Friday, December 2, 2016
Reviewing another week of developments and questions from Marijuana Law, Policy & Reform
Absent complaints from readers, I think I am going to return to my habit of closing up my "blogging work-week" in this space by providing a round-up of posts of note from blogging over at Marijuana Law, Policy & Reform. So:
- Given latest opioid death data, should Ohio officials be fast-tracking access to medical marijuana?
- Highlighting how in California marijuana legalization = sentencing reform
- Some notable new stories and discussions of NFL policies and NFL players' use of marijuana
- "Marijuana advocates sceptical about Canada path to legal pot"
"The Right to Redemption: Juvenile Dispositions and Sentences"
The title of this post is the title of this notable new paper authored by my colleague Katherine Hunt Federle and now available via SSRN. Here is the abstract:
The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems. These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders. In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing. The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation. State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.
The reality of ‘juveniles’ immaturity militates in favor of a right to redemption. This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed. The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted. The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes. The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions. This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.
When will Prez-Elect Trump start bringing "law and order" to deadly Chicago?
The question in the title of this post is my first reaction to this lengthy depressing USA Today article's headline, "Chicago hits grim milestone of 700 murders for 2016 and the year's not over." Here are particulars:
Mired in a level of violence not seen in nearly two decades, the nation’s third largest city recorded its 701st murder on Thursday, reaching a stunning milestone before year's end.
Chicago has seen the number of killings increase by about 58% since last year, according to police department data. The city is on pace to record the most murders in a year since 1997, when the police department reported 761 killings. Chicago Police have also reported more than 3,300 shooting incidents in 2016, an increase of about 49% compared to the same time last year.
Early Thursday morning, Chicago Police responded to the latest fatal shooting — a 19-year-old man found dead on the street on the city’s West Side with gunshot wounds to his head and chest. As of Thursday afternoon, no one had been arrested for the shooting of the teen. “The levels of violence we have seen this year in some of our communities is absolutely unacceptable,” CPD Superintendent Eddie Johnson said of a murder rate the city has not seen since the end of crack-cocaine epidemic when a drug war between gangs fueled the rise in murders. “CPD will use every tool available to hold violent offenders accountable and will continue to work strategically to address crime and uphold its commitment to rebuild public trust.”
Johnson has blamed the violence on a combination of increased gang activity and weak gun laws that he says don't dissuade convicted felons from carrying and using weapons.
But anti-violence activists say the killings — the bulk of which are occurring in a few low-income and predominantly African-American neighborhoods on the city’s South and West Sides — also raise concerns that a dark edge has set into young people in some of the communities most impacted by the violence. Andrew Holmes, a longtime Chicago-based anti-violence activist, noted that fatal shootings increasingly appear to have been sparked by fights that started on social media and that too frequently the assailants in the deadly incidents are motivated by smallest of slights.... “It’s more personal and about more than the easy access to guns,” Holmes said. “This is driven so much by self-hatred…and because there is an easy access to guns, the first thing they do is go to the gun to settle a feud.”...
About 47% of Chicago's black men, ages 20 to 24, are unemployed, according to a report published earlier this year by the University of Illinois at Chicago’s Great Cities Institute. The national unemployment rate for young black men hovers around 31%. “The problems we’re having have everything to do with opportunity,” [community activist Diane] Latiker said. “It’s always been that way. Chicago has long been one of a ‘Tale of Two Cities.’ Nothing has changed.”
The last two months have been particularly grim. Chicago recorded 316 shooting incidents and 77 murders last month, more than doubling the number of slayings the city saw last November. In October, police tallied 353 shooting incidents and 78 murders, 49 more murders than the same month last year. The violence toll reported by the Chicago Police Department includes only killings that police have determined to be criminal acts. Not included in the data are the 11 fatal police-involved shooting incidents in 2016 — including four officer-involved shootings over a 10-day stretch in November.
The surge in violence coincides with the fraying of relations between the department and the city’s African-American residents following the release last year of video showing the police shooting death of 17-year-old Laquan McDonald. But police officials and community activists downplay the impact that such strained relations is having on the surge in violence.
Social scientists and pollsters suggest that the rise in gun violence in Chicago is having a disproportionate impact on Americans’ perception about crime nationwide. The city has reported over 100 more murders this year than New York City and Los Angeles combined, according to the departments’ data. The murder toll in the two large U.S. cities is about the same as last year.
While the nationwide violent crime rate remains near a 30-year low, nearly 57% of Americans said that crime has gotten worse since 2008, according to a Pew Research Center survey published in November. President-elect Donald Trump on the campaign trail repeatedly spoke out about Chicago’s violence, at one point even comparing the city to a “war-torn country.”
The murder rate for the nation’s 30 largest cities is projected to increase by 13.1% for 2016, according to an analysis published in September by the Brennan Center for Justice at New York University. But nearly half of the projected increase in murders across the U.S. could be attributed to killings in Chicago, the analysis found. (At midyear, the nation’s biggest cities were cumulatively on pace to record 496 more murders than 2015, with Chicago projected to account for 234 of those killings.) “The ‘national” increase in murders…in other words, may owe more to profound local problems in a few Chicago neighborhoods than national trends,” the Brennan Center report concludes.
Mayor Rahm Emanuel announced plans to expand the Chicago’s 12,500-member police force by nearly 1,000 officers over the next two years—an effort that includes bolstering the department’s detective ranks. The department has about 300 fewer detectives than it did in 2008. The department has also stepped up traffic enforcement, parole compliance checks and social service intervention for high-risk individuals in some of the city’s most violence-plagued neighborhoods.
Latiker argued that policing efforts alone will have limited effectiveness in solving Chicago’s violence problems. “We can’t lock up our way out of this problem,” Latiker said. “We need police. There’s no question about that. But you can’t take everything in the basket and throw it at police and tell them to take care of it.”
Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
This new Politico article, headlined "Trump: Supreme Court pick coming 'pretty soon'," suggests that SCOTUS fans may not have much longer to wait to see who might be selected to replace the late great Justice Antonin Scalia on the US Supreme Court:
President-elect Donald Trump said Thursday night he had narrowed his choices for a potential Supreme Court nominee to "three or four" candidates and that a decision would be coming "pretty soon."
