Sunday, June 25, 2017

"A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors"

The title of this post is the title of this notable new note authored by Aditi Juneja now available via SSRN.  Here is the abstract:

In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts.  As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.”  This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process.  Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.

To achieve this goal, the note attempts to explain what factors individual prosecutors consider when plea bargaining. If provided a framework, prosecutors are capable of evaluating the multiple considerations that would be relevant in attempting to maximize the public good.  This note operates from the premise that it is possible, and perhaps preferable, to transform the culture of prosecutors’ offices from the ground up.  In order to contextualize the way these factors would be considered, it is important to understand the amount of prosecutorial discretion possessed by individual prosecutors.  As such, this note explores the scope of prosecutorial discretion in plea bargaining.  First, the note considers the scope of prosecutorial discretion possessed by individual prosecutors within the context of office customs, office policies, ethical obligations and laws. The note then outlines a framework of factors a prosecutor might consider in deciding what plea deal to offer including the completeness of information, purposes of punishment, the defense counsel, reasons a defendant might plead guilty besides factual guilt, and impacts of punishment on the legitimacy of law.  This is the first academic paper to suggest that line prosecutors themselves attempt to conduct a multi-factored analysis in determining what plea deal should be offered is necessary and that the plea deal should be distinct from the sentence that might be offered at trial given the lack of procedural safeguards.

June 25, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Could mental illness be the next big battle-front in debates over capital punishment?

The question in the title of this post is prompted by this lengthy Washington Post article headlined "He’s a killer set to die. But his mental illness has set off a new death penalty battle."  Here are excerpts:

Someone was trying to kill him. William C. Morva was certain of it.  He couldn’t breathe and he was withering away, he told his mother in a jailhouse call.

“Somebody wants me to die and I don’t know who it is,” he said.  “They know my health is dwindling, okay?” He sounded paranoid. His voice grew more frantic with each call over several months on the recorded lines.

“How much more time do you think my body has before it gives out?” he asked just months before he escaped from custody, killing an unarmed guard and later a sheriff’s deputy before his capture in woods near Virginia Tech’s campus.

Morva faces execution July 6 for the 2006 killings. With the date looming, Morva’s family, friends and lawyers are pressing for clemency from Virginia Gov. Terry McAuliffe (D) in what has become a broader national push to eliminate capital punishment for people with severe mental illnesses such as Morva’s delusional disorder....

The Supreme Court in recent years has ruled that juveniles, whose brains are not fully developed, and people with intellectual disabilities are not eligible for the death penalty.  Lawmakers in eight states, including Virginia, Tennessee and Indiana, have introduced bills that would expand the prohibition to people with severe mental illnesses.

A vote on an Ohio measure pending in the state legislature is expected this fall.  It is backed by a coalition of providers of mental-health services, social justice groups, religious leaders, former state Supreme Court justices and former Republican governor Bob Taft.  The bills address punishment, not guilt or innocence.  If lawmakers in Columbus sign off on the measure, Ohio would become the first state to pass an exclusion for severe mental illness among the 31 that retain the death penalty....

Advocates for reform say the penalty was not intended for people who are incapable of distinguishing between delusions and reality, and that jurors often misunderstand mental illness.  The reformers’ efforts have met with resistance mostly from prosecutors and law enforcement officials who say jurors already can factor in mental illness at sentencing and that the exemptions are too broad.

June 25, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

Saturday, June 24, 2017

Former DAG Sally Yates makes the case against AG Sessions new federal charging and sentencing policies

Former Deputy Attorney General Sally Yates that this new Washington Post commentary under the headline "Making America scared again won’t make us safer." Here are excerpts:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the “lock them all up and throw away the key” approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

But last month, Attorney General Jeff Sessions rolled back the clock to the 1980s, reinstating the harsh, indiscriminate use of mandatory minimum drug sentences imposed at the height of the crack epidemic.  Sessions attempted to justify his directive in a Post op-ed last weekend, stoking fear by claiming that as a result of then-Attorney General Eric H. Holder Jr.’s Smart on Crime policy, the United States is gripped by a rising epidemic of violent crime that can only be cured by putting more drug offenders in jail for more time.

That argument just isn’t supported by the facts.  Not only are violent crime rates still at historic lows — nearly half of what they were when I became a federal prosecutor in 1989 — but there is also no evidence that the increase in violent crime some cities have experienced is the result of drug offenders not serving enough time in prison.  In fact, a recent study by the bipartisan U.S. Sentencing Commission found that drug defendants with shorter sentences were actually slightly less likely to commit crimes when released than those sentenced under older, more severe penalties.

Contrary to Sessions’s assertions, Smart on Crime focused our limited federal resources on cases that had the greatest impact on our communities — the most dangerous defendants and most complex cases. As a result, prosecutors charged more defendants with murder, assault, gun crimes and robbery than ever before.  And a greater percentage of drug prosecutions targeted kingpins and drug dealers with guns.

During my 27 years at the Justice Department, I prosecuted criminals at the heart of the international drug trade, from high-level narcotics traffickers to violent gang leaders. And I had no hesitation about asking a judge to impose long prison terms in those cases.  But there’s a big difference between a cartel boss and a low-level courier. As the Sentencing Commission found, part of the problem with harsh mandatory-minimum laws passed a generation ago is that they use the weight of the drugs involved in the offense as a proxy for seriousness of the crime — to the exclusion of virtually all other considerations, including the dangerousness of the offender.  Looking back, it’s clear that the mandatory-minimum laws cast too broad a net and, as a result, some low-level defendants are serving far longer sentences than are necessary — 20 years, 30 years, even mandatory life sentences, for nonviolent drug offenses.

Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders.  Sessions’s new directive essentially reverses that progress, limiting prosecutors’ ability to use their judgment to ensure the punishment fits the crime....

While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear. It’s time to move past the campaign-style rhetoric of being “tough” or “soft” on crime. Justice and the safety of our communities depend on it.

Prior recent related posts:

June 24, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Friday, June 23, 2017

Senate Judiciary Chair Grassley still talking up the prospects for federal statutory sentencing reform

This notable article from the Washington Free Beacon reports on some notable remarks by a critical member of Congress concerning federal sentencing reform.  The article is headlined "Sen. Grassley: Criminal Justice Reform Still on the Table," and here are excerpts:

Sen. Chuck Grassley (R., Iowa) believes that his criminal justice reform agenda, unsuccessful under the Obama administration, still has bright prospects, in spite of the less reform-friendly administration of President Donald Trump. Grassley, chairman of the Senate Judiciary committee, spoke at the American Enterprise Institute on Thursday morning about the Sentencing Reform and Corrections Act (SRCA), a bipartisan bill he first brought up in the last Congress....

