non-homicide crimes based in part of possibility of good-time credits

I just came across the interesting opinion handed down late last week by an Eleventh Circuit panel in US v. Mathurin, No. 14-12239 (11th Cir. Aug. 18, 2017) (available here), which rejects an Eighth Amendment challenge (and other challenges) to a 685-month sentence imposed for multiple armed robbery and carjacking crimes committed by the defendant just before he reached age 18.  The underlying facts and the sentencing dynamics in Mathurin are interesting, in part because an older defendant would have gotten a 300-year(!) prison sentence based on many applicable consecutive mandatory-minimum terms that went with the convictions in this case.  The defendant argued that his long prison term was still a functional LWOP term that violated the Supreme Court's Graham Eighth Amendment ruling, and the Eleventh Circuit had a lot of interesting things to say in response.  Here are snippets:

For purposes of this appeal, we will assume that Graham does apply to a non-parolable term-of-years sentence that extends beyond a defendant’s expected life span.  Applying Graham to a term-of-years sentence, however, then gives rise to another question: how does one measure the life expectancy of an individual....  [I]n resolving this case, we do not need to decide whether Defendant’s granular approach to calculating life expectancy should carry the day for purposes of a Graham analysis because even assuming the accuracy of his proffered lower life expectancy for black males in their mid-twenties, as opposed to the life expectancy of all males in their mid-twenties, we conclude that Defendant’s Graham challenge fails....

[A]lthough there is no parole for federal sentences, Defendant has it within his power to shorten his sentence by earning good-time credit. Pursuant to 18 U.S.C. § 3624, Defendant can earn up to 54 days of credit towards his sentence for each year he serves in prison, “subject to determination by the Bureau of Prisons that, during that year, [he] has displayed exemplary compliance with institutional disciplinary regulations.” 18 U.S.C. § 3624(b)(1). The Government has calculated that if Defendant earns the maximum good-time credit available, Defendant can reduce his total sentence by over 7 years and be released when he is 67 years old.  Defendant has never disputed this calculation. Earning this credit means that Defendant would serve a remaining sentence of about 43.4 years, which is more than five years shorter than his own proffered life span for black males and almost ten years shorter than the projected life span for all males his age.  Thus, Defendant’s sentence provides him with a realistic opportunity to obtain release before the end of his life, as required by Graham.

It is true that Defendant may not receive all of the above good-time credit if he misbehaves and thereby forfeits some of that credit.  But it is totally within Defendant’s own power to shorten the sentence imposed.  Graham does not require that a sentence “guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Graham, 560 U.S. at 75.  It just requires that the offender have a chance to show that he has earned the right to be given a second chance at liberty.

August 20, 2017 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (20)

A late-summer review of some marijuana reform news and notes

In this post about a month ago, I set out a midsummer review of posts from Marijuana Law, Policy & Reform.  A month later, I figure it is a good time to provide a late-summer review via this abridged set of links to some MLP&R postings: 

August 20, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Is it important to have laws barring sex offenders from living anywhere near their victims?

The question in the title of this post is prompted by this new AP piece headlined "Sex offenders can live next door to victims in many states." Here are excerpts:

A convicted sex offender who molested his niece when she was 7 years old moved in next door to his victim nearly a dozen years after he was sent to prison for the crime. Outraged, the Oklahoma woman, now 21, called lawmakers, the police and advocacy groups to plead with them to take action.  Danyelle Dyer soon discovered that what Harold Dwayne English did in June is perfectly legal in the state — as well as in 44 others that don't specifically bar sex offenders from living near their victims, according to the National Conference of State Legislatures.

"I always felt safe in my home, but it made me feel like I couldn't go home, I couldn't have my safe space anymore," Dyer told The Associated Press, which typically doesn't identify victims of sexual assault, but is doing so in Dyer's case because she agreed to allow her named to be used in hopes of drawing attention to the issue.  "He would mow in between our houses.  Him moving in brought back a lot of those feelings."

Advocacy groups say the Oklahoma case appears to be among the first in the U.S. where a sex offender has exploited the loophole, which helps explain why dozens of other states have unknowingly allowed it to exist. "This is something that I would dare say was never envisioned would happen," said Richard Barajas, a retired Texas judge and executive director of the nonprofit National Organization for Victim Assistance.  "In all the years that I've been involved with the criminal justice system, I've never seen a case like this."

Alabama, Arkansas, Indiana, Tennessee and West Virginia have laws dictating how far away sex offenders must stay from their victims — 1,000 feet in Tennessee, for example, and 2,000 feet in Arkansas. Other states haven't addressed the issue, though like Oklahoma they have laws prohibiting sex offenders from living within a certain distance of a church, school, day care, park or other facility where children are present.

"You assume it can't happen and then realize there is no provision preventing it from happening," said one Oklahoma prosecutor, Rogers County District Attorney Matt Ballard, whose agency is responsible for keeping tabs on sex offenders in his area. "To have even the possibility of an offender living next to the victim is extremely troubling."

Arkansas passed its provision in 2007. State Sen. Jeremy Hutchinson, a former prosecutor, said lawmakers drafted the provision out of "common sense," not as a response to a situation like Dyer's. But Barajas, whose group discussed the loophole with attendees at its annual training event this past week, said support for such laws typically gain traction "when someone who was impacted steps up," like Dyer. "Legislation is never created in a vacuum," he said.

Oklahoma lawmakers have now drafted legislation to close the loophole, using Dyer as their champion.  "Of the 70,000 square miles in Oklahoma, this individual happened to choose a place next door to the victim," said state Rep. Kyle Hilbert, who represents Dyer's mostly rural district and is sponsoring the legislation....