Appearing on Fox News from Cincinnati, Ohio, where the president-elect held the first leg of his celebratory "thank you" tour Thursday, Trump told host Sean Hannity that an announcement on a potential judicial appointment is not too far off. "We're going to have to appoint very soon. We're going to have to come up with a name," Trump said. "I'm looking -- I'm down to probably three or four [candidates]. They are terrific people, highly respected, brilliant people and we'll be announcing that pretty soon too."
The president-elect also assured Hannity that his final selections would be constitutional "originalists." During his presidential campaign Trump unveiled a list of 21 candidates whom he has said were chosen in the mold of Justice Antonin Scalia, who died Feb. 13.
I have outlined at great length what I hope to see from a SCOTUS pick in this prior post titled "Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list." Because I seriously doubt that Prez-Elect Donald Trump and/or his advisers care one whit about any of the matters I care about when it comes to SCOTUS appointments, I am not expecting to be pleased or excited by The Donald's pick. But I am genuinely pleased and excited to be able to imaging a full and fully-functioning Supreme Court in the not-too-distant future.
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial?
The question in the title of this post is prompted by this intriguing commentary authored by Chandra Bozelko and headlined "Dylann Roof shouldn’t be allowed to act as his own lawyer." Here are excerpts:
Dylann Roof, the avowed white supremacist accused of killing nine black parishioners at a historic Charleston, South Carolina church last year, is a 22-year-old man with a presumed history of drug use. He did not graduate from high school. He could be sentenced to death if a jury finds him guilty. And yet he is acting as his own lawyer to defend himself against 33 federal charges of murder and hate crimes.
Roof is representing himself in court against the advice of the presiding judge, Richard Gergel. And by doing so, Roof will likely go the way of other self-represented defendants like Joan of Arc, Jesus, Socrates and Ted Bundy: he’s probably going to be convicted and killed.
But what many people don’t understand is that the judge had no choice but to let Roof represent himself. Since the Supreme Court decided Faretta v. California in 1975, the right to represent oneself is absolute regardless of intellect or educational attainment. Requests to relinquish counsel “…must be honored out of that respect for the individual which is the lifeblood of the law.”
Because it’s likely to be little more than a spectacular suicide, the Roof trial should get us to admit that the lifeblood of the law has clots in it. Unprepared defendants shouldn’t be allowed to represent themselves in capital trials; the Supreme Court precedent established in Faretta needs to be overturned or modified in a meaningful way.
I wasn’t as successful as Dylann Roof. In 2007, I tried to represent myself in a criminal trial but was denied, Princeton degree and two years of law school notwithstanding. The judge claimed that, because my request came after jury selection but before the start of the state’s evidence, it was a delay tactic and made my motion untimely. I hadn’t asked for a continuance and was prepared to start right away.
I had a lawyer forced upon me, one who admitted she hadn’t read the police reports and went on to advise the jury that there was no reasonable doubt about my guilt. I ended up being convicted of ten felonies and four misdemeanors and sentenced to five years in prison for identity theft-related crimes, but without a lawyer I might have been sentenced to the maximum on every charge consecutively, which was 185 years in jail. I wasn’t facing the death penalty and the judge assigned to my case still wouldn’t let me represent myself.
Scholars, judges and attorneys have long seen self-represented defendants as calves pulling their own leads to slaughter. Accordingly, they’ve chipped away at Faretta with decisions like the one in my case. Courts look for ways to deny requests for self-representation because they know the unfairness that can ensue. Federal circuit courts are actually split on what constitutes a valid self-representation request. The Supreme Court itself curbed the Faretta right in 2008 in Indiana v. Edwards when it held that defendants can be competent to stand trial yet not competent to represent themselves.
Whether self-representation would hurt every defendant who engaged in it is debatable. The limited evidence we have on the number of self-represented defendants who win is encouraging. But many of those successes come in cases where lethal injection isn’t a possible penalty. Every self-represented person in a capital case has lost.
And yet we still allow defendants like Dylann Roof to act as their own attorneys, despite their obvious inability to do so.... Saying that minimally educated or mentally ill criminal defendants who face lethal penalties must be free from government intrusion in the form of counsel is the same thing as saying suicide is part of individual liberty. While it may be true, it contradicts our country’s alleged respect for life. What is judicially permissible may not be moral....
Removing self-representation as a possibility in capital cases could and should be corrected for with some type of minimum standards for capital defenders.... This denigration of the right to effective assistance of counsel is what makes it easy to allow defendants like Dylann Roof to represent themselves. If appointed counsel won’t do much better, why not let people exercise their rights under Faretta and get themselves killed? Especially when the trial will add glorious sound bites and scenes of an allegedly racist killer getting to cross-examine his African-American victims.
In the name of individual liberties that we’ve already stopped protecting, we will watch Roof’s slow, elaborate, taxpayer-funded self-harm unfold. The trial of the Charleston church shooter places us at a crossroads of Constitution and conscience. If we overturn Faretta v. California and prevent defendants in capital cases from defending themselves while providing them with qualified and paid counsel, we won’t have to choose.
I am tempted to assail many contentions in this commentary, and yet I feel I must give it some respect because it was authored by someone who seemed to have been burned by his own inability to serve as his own attorney. I will just comment that I always look for principles of liberty and personal freedom to guide me when I think I might be "at a crossroads of Constitution and conscience." And principles of liberty and personal freedom lead me to the view that persons who are competent should generally be allowed to represent themselves when on trial for their lives or for any other interest.
A few of many prior related posts on prosecution of Dylann Storm Roof:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
- Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution
- Charleston mass murderer now making mass attack on constitutionality of federal death penalty
- Feds file motion seeking to limit how jury might consider mercy in capital trial of Charleston mass murderer Dylann Roof
Thursday, December 1, 2016
US Sentencing Commission getting an early start on possible guideline amendment
Traditionally, the US Sentencing Commission holds a meeting in January to proposed amendments to the federal sentencing guidelines for the year. But via email today I received this notice about the USSC getting off to a quicker start this season:
Please join the United States Sentencing Commission for a public meeting on December 9th at 11:30 a.m. (ET) where commissioners may vote to publish proposed amendments to the federal sentencing guidelines.