"Long prison sentences always come with a cost. A cost to the taxpayers, a cost to families, and to our communities," Grassley said. "In many ways, and in many cases, the severity of the crime justifies these costs. But as we're all aware, that isn't always the case. Hence, the movement for sentencing reform."

The SRCA is meant to address these concerns through a number of approaches, Grassley said. These include expanded "safety valves" for non-violent offenders; a reduction in mandatory minimums for some drug crimes; and a reduction in sentences for offenders who complete programs designed to reduce recidivation. Grassley suggested that while the SRCA had the support of the Obama administration, the Trump White House, which has promised to "make America safe again," may be less friendly to the legislation.

"Obviously, the dynamic is different with a new president," Grassley said, but added that he was nonetheless "confident" about the SRCA's prospects. "We're looking forward to input from the administration" on the SRCA, Grassley said. "We had the support of the Obama administration. I think we have a chance of getting the support of this administration."

"I know that there is both support and opposition within this White House," Grassley said. "I certainly believe that it is consistent to be tough on crime and still support sentencing reform."

"We've been working since November to see what avenues we can have to move this bill along, particularly working with the executive branch of government. I'm confident about its prospects," he said....

Grassley criticized Sessions's comments that the administration would go back to pre-Obama sentencing discretion. "I'm not going to condemn people for finding fault with what Attorney General Sessions did when he spoke about going back to the pre-Obama, pre-Holder sentencing prosecutorial discretion that he gave to his U.S. Attorneys, that it was the wrong way to go. I could even say that I think it was the wrong way to go," he said.

Sessions opposed Grassley's bill when he was in the Senate. According to the Brennan Center for Justice, Sessions "personally blocked" the 2015 SRCA; he also, along with several of his colleagues, authored one of a series of op-eds opposing the bill. Sessions wrote an opinion piece for the Washington Post in June in which he insisted more stringent sentencing was needed to curb surging violent crime. He also attacked those who claimed incarceration was driven largely by low-level, nonviolent drug offenders.

Grassley, however, said Sessions' priorities need not conflict with the SRCA. "There doesn't have to be anything incompatible with what he's doing, with what we're trying to do, because what we do is give people that have been sentenced unfairly, and they feel it, and their lawyers feel it, another bite at the apple, by going before a judge to plead their case, that their sentence ought to be shorter," Grassley said.

Helpfully, the American Enterprise Institute has this webpage with a video of the event at which Senator Grassley spoke, and he had a lot more to say than what is quoted above.

June 23, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases its proposed priorities for 2017-18 amendment cycle

Download (1)Because of reduced membership and election transitions, as reported here, the US Sentencing Commission decided not to promulgate guideline amendments in the 2016-17 amendment cycle.  (For a variety of reasons, I think this was a wise decision even though, as noted in this post from December 2016, just before a number of Commissioners' terms expired, the USSC unanimously voted to publish some ambitious proposed amendments for 2017.)  The USSC still has a reduced membership — it is supposed to have seven members and right now has only four — but that has not prevented it from now releasing an ambitious set of proposed priorities for 2017-18 amendment cycle.  Nearly a dozen priorities appear in this new federal register notice, and here area few that especially caught my eye (with some added emphasis in a few spots): 

[T]he Commission has identified the following tentative priorities:

(1) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(2) Continuation of its multi-year study of offenses involving MDMA/Ecstasy, tetrahydrocannabinol (THC), synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone)....

(3) Continuation of its work with Congress and other interested parties to implement the recommendations set forth in the Commission’s 2016 report to Congress, titled Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c). The Commission also intends to release a series of publications updating the data in the 2011 report.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate, including possibly amending Chapter Four and Chapter Five to provide lower guideline ranges for “first offenders” generally and to increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table....

(9) Continuation of its study of alternatives to incarceration, including (A) issuing a publication regarding the development of alternative to incarceration programs in federal district courts, and (B) possibly amending the Sentencing Table in Chapter 5, Part A to consolidate Zones B and C, and other relevant provisions in the Guidelines Manual....

(11) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

June 23, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"People keep voting in support of the death penalty. So how can we end it?"

The title of this post is the notable headline of this notable new commentary by noted death penalty abolitionist Austin Sarat.  The first sentence of the headline highlights an important political reality, and the commentary goes on to review recent political developments and to emphasize the political challenges that abolitionists face.  I recommend the commentary as a modern recap on the state of capital politics and as providing insights on how abolitionists can seek to develop a claim that capital abolition is not anti-democratic.  I found found this little piece of political history especially interesting:

Since the beginning of the 20th century, when states across the country first adopted ballot initiative and referenda processes, 14 of them have put the death penalty on the ballot, some more than once.  From 1912 to 1968, there were 11 such direct votes. Another 23 have occurred since 1968, during the height of America’s tough-on-crime, law-and-order era.

In a few of those elections, voters have been asked only to approve technical changes in their state’s death penalty law. In others, like last year in Oklahoma, they had to decide whether to change their state constitutions to protect or reinstate the death penalty.

Sometimes death penalty abolitionists have led the way in pushing for a referendum. More often, especially since 1968, voters have been asked to respond to a legislative, judicial or executive action which threatened to end, or ended, the death penalty. In those circumstances, the issue generally has been put on the ballot by pro-death penalty politicians.

Yet whatever the form of the question, or the reasons for putting the death penalty to a vote, abolitionists have consistently taken an electoral beating. They lost 31 of the 34 times when voters were offered the chance to express their views.

Let’s consider the three times opponents of capital punishment won. In Oregon, abolitionists prevailed in 1914. But, just six years later, another referendum brought the death penalty back — only to have it voted down again in 1964. Arizona voters rejected the death penalty in 1916, but brought it back in 1918.

Abolitionists have consistently lost in even supposedly progressive states like Massachusetts, which voted in favor of the death penalty in 1968 and 1982.