Advocacy groups said most legislatures across the U.S. would be able to close the loophole in their laws relatively easily, and said such measures typically receive strong backing from victims, clergy, parents and police.  "I don't see any legal reason why those statutes cannot be amended to ensure that the actual victims are protected; it's no different than prohibiting sex offenders from living 1,000 feet from a church or school," Barajas said. "It's not that the legislation (already on the books) is anti-victim, it's just that we have lacked the voice. We certainly have a megaphone, but when you talk about victims of (sexual abuse), you can't have a megaphone big enough."

Dyer, who is attending the University of Central Oklahoma in the Oklahoma City suburb of Edmond, said she hopes her story will help other victims who may think they're trapped in similar situations. "I think a lot of people feel like they are alone and that nobody cares," Dyer said. "The biggest thing is that they're not alone."

I fully understand the desire and need to protect victims from those who criminally victimized them, not only in sex offense cases but also in other settings.  But if the problem highlighted in this article is rare, I would urge legislatures to be cautious before passing broad new laws that would impact a broad swath of offenders.  With research suggesting that broad sex offender residency restrictions may be doing much more harm than good, I worry about one disconcerting case prompting states to embrace more broad collateral consequences that could create some unexpected consequences.

August 20, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (13)

"Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence"

The title of this post is the title of this paper recently posted to SSRN authored by Mirko Bagaric and Sandeep Gopalan. Here is the abstract:

Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment, which the state can inflict on criminal offenders.  Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim,” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.”  The criticism of Justice Scalia’s approach to the Eighth Amendment, so far as it relates to the harshness of criminal sanctions, is wide-ranging and sometimes verging on the disparaging. The overwhelming weight of prevailing sentiment is that Justice Scalia was a foe of Criminal Law and Procedure to the extent that this is associated with a moderate or lenient approach to the punishment of offenders.  A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and rights (including prisoners’ rights) arguably put this characterization in a different light.  While Justice Scalia may have resisted a move to less harsh sentencing and expansive rights to prisoners, there is an underlying coherence to some of his key decisions that is underpinned by the provisions he was applying and, even more so, the logical and normative contents or vagueness of the concepts under consideration.

August 20, 2017 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, August 18, 2017

Califorina judge precludes death penalty for mass murderer as sanction for government misconduct

A helpful reader made sure I did not miss the notable state trial ruling reported in this new HuffPost piece.  As the piece reports, "Scott Dekraai, a 47-year-old man who admitted to killing eight people at a beauty salon in the worst mass shooting in Orange County, California, history, will not face execution for his crimes because of law enforcement misconduct linked to a jail informant program, a judge ruled Friday."  Here is more:

In a rare move, Superior Court Judge Thomas Goethals excluded the death penalty as a punishment option.  The ruling comes after the judge held weeks of hearings centered on whether the Orange County Sheriff’s Department could be trusted to turn over all records in the case.

It’s now expected that next month Goethals will sentence Dekraai to eight consecutive life terms in prison without the possibility of parole ― unless the California Attorney General’s office files a challenge to the ruling with the 4th District Court of Appeal.  “This is not a punitive sanction,” Goethals said in court Friday. “Rather it is a remedial sanction necessitated by the ongoing prosecutorial misconduct.”

Deputy Attorney General Michael Murphy ― the prosecutor who took over the Dekraai case after Goethals recused the Orange County District Attorney’s office due to misconduct ― had argued that the judge should keep the death penalty on the table.  Murphy said that Goethals had already doled out the appropriate sanctions in removing the district attorney’s office from the case and that excluding the death penalty would amount to an additional, unnecessary sanction.  Ultimately, Goethals disagreed. Reading from his ruling, the judge said that compliance by prosecutors and other law enforcement officers with his lawful court orders to turn over evidence in the Dekraai case “remains an elusive goal” and that ignoring those violations would be “unconscionable.”...

The judge’s ruling is extraordinary in the case of a mass murderer.  Dekraai almost immediately confessed to police about his role in the 2011 killing. He formally pleaded guilty to the crimes in 2014.  It appeared Dekraai would swiftly be dispatched to San Quentin’s death row.  But the case against him has been marred by allegations of egregious government malfeasance. His sentencing has remained in limbo amid ongoing allegations that county prosecutors and sheriff’s deputies improperly used a jailhouse informant in his case and then hid key evidence about that for years....

Just days after the 2011 shooting, county law enforcement moved Dekraai, then held in a local jail, next to a prolific jailhouse informant, Fernando Perez. Perez questioned Dekraai about his case. Then prosecutors and law enforcement officers interviewed Perez, and a recording device was placed in Dekraai’s cell, capturing more conversations between the pair.

While it is generally legal for law enforcement authorities to use informants to help bolster cases, Dekraai’s lawyer, Assistant Public Defender Scott Sanders, has argued that in the particular circumstances, the move was a violation of his client’s constitutional rights.  That’s because it is illegal for government agents, including informants, to question or coerce statements out of a defendant who has been formally charged with crimes and is already represented by a lawyer, as Dekraai was.  Prosecutors contended there was no intentional violation because they did not instruct Perez to question Dekraai.

While the contents of the conversations between Dekraai and Perez remain sealed, court records have shown that the informant did probe Dekraai about his crimes.  As Sanders requested more information about the contacts between the two men, he discovered that Perez had also been used as an informant against another one of his clients, Daniel Wozniak.  Wozniak was sentenced to death last year for the killing of two of his friends in an attempt to fund his wedding.