Amendments proposed during the meeting will stem from this year’s list of policy priorities. The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, in Suite 2-500 (South Lobby). Please note that if you cannot attend in person, it will be broadcast live.
The agenda is as follows:
- Vote to Adopt August 2016 Meeting Minutes
- Report from the Chair
- Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment
Fourth Circuit panel rejects North Carolina's efforts to defendant constitutionally hinky provisions of state sex offender rules
The Fourth Circuit handed down a notable opinion yesterday in Doe #1 v. Cooper, No. 16-6026 (4th Cir. Nov. 30, 2016) (available here). In this ruling, the panel rejects arguments made on appeal by the state of North Carolina to try to overturn a district court's ruling about the unconstitutionality of key provisions of the state's sex offender laws. Here is how the unanimous opinion gets started:
The State of North Carolina requires persons convicted of certain reportable sex offenses to register as “sex offenders.” See N.C. Gen. Stat. § 14-208.6(4); id. § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).
John Does #1 through #5 (collectively, the “Does”) challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment. The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14- 208.18(a)(2) and section 14-208.18(a)(3). For the reasons set out below, we affirm the judgment of the district court.
Among many notable passages in this opinion, I found especially telling some of the discussion of the state's failure to provide any serious data or other evidence to support the broad restrictions on sex offender movements enacted into NC laws:
The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11. But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof....
In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence. In its brief, the State cites three North Carolina cases... [but] the State fails to explain how three cases, representing three individuals -- out of more than 20,000 registered North Carolina sex offenders -- provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions.
Lame (duck) Obama Administration announces series of "sweeping" reforms at the Federal Bureau of Prisons
I suppose the cliche phrase "better late than never" should keep me calm when I see notable news these days from the Obama Administration concerning criminal justice reform. But this DOJ press release from yesterday, which carries the heading "Justice Department Announces Reforms at Bureau of Prisons to Reduce Recidivism and Promote Inmate Rehabilitation," prompts frustration rather than calm because it announces reforms that seem so sound and yet so late. Here are the substantive highlights:
Today, the Department of Justice announced a series of reforms at the Federal Bureau of Prisons (BOP) designed to reduce recidivism and increase the likelihood of inmates’ safe and successful return to the community. These efforts include building a semi-autonomous school district within the federal prison system, reforming federal halfway houses, covering the cost of obtaining state-issued photo IDs for federal inmates prior to their release from custody and providing additional services for female inmates.
“Helping incarcerated individuals prepare for life after prison is not just sound public policy; it is a moral imperative,” said Attorney General Loretta E. Lynch. “These critical reforms will help give federal inmates the tools and assistance they need to successfully return home as productive, law-abiding members of society. By putting returning citizens in a position to make the most of their second chance, we can create stronger communities, safer neighborhoods and brighter futures for all.”
“The sweeping changes that we are announcing today chart a new course for the Bureau of Prisons that will help make our prisons more effective, our communities safer and our families stronger," said Deputy Attorney General Sally Q. Yates. “One of the best ways to prevent crime is by reducing recidivism, and one of the best ways to reduce recidivism is by equipping inmates with the tools they need to successfully reenter society."
Last year, with the department’s support, BOP retained outside consultants to review the agency’s operations and recommend changes designed to reduce the likelihood of inmates re-offending after their release from prison. As part of today’s announcement, the department is launching a new website, www.justice.gov/prison-reform, that compiles current and ongoing reforms at BOP, and includes the final reports from the outside consultants.
The department announced additional details regarding these efforts:
Building a school district within the federal prison system....
Reforming federal halfway houses....
Covering the cost of state-issued IDs prior to inmates’ release....
Enhancing programs for female inmates....
These initiatives are part of the department’s deep commitment to a fair, effective criminal justice system that promotes public safety and prepare inmates for their return to the community, thereby reducing the likelihood that a cycle of crime will continue.
I think it neither naive nor unfair to assert that seeking to reduce recidivism and promote inmate rehabilitation should be a very top criminal justice priority for any and every Administration as they take over the reins of the Department of Justice and its (very expensive) Federal Bureau of Prisons. And I see nothing in these "sweeping" BOP reforms that could not have been effectively pioneered eight years ago in the first few months of the Obama Administration rather than only now in the last few (lame duck) months of the Obama Administration. in other words, though I am pleased to see these late-in-the-day federal prison reform efforts, I cannot help but respond to these new developments with the frustrating feeling that DOJ and BOP during the most of the Obama years were mostly "asleep at the wheel" when it came to critical public safety prison reform priorities.
Sigh and Grrr.
December 1, 2016 in Criminal justice in the Obama Administration, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (7)
NC Republican Senator reiterates his commitment to federal statutory sentencing reform
This notable new local story from North Carolina, headlined "Tillis says he may not return if bills like sentencing changes aren’t passed," provides further reinforcement for my generally positive perspective on the prospects for federal statutory sentencing reform in 2017. Here are excerpts:
Sen. Thom Tillis said Wednesday that he may not seek re-election in 2020 unless a sweeping overhaul of the nation’s prison sentencing system is passed. Tillis, R-N.C., has sought to make revamping the nation’s criminal justice system one of his signature issues since arriving in Washington in 2015, leaning on his experience in pushing through North Carolina’s Justice Reinvestment Act when he was state House speaker in 2011.
Tillis said North Carolina showed that such measures could get done, even over doubts that anything less than a tough-on-crime stance would be politically damaging. He told a forum on juvenile justice in Washington that “I don’t run again until 2020, and if we’re not able to get things like this done, I don’t have any intention of coming back.”...
He expressed frustration that the Senate hasn’t been able to move the Sentencing Reform and Corrections Act of 2015, a bipartisan measure that would reduce prison sentences for some nonviolent drug offenses, give judges more discretion with lower-level drug crimes and provide inmates early release opportunities by participating in rehabilitation programs....