June 23, 2017 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

SCOTUS decides defendant can show prejudice from bad plea advice and prevail on Sixth Amendment claim even with no defense to charge

The Supreme Court this morning handed down three more opinions, and the one notable criminal case decided today was Lee v. United States, No. 16–327 (S. Ct. June 23, 2017) (available here). The Chief Justice wrote the opinion for the Court, which starts and ends this way:

Petitioner Jae Lee was indicted on one count of possessing ecstasy with intent to distribute.  Although he has lived in this country for most of his life, Lee is not a United States citizen, and he feared that a criminal conviction might affect his status as a lawful permanent resident.  His attorney assured him there was nothing to worry about — the Government would not deport him if he pleaded guilty.  So Lee, who had no real defense to the charge, opted to accept a plea that carried a lesser prison sentence than he would have faced at trial.

Lee’s attorney was wrong: The conviction meant that Lee was subject to mandatory deportation from this country.  Lee seeks to vacate his conviction on the ground that, in accepting the plea, he received ineffective assistance of counsel in violation of the Sixth Amendment.  Everyone agrees that Lee received objectively unreasonable representation. The question presented is whether he can show he was prejudiced as a result....

We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial?  Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time.  See id., at 6.  Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.

Lee’s claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence.  Accordingly we conclude Lee has demonstrated a “reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S., at 59.

Justice Thomas wrote a dissent joined by Justice Alito which gets started this way:

The Court today holds that a defendant can undo a guilty plea, well after sentencing and in the face of overwhelming evidence of guilt, because he would have chosen to pursue a defense at trial with no reasonable chance of success if his attorney had properly advised him of the immigration consequences of his plea.  Neither the Sixth Amendment nor this Court’s precedents support that conclusion.  I respectfully dissent.

June 23, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Thursday, June 22, 2017

Are federal judges already getting a little tougher at sentencing in the Trump era?

The question in the title of this post was my first thought after looking through this new federal sentencing data released by the US Sentencing Commission today.  The data that really caught my eye is on Table 12, which shows that in the most recent quarter (running from January 1 to March 31), less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range (19.9% to be exact), and 2.9% of cases involved a judge-initiated departure/variance above the guideline range.  The last time that less than 20% of federal cases involved a judge-initiated departure/variance below the guideline range was in the fourth quarter of 2013, and I do not believe there has ever been a quarter in which so many cases involved an above-guideline sentence.

Because federal sentencing data moves always around a bit from quarter-to-quarter, and because case-load mixes can vary from quarter-to-quarter, these small statistical changes I have noticed here may just be a coincidental blip rather than a reflection of the impact of tough-on-crime talk from the Trump Administration and its Department of Justice.  (Nevertheless, because the federal system currently sentences over 16,000 cases per quarter, even small statistical changes represent hundreds of defendants.)  We will have to see in subsequent USSC data runs whether this new pattern of fewer below-guideline sentences and more above-guideline sentences persists.

Critically, the period covered by this USSC federal sentencing data predates the May issuance by Attorney General Jeff Sessions of new charging and sentencing guidance for federal prosecutors.   I find it notable and interesting that federal judges may have already been responding in some (small) sentencing ways to the tough-on-crime talk from the Trump Administration even before AG Sessions formally toughened up federal prosecutorial policies and practices.

June 22, 2017 in Criminal justice in the Trump Administration, Data on sentencing, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

"Jeff Sessions wants a new war on drugs. It won't work."

The title of this post is the headline of this new Washington Post commentary authored by David Cole, who is the national legal director of the American Civil Liberties Union, and Marc Mauer, who is executive director of the Sentencing Project. Here are excerpts:

Attorney General Jeff Sessions is right to be concerned about recent increases in violent crime in some of our nation’s largest cities, as well as a tragic rise in drug overdoses nationwide [“Lax drug enforcement means more violence,” op-ed, June 18].  But there is little reason to believe that his response — reviving the failed “war on drugs” and imposing more mandatory minimums on nonviolent drug offenders — will do anything to solve the problem.  His prescription contravenes a growing bipartisan consensus that the war on drugs has not worked. And it would exacerbate mass incarceration, the most pressing civil rights problem of the day.

Sessions’s first mistake is to conflate correlation and causation. He argues that the rise in murder rates in 2015 was somehow related to his predecessor Eric Holder’s August 2013 directive scaling back federal prosecutions in lower-level drug cases.  That policy urged prosecutors to reserve the most serious charges for high-level offenses.  Holder directed them to avoid unnecessarily harsh mandatory minimum sentences for defendants whose conduct involved no actual or threatened violence, and who had no leadership role in criminal enterprises or gangs, no substantial ties to drug trafficking organizations and no significant criminal history....  Sessions offers no evidence that this policy caused the recent spikes in violent crime or drug overdoses. There are three reasons to doubt that there is any significant connection between the two.

First, federal prosecutors handle fewer than 10 percent of all criminal cases, so a modest change in their charging policy with respect to a subset of drug cases is unlikely to have a nationwide impact on crime.  The other 90 percent of criminal prosecution is conducted by state prosecutors, who were not affected by Holder’s policy.  Second, the few individuals who benefited from Holder’s policy by definition lacked a sustained history of crime or violence or any connections to major drug traffickers.  Third, the increases in violent crime that Sessions cites are not nationally uniform, which one would expect if they were attributable to federal policy.  In 2015, murder rates rose in Chicago, Cleveland and Baltimore, to be sure.  But they declined in Boston and El Paso, and stayed relatively steady in New York, Las Vegas, Detroit and Atlanta.  If federal drug policy were responsible for the changes, we would not see such dramatic variances from city to city.

Nor is there any evidence that increases in drug overdoses have anything to do with shorter sentences for a small subset of nonviolent drug offenders in federal courts.  Again, the vast majority of drug prosecutions are in state court under state law and are unaffected by the attorney general’s policies.  And the rise in drug overdoses is a direct result of the opioid and related heroin epidemics, which have been caused principally by increased access to prescription painkillers from doctors and pill mills.  That tragic development calls for treatment of addicts and closer regulation of doctors, not mandatory minimums imposed on street-level drug sellers, who are easily replaced in communities that have few lawful job opportunities.

Most disturbing, Sessions seems to have no concern for the fact that the United States leads the world in incarceration; that its prison population is disproportionately black, Hispanic and poor; or that incarceration inflicts deep and long-lasting costs on the very communities most vulnerable to crime in the first place.... Advocates as diverse as the Koch brothers and George Soros, the Center for American Progress and Americans for Tax Reform, the American Civil Liberties Union and Right on Crime agree that we need to scale back the harshness of our criminal justice system.