Prosecutors said it was simply a coincidence that the same informant was used against two of Sanders’ most high-profile clients, but the public defender didn’t believe that. Sanders pushed to uncover what would turn out to be tens of thousands of records about the use of informants inside county jails by prosecutors and sheriff’s deputies.... Additional evidence of the informant program came to light over the course of four years and three evidentiary hearings. Sanders’ efforts would ultimately reveal a disturbing trove of long-hidden records: a 25-year-old computerized system that detailed critical information about jail inmates and informants; more than four years of logs created by deputies who managed the informants, which was deleted in 2013 just days before Judge Goethals issued an order requiring its disclosure; and internal sheriff’s department memos, including one boasting of “hundreds of informants.”...

Nonetheless, the sheriff’s department continues to deny a jail informant program exists.  In recent hearings, Sheriff Sandra Hutchens and members of her command and management staff suggested that if there was any informant-related misconduct in the jails by deputies, it was the work of just a handful of rogue officers operating independently of their orders.  Three deputies refused to testify at the hearings, invoking their Fifth Amendment right to silence.  Leaders of the sheriff’s department have also said they’ve made changes to how deputies handle inmates in the jail. The district attorney’s office has maintained that any misconduct by county prosecutors was unintentional and that the scandal has been overblown....

 The 4th District Court of Appeal found last year that the cheating by prosecutors and sheriff’s officials in the county was very real and that the “magnitude of the systemic problems cannot be overlooked.”  Afterward, the U.S. Department of Justice announced an investigation into the official use of jail informants in Orange County.

The scandal had already led to the unraveling of more than a dozen murder, attempted murder and felony assault cases in the county and threatens to upend countless more.  But the ruling in Dekraai’s case on Friday is arguably the most crushing defeat that the beleaguered district attorney’s office has faced since the scandal broke.

UPDATE: A copy of the ruling referenced above is available at this link.

August 18, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16)

Huge portion of Louisiana prison population could benefit from state's recent reform of nonviolent sentences

As reported in this local article, headlined "Louisiana to review 16,000 prison sentences as criminal justice reform takes effect," recent sentencing reform in the Pelican state could have a huge impact on current prisoners. Here are the details:

Louisiana's Public Safety and Corrections officials are reviewing the sentences of 16,000 inmates who could have their prison time shortened as criminal law changes take effect Nov. 1. That's around 45 percent of the 35,500 people the state has locked up now.

Gov. John Bel Edwards and the state Legislature overhauled the criminal justice system this past spring, aiming to reduce Louisiana's highest-in-the-world incarceration rate. Some law changes have already taken place, but changes that mostly retroactively affect low-level offenders in prison go into place in November -- driving the review.

The 16,000 prison terms being reconsidered are for nonviolent offenses only and many will likely remain unchanged, said Jimmy LeBlanc, secretary of the Department of Public Safety and Corrections. For example, some inmates who are serving sentences for multiple offenses won't be affected. Also, the majority of people whose sentences are affected won't necessarily be getting out anytime soon, LeBlanc said.

Still, there will be an initial surge in releases from prison right after Nov. 1. About 3,000 to 4,000 of the 16,000 sentences being reviewed could be changed to make inmates eligible for release before the end of the year. In the end, LeBlanc estimates about 1,500 to 2,000 of that cohort will actually get out in the weeks following Nov. 1. Others will probably have to wait. Some inmates may not have completed all the rehabilitation work required to get out at an earlier date.

Prior to the criminal justice changes passing, the number of inmates in the state's corrections system was expected to reach 36,300 by November, according to the prisons system's own projections. If 2,000 additional people were released in November, that would amount to a five percent decrease compared to those projections. In a normal month, the prison system releases about 1,500 people. The 1,500 to 2,000 people who get out shortly after Nov. 1 would be in addition to those normally discharged....

The bulk of Louisiana's states inmates are actually not housed in state prisons at all. About 55 percent of them -- 19,500 inmates -- are kept in local parish jails by sheriffs that get paid by the prison system to house them.

It's not clear how many inmates who will get earlier releases -- including those who will leave in November -- will come from local jails or state prisons at this point. However, local jails tend to house lower-level offenders that are less of a public safety risk. Those in state prisons are more likely to be serving longer prison sentences for violent offenses, most of which weren't changed recently.

August 18, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Thursday, August 17, 2017

US Sentencing Commission finalizes policy priorities and publishes notable holdover amendments

As reported in this press release, the US Sentencing Commission "today approved its final policy priorities for the upcoming amendment year ending May 1, 2018, which includes an examination of the overall structure of the guidelines and a continuation of its work on synthetic drugs [and] voted to publish several holdover proposals from the previous amendment cycle."  Here is more:

During the upcoming amendment year, the Commission will continue to explore approaches to simplify and strengthen the guidelines. “On this thirtieth year of the federal sentencing guidelines system, the Commission welcomes the opportunity to work with the Congress, the Courts, the Department of Justice, and other stakeholders to find ways to promote certainty and proportionality in sentencing while reducing the complexity of the guidelines,” stated Circuit Judge William H. Pryor, Jr., acting chair of the Commission.

The Commission will also continue its two-year study of synthetic drugs. In April, the Commission held a public hearing to receive testimony on the prevalence and effect of synthetic drugs. The Commission has since commenced a study of specific categories of synthetic drugs, including fentanyl. The Commission will research their chemical structure, pharmacological effects, potential for addiction, legislative and scheduling history, and other relevant issues. The study is intended to provide a meaningful distinction between categories of synthetic drugs so that closely related substances are more easily determined in the guidelines....

Stemming from the Commission’s research on youthful offenders as well as recommendations made by the Tribal Issues Advisory Group (TIAG) in its May 2016 report, the Commission will also continue to study how juvenile sentences are considered in the calculation of the defendant’s criminal history score.