Republicans and conservatives – from Sen. John Cornyn, R-Texas, to Sen. Rand Paul, R-Ky., to the Koch brothers – found themselves largely in agreement with Obama, the NAACP and the American Civil Liberties Union on the need for sweeping changes to reduce prison sentences.
But the Senate bill has been in legislative limbo. Some conservative lawmakers, such as Sens. Tom Cotton, R-Ark., and Ted Cruz, R-Texas, suggested that reducing sentences would lead to dangerous criminals being released. Even a much-heralded compromise in April to ease critics’ concerns failed to get the bill to the Senate floor.
Tillis, who appeared at Wednesday’s forum hosted by The Washington Post with Sen. Chris Coons, D-Del., said he had a solution for breaking the deadlock. “We need to tell the far-right and the far-left to go away and have people in the center solve the problem,” Tillis told the audience. “It is time to tell the far-left and the far-right to get productive or get out of the way because we need to solve this problem.”
Wednesday, November 30, 2016
"The Coming Federalism Battle in the War Over the Death Penalty"
The title of this post is the title of this notable new paper authored by Michael Mannheimer and now available via SSRN. Here is the abstract:
From the founding of the Republic until 2002, it appears that only a single person was ever sentenced to death by the federal government for criminal conduct occurring in a State that did not authorize the death penalty for the same conduct. However, since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in non-death penalty States. And in the last twenty-three years, the federal government has sought the death penalty dozens of times in non-death penalty States. Such cases virtually always involve offenses historically thought of as being best dealt with at the state level. While some federal capital defendants in non-death penalty States have raised constitutional objections in their cases based on federalism principles, these objections have uniformly been rejected at the district court level. However, no federal courts of appeals has yet addressed these objections.
Currently, thirty-one States authorize capital punishment while nineteen do not. The category of non-death penalty States includes some of the Nation’s most populous, such as New York, Illinois, and Michigan. In the coming decades, it is likely that other large States, such as California and Pennsylvania, and perhaps even Texas, will abandon the death penalty. It is also likely that capital punishment will be retained in many States, particularly in the South and West, and at the federal level. Given these premises, the use of the federal death penalty in non-death States, which is now mostly a side issue in the death penalty debate, may take on more prominence. As the demand for retribution against the very worst murderers in these States continues, future pro-death penalty Attorneys General will likely bring more of these cases in federal court. Moreover, Congress may continue to expand federal jurisdiction over murders that have tenuous connections to interstate commerce. In short, we may soon see a federalism battle in the war over the death penalty.
"An Incubator for (Former) Drug Dealers: 'Hustlers are entrepreneurs denied opportunity'"
Some tough-on-crime folks who still love fighting the drug war remain eager to assert that any and all drug dealers are all vicious and violent criminals in waiting. For example, in this new commentary, Bill Otis argues we must not now "lighten up on non-violent, low-level drug dealers" because, in his words, "drug dealing is an inherently violent business; an affable transaction today is tomorrow's bloody shootout" and "we cannot reliably tell who is violent and who isn't."
Based on the bloody history of alcohol Prohibition in the 1920s and recent nonviolent experiences with legalized marijuana markets out west, I have a much different perspective on drug dealing. Most bootleggers a century ago and many drug dealers today seem really to be street-level entrepreneurs who pursue black-market economic opportunities and who turn to violence only if black market conditions require the use of force.
Intriguingly, this notable new Bloomberg BusinessWeek piece which carries the headline that is also the title of this post, reports on reentry programming that seems to confirm my perspective on most drug dealers. I recommend the piece in full, and here are excerpts:
Over the past decade, a number of government, academic, and nonprofit programs have attempted to address the structural problems that face convicts when they’re released from prison — a campaign known as the “re-entry movement.” One of the biggest contributors to misery and recidivism is an inability to find steady work. Former inmates encounter stigma, bias, and even formal obstacles to getting hired. Connecticut, for example, has 423 employment restrictions based on criminal records, including bans on obtaining a teaching certificate, operating commercial motor vehicles, and becoming a firefighter.
Amid calls for more job training, less automatic background searching, and other changes that would make it easier for ex-felons to become employees, an alternative idea has slowly taken hold: Encourage them to start their own businesses. The largest nonprofit pushing entrepreneurism of this kind is Defy Ventures, based in New York, which over the past six years has trained more than 500 formerly incarcerated people and incubated more than 150 successful startups. Defy has become a critical darling among social scientists, boasting a 3 percent recidivism rate among alumni, compared with the national average of 76 percent of released inmates who are reincarcerated within five years....
On the morning of July 9, a year to the day after he shed his prison uniform for street clothes, Bashaun Brown stood in a rented conference room. Beside him were two colleagues, both undergraduates at nearby Wesleyan University, and seated before him were four aspiring entrepreneurs. This was a meeting of TRAP House, Brown’s creation, an incubator for former drug dealers who want to start legal companies. The name stands for “transforming, reinventing, and prospering” and is a play on the term for drug-stash locations....
Brown’s premise with TRAP House is that “hustlers are entrepreneurs denied opportunity.” The agenda for class that day included honing elevator pitches, gaining access to seed capital, and calculating financial projections. Brown flipped through slides projected on a screen behind him from his laptop, a silver MacBook with busted hinges and a decal of Shel Silverstein’s The Giving Tree. Angel investors, Brown told the group, are “a group of true capitalists who use money to make money. Like how some people live off the thrill of dealing drugs, these guys live off the thrill of that flip.”...
Brown later told me that as he sees it, drug dealers have more business savvy than they realize. “If I’m talking about marketing research, I would tell the guys, ‘Listen, you have done this before,’ ” he said. “ ‘You didn’t just come to your ’hood and set up shop. No, you have to do some kind of research. What type of drugs do they want to buy? What price would they buy it for? How much would I make?’ ” The same is true of gauging risk. In addition to the potential of economic loss, a hustler must “look at the odds of getting caught and then do an analysis,” Brown said. “Most people say that criminals are irrational. But when it comes to selling drugs, it’s a highly rational choice.” He kept riffing on such topics as team-building and customer relations. “The better drug dealers I know have great interpersonal skills,” he said.
