Tuesday, April 21, 2015

"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"

The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday.  The piece is authored by Leah Litman, and here is the abstract:

This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief.  In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause.  It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.

April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Lots of inside DOJ news emerging from inside the Beltway

My sentencing students often get tired of hearing me talk about the importance of WHO sentences and who sets sentencing policies, but these two new news stories out of Washington DC are all about personnel issues in the US Department of Justice:

April 21, 2015 in Who Sentences? | Permalink | Comments (0) | TrackBack (0)

"What's the Matter with Cumulative Error?: Killing a Federal Claim in Order to Save It"

The title of this post is the title of this notable new paper concerning federal habeas review authored by Ryan Semerad now available via SSRN. (For the record, Ryan happens to be one of (many) wonderful students in my sentencing class this spring, but I am pretty sure he hd finished most of this article before I started polluting his mind.). Here is the abstract:

This Note investigates the inefficacy of cumulative error claims raised by state death row inmates in their federal habeas corpus petitions. It surveys modern federal habeas precedents giving rise to cumulative error claims, investigates the various circuit standards used in evaluating these claims, and concludes that these claims fail due to the confluence of vague historical precedent and increasingly restrictive federal habeas law. It recommends constructing a mandatory pre-federal habeas review procedure wherein claims of cumulative error are evaluated on the merits by all the stakeholders in the state criminal justice systems in order to ensure the integrity of that system and the reliability of criminal convictions and sentences. 

April 21, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

By 6-3 vote, SCOTUS finds Fourth Amendment violation from stop at start of federal drug prosecution

The US Supreme Court handed down a notable Fourth Amendment ruling this morning in Rodriguez v. US, No. 13-9972 (S. Ct. April 21, 2015) (available here).  Though not a sentencing case, I cannot help but wonder if some votes on the case were somewhat influenced by the federal drug war setting that raised the import and stakes for the Fourth Amendment issue brought to the Justices.  Here, for starters, is the start of this Court's opinion per Justice Ginsburg:

In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitu­tion’s shield against unreasonable seizures.  A seizure justified only by a police-observed traffic violation, there­ fore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407.  The Court so recog­nized in Caballes, and we adhere to the line drawn in that decision.

Notably, this federal criminal case started with a seemingly routine traffic stop based on a Nebraska driver veering to avoid a pothole and ended with a federal drug prosecution requiring the defendant to serve a mandatory minimum 5-year federal prison term for possessing 50 or more grams of meth with intent to distribute. I cannot help but think these contextual realities played some (perhaps unconscious) role in a majority of the Justices concluding that the extension of the traffic stop was unconstitutional with this kind of statement: "Highway and officer safety are interests different in kind from the Government’s endeavor to de­tect crime in general or drug trafficking in particular."

Here is how the primary dissent by Justice Thomas in Rodriguez gets started:

Ten years ago, we explained that “conducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reason- able manner.” Illinois v. Caballes, 543 U. S. 405, 408 (2005).  The only question here is whether an officer executed a stop in a reasonable manner when he waited to conduct a dog sniff until after he had given the driver a written warning and a backup unit had arrived, bringing the overall duration of the stop to 29 minutes.  Because the stop was reasonably executed, no Fourth Amendment violation occurred.  The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices.  It was also unnecessary, as the officer possessed reasonable suspicion to continue to hold the driver to conduct the dog sniff.  I respectfully dissent.

Here is how a distinct dissent by Justice Alito in Rodriguez gets started:

This is an unnecessary, impractical, and arbitrary decision.  It addresses a purely hypothetical question: whether the traffic stop in this case would be unreasonable if the police officer, prior to leading a drug-sniffing dog around the exterior of petitioner’s car, did not already have reasonable suspicion that the car contained drugs.  In fact, however, the police officer did have reasonable suspicion, and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue.

April 21, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack (0)

Monday, April 20, 2015

Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?

As highlighted by this new AP article, headlined "Bombing trial enters penalty phase amid life or death debate,"the real legal intrigue surrounding the capital trial of the Boston Marathon bombing is about to begin:

The guilt phase of Boston Marathon bomber Dzhokhar Tsarnaev's trial was considered a slam dunk for prosecutors, especially after his lawyers bluntly admitted during opening statements that he participated in the deadly 2013 attack. But the outcome of the next phase of the trial is much more difficult to predict. The same jury must decide whether Tsarnaev, 21, should be put to death or spend the rest of his life in prison. The penalty phase begins Tuesday in U.S. District Court.

Debate over whether Tsarnaev should get the death penalty intensified recently after the parents of Martin Richard, an 8-year-old boy who was killed in the bombings, urged federal authorities to consider taking death off the table in exchange for Tsarnaev spending the rest of his life in prison and giving up his rights to appeal....

A married couple who lost limbs in the attack also asked the U.S. Justice Department not to pursue the death penalty. "If there is anyone who deserves the ultimate punishment, it is the defendant. However, we must overcome the impulse for vengeance," Jessica Kensky and Patrick Downes said in a statement to the Globe Sunday....