Other priorities include continued work on mandatory minimum penalties. Following the release of the 2017 Mandatory Minimum Overview in July, which built on the Commission’s 2011 report, the Commission will release additional reports highlighting the impact of mandatory minimum penalties for certain offense categories. The Commission will also continue to work with Congress to adopt a uniform definition of “crime of violence” included in recommendations set forth in the 2016 Report to the Congress on Career Offender Sentencing Enhancements.

The Commission also published today several proposed guideline amendments from the previous amendment cycle and as an extension of its current policy priority work. “Today’s proposed amendments are a continuation of our work during the previous amendment year. These holdover proposals were not voted on last year due to the lack of a quorum during the deliberation process. Publishing today gives this reconstituted Commission an opportunity to carefully review these proposals and consider them as early as possible in the current amendment cycle,” stated Judge Pryor.

Among the proposed amendments published today are changes that would increase the number of federal offenders eligible for alternatives to incarceration. Informed by the Commission’s multi-year study on recidivism, one of the proposed amendments would add a downward adjustment to the guidelines for first offenders.

August 17, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

"Do Criminal Defendants Have Web Rights?"

The title of this post is the headline of this new piece at The Crime Report authored by James Trusty.  The piece provides a review of the Supreme Court's First Amendment work in Packingham v. North Carolina and its possible impact.  Here are excerpts:

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service. In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in — and specific to — sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts....

Lester Packingham ... [was] convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds. According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD — all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.  There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions.  Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior.  Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world. The intention of the judges seeking to restrict web access in these cases is understandable.  They want to remove potential tools of victimization from the hands of convicted criminals.  But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net — likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.  To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.  While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release....

Perhaps the safer bet here is on technology — that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights. 

August 17, 2017 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Technocorrections | Permalink | Comments (2)

Police groups supportive, but prosecutor objects, to new Oregon law shifting drug possession offenses down from felony to misdemeanor

This AP piece, headlined "Oregon makes drug possession a misdemeanor," reports on the notable criminal justice reform signed into law this week in the Beaver State. I found especially interesting the diverse views on the legal charge expressed by police groups and at least one prosecutor. Here are the particulars: 

A bill signed by Oregon Gov. Kate Brown on Tuesday makes personal-use possession of cocaine, heroin, methamphetamine and other drugs a misdemeanor, not a felony. Oregon joined just a handful of other U.S. states in defelonizing drugs under the new law, which was supported by law enforcement groups and takes effect immediately.

Jo Meza, owner of Amazing Treatment, a rehab center in Salem, applauded the move. She has seen the damage caused by drug addiction in her 30 years in the field. “There’s a huge crisis out there, and locking people up is not going to work,” Meza said....

Among the bill’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment.  But the two groups, in a letter to a state senator who backed the bill, said the new law “will only produce positive results if additional drug treatment resources accompany this change in policy.”

“Reducing penalties without aggressively addressing underlying addiction is unlikely to help those who need it most,” the groups warned.  Another measure appropriated $7 million that can be used to pay for drug treatment.

Linn County District Attorney Doug Marteeny had tried to convince lawmakers to dump the defelonization of dangerous drugs from the bill, which also targets police profiling.  “To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” he wrote.

Those who have a prior felony conviction won’t be afforded misdemeanor consideration, nor will people who have two or more prior drug convictions or possess more than user amounts.

August 17, 2017 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Wednesday, August 16, 2017

US Sentencing Commission to hold public meeting to finalize policy priorities and perhaps vote on guideline amendments

As indicated here, the US Sentencing Commission is holding a public meeting tomorrow.  Interestingly, the listed agenda for the meeting includes not only the usual "Vote on Final Policy Priorities for 2017–2018," but also a seemingly unusual "Possible Vote to Publish Proposed Amendments."

Every year around this time, the USSC finalizes its policy priorities after releasing tentative priorities and receiving comments.  For this year, here are the tentative priorities and here is the USSC's collection of some public comments it received.  On the main USSC page, the Commission states that it "received a record number of public comment submissions pertaining to proposed priorities for the 2017-2018 amendment year."  I am inclined to believe that the switch in Prez Administrations, some turn-over in USSC membership, and ever-growing concerns about the federal criminal justice system accounts for large number of comments this time around.

While finalizing of priorities are standard USSC activity this time of year, publishing of proposed amendments are not standard in August absent a need to respond to some pressing matter like a a consequential Supreme Court decision.  (In the usual course, guideline amendments get proposed in January and finalized in April.)  I suppose the USSC might think it worthwhile to propose amendments in response to recent SCOTUS federal sentencing decisions like Beckles and Dean, but I am not sure these rulings really demand immediate USSC amendment action.  Of course, as reported here, the USSC decided earlier in 2017 not to move forward with formal amendments for the 2017 amendment season because it lacked a quorum for a number of months.  With the USSC now having had a quorum in place for a number of months, perhaps it feels eager and able to move forward on some of the ambitious proposed amendments it released back in December 2016.

Happily, hard-core federal sentencing fans do not need to speculate about these matters for too long:  the USSC's meeting starts Thursday morning at 11am, and it can be live-streamed here.

August 16, 2017 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

DC sniper Lee Malvo loses one bid for Miller resentencing in Maryland state courts

As reported in this Washington Post piece, "Lee Boyd Malvo’s six life sentences, for the six Montgomery County, Md., slayings he committed as a 17-year-old in 2002, were allowed to stand Wednesday after a Montgomery judge found that Malvo was not given mandatory life terms." Here is more about this latest ruling in a high-profile case:

Malvo, now 32, could still have the sentences overturned by a federal court in Maryland, which is also considering his appeal. In Virginia, life sentences for his jury conviction in one murder case and his guilty pleas to two other murders were overturned in May by a federal judge because of the Supreme Court’s ruling. Virginia is appealing the order that Malvo must be resentenced in those three cases.