Rather than expanding the drug war, Sessions would be smarter to examine local conditions that influence crime and violence, including policing strategies, availability of guns, community engagement and concentrated poverty.  Responding to those underlying problems, and restoring trust through consent decrees that reduce police abuse, hold considerably more promise of producing public safety. Sessions’s revival of the failed policies of the past, by contrast, has little hope of reducing violent crime or drug overdoses. 

Prior recent related posts:

June 22, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Today's SCOTUS CJ scorecard: government wins in two procedural cases, defendant wins in one substantive case

The Supreme Court this morning handed down opinions in three cases, all three of which involve intricate criminal law and procedure issues. I am going to copy and tweak here the summary of all the action from How Appealing for ease of exposition: 

1. Justice Elena Kagan delivered the opinion of the Court in Maslenjak v. United States, No. 16-309. Justice Neil M. Gorsuch issued an opinion, in which Justice Clarence Thomas joined, concurring in part and concurring in the judgment. And Justice Samuel A. Alito, Jr. issued an opinion concurring in the judgment. 

2. Justice Stephen G. Breyer delivered the opinion of the Court in Turner v. United States, No. 15-1503. Justice Kagan issued a dissenting opinion, in which Justice Ruth Bader Ginsburg joined. 

3. And Justice Anthony M. Kennedy delivered the opinion of the Court in Weaver v. Massachusetts, No. 16-240.  Justice Thomas issued a concurring opinion, in which Justice Gorsuch joined.  Justice Alito issued an opinion concurring in the judgment, in which Justice Gorsuch also joined.  And Justice Breyer issued a dissenting opinion, in which Justice Kagan joined. 

As the title of this post indicates, and as the pattern of votes suggests, the defendant prevailed in first of these listed cases, Maslenjak, which concerned the substantive reach of a federal criminal statute.  The government prevailed in the other two cases, one of which concerned the application of Brady (Turner) and the other of which concerned what types of errors can be found harmless in Strickland ineffective assistance analysis (Weaver).

For a variety of reasons, the procedural rulings on behalf of the government in Turner and Weaver seem like a much bigger deal than the Maslenjak ruling, perhaps especially because the government had won below in Turner and Weaver and so it could have been reasonably assumed that the Supreme Court took up the cases in order to reverse the outcome.  Also, of course, issues related to the application of Brady and Strickland impact so many cases, especially on collateral appeal.

Over at Crime & Consequences, Kent Scheidegger has this helpful summary post on all these cases simply and appropriately titled "Materiality."

June 22, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, June 21, 2017

"Evangelical leaders push for criminal justice reform"

Images (1)The title of this post is the headline of this new article in the National Catholic Reporter.  Here are excerpts:

Evangelical Christian leaders are spearheading a campaign for criminal justice reform, calling for equitable punishment, alternatives to incarceration and a different take on the "tough on crime" language of the Trump administration.

"Our country's overreliance on incarceration fails to make us safer or to restore people and communities who have been harmed," said James Ackerman, CEO of Prison Fellowship Ministries, at a June 20 news conference at the National Press Club.

Joined by black, white and Hispanic officials of evangelical organizations, he introduced the "Justice Declaration" that has been signed by close to 100 religious leaders from a wide range of Christian denominations. "The Church has both the unique ability and unparalleled capacity to confront the staggering crisis of crime and incarceration in America," the declaration reads, "and to respond with restorative solutions for communities, victims, and individuals responsible for crime."

The leaders later presented their declaration to Republican leaders, such as House Speaker Paul Ryan and Senate Judiciary Committee Chairman Chuck Grassley, in hopes of gaining bipartisan support for changes in federal law....

Ackerman said Prison Fellowship supports sentencing guidelines but thinks mandatory sentences are "a big mistake." He was joined at the news conference by leaders with testimonies of how churches helped formerly incarcerated people rehabilitate themselves and become productive citizens.

Dimas Salaberrios, president of the Concerts of Prayer Greater New York, told of how church members once vouched to a judge about his transformation after he escaped from authorities when he was a drug dealer. The judge pardoned him. "I'm living proof that when you grab somebody out of the pits of hell and you turn their life around that they can be great contributors to society," he said.

National Association of Evangelicals President Leith Anderson challenged churches to do more than sign the declaration but also take action steps to address racial inequities and work for alternatives such as drug courts and mental health courts to keep people out of prison. Thirteen percent of Americans are African-American but close to 40 percent of U.S. prisoners are black. "What if all of our churches were to adopt one incarcerated person?" he asked. "What if all of our churches would service one family where a family member is incarcerated? What if all of our churches would care for one victim?"

The declaration, and a related 11-page paper on how the church can respond to crime and incarceration, were spearheaded by evangelical organizations: Prison Fellowship, the NAE, the Southern Baptist Convention's Ethics and Religious Liberty Commission and the Colson Center for Christian Worldview.

But signatories on the declaration include a wider range of Christian leaders, such as Episcopal Church Presiding Bishop Michael Curry, Bread for the World President David Beckmann and Bishop Frank Dewane, who chairs the U.S. Conference of Catholic Bishops' Committee on Domestic Justice and Human Development.

This Justice Declaration webpage hosted by Prison Fellowship provides more details on this latest notable advocacy effort, and that page also provides a link to this interesting 11-page white paper titled "Responding to Crime & Incarcertation: A Call to the Church."

June 21, 2017 in Prisons and prisoners, Religion, Who Sentences? | Permalink | Comments (0)

Henry Montgomery (of Montgomery v. Louisiana) re-sentenced to life with parole

As reported in this lengthy local article, a defendant whose surname means a lot to a lot of juvenile offenders long ago sentenced to life without parole was resentenced today in Louisiana. Here are just some of the details of the latest chapter of a truly a remarkable case:

A Baton Rouge judge Wednesday gave a 71-year-old man convicted of killing a sheriff's deputy when he was 17 a chance to leave prison before he dies.

Henry Montgomery has been locked up for 54 years in the killing of East Baton Rouge sheriff's deputy Charles Hurt. But Judge Richard Anderson on Wednesday re-sentenced Montgomery to a life sentence with the possibility of parole, following a pair of recent U.S. Supreme Court rulings — including Montgomery's own case — that say defendants convicted of murder for killings committed as juveniles cannot automatically be sent away to serve life without parole.

"This is not an easy thing for me to do … because one man is dead and the family is still living through the consequences. But the law is the law," said Anderson, referencing the higher court decisions that said sentences of life without parole for young killers must be "rare and uncommon" and reserved only for those who display "irretrievable depravity."