Others have said they favor the death penalty for Tsarnaev. Liz Norden, whose two adult sons each lost a leg in the bombings, said nothing short of execution is warranted. "He destroyed so many families that day," she said. "I want the ultimate justice."

Legal experts differ on whether the pleas from victims will persuade the federal government to drop its bid for the death penalty. "If the Justice Department seriously takes into consideration the feelings of the family members in this case, they have every justification to take death off the table," said Robert Dunham, executive director of the Death Penalty Information Center.

But New York Law School professor Robert Blecker said the Justice Department has to consider the larger question of denouncing terrorism. "They'll go forward with it. It will not change the decision. Denunciation is a legitimate purpose," Blecker said....

During the penalty phase, the defense will continue to portray Tsarnaev's brother, Tamerlan, 26, as a domineering follower of radical Islam who convinced his then 19-year-old brother that America had to be punished for its wars in Muslim countries. Tamerlan died four days after the bombings when he was shot during a firefight with police and run over by Dzhokhar during a getaway attempt.

Prosecutors are expected to emphasize the brutality of the bombings by calling more survivors to testify. During the first phase, several survivors testified about devastating injuries, including lost limbs....

If even one juror votes against the death penalty, Tsarnaev will get a life sentence.

April 20, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack (0)

New Sentencing Commission data reveal within-guideline sentences now rarer than non-guideline sentences

The US Sentencing Commission today released on this webpage its latest, greatest federal sentencing data for all of Fiscal Year 2014 and the first quarter of FY 2015.  Here are links to these two new data runs:

First Quarter FY15 Quarterly Sentencing Update (Published April 20, 2015)

Final FY14 Quarterly Sentencing Update (Published April 20, 2015)

I thought Fiscal Year 2014 was likely to be a quirky year for federal sentencing data, primarily because (1) in January 2014, the Commission indicated it probably would reduce the drug sentencing guidelines across the board, and (2) in March 2014, the Attorney General indicated that he supported having the new-reduced-guidelines informally applied in on-going drug cases even though they would not become official until November 2014.   Because of this big pending guideline change to a big chunk of federal sentencing cases, I was not surprised that throughout much of Fiscal Year 2014, a majority of sentences did not come within calculated guideline ranges. 

Sure enough, the complete USSC data now show that, while FY 2013 had 51.2% of all cases sentenced within the guidelines, in FY 2014 that number dropped significantly to 46%.  In other words, less than half of all federal sentences throughout FY 2014 were within-guideline sentences, and it seemed likely that the big change in the overall data from just the prior year largely reflected a drug-sentencing-guideline transition dynamic.

But my view on the overall data story has changed somewhat now that the Commission has released its First Quarter FY15 Quarterly Sentencing Update.   I am pretty sure (though not certain) that most drug sentences imposed during the first quarter of FY15 should involve the new-and-improved drug guidelines and thus the transition to the new guidelines should not dramatically distort the overall FY 2015 data (although there is a one-month difference between when the USSC fiscal year and its new-guideline year gets going).  But, fascinatingly, the new data reveal that, even with the new guidelines in place, still less than half of all sentences at the start of FY 2015 were within-guideline sentences: specifically, only 46.5% of all sentences in the first quarter of FY 2015 were within-guideline sentences.

For various reasons, this too-brief discussion of USSC data perhaps only highlights how hard it is for me in this space to effectively account for and explain basic federal sentencing data.  But, as the title of this post suggests, I think the latest data run now provides reason to believe hat a typical federal judge in a typical case (whatever than means) is now typically a bit more likely to impose a non-guideline sentence rather than a within guideline sentence.

April 20, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Local Cook County Prosecutors To Focus On Treatment Over Prison For Small-Time Drug Cases"

The title of this post is the headline of this notable local news story emerging today from Chicago.  Here are the details:

Cook County prosecutors were set to announce major changes in how they prosecute low-level drug cases, including sending more nonviolent drug offenders to treatment, rather than prison.

State’s Attorney Anita Alvarez was scheduled to announce reforms to how her office handles minor drug cases, including dismissal of all future misdemeanor marijuana cases. The move also is expected to cover how prosecutors handle cases involving small amounts of other drugs; including ecstasy, cocaine, and heroin. The program would be focused on defendants with less than three arrests or citations for misdemeanor drug charges.

The announcement comes on April 20, also known as “4-20” day, in reference to a term used by marijuana smokers as slang for “lighting up,” but officials said the timing of the announcement and the date were only coincidental.

Alvarez was expected to detail the new drug prosecution strategy Monday morning, as part of an effort to keep nonviolent repeat drug offenders out of jail, and instead treat such cases as a public health issue. A spokeswoman for Alvarez’s office said, defendants currently facing a Class 4 felony drug possession charge could be sentenced to up to 3 years in prison, and a $25,000 fine. Her proposed changes to drug prosecutions would mean those same defendants would be sent to treatment programs instead of prison.

The move could free up prosecutor and law enforcement resources. In Cook County, such Class 4 felony drug cases made up 25 percent of all felony prosecutions last year. It was not immediately clear when the reforms would go into effect, but the changes would not affect pending cases already in the system.