Two new headlines from the same paper highlighting (inevitable?) sentencing disparities
As I opened my Google News feed and turned to my sentencing section, these two headlines from the Washington Post jumped out at me:
Here are some key passages from each piece. First, the latest on serial/mass rapist Darren Sharper:
Former NFL star Darren Sharper was sentenced to 20 years in prison on Tuesday for drugging and raping two women in Los Angeles. The sentence came as part of a plea deal that saw Sharper sentenced to 18 years in prison in Louisiana in August for drugging and raping up to 16 women in four states, including California and Louisiana, as well as Arizona and Nevada. Sharper will serve the sentences simultaneously.
Tuesday marked the end of Sharper’s sentencing hearings, but the emotional trauma he inflicted upon the victims of his sexual assaults lives on. “I can only imagine myself lying there like a vegetable while he took advantage of my body without my permission,” one of the victims said at Tuesday’s hearing (via the Los Angeles Times). “I have lost every bit of self confidence I’ve ever had and am always in fear while alone. It doesn’t matter whether it’s day or night, I can see a guy and automatically in my head think, ‘What if this guy tries to rape me?’ ”
And now another dispatch from the never-ending federal drug war:
When Lori Clare Kavitz’s sons were 3 and 4 years old, ... her husband ... grabbed a gun and killed himself in front of her dad.... The aftermath was hard. “My emotional trauma and fear of not being able to provide for [my sons] led me to choices that I will always regret,” she says. Her regretful decision-making was not of an uncommon variety: After her husband’s death, she got involved with the wrong guy. He started dealing meth from their home, and when he was arrested, the state went after her, too, casting her as his assistant and charging her with conspiracy to distribute meth.
The man who sold them the meth cooperated with prosecutors, was sentenced to 14 years in prison, and is now out. Her boyfriend got 20 years. Lori Kavitz got 24 years. “She kept her mouth shut, didn’t say anything,” her son, Collin, tells the Watch. “He opened his mouth and tried to pin it all on her.”
Kavitz hasn’t seen her two sons in more than a decade because it’s too expensive for them to travel more than a thousand miles to visit her in prison in a different state. “I have 3 grandchildren that I have never met as I am serving my time in Florida and I am from Iowa. Too far for young struggling families to travel,” Kavitz writes. She’s one of thousands of nonviolent drug offenders hoping to have their sentences commuted by President Obama before President-elect Donald Trump replaces him in office — less than two months from now.
Tuesday, November 29, 2016
Will more than just a handful of condemned murderers be impacted by latest SCOTUS review of capital punishment disability limits?
The question in the title of this post is my indirect effort to get a quantitative notion of the import and impact of the Texas case, Moore v. Texas, being heard by the US Supreme Court this morning. The folks at SCOTUSblog have this helpful round-up of some recent previews and commentaries on this case:
Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute.
Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”
Efforts by Texas to execute intellectually disabled murderers strike very close to home for me because I was actively involved in representing and trying to prevent the execution of Terry Washington back in 1996-97 when there was not yet a constitutional restriction on application of the death penalty for those with certain intellectual disabilities. I got involved in the Washington case pro bono during my last few months as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in NYC. I had the opportunity to help author a cert petition to SCOTUS and a clemency petition to then-Texas-Gov. George W. Bush in which we asserted on Terry's behalf that the ineffectiveness of trial counsel and his intellectually disabilities (which were then called mental retardation) justified sparing him from the ultimate punishment of death.
Terry Washington was sentenced to death for the stabbing murder of a co-worker at a restaurant in College Station, Texas. As the case was litigated through the federal habeas courts in Texas, there was no real dispute over Terry's mental disabilities because considerable evidence from his childhood indicated diminished mental capacities and in two IQ tests after his initial sentencing to death Terry scored 58 and 69. But Terry's case was tried in the 1980s when it was not considered ineffective for counsel to fail to investigate and present mitigating mental health and family background evidence. In the words of the Fifth Circuit rejecting a final habeas appeal in 1996, counsel made "a reasonable strategic decision not to investigate Washington's mental health by retaining a mental health expert or to present evidence of Washington's mental health and family background at the punishment stage of trial." Washington v. Johnson, 90 F.3d 945 (5th Cir. July 25, 1996) (available here).
I cannot help but think of Terry Washington today because I recall drafting sections of the cert petition and clemency petition making the case for a categorical ban on the execution of persons with (as called then) mental retardation. Unfortunately for Terry, the Supreme Court would not embrace the constitutional position we pushed on his behalf until 2002 when it ruled in Atkins v. Virginia that the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of individuals who are intellectually disabled. (According to this DPIC accounting, 44 persons with intellectual disabilities were executed between 1976 and the SCOTUS Atkins ruling in 2002.) Based on the medical records and supporting evidence, I now believe that Terry would have indisputably been shielded from execution by Atkins even though Texas has been trying its best since Atkins to limit the number of condemned murderers who get shielded from execution by its holding.
Returning to the Moore case now before SCOTUS (with the Terry Washington case still on my mind), I sincerely wonder how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies. My sense is that most defendants with obvious disabilities have had their sentences reduced based on Atkins, and this DPIC accounting hints that maybe as many as 100 condemned murderers have gotten off of death rows in many states thanks to Atkins. But in Moore it seems like evidence of disability is sufficiently equivocal and the legal standards sufficiently opaque that SCOTUS has to clean up some post-Atkins doctrinal mess. For Bobby James Moore, this is obviously now a matter of life and death. But can we know how many other of the roughly 2500 persons now under serious sentences of death nationwide will be potentially impacted by the Moore decision?
Making the case that the next Administration needs to demonstrate that "laws are not just for the little people"
Writing here in the National Review under the headline "A Memo for Attorney General Jeff Sessions," former Justice Department officials Robert Delahunty and John Yoo share some interesting advice for the likely next AG. I recommend the lengthy piece in full, and here is just a taste:
Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.
Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.
But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.
We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.... Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching....
Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work. Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.
President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open....
These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents....
This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.
As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.