Anderson's decision during the brief hearing came nearly two months after defense attorneys presented the judge with extensive testimony about Montgomery's conduct in prison and the rough circumstances of his childhood.  Officials from the Louisiana State Penitentiary at Angola, where Montgomery has spent nearly all of the last half-century, described him as a trustworthy inmate and reliable worker who accumulated a remarkably low number of infractions during his time at the once-notorious prison.

Lindsay Jarrell Blouin, an East Baton Rouge Parish public defender who represents Montgomery, also detailed rough circumstances of Montgomery's childhood, which she wrote included neglect, physical abuse and a lack of education. Court filings also detailed Montgomery's mental limitations, including an IQ estimated by psychologists during his 1969 trial as somewhere in the 70s....

"He's been a model prisoner for 54 years, he's been a mentor and, by all appearances, he's been rehabilitated," Anderson said. "It does not appear (Montgomery) is someone the Supreme Court would consider 'irreparably corrupt.'"

Montgomery was walking near Scotlandville High School on Nov. 13, 1963, when he ran from Hurt and other deputies who'd arrived to investigate a theft complaint called in by the school.  Hurt tried to detain Montgomery, according to trial transcripts, and Montgomery killed him with a single shot from a .22-caliber pistol.  Hurt's partner that day wrote in an initial report that Hurt had his hands up and was backing away when Montgomery shot him.  But the officer testified at trial that he was some 350 yards away and couldn't see Hurt or Montgomery at the moment of the shooting, according to recent filings by Montgomery's attorneys.  The deputy was wearing plain clothes, Montgomery's attorneys wrote, and the teenager told investigators following his arrest that he thought Hurt was reaching for a gun when he fired. "This was a terrible, split-second decision made by a scared 17-year-old boy who thought he was going to be killed."

Hurt's family did not attend Wednesday's hearing.  But in April, as Anderson considered evidence in the case, Hurt's two daughters took the stand to testify to how that single gunshot upended their family, snapped previously happy childhoods and continues to reverberate in painful ways decades later.  Becky Wilson and Linda Woods both told Anderson through tears that they'd come to forgive and pray for Montgomery.  The deputy's daughters met privately with Montgomery at Angola earlier this year.

But the sisters, as well as Jean-Paul deGravelles, Hurt's grandson who's now a Lafourche Parish sheriff's deputy, all said they felt Montgomery received a just sentence when a jury in 1969 found him guilty of murder "without capital punishment" — a verdict that spared Montgomery the death penalty but sent him away for the remainder of his life.

Anderson echoed that view, noting from the bench that he felt Montgomery's life-without-parole sentence was fair. But the law has changed, Anderson said, regardless of whether the judge agrees with the Supreme Court rulings.

Prosecutors didn't argue for either life with or without parole for Montgomery but noted the gravity of the crime and its impact on the victim's family.  Lawyers with the Attorney General's Office who represented the state at the hearing declined to comment Wednesday.  East Baton Rouge District Attorney Hillar Moore III said Anderson's "difficult but well-reasoned decision" acknowledged the suffering caused by Montgomery but was bound by the U.S. Supreme Court's decision.

Wilson, who was 9 years old when her father was killed, said Wednesday she believes Anderson reached "the only decision he could" under current law in offering Montgomery a chance at parole and said she appreciates the judge's careful consideration of the case.  "As for Mr. Montgomery, I just pray for God’s perfect will to be done in his life and hope and pray he is blessed wherever he might be, today and in his future," Wilson said by email. "If he should be paroled, I hope, if given the opportunity, he will use his life experience to help keep young men and women from going down the same path he went down. Also, I pray that he will truly be thankful and humbled by the gift of freedom."

Montgomery's 1969 conviction came after the Louisiana Supreme Court overturned an earlier verdict, ruling that widespread and often racially tinged attention to the case "permeated the atmosphere" in Baton Rouge during his first trial.  The court ruled that "no one could reasonably say that the verdict and the sentence were lawfully obtained." Anderson on Wednesday noted the jury in Montgomery's second trial in 1969 chose not to impose a death sentence even though the law allowed it.  Montgomery's attorneys argued earlier that the jury's decision for a lesser sentence suggested they didn't see Montgomery as among the worst killers.

Anderson also admonished Montgomery, who stood before the judge stooped with his hands closely shackled to a belly chain, to take advantage of his opportunity at freedom.  Montgomery didn't speak during the hearing and was quickly led away after the judge read out his new sentence.  Blouin, his attorney, said after the hearing that Montgomery was pleased with the decision but "still grieves for the victim's family and the impact this has had on them."

The next step for Montgomery will be a request for a parole board hearing.  He's already served more than twice as many years as required before parole consideration and has met other requirements to apply for release. Keith Nordyke, an attorney with the Louisiana Parole Project, a nonprofit firm representing Montgomery in the parole process, said a hearing could come before the end of the year.

June 21, 2017 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

A misdirected attack on two notable sentences in Justice Alito's Packingham concurrence

There is a lot worth discussing concerning the Supreme Court's decision in Packingham earlier this week (basics here), and this new Washington Post "Fact Checker" piece decides to give particular attention to two lines from Justice Alito's concurrence in a piece headlined "Justice Alito’s misleading claim about sex offender rearrests."  I find the WaPo piece itself somewhat misleading (or really misdirected) because it is focused too much on the second of these two sentences in Justices Alito's opinion rather than the first:

“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”

After reviewing a bunch of statistics, this WaPo piece comes to this conclusion:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading.  It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release.  This makes it seem like recidivism among sex offenders to be a uniquely bad problem, but it is an apples-to-oranges comparison.

This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago.  Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide.   It does the public no service when the Supreme Court justices make a misleading characterization like this.  We award Three Pinocchios.

I find disconcerting that what this WaPo piece is calling " quite misleading" is a sentence (the second one above) that is factually accurate.  The piece strikes me as especially problematic because it fails to stress that what might make the second sentence about "sex offender rearrest trends" potentially misleading is that it follows the forceful assertion that "repeat sex offenders pose an especially grave risk to children."  In my reading, it is the phrase "especially grave risk to children" that contributes to the impression that "recidivism among sex offenders [is] a uniquely bad problem."