April 20, 2015 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Intricate federal criminal law statutory questions on SCOTUS docket this week

Most casual Supreme Court fans are surely looking ahead to next week's oral arguments in the same-sex-marriage and lethal injection cases.  But this week brings two other exciting and intricate cases before SCOTUS for federal criminal justice fans, as these SCOTUSblog brief summarizes reveal: 

Johnson v. US, No. 13-7120: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act [and whether ACCA's residual clause is unconstitutionally vague].

McFadden v. US, No. 14-378: Whether, to convict a defendant of distribution of a controlled substance analogue -- a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) -- the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

Regular readers know that the Johnson case is getting a second argument this week after SCOTUS asked the parties to brief the constitutional issue it raised on its own after the first oral argument. And helpful Rory Little via SCOTUSblog provides these informative new posts with more on what can be expected in this week's arguments:

In addition, Garrett Epps has this extended new Atlantic piece discussing both Johnson and McFadden headlined "Too Vague to Be Constitutional: Two indecipherable criminal laws passed in the 1980s now face scrutiny at the Supreme Court."

April 20, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

Sunday, April 19, 2015

Highlighting the mental illness underbelly of modern incarceration

The front-page of my own Columbus Dispatch today has this effective article about my state's prison population headlined "Ohio’s prisons hold 10 times as many mentally ill as its psychiatric hospitals do." Here are excerpts:

The largest provider of mental-health services in Ohio is easy to find: Look no farther than the nearest state prison. More than 10,500 people in Ohio prisons, more than 1 in 5, have a diagnosed mental illness. And 1 in 12 has a serious and persistent condition such as schizophrenia or bipolar disorder. There are 10 times as many mentally ill inmates as there are patients in Ohio’s six psychiatric hospitals.

The numbers are higher for females: 41 percent of 2,510 inmates at the Ohio Reformatory for Women in Marysville are on the mental-health caseload.

Terry Russell, executive director of the National Alliance on Mental Illness Ohio, said these alarming figures are no accident. “These people are generally not in prison because they are criminals,” he said. “Most people that end up there are the most severely mentally disabled who get into trouble because they are untreated or resistant to treatment. Families many times desert them or don’t know how to help. They end up in the street, which puts them in harm’s way. In most cases, law enforcement gets involved.”...

Taxpayers pay the hefty tab for the 10,596 mentally ill inmates. The Ohio Department of Rehabilitation and Correction spent $41.7 million on mental-health care and medications in fiscal year 2014 and is projected to spend $49 million this year. That is on top of the $22,836 annual overall cost per inmate.

Gary Mohr signed up to run state prisons, not mental-health facilities, but he’s doing both. Cognizant of the issues, and the costs related to mentally ill inmates, Mohr opened residential treatment units at four prisons, including the Marysville facility. He is opening a fifth at the Grafton Correctional Institution. And he is hiring 27 more mental-health staffers and adding beds at the Allen Oakwood Correctional Facility in Lima, where seriously mentally inmates are housed.

Mohr said he is relaxing the long-standing policy of segregating mentally ill inmates with behavioral problems. “We are coming up with a policy where we do not keep inmates who are mentally ill in long-term isolation. Segregation is our default sanction, but our goal is to ensure that the behavior that got them there doesn’t happen again. This is going to be a major reform in Ohio and across the U.S."

Mohr also is pushing for greater support and more funding for mental-health courts, currently in just eight of 88 counties, to divert mentally ill people to less-costly, more-effective programs. “If these courts become familiar with the issues and can find suitable placements, particularly with Medicaid, we ought to be doing that instead of just launching them into prison.”

Dr. Kathryn Burns, chief psychiatrist in the prison system, said people with mental illnesses typically get arrested more often because their untreated behavior brings them into conflict with law enforcement. In the legal system, they have fewer chances of getting community treatment or probation because judges have limited options. The offenders have burned bridges with family members and in the community. Prison is often the last resort....

The expansion of the federal Medicaid program by Gov. John Kasich’s administration is making a big difference.... While Medicaid can’t be used to treat inmates in prison, it applies once they are discharged. The state has signed up all female prisoners for Medicaid and is working to enroll the men.

While there are encouraging developments, NAMI Director Russell remains troubled that prisons have become asylums for the mentally ill. The organization’s statewide conference on Friday and Saturday at the Hyatt Regency will focus on “criminalization” of the mentally ill. “We just have no place for those individuals who are ill enough to be in harm’s way but are not ill enough to end up in a hospital,” he said. “Criminalizing the mentally ill just makes no sense from a treatment and economic standpoint.”