Malvo and John Allen Muhammad began a cross-country shooting rampage in Washington state in February 2002 and concluded with a series of 13 shootings, 10 of them fatal, in the D.C. area in October of that year. Malvo was tried first for a fatal shooting in Falls Church, Va., and a jury in Chesapeake, Va., convicted him but chose a life sentence without parole rather than a death sentence. Muhammad was tried for a slaying in Manassas, Va., and a jury in Virginia Beach convicted him and sentenced him to death. Malvo then pleaded guilty to two more slayings near Fredericksburg, Va., and received two more life sentences.

Having already been convicted of three slayings in Virginia, Malvo in 2006 testified against Muhammad in his trial in Montgomery County and then pleaded guilty to six counts of first-degree murder. Montgomery Circuit Court Judge James L. Ryan then imposed six more consecutive life sentences on Malvo....

Judge Ryan has since retired. But Judge Robert A. Greenberg issued a 20-page ruling Tuesday, released publicly on Wednesday, that concluded that “Judge Ryan is presumed to have known the law,” and that Malvo was not facing mandatory life-without-parole sentences when he was sentenced. “Clearly, Maryland employs a discretionary sentencing scheme,” Greenberg wrote, noting that Ryan had a range of options from a suspended sentence to life without parole. “Judge Ryan would have been well aware that a juvenile (albeit one four months from majority) ought to be beyond rehabilitation before life-without-parole could be imposed … the court expressly considered Defendant’s youth in sentencing him. ”

But even if Malvo’s sentences were mandatory, Greenberg ruled, “Judge Ryan affirmatively considered all the relevant factors at play,” to include extensive biographical and psychological reports on Malvo, “and the plain import of his words at the time of sentencing was that Defendant is ‘irreparably corrupted.’ ”

Ryan’s ruling does not affect Malvo’s appeal of his sentences in the federal court in Maryland or his Virginia cases.

August 16, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"Let Prisoners Learn While They Serve"

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

Criminal justice officials across the country are struggling to break the recidivism cycle in which prisoners are released only to land right back behind bars.  These prisoners are among the most poorly educated people in the country, and that fact holds the key to a solution.  Decades of research has shown that inmates who participate in prison education programs — even if they fail to earn degrees — are far more likely to stay out of prison once they are freed.

That prison education programs are highly cost effective is confirmed by a 2013 RAND Corporation study that covered 30 years of prison education research.  Among other things, the study found that every dollar spent on prison education translated into savings of $4 to $5 on imprisonment costs down the line.  Other studies suggest that prisons with education programs have fewer violent incidents, making it easier for officials to keep order, and that the children of people who complete college are more likely to do so themselves, disrupting the typical pattern of poverty and incarceration.

Findings like these have persuaded corrections officials in both Democratic and Republican states to embrace education as a cost-effective way of cutting recidivism. But Republican legislators in New York — which spends about $60,000 per inmate per year — remain mired in know-nothingism and argue that spending public money on inmates insults taxpayers.  They have steadfastly resisted Gov. Andrew Cuomo’s common-sense proposal for making a modest investment in prison education programs that have already proved highly successful on a small scale in New York’s prisons....

Prison education programs were largely dismantled during the “tough on crime” 1990s, when Congress stripped inmates of the right to get the federal Pell grants that were used to pay tuition.  The decision bankrupted many prison education programs across the country and left private donors and foundations to foot the bill for those that survived.

Despite limited and unreliable funding, these programs have more than proved their value.  New York lawmakers who continue to block funding for them are putting ideology ahead of the public interest.

August 16, 2017 in Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

ABA delegates pass resolution against mandatory minimums and defer vote on resolution against new Sessions charging memo

Aba-logo-defending-liberty-pursuing-justiceAs reported in this ABA Journal report, the "ABA House of Delegates on Tuesday approved a late-offered resolution backing a ban on mandatory minimum sentences, while sponsors withdrew another late sentencing resolution after hearing from the U.S. Justice Department." Here are more details:

Delegates approved Resolution 10B, which opposes the imposition of mandatory minimum sentences in any criminal case.  The resolution calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future....

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report says.  Basic fairness and due process require sentences to be the same among similarly situated offenders and proportional to the crime, the report says.

Though the ABA is on record for opposing mandatory minimums, the resolution “is timely and it is indeed urgent” because Congress is considering a number of bills that would impose new mandatory minimums, according to Kevin Curtin of the Massachusetts Bar Association.  Curtin told the House that mandatory minimums have produced troubling race-based inequities.  Blacks are more likely than whites to be charged with crimes carrying mandatory minimum sentences, and they are more likely to be sentenced to a mandatory minimum term, he said.

The withdrawn proposal, Resolution 10A, would have urged the Department of Justice to rescind a policy adopted in May by Attorney General Jeff Sessions.  The Sessions policy directs federal prosecutors to charge and pursue the most serious, readily provable offense, unless they get approval of superiors to deviate from the policy.  The ABA resolution urges that the department reinstate policies permitting federal prosecutors to make individualized assessments in each case....

Neal Sonnett, representing the ABA Criminal Justice Section, explained why the proposal was withdrawn.  The Justice Department has a designated seat within the section, but it did not voice an objection until Monday afternoon, he said.  The department indicated it believed there were errors in the section report and it wanted to continue discussions, Sonnett said.  The section withdrew the resolution to allow for those discussions and intends to bring it back to the House at the ABA Midyear Meeting in February.