November 29, 2016 in Criminal justice in the Trump Administration, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)
"Why Trump needs to roll back criminal penalties for noncriminal conduct"
The title of this post is the headline of this notable commentary authored by Ronald Lampard, the director of the Criminal Justice Reform Task Force at the American Legislative Exchange Council (ALEC). Here are excerpts:
Unauthorized use of Smokey the Bear's image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute." While one may think the government would never initiate a criminal prosecution for either of these two "criminal" acts, there have been numerous examples of individuals being prosecuted under federal law for conduct that should not be criminalized.
For example, Eddie Anderson of Idaho took his son camping in the wilderness, searching for arrowheads. They didn't find any, but they were searching on federal land, which is prohibited by the Archaeological Resources Protection Act of 1979. They both faced a felony charge, punishable by up to two years' imprisonment before they pleaded guilty to a misdemeanor and were fined $1,500 each and placed on probation for a year.
Some of these criminal offenses are contained in federal statutes, which prescribe an estimated 4,500 crimes, according to a study by retired Louisiana State University law professor John Baker. To help put that number in perspective, the Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. Around the turn of the 20th century, the number of federal criminal statutes was as low as dozens. Essentially, over the last hundred years, federal statutes carrying criminal penalties have grown at an exponential rate.
The number of criminal statutes — laws passed by both Houses of Congress and signed into law by the president — is dwarfed by the number of regulations carrying criminal penalties. The total number of these regulations is difficult to count, however, it is estimated to number roughly 300,000. Perhaps most disturbingly, these "criminal regulations" are written by unelected bureaucrats, yet still carry the force of law.
In order to stem the explosion of criminal regulations, President-elect Trump can begin the process of removing said regulations. Trump says in his first 100 days he wants to see two regulations removed for every one regulation created. Since these regulations were largely written by unelected bureaucrats who work for the executive branch, the Trump administration could start immediately....
Certainly, some of these regulations ought to deter certain conduct. However, this can be accomplished by making the penalty civil or administrative.... As John Malcolm at the Heritage Foundation said, "There is a unique stigma that goes with being branded a criminal. Not only can you lose your liberty and certain civil rights, but you lose your reputation — an intangible yet invaluable commodity … that once damaged can be nearly impossible to repair. In addition to standard penalties … a series of burdensome collateral consequences that are often imposed by … federal laws can follow an individual for life."
The federal government should proscribe criminal penalties only for conduct that is inherently wrong in order to protect public safety. Criminal statutes serve a crucial purpose in preserving law and order and establishing the rule of law. However, preserving law and order need not come at the expense of criminalizing conduct such as nursing a woodpecker back to health or shipping undersized lobsters in plastic bags instead of cardboard boxes.
Trump has a tremendous opportunity to reduce the number of actions criminalized by federal law. Such action would serve all Americans well and would be a great victory for both law and order and individual liberty.
Monday, November 28, 2016
Guest posting from Prof Carissa Hessick on SCOTUS argument: "Beckles and the Continued Complexity of Post-Booker Federal Sentencing"
I am pleased to be able to reprint this original commentary concerning today's SCOTUS oral argument from LawProf Carissa Hessick:
Earlier today the Supreme Court heard argument in Beckles v. United States. Beckles raises two questions: (1) whether the now-advisory Federal Sentencing Guidelines are subject to vagueness challenges under the Due Process Clause, and (2) whether, assuming the Guidelines are subject to vagueness challenge, a ruling that a Guideline is unconstitutionally vague is retroactive under the Teague framework. The Beckles case and today’s argument illustrate how complicated federal sentencing has become since the Supreme Court decided to treat the Federal Sentencing Guidelines as advisory in Booker v. United States.
In the decade since Booker was decided, the Supreme Court has clarified that, although the Federal Sentencing Guidelines are no longer mandatory, they are also not entirely voluntary. Deputy Solicitor General Michael Dreeben did a fantastic job in his argument explaining the middle path that the Court has carved for the Guidelines since Booker. He not only described the anchoring effect of the Guidelines, but he also noted that the Court has adopted procedural mechanisms “designed to reinforce the primacy of the Guidelines.” The current advisory system, according to Dreeben, “injects law into the sentencing process.”
As the Beckles argument illustrates, the middle path that the Court has carved is complicated. The Court continues to struggle with how to regulate an advisory system in light of the fact that the purely discretionary system that the Federal Sentencing Guidelines replaced was essentially unregulated. Indeed, counsel for Beckles spent much of her argument fending off questions by various Justices about how a Guideline could be unconstitutionally vague if a purely discretionary system is permissible under the Constitution. Justices Alito, Breyer, Kennedy, and Chief Justice Roberts all asked questions to this effect. Notably, later questions by Justice Breyer and the Chief Justice appeared to accept that a purely discretionary system might be subject to different rules than an advisory system.
The complexity of the middle path was on full display in today’s argument in part because the United States relied on the complexity of that path to take what Justice Kennedy and a court-appointed amicus characterized as inconsistent positions. The United States argued that the advisory Guidelines are subject to vagueness challenges because of the important role that they continue to play in the post-Booker world. But the government argued that the advisory status of the Guidelines should prevent the Court from making any vagueness ruling retroactive. The government distinguished this case from a recent juvenile life-without-parole case, saying that juvenile LWOP cases require a particular finding in order for a defendant to be eligible for a life-without-parole sentence. In contrast, according to the government, the Guidelines affect only the likelihood that a defendant will receive a particular sentence. The government relied on the distinction between likelihood of a sentence and eligibility for a sentence as the reason it took different positions on the vagueness question and the retroactivity question. And while Justice Sotomayor pressed the government on this distinction, none of the attorneys or the Justices mentioned an important fact about this case: When Beckles was sentenced in a Florida district court, the prevailing law in the Eleventh Circuit actually required such a finding. (Because of the amount of time taken up by questions about vagueness, petitioner’s counsel addressed the likelihood/eligibility argument only in the single minute she had remaining for rebuttal. The argument was made in an amicus that Doug and I co-authored with Leah Litman, which is available here.)