April 19, 2015 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (2) | TrackBack (0)

After mistrial and plea deal, prominent accused child molestor in Delaware gets probation sentence

As noted in this recent post, there has been considerable controversy in California over a state judge earlier this month sentencing a teenager who pleaded guilty to a single child sex offense to "only" 10 years of imprisonment, a term well below the applicable 25-year mandatory minimum statutory sentencing term.  (Bill Otis here at Crime & Consequences also complained about the judge's sentencing decision California case).  With that recent case in mind, a notable contrast in context and outcomes emerges from this child sex offense story from Delaware.  Here are the dynamic details (with a few bits of the story highlighted for subsequent comment):

Eric Bodenweiser — once a standardbearer of the Sussex County tea party, described by voter after voter in 2012 as a trustworthy Christian man — was sentenced to one year of probation Friday for committing two acts of unlawful sexual contact against a young boy in the 1980s.  A judge sentenced Bodenweiser to a year in prison, but suspended it in lieu of the probation term.  If Bodenweiser obeys the conditions of probation, he will not return to confinement. He must also register as a Tier 1 sex offender....

The sentence for Bodenweiser, 56, of Georgetown closes a scandalous chapter in Sussex politics.  But for his indictment on more than 100 sex offenses in October 2012, Bodenweiser would likely be a state senator today, and not a sex offender.  He had handily beaten an incumbent Republican senator in the September 2012 GOP primary in a district Democrats weren't likely to win.  Days before his arrest, he abandoned his campaign.

Bodenweiser pleaded not guilty, and after a weeks-long trial in 2014, a jury was unable to reach a unanimous verdict on any one of 15 counts prosecutors brought in front of them.  After the mistrial, Bodenweiser convinced Bradley any fair retrial would have to happen outside Sussex County because of the case's intense publicity and news coverage.

Prosecutors struggled, meanwhile, to keep the victim out of trouble.  The man, who was in middle school when Bodenweiser was in his early 20s, lost his temper more than once on the stand under caustic questioning from Bodenweiser's attorney, Joe Hurley.  And after the first trial ended, he was charged by Delaware State Police with a gun offense.

But before a second trial began, Bodenweiser accepted a plea offer from prosecutors on March 18, pleading no contest to two less serious crimes with the knowledge it meant a guilty verdict.

The victim, now in his late 30s, testified that repeated sexual advances and assaults by Bodenweiser affected him deeply.  "I couldn't understand why it kept happening and why he wanted me to do these things," the man said last year in court.  "I thought something was wrong with me." He came forward after years of silence, he testified, because he was alarmed Bodenweiser was about to win the election.

At his trial, Bodenweiser was charged with but ultimately not convicted of raping the victim, forcing him to take part in complete sex acts.  That, though, is not what he pleaded no contest to in March; his pleas were for the lesser offenses of unlawful sexual contact, of "touching the genitalia" of the boy, as prosecutor John Donahue said in court.

Bodenweiser took the stand at trial to deny exposing the boy to anything more salacious than an occasional glimpse of pornography.  His pastor, though, testified that in the fall of 2012, Bodenweiser told him "there's something there, there," in the context of discussing the accusations. Hurley fought hard, court records show, to have the pastor's testimony excluded from trial.

In my discussion of the California sex offense sentencing case over at Crime & Consequences, I stressed that I am generally more concerned about prosecutorial discretion than judicial discretion because of how opaque and consequential prosecutorial discretion can be.  In this case, I cannot help but wonder if politics played a role in the timing of the prosecutorial decision to indict a up-and-coming outsider politician for over 100 sex offenses that allegedly took place 25 years earlier.  Notably, the defendant had his political career ruined just by the prosecutorial decision to indict on so many salacious charges.

Despite his career being ruined just by the charges, the defendant here exercised his right to require the prosecution to prove up its case in a public trial.  Once a public open trial was required, prosecutors apparently decided only to seek to prove up 15 of the 100+ alleged offenses, which makes me further question the evidentiary basis for the 100+ charges in the initial indictment.  And even with only its 15 strongest charges now in play, the prosecutors could not convince a jury that the defendant as guilty of a single charged offense.

Thereafter, perhaps because prosecutors finally realized how weak their case was now that it was subject to public review and scrutiny, prosecutors decided they could be content with the defendant getting sentenced to probation for what they previously alleged was 100+ sex offenders.  But still eager to have this defendant forever officially branded a sex offender, the prosecutors sought to cut the defendant a deal he could apparently thought unwise to refuse.

I am not asserting that state prosecutors here did anything wrong in the way they handled this notable child sex offense case. What I am saying is that I would like a whole lot more information about how and why state prosecutors did what they did.  But, to my knowledge, there are no ready means for me or anyone else in the general public to get more information or understanding about what may have (and have not) influences prosecutorial decision-making in this matter.

April 19, 2015 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack (0)

Saturday, April 18, 2015

Oklahoma now able to use nitrogen gas as execution method if needed

As reported in this CNN piece, headlined "Oklahoma approves nitrogen gas as backup execution method," the Sooner State is now officially able to use a novel execution method sooner or later. Here are the details:

Oklahoma Gov. Mary Fallin signed a bill on Friday that would allow the state to perform executions with nitrogen gas if lethal injection is ruled unconstitutional or becomes unavailable. Nitrogen causes a quick loss of consciousness and then death from lack of oxygen, Fallin's office said in a press release.

CNN affiliate KFOR says it's never been used in an execution in the United States. "The person will become unconscious within eight to 10 seconds and death a few minutes later. In other words, a humane, quick and painless death," said Rep. Mike Christian, one of the bill's authors, according to KFOR....