A report to the House of Delegates said Sessions’ decision will lead to increased use of mandatory minimums for low-level and nonviolent drug offenders and a rise in incarceration.  “The draconian charging and sentencing policies urged by Sessions are a throwback to the policies of limited prosecutorial discretion and increased mandatory minimum sentences — policies that did not work — and are in stark contrast to the progressive trend in policies over the last 10 years,” the report says.

The ABA website provides information about the withdrawn Resolution 10A as well as the adopted Resolution 10B.

August 16, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Tuesday, August 15, 2017

Spotlighting a prominent constitutional challenge to Arizona's and the nation's death penalty

Chris Geidner has this new Buzzfeed News report about a new cert petition under the headline "A Top Lawyer Asks Supreme Court To Hear A Major Death Penalty Case." Here are some of the details:

An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder. Earlier this year, Neal Katyal, best known these days for serving as the lead lawyer for Hawaii’s challenge to President Trump’s travel ban, agreed to serve as Hidalgo’s lawyer at the Supreme Court.

Katyal, the former acting solicitor general in the Obama administration, asked the justices in Monday’s filing to hear Hidalgo’s case and to strike down Arizona’s death penalty law.

The filing comes more than two years after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, called for a wholesale review of the constitutionality of the death penalty. Justice Sonia Sotomayor has also expressed great concerns about the courts’ handling of death penalty cases, as well as some states’ death penalty laws.

And Justice Anthony Kennedy has expressed concerns about the death penalty’s imposition, and has cast key votes excluding groups of people — like children or the intellectually disabled — from being eligible for the death penalty. He has not, however, given any specific indication that he is ready to join Breyer’s call to review the constitutionality of the death penalty overall — and has allowed several executions to proceed since Breyer's call.

Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as the Office of the Legal Advocate in Arizona and Arizona attorney Garrett Simpson, thinks the time is now — a move that could be tied to concerns by many liberal lawyers about whether and when Kennedy, at 81, might retire from the court. “I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them,” Katyal told BuzzFeed News on Monday evening. “We look forward to the Supreme Court's review of Mr. Hidalgo's petition.”...

The brief points out that the court in Gregg found the new state death penalty laws to be constitutional because they required the finding of “aggravating” circumstances — a move that the court’s controlling opinion concluded would “direct and limit” who was eligible for execution “so as to minimize the risk of wholly arbitrary and capricious action.”

Forty years later, Arizona’s death penalty law is such that there are so many aggravating circumstances that “every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor” making the person eligible for the death penalty. Hidalgo pleaded guilty in 2015 to two January 2001 murders in a murder-for-hire scheme in Maricopa County, Arizona. He was then sentenced to death by a jury. “Arizona’s scheme utterly fails,” Katyal wrote, to “genuinely narrow the class of persons eligible for the death penalty” as the court has required over the time since Gregg.

For this reason alone, Hidalgo’s legal team argues, the court should take the case and strike down Arizona’s death penalty law. But, beyond that, the filing goes on, “A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.” The brief argues that the court should take the case and rule that the death penalty, nationwide, is unconstitutional under the Eighth Amendment’s guarantee against cruel and unusual punishment. This is so, the brief argues, because “the number of death sentences imposed and carried out has plummeted.”

The brief also points to three further key arguments in support of this larger aim: First, states can’t give guidance that ensures that only “the worst offenders” are sentenced to death. Second, states can’t enforce the death penalty without “ensnaring and putting to death the innocent.” And, finally, “the present reality of capital punishment” — decades spent on death row with “the remote but very real possibility of execution” — is its own possible constitutional violation.

The cert petition, available at this link, sets out these "Questions Presented":

I.  Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment.

II.  Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

August 15, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Two notable new commentaries on how we define violent offenders and what to do with them

My twitter feed yesterday was filled with links to these two notable new commentaries about violent offenders that are both worth the time to read in full:

Here is how Balko's piece wraps up:

[P]aroling more people convicted of violent crimes will inevitably, at some point, somewhere down the line, produce a repeat offender.  The data overwhelmingly suggest that such incidents will be rare enough to be drastically overwhelmed by the benefits of a more generous and forgiving parole policy.  But those rare incidents will be easy to exploit. Advocates should be prepared for them.

In the end, this is a question of what sort of society we want to be. We can be a punitive society that believes in retribution, no matter the costs.  We can be a society that believes in redemption, regardless of cost.  Or we can be a society of people who strive for a rational, data-driven system that will never be perfect, but that will strive to protect us from truly dangerous people while also recognizing that, as the attorney and activist Bryan Stevenson puts it, “each of us is more than the worst thing we’ve ever done.”

August 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (9)

Monday, August 14, 2017

More notable talk by Prez Trump about possible use of his pardon authority

As noted in this post from a few weeks ago, Prez Trump earlier this summer got more than a few media members and academic talking about the historic presidential clemency authority when he reportedly starting asking about his whether he could pardon folks potential caught up in the on-going Russia investigation.  Today brings more summer pardon talk from Prez Trump, but with a notably different (though also controversial) target.  This Fox News piece, headlined "Trump 'seriously considering' a pardon for ex-Sheriff Joe Arpaio," provides the details:

President Trump may soon issue a pardon for Joe Arpaio, the colorful former Arizona sheriff who was found guilty two weeks ago of criminal contempt for defying a state judge’s order to stop traffic patrols targeting suspected undocumented immigrants.  In his final years as Maricopa County sheriff, Arpaio had emerged as a leading opponent of illegal immigration.