That all said, the ever bigger problem with the law at issue in Packingham and lots of other similar laws and the WaPo commentary itself is use of the always-way-too-broad offender category of "sex offender."  This board label necessarily lumps together some relatively minor adult offenders and some relatively very serious offenders who consistently victimize children.  There are certainly some serious sex offender who do pose an "especially grave risk to children," but many folks on sex offender registries may pose less of a risk to children than do the average person.

Ultimately, these are challenging issues to discuss with precision both conceptually and statistically.  And though I am always pleased to see detailed discussion of crime data in the Washington Post, I am troubled by its decision to "award Three Pinocchios" to a statement that is factually true. 

UPDATE: I just noticed that Ed Whelan over at Bench Memos has this more thorough review of this WaPo piece under the titled "Fact-checking the fact Checker."

June 21, 2017 in Data on sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25)

Close examination of some JLWOP girls who should benefit from Graham and Miller

The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence.  Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before.  Here are their full headlines, with links, followed by an excerpt from the second of the pieces: 

"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko

"Lisa, Laquanda, Machelle, and Kenya Were Sentenced as Children to Die in Prison: Decades later, a Supreme Court ruling could give them their freedom" by Danielle Wolffe

The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.

The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.

I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.

The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.

June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Notable look at notably tough sentencing patterns in one rural county in Minnesota

Sentencing, like politics, is ultimately always a local story, and this lengthy new MinnPost article takes a deep dive into the notable local sentencing stories of Polk County, Minnesota.  The lengthy article is headlined "Why tiny Polk County sends so many people to prison," and here are excerpts:

If you’re planning to commit a crime in Minnesota, you might want to steer clear of Polk County. This county of 32,000, which hugs the Red River on the North Dakota border, is sparsely populated and largely agricultural, save for East Grand Forks, Crookston and a handful of other small cities set between soybean, wheat and sugar beet fields.

Yet in 2014 it sent more people to prison, per capita, than any other county in Minnesota, a county-by-county analysis of National Corrections Reporting Program data by the New York Times and Fordham University found. That year, the most recent for which data are available, prison admission rates in northwestern Minnesota’s Polk County stick out across the upper Midwest, more closely resembling some of the counties that form a prison belt across the U.S., from Indiana to Kentucky, Missouri Arkansas, Oklahoma, Louisiana and Texas, than it does most of its neighbors.

For every 10,000 Polk County residents, 50 people were admitted to prison in 2014, an increase from 22 per 10,000 residents in 2006 and 39 per 10,000 residents in 2013, among the highest in Minnesota both years. The high prison admissions rate in Polk stands in sharp contrast to lower rates in nearby counties and the Twin Cities: In 2014, 12 per 10,000 residents in Hennepin County went to prison and 19 per 10,000 residents in Ramsey did. Neither rate increased by more than 3 per 10,000 people from 2006.

Why is Polk County sending so many people to prison? Ask Polk County officials what’s behind the high rate of imprisonment, and they’ll likely have an answer for you: drugs.

To some extent, the data bear that out. While for the most part crime and arrest rates were stable between 2006 and 2014 in Polk County, drug crimes are a big exception. Drug crimes went from a rate of 38.6 per 10,000 residents in 2006 to 61.9 per 10,000 residents in 2014. Drug-related arrest rates, likewise, more than doubled, from 25 per 10,000 residents in 2006 to 55 per 10,000 people in 2014....

In Minnesota, how felony offenders are punished depends on where they fall on the Sentencing Guideline Commission’s grid.... In theory, the sentencing guidelines bring uniformity to criminal sentencing in Minnesota’s 87 counties and 10 judicial districts. But there’s some room for discretion on the part of prosecutors and judges built into the system, too. While sentencing guidelines are followed in the vast majority of cases, courts are allowed to impose a softer or harsher sentences “when substantial and compelling aggravating or mitigating factors are present.” In some counties, departures are used more frequently than others.

In Polk County, 14 percent of felony drug offenders between 2006 and 2015 received “aggravated dispositional departures” — usually prison instead of the probation called for in the sentencing guidelines. In Beltrami County and Clay counties, 6 percent and 8 percent did, respectively. Statewide, less than 9 percent of felony drug offenders for whom the sentencing guidelines prescribe probation receive prison....

Kip Fontaine, assistant public defender ... noticed what seems to be a disproportionate number of third-degree charges for drug possession in a school zone or park. A person, say, found to be driving through one of these areas with drugs on them would, in most counties, be charged with this crime in the fifth-degree, a lesser charge, Fontaine said. Not necessarily in Polk. According to the Minnesota Sentencing Guidelines Commission, of 83 people with criminal history scores of zero through three sentenced with third-degree possession in a school zone or park in Minnesota between 2011 and 2015, 36 — nearly half — were in Polk County....

Andrew Larson, the executive director of Tri-County Community Corrections, the government agency that provides probation and detention services in Polk, Red Lake and Norman counties, said he senses a difference in philosophy in Polk County, too. “The Polk County Attorney’s Office is just more aggressive in their prosecution than perhaps what the other counties are, and it’s literally that simple. It’s not a matter of one being right or the other being wrong, it’s just a difference,” he said.

UPDATE: In the comments, federalist astutely suggests noting a similar article about case-processing toughness in a rural mid-west county.  So: New York Times highlights modern rural incarceration realities 

June 21, 2017 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (6)

Tuesday, June 20, 2017

Fascinating new OIG report examines implementation of former AG Holder's "Smart on Crime" initiative

I just came across this fascinating new report from the US Justice Department's Office of the Inspector General. The title of the lengthy report itself spotlights why the report is both fascinating and timely: "Review of the Department’s Implementation of Prosecution and Sentencing Reform Principles under the Smart on Crime Initiative." The full report runs 70 dense pages and even the executive summary is too lengthy and detailed to reproduce fully here. But these excerpts should whet the appetite of all sentencing nerds:

In August 2013, the U.S. Department of Justice (Department) and then Attorney General Eric H. Holder, Jr., announced the Smart on Crime initiative, which highlighted five principles to reform the federal criminal justice system. Smart on Crime encouraged federal prosecutors to focus on the most serious cases that implicate clear, substantial federal interests. In the first principle, the Department required, for the first time, the development of district-specific prosecution guidelines for determining when federal prosecutions should be brought, with the intent of focusing resources on fewer but the most significant cases. The second principle of Smart on Crime announced a change in Department charging policies so that certain defendants who prosecutors determined had committed low-level, non-violent drug offenses, and who had no ties to large-scale organizations, gangs, or cartels, generally would not be charged with offenses that imposed a mandatory minimum prison sentence.