Oklahoma's executions have been put on hold while the U.S. Supreme Court reviews its use of lethal injections. Last year, the state came under scrutiny when it took 43 minutes to kill convicted killer Clayton Lockett.

Fallin reaffirmed her support for the death penalty. "Oklahoma executes murderers whose crimes are especially heinous," Fallin said. "I support that policy, and I believe capital punishment must be performed effectively and without cruelty. The bill I signed today gives the state of Oklahoma another death penalty option that meets that standard." The governor's office said the first alternative for execution is lethal injection, followed by nitrogen gas, the electric chair and the firing squad.

A few recent and older related posts:

April 18, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack (0)

"Why We Let Prison Rape Go On"

The title of this post is the headline of this notable new commentary in today's New York Times authored by Chandra Bozelko. Here are excerpts:

It’s been called “America’s most ‘open’ secret”: According to the Bureau of Justice Statistics, around 80,000 women and men a year are sexually abused in American correctional facilities. That number is almost certainly subject to underreporting, through shame or a victim’s fear of retaliation. Overall, only 35 percent of rapes and sexual assaults were reported to the police in 2010, and the rate of reporting in prisons is undoubtedly lower still.

To tackle the problem, Congress passed the Prison Rape Elimination Act, signed into law by President George W. Bush in 2003. The way to eliminate sexual assault, lawmakers determined, was to make Department of Justice funding for correctional facilities conditional on states’ adoption of zero-tolerance policies toward sexual abuse of inmates....

But only two states — New Hampshire and New Jersey — have fully complied with the act. Forty-seven states and territories have promised that they will do so. Using Justice Department data, the American Civil Liberties Union estimated that from 2003 to 2012, when the law’s standards were finalized, nearly two million inmates were sexually assaulted.

Six Republican governors have neglected or refused to comply, complaining of cost and other factors. Rick Perry, then the governor of Texas, wrote to the Justice Department last year stating that 40 percent of the correctional officers in male facilities in Texas were women, so that “cross-gender viewing” (like witnessing inmates in the shower, which contravenes the legal guidelines) could not be avoided. The mandated measures, he said, would levy “an unacceptable cost” on Texas, which has one of the highest rates of prison sexual assault....

Ultimately, prisons protect rape culture to protect themselves. According to the Bureau of Justice Statistics, about half of prison sexual assault complaints in 2011 were filed against staff. (These reports weren’t all claims of forcible rape; it is considered statutory sexual assault for a guard to have sexual contact with an inmate.)

I was an inmate for six years in Connecticut after being convicted of identity fraud, among other charges. From what I saw, the same small group of guards preyed on inmates again and again, yet never faced discipline. They were protected by prison guard unions, one of the strongest forces in American labor....

The Justice Department estimates that the total bill to society for prison rape and sexual abuse is as high as $51.9 billion per year, including the costs of victims’ compensation and increased recidivism. If states refuse to implement the law when the fiscal benefit is so obvious, something larger is at stake.

According to Allen Beck, senior statistical adviser at the Bureau of Justice Statistics, “institutional culture and facility leadership may be key factors in determining the level of victimization.” Rape persists, in other words, because it’s the cultural wallpaper of American correctional facilities. We preserve the abuse because we’re down with perps getting punished in the worst ways.

Compliance does not even cost that much. The Justice Department estimates that full nationwide compliance would cost $468.5 million per year, through 2026. Even that much is less than 1 percent of states’ spending on corrections. Putting aside the cruelty and pain inflicted, prison rape costs far more than the implementation of the law designed to stop it.

April 18, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (7) | TrackBack (0)

Friday, April 17, 2015

Parent of Boston bombers' young victims: "To end the anguish, drop the death penalty"

Richard-right1The title of this post is drawn from the headline of this remarkable new Boston Globe commentary authored by Bill and Denise Richard, parents of 8-year-old Martin who was one of three people killed in the April 2013 explosions at the marathon's finish line. The full piece is a must read, and I will quote it all here to help ensure these victims' voices get heard in full:

The past two years have been the most trying of our lives. Our family has grieved, buried our young son, battled injuries, and endured numerous surgeries — all while trying to rebuild lives that will never be the same. We sat in the courtroom, day after day, bearing witness to overwhelming evidence that included graphic video and photographs, replicated bombs, and even the clothes our son wore his last day alive. We are eternally grateful for the courage and life-saving measures of first responders, Boston Police, the Boston Fire Department, and good Samaritans on April 15, 2013. We also thank the FBI and other law enforcement agencies, the Department of Justice, and the Massachusetts US Attorney’s Office for leaving no stone unturned during the investigation and trial.

But now that the tireless and committed prosecution team has ensured that justice will be served, we urge the Department of Justice to bring the case to a close. We are in favor of and would support the Department of Justice in taking the death penalty off the table in exchange for the defendant spending the rest of his life in prison without any possibility of release and waiving all of his rights to appeal.

We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.