Other odd aspects of the Court’s post-Booker jurisprudence were also on display during the Beckles argument. Chief Justice Roberts and Justice Alito both raised the question whether the Court’s recent decisions about the quasi-legal status of the advisory Guidelines should endure in the face of changing sentencing patterns in the district courts. And Justice Breyer, who has often served as a champion for the U.S. Sentencing Commission, raised the possibility that the courts should be more indulgent of vague sentencing guidelines than vague statutes because the Commission is in a better position than Congress to refine the law.
Perhaps because this area of the law is so complex, both Justice Ginsburg and Justice Kennedy appeared to cast about for an easy way to dispose of this case. At one point Justice Ginsburg said as much: “I thought . . . that if we decide the first issue, . . . the case is over. But -- so I was thinking, well, we could decide that issue and not reach either vagueness or retroactivity.” Much to his credit, Deputy Solicitor General Dreeben discouraged the Court from taking that path, even though it would have meant a victory for the Government. Dreeben noted that there are many cases that raise the vagueness and the retroactivity questions that are currently pending in the lower courts. And he made an institutional appeal to the Justices to resolve the retroactivity issue even if they could decide this case based on some commentary in the Guidelines. I admire Dreeben for making this appeal to the Justices. But I don’t think that his appeal went far enough. There are a number of defendants in the Eleventh Circuit who have viable vagueness claims that are not claiming retroactivity. Because the Eleventh Circuit refused to recognize any vagueness challenges to the Guidelines, the Court should also rule on the vagueness issue even if it determines that its ruling will not be retroactive.
Although I was not at the argument this morning, it is hard to read the transcript of the Beckles argument and think that the defendant is likely to prevail. Only Justice Sotomayor seemed to be asking friendly questions of petitioner’s counsel, and only she seemed to resist the Government’s likelihood/eligibility argument.
But even if Beckles does not prevail, we may see another vagueness challenge to the Guidelines in the not-so-distant future. For one thing, Dreeben made clear in today’s argument that the Government has not taken a position on retroactivity for pre-Booker mandatory sentences. So if Beckles loses on the retroactivity question, then the courts of appeals will have to decide retroactivity in those pre-Booker cases, and if the courts split on that question, the Supreme Court may need to take another case. For another, the Court has granted cert in another statutory vagueness case, Lynch v. Dimaya. The statute at issue in Dimaya, 18 U.S.C. § 16(b), has been incorporated into a Guideline, U.S.S.G. § 2L1.2(b)(1)(C). So if the Court decides that § 16(b) is unconstitutionally vague in Dimaya, and if the Court does not answer the vagueness question in Beckles, then the Court may need to take another Guidelines vagueness case.
Mapping out the Trumpian new world order with respect to federal sentencing reform
This article from The Hill, headlined "Trump marks change for criminal justice reform," effectively details the uncertain terrain for federal sentencing reform in the wake of this month's historic election. Here are excerpts:
President-elect Donald Trump won’t close the door on criminal justice reform, but the path forward may be complicated by his campaign rhetoric and pick to lead the Department of Justice, advocates say.... Trump’s calls for law and order, his vow to jail immigrants who are in the U.S. illegally and his pick of Sen. Jeff Sessions (R-Ala.) as attorney general have also left some criminal justice reform advocates concerned.
“I’d be lying if I told you I wasn’t concerned about Sessions as attorney general,” said Danyelle Solomon, who serves as the director of Progress 2050, a Center for American Progress project focused on diversity. “There are a lot of concerns ... that he will be a barrier to data-driven, policy-driven reforms in this space," she said. "I think he creates a challenge."
Sessions voted against the Senate bill to reduce certain mandatory minimum prisons sentences when it came before the Senate Judiciary Committee over a year ago, leaving some worried that he'd be a barrier for reform moving forward. But conservative criminal justice reforms advocates remain optimistic about Sessions, noting he authored the Drug Sentencing Reform Act in 2001 to decrease the amount of powder cocaine and increase the amount of crack cocaine necessary to trigger mandatory minimum sentences.
“Sessions isn’t monolithically opposed to reform, but he does demand a high standard for legislation that’s put in front of him,” said Derek Cohen, deputy director of Right on Crime. With Sessions as attorney general, Cohen said lawmakers might hammer out better legislation that may actually reduce costs and recidivism rates.
Jessica Jackson Sloan, national director and co-founder of #Cut50, argued "there's a really strong conservative pull on this administration" to continue pushing for criminal justice reform. Sloan is expecting reforms to focus more on re-entry, over-criminalization and initiatives in the private sector to get formerly incarcerated people back into the workforce.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said in a statement to The Hill that he’s spoken to ranking member John Conyers (D-Mich.) about getting an early start on reform measures in the new Congress. “I look forward to talking with President-elect Trump and his administration about the problems facing the criminal justice system and our ideas for reform,” he said. "There is bipartisan agreement that many aspects of our criminal justice system need reform."
Goodlatte pointed to successes GOP governors have had in making reforms at the state level. “It is my hope that this will be an issue we can all work on together in 2017,” he said....
Opponents of criminal justice reform, however, argue the door for criminal justice reform was never open to begin with. Bill Otis, an adjunct professor of law at the Georgetown University Law Center, claims reform never really had a chance of passing Congress when President Obama was in office and has even less of a chance under Trump.
The former federal prosecutor said advocates had a leg up with the support of the Obama administration and with that came a forum and resources. “Now all that will disappear,” he said. “Trump ran explicitly as a law-and-order candidate. If he had a good word to say about reducing prison sentences, I didn’t hear it.”
Advocates are refusing to throw in the towel. Last week, the partners of the U.S. Justice Action Network sent a letter to Trump encouraging him to make criminal justice reform a top priority in his first 100 days. “We share your goal of enhancing public safety and encourage you to consider that, just as with energy policy, it requires an all-of-the-above strategy,” they wrote. “That is, just as we recognize those who pose a danger to society must be behind bars, for many others such as addicts and those with mental illness public safety can best be advanced through treatment-based approaches.”