“I am seriously considering a pardon for Sheriff Arpaio,” the president said Sunday, during a conversation with Fox News at his club in Bedminster, N.J. “He has done a lot in the fight against illegal immigration.  He’s a great American patriot and I hate to see what has happened to him.”  Trump said the pardon could happen in the next few days, should he decide to do so.

Arpaio, 85, was convicted by U.S. District Judge Susan Bolton of misdemeanor contempt of court for willfully disregarding an Arizona judge’s order in 2011 to stop the anti-immigrant traffic patrols. Arpaio had maintained the law enforcement patrols for 17 months thereafter.  The man who built a controversial national reputation as “America’s toughest sheriff” admitted he prolonged his patrols, but insisted he did not intend to break the law because one of his former attorneys did not explain to him the full measure of restrictions contained in the court order.

He is expected to be sentenced on Oct. 5 and could face up to six months in jail.  However, since he is 85 years old and has no prior convictions, some attorneys doubt he will receive any jail time.

Citing his long service as “an outstanding sheriff,” the president said Arpaio is admired by many Arizona citizens who respected his tough-on-crime approach.  Arpaio’s widely publicized tactics included forcing inmates to wear pink underwear and housing them in desert tent camps where temperatures often climbed well past 100 degrees Fahrenheit.  He also controversially brought back chain gains, including a voluntary chain gang for women prisoners.

Civil liberties and prisoner advocates as well as supporters of immigrants’ rights have criticized Arpaio for years, culminating in his prosecution.  He lost his bid for reelection last year. “Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” asked Trump. “He has protected people from crimes and saved lives.  He doesn’t deserve to be treated this way.”

Stopping the flow of undocumented immigrants across the southern U.S. border was a central theme of the president’s campaign. Arpaio endorsed Trump in January 2016. Trump indicated he may move quickly should he decide to issue a presidential pardon. “I might do it right away, maybe early this week. I am seriously thinking about it.”

Trump could decide to await the outcome of an appeal by Arpaio’s lawyers who contend their client’s case should have been decided by a jury, not a judge.  In a statement after the verdict, his attorneys stated, “The judge’s verdict is contrary to what every single witness testified in the case.  Arpaio believes that a jury would have found in his favor, and that it will.”

Reached Monday for reaction to the possible pardon, Arpaio expressed surprise that Trump was aware of his legal predicament. “I am happy he understands the case,” he told Fox News. “I would accept the pardon because I am 100 percent not guilty.”  The former sheriff said he will continue to be a strong supporter of the president regardless of whether he receives a pardon.  But he also voiced concern that a pardon might cause problems for Trump, saying, “I would never ask him for a pardon, especially if it causes heat. I don’t want to do anything that would hurt the president.”

Trump has not granted any pardons so far in his presidency.

While I was putting this post together, I received an email with a link to this ACLU comment on a possible Arpaio pardon.  The comment closes with these notably sharp statements:

ACLU Deputy Legal Director Cecillia Wang had this reaction to media reports that Trump may pardon Arpaio: “President Trump would be literally pardoning Joe Arpaio’s flagrant violation of federal court orders that prohibited the illegal detention of Latinos.  He would undo a conviction secured by his own career attorneys at the Justice Department.  Make no mistake: This would be an official presidential endorsement of racism.”

August 14, 2017 in Celebrity sentencings, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8)

Imaginging how the internet "could put an end to prisons as we know them"

Gosh knows the modern digital revolution and the internet has brought the demise of a number of brick-and-mortar institutions ranging from music stores to travel agencies.  But this new article from Australia makes the case that the internet could bring an end to brick-and-mortar prisons.  The intriguing piece is headlined "Internet of incarceration: How AI could put an end to prisons as we know them," and here is how it gets started:

Dan Hunter is a prison guard's worst nightmare. But he's not a hardened crim.  As dean of Swinburne University's Law School, he's working to have most wardens replaced by a system of advanced artificial intelligence connected to a network of high-tech sensors.

Called the Technological Incarceration Project, the idea is to make not so much an internet of things as an internet of incarceration. Professor Hunter's team is researching an advanced form of home detention, using artificial intelligence, machine-learning algorithms and lightweight electronic sensors to monitor convicted offenders on a 24-hour basis.

"If we had to use human beings, the cost of monitoring every single type of interaction would be prohibitively expensive," he says. But new technologies are now capable of providing automated surveillance at a fraction of that expense, he says, using equipment that's already in existence or under development.

Under his team's proposal, offenders would be fitted with an electronic bracelet or anklet capable of delivering an incapacitating shock if an algorithm detects that a new crime or violation is about to be committed. That assessment would be made by a combination of biometric factors, such as voice recognition and facial analysis.

His vision is futuristic, but it isn't simply technological fetishism. He's convinced such automation will make for a better society. Under his proposal, the main costs of incarceration are borne by the offender and his or her family, not by the state, while law-breakers are isolated from each other, decreasing the risk of offenders becoming hardened by the system.

While technology has transformed our society, the jails of the 21st century operate pretty much as they did 100 years ago. "We are at the point now where we can fundamentally rethink the way in which we incarcerate people," Professor Hunter says. "If what we want to do is we want to keep the community safe, if we want to have the greatest possibility of rehabilitation of the offender and if we want to save money, then there are alternatives to prison that actually make a lot of sense."