For us, the story of Marathon Monday 2013 should not be defined by the actions or beliefs of the defendant, but by the resiliency of the human spirit and the rallying cries of this great city. We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.

This is a deeply personal issue and we can speak only for ourselves. However, it is clear that peace of mind was taken not just from us, but from all Americans. We honor those who were lost and wish continued strength for all those who were injured. We believe that now is the time to turn the page, end the anguish, and look toward a better future — for us, for Boston, and for the country.

April 17, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

US Sentencing Commission releases data report on illegal reentry offenses

Late yesterday, the US Sentencing Commission released this 30-page report, titled "Illegal Reentry Offenses," which provides a details statistical accounting of the composition and sentencing of a huge chuck of cases in the federal criminal justice system. Here is how this report gets started:

This report analyzes data collected by the United States Sentencing Commission concerning cases in which offenders are sentenced under USSG §2L1.2 — commonly called “illegal reentry” cases.  Such cases are a significant portion of all federal cases in which offenders are sentenced under the United States Sentencing Guidelines.  In fiscal year 2013, for instance, illegal reentry cases constituted 26 percent of all such cases.  As part of its ongoing review of the guidelines, including the immigration guidelines, the Commission examined illegal reentry cases from fiscal year 2013, including offenders’ criminal histories, number of prior deportations, and personal characteristics.

Part I of this report summarizes the relevant statutory and guideline provisions.  Part II provides general information about illegal reentry cases based on the Commission’s annual datafiles.  Part III presents the findings of the Commission’s in-depth analysis of a representative sample of illegal reentry cases.  Part IV presents key findings.

Among the key findings from analysis of fiscal year 2013 data: (1) the average sentence for illegal reentry offenders was 18 months; (2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions); (3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%); (4) significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted; (5) the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction; (6) 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States; (7) 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions; and (8) most illegal reentry offenders were apprehended by immigration officials at or near the border.

In 2013, there were approximately 11 million non-citizens illegally present in the United States, and the federal government conducted 368,644 deportations.  The information contained in this report does not address the larger group of non-citizens illegally present in the United States and, instead, solely concerns the 18,498 illegal reentry offenders sentenced under §2L1.2 of the United States Sentencing Guidelines in fiscal year 2013. Therefore, the information should not be interpreted as representative of the characteristics of illegal immigrants generally.

April 17, 2015 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

Latest Pew survey data on death penalty opinions

4-16-2015_01This new Pew Research Center report carries the headline "Less Support for Death Penalty, Especially Among Democrats: Supporters, Opponents See Risk of Executing the Innocent." Here are some specifics from the report:

A majority of Americans favor the death penalty for those convicted of murder, but support for the death penalty is as low as it has been in the past 40 years. A new Pew Research Center survey finds 56% favor the death penalty for people convicted of murder, while 38% are opposed.

The share supporting the death penalty has declined six percentage points, from 62%, since 2011. Throughout much of the 1980s and 90s, support for the death penalty often surpassed 70%. In a 1996 survey, 78% favored the death penalty, while just 18% were opposed.

Much of the decline in support over the past two decades has come among Democrats. Currently, just 40% of Democrats favor the death penalty, while 56% are opposed. In 1996, Democrats favored capital punishment by a wide margin (71% to 25%). There has been much less change in opinions among Republicans: 77% favor the death penalty, down from 87% in 1996. The share of independents who favor the death penalty has fallen 22 points over this period, from 79% to 57%.

The latest national survey by the Pew Research Center, conducted Mar. 25-29 among 1,500 adults, finds widespread doubts about how the death penalty is applied and whether it deters serious crime. Yet a majority (63%) says that when someone commits a crime like murder, the death penalty is morally justified; just 31% say it is morally wrong, even in cases of murder.

At the same time, 71% of Americans say there is some risk that an innocent person will be put to death. Only about a quarter (26%) say there are adequate safeguards in place to make sure that does not happen. About six-in-ten (61%) say the death penalty does not deter people from committing serious crimes; 35% say it does deter serious crime.

And about half (52%) say that minorities are more likely than whites to be sentenced to death for similar crimes; fewer (41%) think that whites and minorities are equally likely to be sentenced for similar .

The survey also finds that Americans are relatively unaware about whether the number of death penalty executions taking place in the U.S. has changed in recent years....

The share of women who favor the death penalty has fallen 10 points since 2011, while men’s views have shown virtually no change. Men are now 15 points more likely than women to favor the death penalty (64% vs. 49%). Four years ago, the gender difference was much more modest (65% of men favored the death penalty, as did 59% of women)....

Support for the death penalty has edged down among whites, blacks and Hispanics since 2011, but wide racial differences persist. About six-in-ten whites (63%) favor the death penalty, compared with 34% of blacks and 45% of Hispanics.

Age differences in views of the death penalty continue to be modest. About half (51%) of those under 30 favor the death penalty, as do 57% of those 30 to 49, 61% of those 50 to 64 and 54% of those 65 and older.

Among religious groups, sizable majorities of white evangelical Protestants (71%), white mainline Protestants (66%) and white Catholics (63%) favor the death penalty. But those who are religiously unaffiliated are divided (48% favor, 45% oppose). In 2011, the religiously unaffiliated supported the death penalty by a wide margin (57% to 36%).