The Office of the Inspector General (OIG) initiated this review to evaluate the Department’s implementation of the first two principles of Smart on Crime, as well as the impact of those changes to federal charging policies and practices. We assessed the 94 U.S. Attorney’s Office districts’ implementation and the impact of the Smart on Crime policy on not charging drug quantities implicating mandatory minimum sentences in circumstances where the defendants were low-level, non-violent offenders with limited criminal histories. We also assessed the implementation and impact of the policy that required prosecutors to consider certain factors before filing a recidivist enhancement that would increase the sentence of a drug defendant with a felony record pursuant to 21 U.S.C. § 851.

On May 10, 2017, the Attorney General issued a new charging and sentencing policy to all federal prosecutors that effectively rescinds the specific charging policies and practices outlined by Smart on Crime. We did not review this new policy as part of this review, which examined the implementation of the prosecution and sentencing reform principles under the Smart on Crime initiative....

We found that the Department made progress implementing the first two Smart on Crime principles, but we also identified several shortcomings in its efforts, including some failures to update national and local policies and guidelines and a lack of communication with local law enforcement partners regarding changes to these polices and guidelines in some instances.

We found that, while the Department issued policy memoranda and guidance to reflect its Smart on Crime policies, the U.S. Attorneys’ Manual (USAM), a primary guidance document for federal prosecutors, was not revised until January 2017, more than 3 years after Smart on Crime was launched, even though Department officials established a deadline of the end of 2014 to do so. Further, we determined that 74 of 94 districts had developed or updated their local policies to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions. Of the remaining 20 districts, some provided incomplete information to the OIG as to whether they had updated their prosecution guidelines or policy memoranda to reflect the Smart on Crime policy changes regarding mandatory minimum charging decisions in drug cases; in others, the district policies provided appeared to be inconsistent with the Smart on Crime policies in whole or in part; and some told us that they relied on the Holder memoranda for direction but did not develop or update any of their district policies or guidance documents to reflect the Smart on Crime policy changes.

We also found that 70 of 94 districts had incorporated Smart on Crime recidivist enhancement policy changes into their districts’ prosecution guidelines or policy memoranda. However, of the remaining 24 districts, 20 provided information to the OIG with respect to recidivist enhancements that appeared to be inconsistent with the 2013 Holder memoranda in whole or in part, or reported to the OIG that they followed the Holder memorandum but did not specifically revise their district policies to reflect Smart on Crime policy changes. The four remaining districts provided information that did not reflect the Smart on Crime policy changes on filing recidivist enhancements. Finally, we found that 10 districts failed to update their policies to reflect Smart on Crime policy changes with regard to both mandatory minimum charging decisions and recidivist enhancements....

We further found that the Department’s ability to measure the impact of the first two Smart on Crime principles is limited because it does not consistently collect data on charging decisions. For example, while the Legal Information Office Network System (LIONS), the U.S. Attorneys’ Offices’ case management system, allows federal prosecutors generally to track information about their cases, data fields relevant to Smart on Crime were not always present or updated.

Due to these limitations, the Department has relied on U.S. Sentencing Commission (USSC) data to assess the impact of the first two Smart on Crime principles. However, using USSC data to measure the impact of Smart on Crime’s charging policies is challenging because the USSC collects data from courts on sentencing decisions by judges and does not receive data from prosecutors about their charging decisions. In that regard, the USSC data does not allow assessments regarding charges that prosecutors could have brought but chose not to bring.

Nevertheless, based on our own analysis of USSC sentencing data over the period from 2010 through 2015, we found that sentencing outcomes in drug cases had shifted in a manner that was consistent with the first two principles of Smart on Crime. This was reflected by significantly fewer mandatory minimum sentences being imposed in drug cases nationwide, as well as a decrease in mandatory minimum sentences for those defendants who might otherwise have received such a sentence in the absence of the 2013 Holder memoranda....

We also found that some regions in the country diverged from these overall national trends. For example, while drug convictions decreased nationally by 19 percent, the decrease was far larger in the Southwest Border region. Further, the West, Pacific Northwest, and Hawaii and Island Territories regions actually showed increases in the number of drug convictions. As a result, we determined that national trends should not be interpreted in such a way as to conclude that Smart on Crime had a uniform impact across all the nation’s districts.

June 20, 2017 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Seventh Circuit panel again finds below-guideline sentence for abusive police officer unreasonable

Especially because it can sometimes seem that post-Booker reasonableness review of sentences has little bite, it still seems blogworthy whenever a circuit court finds a federal sentence unreasonable.  The work of a Seventh Circuit panel yesterday in US v. Smith, No. 16-2035 (7th Cir. June 19, 2017) (available  here), struck me as doubly blogworthy because it represents the second time the same sentence has been reversed and because the defendant here is an abusive local police officer.  Here is how the opinion gets started:

A jury convicted Terry Joe Smith, a police officer, of violating 18 U.S.C. § 242, by subjecting two men to the intentional use of unreasonable and excessive force, and violating their civil right to be free of such abuse.  The district court sentenced Smith to fourteen months’ imprisonment, less than half the low end of the applicable guidelines range. In the first appeal of the case, we affirmed Smith’s conviction but vacated the sentence and remanded for full resentencing, concluding that the court had failed to justify the below-guidelines sentence. United States v. Smith, 811 F.3d 907 (7th Cir. 2016).  On remand, the court again sentenced Smith to fourteen months’ imprisonment and once more failed to adequately explain or justify the below-guidelines sentence. We again vacate and remand for a complete re-sentencing.

Here are the essential basics from the opinion of the defendant's crime and recommended guideline punishment:

Smith was a police officer employed by the Putnam County Sheriff’s Department.  In two separate incidents, Smith violently assaulted arrestees who were already under control and not actively resisting arrest. At trial, Smith’s fellow police officers testified against him, describing the unwarranted [and brutal] attacks....

Smith’s guidelines range was thirty-three to forty-one months’ imprisonment. Smith was in Criminal History Category I, based on one prior conviction for misdemeanor battery of a three-year-old child and the child’s mother, who was then Smith’s wife.

The lengthy Smith opinion follows with lots of notable and interesting discussion about how the sentencing court justified a sentence of 14 months and why the circuit panel believe this below-guideline sentence was unreasonable even at a second sentencing with additional evidence.  And, as sometimes happens in the post-Booker world, the circuit panel officially ruled the sentence procedurally unreasonable, but it seems pretty clear that the panel was troubled by what it perceived to be a substantively light sentence under these circumstances.