Many SCOTUS Justices seems disinclined to find vagueness problems with sentencing guidelines given backdrop of unguided sentencing discretion
I have only just gotten started reading the transcript of the oral argument in Beckles v. United States (which is available here), and the first set of big questions suggests some Justices are not drawn to a basic sentencing vagueness claim. Consider these passages from early in the transcript, which I have tweaked stylistically for improved exposition:
JUSTICE ALITO: Let me ask you a more fundamental question. And I don't want to unduly shock the attorneys who are here from the Sentencing Commission, but imagine there were no sentencing guidelines. So you have a criminal provision that says that a person who's convicted of this offense may be imprisoned for not more than 20 years. That's all it says. Now, is that unconstitutionally vague?
MS. BERGMANN: No, Your Honor.
JUSTICE ALITO: Well, that seems to be a lot vaguer than what we have here. So how do you -- how do you reconcile those two propositions?
MS. BERGMANN: Well, Your Honor, we submit that arbitrary determinant sentencing such as with a vague guideline is not the same as an indeterminate sentencing scheme such as the Court described. Our position is that the use of a vague guideline, in fact, is worse than indeterminate sentencing because it systematically injects arbitrariness into the entire sentencing process.
JUSTICE BREYER: And there is more arbitrariness because of this guideline than there was before the Guidelines were passed? Is there any evidence of that? I have a lot of evidence it wasn't.
MS. BERGMANN: Well, I think, Your Honor, it's especially so here because --
JUSTICE BREYER: Especially so. Is it so at all? There was a system before the Guidelines exactly as Justice Alito said. Moreover, that system is existing today side by side with the Guidelines in any case in which the judge decides not to use the Guidelines. So I don't get it. I really don't. And you can be brief here, because it's really the government that has to answer this question for me. I don't understand where they're coming from on this, and you don't have to answer more than briefly, but I do have exactly the same question that Justice Alito had....
CHIEF JUSTICE ROBERTS: Well, if the indeterminate sentencing is all right, it would seem to me that even the vaguest guideline would be an improvement and so difficult to argue that it's too vague to be applied....
JUSTICE KENNEDY: Well, but your argument applies to State systems as well, and you're telling us that the more specific a legislature or an agency tries to make guidance for the judge, the more chance there is for vagueness.... Your argument is sweeping. And you're saying the more specific guidance you give, the more dangers there is of unconstitutionality. That's very difficult to accept.
These statements notwithstanding, the extraordinary presentation by Deputy Solicitor General Michael Dreeben (who has long been my all-time favorite SCOTUS advocate) may have helped move at least some of the Justices to better appreciate how the career offender guidelines could be deemed unconstitutionally vague in the wake of the Johnson ACCA ruling back in summer 2015.
Will Prez Obama break out of his "clemency rut" and really go bold his last few weeks in the Oval Office?
Now that Prez Obama has granted commutations to more than 1000 federal prisoners (basics here), I suppose I should stop complaining that he has only "talked the talk" about significant sentencing reform. Having granted now a record number of commutations to federal defendants sentenced to decades of imprisonment for mostly nonviolent drug offenses, Prez Obama can and should retire to the golf course with some justified satisfaction that he has created a new clemency legacy over his final few years as Prez.
That said, a few basic numbers about the reality of federal drug prosecutions in the Obama era should temper any profound praise for Prez Obama here. Specifically, Prez Obama was in charge from Jan 2009 to Aug 2010 when the old 100-1 crack/powder ratio was still in place. During that period, using this US Sentencing Commission data as a guide, well over 5000 federal defendants were sentenced under the old crack laws while Prez Obama and his appointees were leading the Justice Department. So, during just Prez Obama's first 1.5 years in office, federal prosecutors sent five times as many drug offenders to federal prison under the old crack laws than Prez Obama has now commuted. Moreover, given that the Fair Sentencing Act of 2010 only reduced the crack/powder unfairness, it is worth also noting that over another 20,000 federal defendants have been prosecuted and sentence under still-disparate/unfair crack sentencing laws from Aug 2010 to Nov 2016 (though crack prosecutions, as this USSC data shows, have declined considerably from 2010 to 2015).
I bring all this up because I will not consider Prez Obama to be a bold and courageous executive leader in the clemency arena unless and until he grants relief to more folks than just over-sentenced nonviolent drug offenders. Helpfully, this new Wall Street Journal commentary authored by Charles Renfrew and James Reynolds provides some distinct clemency fodder for Prez Obama to consider. The piece is headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony." Because I have been an advocate for a reduced sentence for Sholom Rubashkin, whose 27-year federal prison sentence has long seemed grossly unfair and unjustified to me, I will not here make the clemency case for him in particular. But this WSJ commentary serves as a useful reminder that there are certainly hundreds — and likely thousands and perhaps tens of thousands — of federal prisoners currently serving excessive federal prison sentences who were involved in criminal activity other than nonviolent drug offenses.
Candidly, I am not optimistic that Prez Obama will use his last seven weeks to get out of the notable "clemency rut" of his Administration's own creation. I say this because I surmise that (1) (1) everyone involved in the Obama Administration's clemency push has been focused almost exclusively on low-level drug prisoners sentenced to a decade or longer, and (2) even the limited group of low-level drug offenders being actively considered still presents tens of thousands of clemency petitions to review. Meanwhile, I suspect and fear, reasonable clemency requests from thousands of other potentially worthy applications are seemingly being rejected out-of-hand or being left for the next Prez to deal with.
I hope Prez Obama proves me wrong in the next seven weeks by granting clemency to some other types of folks seeing executive relief (both in the form of commutations and pardons). But on most criminal justice reform issues, Prez Obama has left me deeply disappointed a lot more than he has pleasantly surprised me.
November 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Sunday, November 27, 2016
Interesting and exciting sentencing week as SCOTUS gets back to work
For sentencing fans who pay special attention to the Supreme Court, November has been not all that interesting so far. But after a series of arguments on civil cases earlier in the month, the last few days of SCOTUS argument this November has all sort of intriguing issues for sentencing fans. Here are the basics and links to previews from SCOTUSblog of the exciting week to come:
Monday Nov 28: Beckles v. United States:
Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.
Tuesday Nov 29: Moore v. Texas:
Issue: Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
Wednesday Nov 30: Jennings v. Rodriguez:
Issue: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.