As with overall views of the death penalty, there are demographic and partisan differences in attitudes about capital punishment. The sharpest disagreements are in views of whether minorities are more likely than whites to face the death penalty.

Fully 77% of blacks say minorities are more likely than whites to receive the death penalty for similar crimes. Whites are evenly divided: 46% say minorities are disproportionately sentenced to death, while an identical percentage sees no racial disparities. More than twice as many Democrats (70%) as Republicans (31%) say minorities are more likely than whites to receive the death penalty for similar crimes.

There also are educational differences in these opinions: 60% of college graduates say minorities are more apt to receive the death penalty than are whites, as do 55% of those with some college experience. But among those with no more than a high school education, 44% say minorities are disproportionately sentenced to death; 48% say whites and minorities are equally likely to receive the death penalty for similar crimes.

April 16, 2015 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Distinct comments on marijuana policy from Prez Obama and one wanna-be successor

Two notable new stories about notable new marijuana comments made by notable chief executives caught my eye this morning.  Here are the headlines, links and the basics:

In a CNN special to be aired on Sunday, not only will President Barack Obama state his full support of medical marijuana, he’ll also advocate for alternative models of drug abuse treatment which don’t involve incarceration.  The television special, called “Weed 3,” features CNN’s chief medical correspondent Sanjay Gupta, a neurosurgeon who came to support medical marijuana after reviewing the evidence. This time around, he’ll be delving into the politics of medical marijuana research and interviewing President Barack Obama, according to an email obtained by The Daily Caller News Foundation.

Even within the GOP, which remains skeptical of liberalization on drugs, a majority thinks the feds should defer to the states. You can indeed be anti-marijuana and pro-federalism. Screw that, says Christie.  When it comes to deciding whether marijuana’s too dangerous for the citizens of a state to sell, he’ll happily trump your state legislature and local PD. And to think, they call him a big-government Republican.

It is both notable and telling, of course, that a President often accused of trampling state and individual rights is here saying he respects on-going state reforms, while a state Governor representing from a party that claims it favors a smaller federal Government is asserting he wants to make sure states do not even try to forge a different part with respect to the war on drugs. And this is why I find marijuana law, policy and reform so politically interesting: it help reveal, in a way few other issues do, just which particular policies and which particular principles are ultimately most important to which particular politicians.

Cross-posted at Marijuana Law, Policy & Reform

April 16, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Effective review of on-going reviews of sex offender residency restrictions

This new reporting by Steven Yoder via The Crime Report provides an effective update on what is going on lately with state-level sex offender residency restrictions and other sex offender laws and policies. The extended piece has this extended headline: "You Can’t Live Here: Do residency bans and other tough measures on sex offenders work?  The evidence suggests they are counterproductive — and some states are already shifting policies."  Here are excerpts:

Last month, the California Supreme Court ruled such blanket residency bans [on sex offenders] unconstitutional. It based the decision in part on evidence that residency laws drive up homelessness among offenders and make it harder for state authorities to monitor and rehabilitate them.  It’s the latest sign that science has begun to trump passion on what is one of the most sensitive areas of criminal justice.

During the 1990s, at least 30 states enacted residency restrictions on convicted sex offenders who were released into their communities, as part of what appeared to be an increasingly harsh crackdown across the nation.  Congress passed six new federal laws that ratcheted up penalties on those convicted of sex crimes.  In some towns, the crackdown has extended to ordinances prohibiting those with a sex offense on their record from putting up Halloween decorations....

Today more than 20 states have sex offender policy boards, says Chris Lobanov-Rostovsky program manager for Colorado’s Sex Offender Management Board. That number is down slightly since 2010 — that year, 24 states had boards, according to a 2010 report by the Center for Sex Offender Management, funded by the Department of Justice.

A few of these groups last just a year or two and tackle discrete issues like how to certify sex offender treatment providers. Others take on broader offender management policies, weighing in on the likely impact of proposed bills.

Colorado’s board has run for more than 20 years, and Lobanov-Rostovsky gets about half a dozen calls a year from other states asking for advice on setting up their own boards. He travels to about one state a year to offer hands-on help, though he’s not aware of any states that have set up new boards in the last two years.

Boards normally pull in the groups that matter on the issue, typically including representatives of state law enforcement and other agencies, prosecutors, defense attorneys, judges or their representatives, sex offender treatment professionals, and victim advocates.  Some boards have full or part-time salaried staff, as in Colorado’s case. Not surprisingly, boards with staff are more productive than those without, Lobanov-Rostovsky says.

April 16, 2015 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Notable defendant gets 10 years after 10th DWI in Texas as part of plea deal

Dent_hero_1500This story from the Dallas Morning News tells the remarkable story of a remarkable defendant with a remarkable inability to stop drinking and driving.  The piece is headlined "Author Jim Dent gets 10-year prison sentence after 10th DWI," and here are the basics:

Best-selling author Jim Dent was sentenced Wednesday to 10 years in state prison as part of a plea deal with Collin County prosecutors. The author of such books as The Junction Boys and Manziel Mania had pleaded guilty in November 2013 to two driving while intoxicated charges – his ninth and 10th such convictions that spanned more than three decades and four states.