June 20, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Intricate disputation of AG Sessions' recent defense of his new tougher federal charging/sentencing policy

As noted in this weekend post, the US Attorney General today took the the editorial pages of the Washington Post to make the case for his new tough charging and sentencing guidance for federal prosecutors via this opinion piece.  Today, the Washington Post has this new opinion piece by Radley Balko under the the headline "Here are all the ways Jeff Sessions is wrong about drug sentencing."  

The headline of the Balko piece serves as something of a summary of its contents, which involves an intricate "a line-by-line review" of all the key points made by AG Sessions in his piece.  Rather than try to capture all the particulars of the Balko piece here, I will just quote some of his closing commentary: 

Certainly, drug trafficking lowers the quality of life in a community.  Turf wars between drug gangs can make those communities more dangerous.  But again, Sessions himself concedes that prohibition itself creates these problems.  It’s pretty rare that liquor store employees erupt in gun fights over turf.  And if prohibition begets violence, the only way the solution to an increase in violence can be more prohibition is if the new prohibition wipes out drug trafficking entirely.  Otherwise, more prohibition usually just means more violence.  Knock out one major dealer, and new dealers will emerge and go to war to take his place.

We all know that rescinding the Holder memo isn’t going to end drug trafficking.  It isn’t going to affect the opioid crisis.  It isn’t going to move the needle either way on the violence in Chicago or Baltimore.  The most likely outcome is that a few hundred more nonviolent offenders spend a lot more time in federal prison than they otherwise would have.  I suppose it will also give Sessions the satisfaction of having rolled back one of the few substantive criminal-justice reforms of the Obama administration.  But the crime rate and the violence in America’s cities will rise or fall independent of the Holder memo.

The one thing we can all depend on — the one sure thing: Illicit drugs will continue to be available to pretty much anyone who wants to use them.

Prior recent related post:

AG Jeff Sessions makes the case for his new tougher federal charging/sentencing policy

June 20, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (2)

Wondering about judicial "wild-ass guesses" when considering child-porn restitution since Paroline

Long-time readers may recall a period about five year back when I was regularly blogging about notable federal district and circuit opinions struggling in various ways to figure out whether and how federal courts could impose restitution awards/punishments on federal offenders convicted only of downloading illegal images.  (As blogged here, a New York Times Magazine cover story in January 2013 nicely covered the legal and social issues involved in what was ultimately a sentencing question.)   Because the issue produced various splits in the lower courts, the Supreme Court took up and resolved the question in Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here).  

But while Paroline resolved some measure of legal uncertainty surrounding this child-porn restitution issue, it did so in a way that largely punted a host of factual challenges back to district courts at the time of sentencing.  This new local article in my local paper, headlined "Judge doesn’t want to guess on child-porn restitution," reminds me that Paroline did not really end the messy questions surrounding child-porn restitution determinations, it just made the litigation here much lower profile.  Here are excerpts from the local article:

U.S. District Judge Michael H. Watson doesn’t like “wild-ass guesses,” according to federal courts Reporter Earl Rinehart.

Watson presided over a restitution hearing last week during which a civil attorney representing a child pornography victim called “Andy” had petitioned Watson for $58,415 in damages.  The attorney’s client wasn’t the underage teen the defendant had photographed nude and was convicted for, but Andy’s picture was on the defendant’s computer.

In 2014, the U.S. Supreme Court ruled that child-pornography defendants could be liable to pay victims an amount proximate to the harm caused by having and/or distributing the image. Watson has said Congress needs to set standards to help judges calculate how much restitution to approve.  A bill that would set those minimum amounts was passed by the U.S. Senate but has languished in the House Judiciary Committee since February 2015.

Although he commended Assistant U.S. Attorney Heather Hill for her “valiant effort” in arguing for restitution, he agreed with Assistant Federal Public Defender Rasheeda Khan, who argued there was no evidence the defendant had shared Andy’s image and there was no way to accurately figure how much he owed now and for the victim’s future therapy costs. Another 158 defendants have either agreed to pay restitution to Andy or were ordered to do so.

Watson said the petition was based on a 2014 report that’s “not subject to cross examination” and “would not be admissible in a civil litigation.”

“There is no evidence Andy is a victim of this offense,” the judge said. He called again on Congress “to give us some direction.”

“It’s essentially a wild-ass guess for me to figure the appropriate restitution,” Watson said before denying any to Andy.

A few (of many) prior posts on Paroline and child porn restitution issues from years ago:

June 20, 2017 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (2)

Pew analysis finds no relationship between drug imprisonment and drug problems

The Public Safety Performance Project of The Pew Charitable Trusts has this notable new posting concerning a notable new letter and analysis it completed. The posting is headlined "Pew Analysis Finds No Relationship Between Drug Imprisonment and Drug Problems: Letter provides new 50-state data to the federal opioid commission," and here is what it has to say:

On June 19, 2017, The Pew Charitable Trusts submitted a letter to the President’s Commission on Combating Drug Addiction and the Opioid Crisis, outlining an analysis of whether state drug imprisonment rates are linked to the nature and extent of state drug problems—a key question as the nation faces an escalating opioid epidemic. Pew compared publicly available data from law enforcement, corrections, and health agencies from all 50 states.

Pew’s analysis found no statistically significant relationship between states’ drug offender imprisonment rates and three measures of drug problems: rates of illicit use, overdose deaths, and arrests. The findings reinforce previous research that cast doubt on the theory that stiffer prison terms deter drug use and related crime.

Although the federal courts receive the lion’s share of public attention, most of the nation’s criminal justice system is administered by states. State laws determine criminal penalties for most drug offenses, and the states have made different policy choices regarding those punishments, resulting in widely varied imprisonment rates.

For example, Louisiana had the country’s highest drug-offender imprisonment rate in 2014, with 226.4 drug offenders in prison per 100,000 residents. In contrast, Massachusetts’s rate was the lowest, 30.2 per 100,000 residents, less than one-seventh Louisiana’s rate.

As Pew’s letter explained, higher rates of drug imprisonment do not translate into lower rates of drug use, fewer drug arrests, or fewer overdose deaths. And the findings hold even when controlling for standard demographic variables, such as education level, employment, race, and median household income.

The full 13-page Pew letter is available at this link.

June 20, 2017 in Drug Offense Sentencing, Prisons and prisoners | Permalink | Comments (0)