Readers may recall this prior post flagging this recent paper authored by Dean Hunter and colleagues titled "Technological Incarceration and the End of the Prison Crisis"

August 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Notable application of DOJ spending restriction to halt federal sentencing of convicted marijuana offenders

This new Los Angeles Times article, provocatively headlined "The feds seized guns, gold and 320 pot plants. So why did a judge rule they can't pursue marijuana charges?," reports on a notable federal District Judge ruling from last week.  Here are the basics:

When agents from the Drug Enforcement Administration raided a remote farm in Humboldt County five years ago, they found plenty to incriminate the owners, Anthony Pisarski and Sonny Moore. More than 300 marijuana plants were growing in a pair of greenhouses. Agents found guns in a house on the sprawling property and about $225,000 in cash, much of it bundled in vacuum-sealed pouches, hidden in a garage and some pickup trucks. Later searches uncovered another large stash of cash, along with bars of gold and silver.

Pisarski and Moore ultimately pleaded guilty to a federal charge of conspiring to manufacture and sell marijuana.

But in a ruling believed to be the first of its kind, a judge last week put a stop to the case before the men were sentenced to prison. The judge found he had no choice but to call off prosecutors in light of an unusual budget rule in Congress that forbids federal law enforcement from interfering with states where medical marijuana is legal.

The decision by U.S. District Judge Richard Seeborg in San Francisco illustrates for the first time what could be a serious legal hurdle if U.S. Atty. Gen. Jeff Sessions, a fierce marijuana opponent, decides to crack down on medical marijuana, which remains illegal under federal law. While it remains to be seen how many other marijuana cases will be closed down like the one in San Francisco, supporters of states’ authority to legalize pot hailed the decision and said they hoped it served as a check on Sessions.

“This is a signal that hopefully will go totally across the country — that federal prosecutors should stop wasting their time and start focusing on real criminals,” U.S. Rep. Dana Rohrabacher (R-Costa Mesa), who has led a legislative campaign to rein in the Justice Department on medical marijuana cases, said of the judge’s order.  “My conservative friends like Jeff [Sessions] need to look themselves in the mirror and say, ‘We don’t like these people smoking marijuana, but they do have a right to do it because it’s their lives, not the government’s.’ ”

The ruling hinged on a short amendment written by Rohrabacher and then-U.S. Rep. Sam Farr (D-Carmel), who recently retired, to an appropriations bill in late 2014 that authorized government spending for the upcoming year.  Though brief, the amendment was meant to have a significant effect: It forbade the Department of Justice from using funds in a way that obstructed a state “from implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.” Congress has renewed the prohibition each year since.

Until now, U.S. district judges had rejected attempts by defendants to argue that the amendment applied to their cases.  In a case in Fresno involving a man convicted of illegally operating a marijuana cooperative, for example, a judge found the man had violated California’s medical marijuana law by selling marijuana for profit and therefore was fair game for federal prosecution....

For Pisarski and Moore, the budget amendment offered a last-minute lifeline.  The amendment was added when the pair were only days away from being sentenced. Prosecutors were asking the judge to send the men to prison for nearly three years.  The pair owned 242 remote acres of property that included a house, a warehouse and two greenhouses where agents discovered 320 growing marijuana plants, according to court records filed by the U.S. attorney’s office . Federal agents found a loaded firearm in both of their bedrooms.  Among the evidence seized was $189,000 in cash that had been welded inside the lining of a trailer.

Pisarski’s attorney, Ronald Richards, made an emergency request to postpone the sentencing in order to see if the amendment would be signed into law.  The judge agreed, and when the spending rule, which passed with broad bipartisan support, became law, Richards said he sent emails to public defenders and other defense attorneys across the country to alert them to the new legal avenue the amendment opened in marijuana cases....

Justice Department officials, however, balked at such an expansive interpretation of the amendment. They acknowledged the spending ban prohibited them from meddling in the affairs of state officials but did not accept that it prevented them from going after producers and sellers like Pisarski and Moore. Richards and Moore’s attorney sought to push back the sentencing over and over as the legal landscape on marijuana cases continued to shift.

Last year, the 9th Circuit Court of Appeals ruled that defendants in California and other states in the court’s jurisdiction with medical marijuana laws were entitled to a hearing to determine whether they had been in compliance with those state laws. If defendants could demonstrate that they had abided by state rules, prosecutors were to be blocked from pursuing federal drug charges, the court said.

Last month, Seeborg held a hearing for Pisarski and Moore. Their attorneys argued the marijuana plants the men grew were earmarked for two nonprofit collectives that distributed it to its members in line with California regulations. In a court filing, Pisarski told the judge he needed guns at the house to protect himself against “mountain lions, pigs with big teeth and bears” when he was outside at night. The government countered that the men had not proved that all the members of the collective were legitimate and that the guns, cash and gold indicated the men planned to sell the pot for profit.

On Tuesday, Seeborg sided with Pisarski and Moore, saying the men were under no burden to verify that members of the collectives were qualified to belong. He acknowledged that the money and weapons could be signs of a criminal operation, but said they were “equally consistent with the operation of a rural, cash-intensive enterprise.” In his ruling, Seeborg echoed the 9th Circuit when he emphasized his decision was valid only as long as Congress continues to renew the spending restrictions on the Justice Department.

Having admitted their guilt but not been sentenced, Pisarski and Moore find themselves in an odd legal limbo. Prosecutors in their case did not respond to requests for comment, leaving it unknown whether the U.S. attorney in the Northern District of California will ask for the case to be dismissed or try to wait to see if Congress does an about-face.

I cannot yet seem to find a copy of Judge Seeborg's notable ruling anywhere on-line as of this writing. I will be sure to post it if I can get a copy/link sent my way.

UPDATE:  A helpful reader sent me a copy of Judge Seeborg's 10-page ruling in US v. Pisarski, and it can be downloaded via this link:

  Download Seeborg spending rider ruling

August 14, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (10)