But Dent fled to Mexico rather than attend his sentencing hearing at the McKinney courthouse in February 2014. He said he spent a year south of the border before hitting rock bottom and deciding to return to the states. He was arrested crossing the border into San Diego in late January and transported to Collin County in February to face the charges.

Dent worked as a sports writer covering the Dallas Cowboys for more than a decade for the Fort Worth Star-Telegram and the Dallas Times Herald. In 1991, he quit the newspaper business and became a nationally syndicated radio talk show host. He also started writing books. His status in sports circles and his bigger than life personality paved the way for his access to big names and exclusive events.

Because of the plea agreement, Thursday’s previously scheduled sentencing hearing was canceled as was the testimony from several witnesses. Instead, Dent appeared on video from the Collin County jail before District Judge James Fry for his sentencing. The video jail appearances are routine in cases that have been previously settled and save the county the costs of transporting inmates from the jail to the courthouse....

As part of the plea deal, Dent was sentenced to the previously agreed upon eight years in prison on the DWI charge from October 2012 in Allen. In that instance, Dent’s ex-girlfriend called police because Dent was trying to force her out of her car. He then rammed her car into her neighbor’s garage door with his F150 pickup. He was also sentenced to the maximum penalty of 10 years for the DWI charge from May 2013. In that case, a passer-by reported Dent driving recklessly in Allen before stopping at a Walgreens. Police were waiting for Dent when he came out of the store carrying a case of beer and a bottle of wine.

Because he skipped out on his sentencing hearing, Dent was also charged with two counts of bail jumping and failure to appear. He pleaded guilty Wednesday to both third-degree felony charges and was sentenced to the maximum 10 years in prison. All four prison sentences will be served at the same time. Dent will also get credit for time served.

As part of the plea agreement, prosecutors were able to declare Dent’s vehicle as a deadly weapon in both DWI charges. That finding means Dent will be required to serve at least half of his prison sentence before he is eligible for parole. Dent still has a DWI charge pending in Williamson County after he failed to appear for sentencing. In that case, Dent crashed into a tollbooth along State Highway 45 in Austin. He also has an active warrant in Garland County, Ark., for failing to comply with court orders after his DWI conviction there in 2007.

Dent’s drunken driving convictions date back to 1983 and include convictions in Arkansas, Oklahoma and Nevada as well as the Texas counties of Denton, Dallas, Brazos, Williamson and Collin. His court records over the years include multiple references for failing to appear in court, violating provisions for community supervision and continuing to drink alcohol. He drove while his driver’s license was suspended. And on several occasions, the only thing that kept him from driving drunk was the court-ordered ignition interlock device that prevented his vehicle from starting when it detected alcohol on his breath. Bonds were revoked, he got re-arrested and he posted new bonds....

In a jail interview last week, Dent said he was an alcoholic. He also declared he’d had his last drink before crossing the border. This will be his third entry in the state prison system. Dent was previously sentenced to eight years in prison after violating probation on a felony DWI charge out of Brazos County. He served nearly 22 months before being paroled. He was re-incarcerated for another three months after violating the terms of his parole.

Dent’s 10 convictions stood out largely because they came during his successful book career. But he’s far from alone. More than 1.1 million people were arrested across the country on charges of driving while intoxicated in 2013, according to the latest FBI crime statistics.

For an even fuller account of this defendant's life and times, the Dallas Morning News recently published this profile headlined "Jim Dent: The man, his books and the bottle."

April 16, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack (0)

Wednesday, April 15, 2015

"Database Infamia: Exit from the Sex Offender Registries"

The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:

Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means.  Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.

This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.

April 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack (0)

New York State court concludes multiple mandatory minimum fines constitutionally excessive

Thanks to this post by Eugene Volokh, I discovered an interesting New York trial court Excessive Fine ruling in Pujols v. City of New York, No. 103637/12 (N.Y. Sup. Ct. April 2, 2015) (available here). Here is the heart of the ruling concerning an attack on a $11,175 fine for illegally posting 149 flyers advertising babysitting services:

It is undisputed that petitioner violated the relevant Administrative Code provision and substantial evidence supports ECB's determination that petitioner is liable for violating § 10-119 of the New York City Administrative Code, which generally prohibits the posting or other placement of handbills, posters, notices, signs and other written materials on certain public property.  Nonetheless, this Court finds that under the specific circumstances presented herein, the imposition of the mandatory minimum of $75.00 per violation for a total penalty of $11,175.00, amounts to an unconstitutionally excessive fine, and cannot be viewed as solely remedial.

Moreover, this Court, in considering the seriousness of the offense, the severity of the harm caused to petitioner, and the City's objective to deter posting of materials on public property, we find that the fine imposed is "grossly disproportional" to the gravity of petitioner's offense.

April 15, 2015 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered | Permalink | Comments (4) | TrackBack (0)